vs. ) CASE NO. 90-6842
FRANK W. MILLER, )
Respondent. )
A hearing was held in this case in Sarasota, Florida on February 12, 1991, before Arnold H. Pollock, a Hearing Officer with the Division of Administrative Hearings.
For the Petitioner: Robert B. Jurand, Esquire
For the Respondent: Frank W. Miller, pro se
The issue for consideration in this case is whether the Respondent's license as a certified general contractor in Florida should be disciplined because of the alleged misconduct outlined in the Administrative Complaint filed herein.
In a six Count Administrative Complaint filed on September 26, 1990 by Ray Shope, Chief Attorney, for Larry Gonzalez, then Secretary of the Department of Professional Regulation, (Department), the Construction Industry Licensing Board, (Board), sought to discipline the Respondent's license as a certified general contractor because of various violations of the rules of the Board and sections of the Florida Statutes, by virtue of his unlawful cutting of protected mangrove trees in Sarasota County Florida in March and April, 1989. On October 15, 1990, Respondent denied the allegations and requested a formal hearing, and by letter dated October 25, 1990, the file was forwarded to the Division of Administrative Hearings for appointment of a Hearing Officer. After the
Petitioner filed his response to the Initial Order filed herein, by Notice of Hearing dated November 16, 1990 the undersigned set the case for hearing in Sarasota on February 12, 1991, at which time it was held as scheduled.
At the hearing, Petitioner presented the testimony of Steven T. Cooley, former environmental prosecutor for the 15th Judicial Circuit in Sarasota County; Mercily Toledo, an Environmental Specialist II for the Department of Environmental Regulation; Robert B. Patton, an environmental consultant; Omer Causey, Sarasota County Attorney; Belinda S. Perry, an employee of Sarasota County's Natural Resources Department; Mark E. McClintock, a forester with the county's forestry division; Norman C. Easey, Director of Sarasota County's Division of Forestry in the Natural Resources Department; and, by deposition, Fred Boatright, formerly engaged in tree trimming. Petitioner also introduced Petitioner's Exhibits 1 through 15.
Respondent testified in his own behalf and presented the testimony of Norman B. Sharrit and Davis S. Baker, an adjacent homeowner to the property in question. Respondent also introduced Respondent's Exhibits A through H.
A transcript was provided and the Petitioner submitted Proposed Findings of Fact which have been accepted and are incorporated herein in substance.
At all times pertinent to the allegations contained herein, the Petitioner, Construction Industry Licensing Board was the state agency responsible for the licensing and regulation of construction contractors in this state. Respondent, Frank W. Miller, was licensed as a certified general contractor in Florida under License No. CG C036176.
On June 2, 1988, Lots of Casey Key, Inc., a group of investors and contractors, including the Respondent, purchased the land in question located in Sarasota County, Florida. On June 26, 1988, the group hired an environmentalist from a list provided by the county, who evaluated the property with a view toward development. The developers also hired a surveyor and an engineer to get the proper permits for the development. They also published all required notices and acquired at least some of the required permits for the initial stage of the development. This consisted of the construction of a fishing pier extending from the property into Sarasota Bay. This permit was taken out by the Respondent.
The Respondent and his associates also contacted Robert B. Patten, an environmental consultant, with a view toward having the eight acres in question rezoned so that houses could be built on it. After examining the property, however, Mr. Patten advised Respondent there were so many protected mangroves on the property, both state and local permits would be required and he, Patten, was not interested in the job. He suggested that Respondent hire an attorney to insure the proper permits were obtained.
Respondent claims that in January of 1989, he took his site drawing for the proposed development to the county natural resources office headed by Mr. McCarthy, told him what was planned at the property, and secured his approval. Mr. McCarthy was not called as a witness, and all the appropriate permits were not offered, so at most it can be found that McCarthy approved the concept of the activity in principle.
At approximately this same time, the environmentalist the group hired to insure compliance with the environmental requirements purportedly also assured them that the proposal was environmentally sound and properly permitted. It is accepted that he did.
As a result, the group acquired the state and county permit for the pier and, in addition, a permit to clear the uplands. They also procured a permit from the Southwest Florida Water Management District and the appropriate agency governing the construction and installation of utilities. In addition, the Respondent procured a permit allowing construction of a boardwalk and a seawall. He did not, however, procure the appropriate permit to allow him to cut, trim, or top mangroves in the numbers shown here.
The group hired Southern Landscaping to do all the land work under a contract which called for all mangrove trimming to be done in accordance with the Division of Natural Resources rules This company, which was the low bidder in the procurement process, was relied on to trim the mangroves in accordance with the law and before beginning work, showed how the trees would be trimmed. It appeared to Respondent at this time that the work was being and would be done properly.
On March 10, 1989, Belinda S. Perry, an employee of the county's Natural Resources Department, was out on Casey Key and observed that at the Respondent's work site clearing work was being done. She questioned the permitability of this work. She also observed that the mangroves on the north side of the property had been improperly cut, and she asked her associate, Mr. McCarthy, to check it out. He did and thereafter, on March 14, 1989, Respondent came to the office with a copy of his state-issued permit. After analyzing the permit and comparing the work done with the terms thereof, Ms. Perry and Mr. McCarthy advised Respondent it appeared his work was in excess of the limits imposed by his permit and that they would have to notify state authorities and get back to him. At that time, Respondent was cooperative and indicated he wanted to get the proper authorization.
As a result, Ms. Perry contacted Ms. Toledo, of the Department of Environmental Regulation, discussed the possible violation with her, and arranged to visit the site with her on March 20, 1989.
When they did, Ms. Perry again observed the cutting on the North side of the property in addition to which there was a corridor which had been cut to the east (water) side of the property heading toward the bay. At that point, they contacted Mr. McClintock, the forester, who examined the Respondent's permit. When he saw it permitted only the relocation of 20 palm trees and made no mention of or gave no approval of cutting or trimming of mangroves, he authorized the issuance of a stop work order on March 20, 1989. Ms. Perry and Ms. Toledo, pursuant to the terms of that order, served a copy on Mr. Miller and advised him he was in violation of both state and county regulations and should discontinue the work at the site.
Ms. Toledo recalls that when she visited the site on March 20, 1989, she observed much the same situation as described by Ms. Perry. She also recognizes that one of Respondent's permits allowed the moving of palms, and he also had one for the construction of a fishing pier. As a part of this second permit, Respondent was allowed to cut mangroves. Nonetheless, she noted on her visit that in the area to the left of the pathway, many more mangroves had been cut than were allowed by the permit. This cutting was in the form of trimming in excess of any exemption criteria outlined in Rule 17-27.060, F.A.C., (17-
321.060), which allows trimming by a property owner without a permit, but of no more than 25 % of the lateral branches. The red mangroves on the property had been topped which is totally prohibited, and the trimming of the remaining white and black mangroves was to an extent in excess of the permitted 25%.
At that time, Mr. Miller indicated to Ms. Toledo that he was the general contractor in charge of the site, and the workers doing the actual trimming were operating under his direction. This is corroborated by the testimony of Mr. Boatright, one of the trimmers, who indicates much the same. At that time, in Ms. Toledo's opinion, Mr. Miller was uncooperative and aggressive and as a result, on March 31, 1989, she drafted a warning notice which was issued on April 3, 1989.
On that latter date, Ms. Toledo again went to the site and saw that additional and different mangroves had been trimmed in excess of the exemption criteria mentioned above. Thereafter, on April 7, 1989, she had a telephone conversation with the Respondent during which she advised him that the Department of Environmental Regulation intended to file criminal and civil charges against Lots of Casey Key, Inc. because of the violations described. At that time, Respondent expressed his regret that the situation had happened.
As a result of the visits by Ms. Toledo and Ms. Perry, in late March or early April, 1989, Steven T. Cooley, environmental prosecutor for the 15th Judicial Circuit of Florida, was notified through the Sarasota County Sheriff's Department and Division of Natural Resources that there was significant damage to a mangrove forest at Lots of Casey Key. Mr. Cooley conducted an extensive investigation into the matter and caused a collateral criminal investigation to be conducted as well, and as a result of these inquiries, decided to file criminal charges against Mr. Miller and a co-defendant, Mr. Burke.
This decision was based on the investigation which revealed that the county's tree protection ordinance, Ordinance 83-44, which included mangroves among the protected species, had been violated. It appeared that Respondent and Mr. Burke had hired subcontractors who committed a significant cutting, (trimming, topping and stumping) of more than 2000 mature trees. The Respondent and Burke were contacted by code enforcement people, (Perry and Toledo), and advised to stop. Nonetheless, additional damage was done after the notice to stop and a Stop Order was thereafter issued.
Respondent had a permit to cut mangroves in a corridor area out to the fishing pier, but the actual cutting far exceeded the terms of the permit. The first cutting was a thinning out of mangroves around Casey Key, which, in itself, was a violation, and even after the Respondent was informed he was in violation, he improperly cut more trees. Not all trees were cut down to the ground, but many of those which were illegally trimmed were trimmed to a point where the tree would ultimately die. This was verified by county tree experts.
Mr. Cooley filed criminal charges against the Respondent rather than the actual workers who did the cutting because, in his opinion and as a result of his investigation, the workers were merely agents working under the direction of the Respondent. Mr. Miller originally pleaded Not Guilty to the charges against him but subsequently, on June 25, 1990, changed his plea to Guilty. At a sentencing hearing held in December, 1990, adjudication of guilt was withheld, and Mr. Miller was fined a total of $15,000.00; ordered to perform 500 hours of public service, and ordered to spend 10 weekends on the road gang.
In addition to the criminal charges, a civil suit was filed by the county against Lots of Casey Key, Inc., to prevent additional cutting of mangroves. By stipulation, a temporary injunction was entered. Trial on the permanent injunction had not been held at time of hearing.
According to Mr. McClintock, a sampling taken on March 22, 1989, after the stop work order was approved, showed approximately 2175 mangrove trees had been severely cut on the northern side of the property and between 75 and 100 cut down to the ground in the corridor on which the pathway to the fishing pier was to be constructed. This accounted for a total of 2275 trees. When he went back to the property on March 30, 1989, after the stop work order had been issued, McClintock observed that while cutting was no longer in progress, an additional cutting had taken place, and he counted approximately 78 additional trees which had been destroyed. He later verified that additional trees were cut in the corridor area as well. Taken together, a total of approximately 2350 trees were improperly cut in violation of the state and county codes protecting mangroves.
This destruction is the largest in the recollection of Norman C. Easey, the Director of the county's forestry division, and it constituted a serious impact on what was then the largest single mangrove stand in the southern part of Sarasota County.
Respondent does not deny that the trees were cut. He notes, however, that after Ms. Perry first came out and advised him of the possibility he was in violation, he agreed not to cut further and in fact, tried to cooperate. He met with his associates who encouraged him to nonetheless continue the cutting even though he advised against it. Ultimately he was able to convince them. An associate, Norman Sharrit, the architect for the project, recalls that Respondent spontaneously exclaimed to him that Burke and Jaffe, the other partners, directed the additional cutting after the stop work order was issued.
Nonetheless, after securing his associates' agreement to suspend any cutting, Respondent attempted to contact the trimmers, Southern Landscaping, to advise them to stop work but claims he could never find anyone on site. In this claim, he is supported by Davis Baker, an adjacent retired homeowner, who, in observing the clearing process on a daily basis, noticed that the cutters kept very irregular hours and were gone as often as not. Respondent also claims he left word for the cutters to stop on the company's answering machine but the work continued. It is this additional work, after Respondent's efforts to get the work stopped, that constituted the additional cutting charged. Respondent also claims that the additional trees near the walkway were cut as activity beyond the scope of the contract which he had entered into with the landscape company.
Mr. Miller also contends that the work was not done under his license because he was not an owner of Casey Key Estates. The owners of that company, the parent company for development, were Mr. Burke and Mr. Jaffe. He was, however, the Secretary of the corporation, but claims he did not have complete control as to who did what and where. He claims he was not a stockholder in the company and had no ownership in the operation. Under the terms of his agreement with the owners, he was to get a percentage of the profits when the development was completed. As of the date of the hearing, he has received nothing in the way of remuneration. Except for the claim that the work was not done under his license, it is so found.
He also claims that in the instant case he was not acting as a contractor for the project. His reasoning here is not supported by the facts. His relationship with the other developers was based on the fact that he obtained the option to purchase the land; he was to put in the utilities; and he was to build the homes and construct the walk over to the beach and the seawall. He also was the one who obtained all permits and who entered into the contract for trimming with Southern Landscaping. It is found, therefore, that he was, in fact, the general contractor for this project and ultimately responsible for all actions taken under his certificate.
Mr. Miller cites in his defense that as he understands the law, mangroves can be trimmed without a permit between October and March, up to 25% of the lateral growth, and in his opinion, the trimming did not constitute more than that allowable 25%. This is clearly not so, as evaluation of the Petitioner's photographs, taken near the time in question, which Respondent agrees fairly represents the site at the time, clearly indicates that more than 25% of the lateral growth of the trees' foliage was taken off.
It should be noted, however, that a photograph taken some substantial time after the cutting shows that the trimmed area is filling in again and the trees are not dead. This does not mean there was no damage, however. Mr. Easely, the Director of Forestry, whose expertise indicates a reliable opinion, opined that the mangroves are not as healthy as they should be. Once cut, they are going through a period of shock and are branching out from reserve buds developed by the tree for emergency situations such as fire and damage. The tree, once in this condition, has a much shorter life span. Though new trees may, and probably will come in, there is a loss of habitat in the a rea as a result of the trimming, of some 30 to 40 years. In any case, minimization of damage does not excuse or justify prohibited trimming.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter in this case. Section 120.57(1), Florida Statutes.
In a six Count Administrative Complaint, Petitioner alleges that the Respondent was found guilty of a crime relating to the practice of contracting, (Count I), violated Sarasota County Ordinance 83-44, by damaging, destroying or cutting protected mangroves, (Count II), exceeded the scope of his Department of Environmental Regulation permit, (Count III), violated local applicable building codes, (Count IV), violated a provision of the Florida Administrative Code, (Count V), and by being guilty of gross negligence, incompetence, and/or misconduct in the practice of contracting, (Count VI), all alleged as violations of various subsections of Section 489.129 (1), Florida Statutes, which authorizes the Board to discipline the certificate or registration of a contractor for a violation of any of the various sub sections thereof.
The burden is on the Petitioner to establish Respondent's guilt of the alleged misconduct by clear and convincing evidence, Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).
The evidence is clear that on or about June 25, 1990, Mr. Miller pleaded guilty in County Court to 75 Counts of violating the Sarasota County Ordinance protecting mangrove trees . Adjudication was withheld, but Mr. Miller was fined , ordered to perform public services, and ordered to spend some time on the road gang. This constitutes a conviction of a crime, in this case
directly relating to the practice of contracting and establishes the violation alleged in Count I and Count II; Section 489.129(1)(b) and (d), which relate to the conviction, (or action tantamount thereto, and the violation of the Ordinance.
The evidence also clearly indicates that Mr. Miller had a permit which authorized him to construct a pier from the property in question and to trim some mangroves along the pathway of that pier. He was also authorized to clear uplands and to move some palm trees. He went far beyond the lilmits of his permits and is clearly in violation of subsection (d) of the statute as alleged.
Respondent's causing the trees on the north side of the property to be cut, in addition to the extra trees cut in the authorized pathway to the bay, constituted a violation of his local permit which dealt with the relocation of palm trees. This constituted a violation not only of state law, but also of the county building regulations, and as such, was also a violation of subsection (d) of the statute alleged.
In Count V of the Administrative Complaint, Petitioner alleges that the Respondent again violated subsection (d) of the statute by violating Rule 17-27.060, F.A.C., by damaging, destroying or cutting protected mangroves. The provisions of Rule 17-27.060 have been transferred to Rule 17-321.060. Both deal with exemptions to the requirement for a permit and set limitations on the scope of cutting which may be accomplished without a permit. Here the evidence clearly demonstrates that the cutting done as a result of Respondent's activity far exceeds the exemption parameters, and even the limits of his permit, and constitutes a violation of the statute.
Finally, the Department alleges the Respondent is guilty of gross negligence and incompetence, or misconduct in the practice of contracting. Respondent claims his activities were not in the practice of contracting in that he was not serving as the general contractor for this development. As was found previously, however, this contention is patently incorrect, and he most certainly was the prime contractor for the project. While he cannot be said to have been guilty of gross negligence or even incompetence, taken together, the series of events put into motion by the Respondent, including the violations of both state rules and statutes and county ordinances, constitutes misconduct in the practice of contracting and is a violation of subsection (m).
Having concluded that the Respondent is guilty as alleged in the Administrative Complaint, the remaining question deals with the nature and degree of disciplinary action to be taken against him.
Rule 21E-17.001, F.A.C. outlines the Department's punishment guidelines for registrants and certificate holders who have been determined to be guilty of violations of Chapter 489. These guidelines assume an absence of aggravating or mitigating circumstances. Count I of the Complaint relates to Section 489.129(1)(b); Counts II through V to Section 489.129(1)(d); and Count VI to Section 489.129(1)(m).
Under subparagraph (17) of the rule, that relating to a certificate holder convicted of a crime related to contracting, (Section 489-129(1)(b)), the punishment suggested is that for a violation most closely resembling the act underlying the conviction. Here, this would be a violation of state or local laws which was alleged as a violation of Section 489.129(1)(d) and under paragraph (20) of the rule, calls for a fine of between $250.00 and $750.00 for the first offense, and between $1,000.00 to $3,000.00 for a repeat violation.
Therefore, considering the conviction as the first offense, and Counts II through V as repeat offenses, Respondent could, for those five offenses, be fined as much as $12,750.00.
Subparagraph (19) of the rule, that dealing with the misconduct, where no monetary or other harm is done to the licensee's customer, nor physical harm to any person, the first offense violation calls for a fine of from $250.00 to
$750.00, and upon a second finding of guilty, one of between $1,000.00 and
$1,500.00 and a suspension of from 3 to 9 months. Since this charge is no more than a joining of the other misconduct under one heading, and there is no additional misconduct, no more than the minimum penalty should be added.
In this case, however, the Respondent committed his offenses both before and after being advised he was in violation and directed to stop. His claim he could not reach the actual workmen is nonpersuasive and in this case constitutes an aggravating circumstance.
In addition, Rule 21E-17.005 suggests that where several violations occur in one case, the penalties should normally be cumulative and consecutive.
Here, the Department considers that the Respondent's deliberate disregard of protective sanction and governmental mandates, and the extent of environmental damage committed justifies a revocation of his certification and the assessment of an administrative fine of $10,000.00. While the fine does not appear excessive, in the absence of a showing of prior misconduct and of personal injury or major property loss, revocation does appear so. Suspension, along with a fine, is more appropriate.
Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore:
RECOMMENDED that Respondent, Frank W. Miller's certification as a General contractor be suspended for three years, with the execution of the last two years of the suspension stayed under such terms and conditions as prescribed by the Construction Industry Licensing Board, and that he pay an administrative fine of $5,000.00.
ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The DeSoto Building
Robert B. Jurand, Esquire Department of Professional
Frank W. Miller
All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should consult with the agency which will issue the Final Order in this case concerning their rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency which will issue the Final Order in this case.
