Conclusions 479.17 and Section 479.10, Florida Statutes, inasmuch as the failure to secure permits is for the years 1972-1975. RECOMMENDED ORDER: Dismiss petition inasmuch as Respondent has removed subject sign. DELPHENE STRICKLAND Hearing Examiner Date: 5/14/75
The Issue Whether Respondent had violated Section 479.07(1), Florida Statutes, in that no permits were secured for subject sign for the years 1974 and 1975.
Findings Of Fact No permits were applied for or secured.
Recommendation Based upon the foregoing it is recommended that Petitioner issue a Final Order imposing a $100 fine for each of the class III violations which have been established, for a total fine of $1200, but that no additional fine be assessed for the unclassified violations. DONE and ENTERED this 27th day of November, 1985, at Tallahassee, Florida. DONALD D. CONN, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of November, 1985. COPIES FURNISHED: Harold L. Braynon, Esquire Department of Health and Rehabilitative Services 201 West Broward Boulevard Fort Lauderdale, FL 33301 Dorothy K. Emrick Oakland Park Retuirement Annex Ageing and Adult Service, Inc. 5605 N.W. 27th Court Lauderhill, FL 33313 John Marfilius Oakland Park Retirement Annex Ageing and Adult Services, Inc. 5605 N.W. 27th Court Lauderhill, FL 33313 David Pingree, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32301
The Issue Whether Respondent had violated Section 479.07(1), Florida Statutes, in that no permits were secured for subject sign for the years 1973-1975.
Findings Of Fact The factual allegations in the Stop-Work Order and Order of Penalty Assessment issued on August 14, 2006, and the 2nd Amended Order of Penalty Assessment issued on June 30, 2008, which are fully incorporated herein by reference, are hereby adopted as the Department's Findings of Fact in this case.
Conclusions THIS PROCEEDING came on for final agency action and Jeff Atwater, Chief Financial Officer of the State of Florida, or his designee, having considered the record in this case, including the Stop-Work Order and Order of Penalty Assessment and the 2nd Amended Order of Penalty Assessment served in Division of Workers' Compensation Case No. 06-283-Dl, and being otherwise fully advised in the premises, hereby finds that: On August 14, 2006, the Department of Financial Services, Division of Workers' Compensation (hereinafter "Department") issued a Stop-Work Order and Order of Penalty Assessment in Division of Workers' Compensation Case No. 06-283-Dl to CARLTON REID (REID). The Stop-Work Order and Order of Penalty Assessment included a Notice of rights wherein REID was advised that any request for an administrative proceeding to challenge or contest the Stop-Work Order and Order of Penalty Assessment must be filed within twenty-one (21) days of receipt of the Stop-Work Order and Order of Penalty Assessment in accordance with Sections 120.569 and 120.57, Florida Statutes. On August 15, 2006, the Stop-Work Order and Order of Penalty Assessment was served via personal service on REID. A copy of the Stop-Work Order and Order of Penalty Assessment is attached hereto as "Exhibit A" and incorporated herein by reference. On September 6, 2006, the Department issued an Amended Order of Penalty Assessment to REID in Case No. 06-283-Dl. The Amended Order of Penalty Assessment assessed a total penalty of $183,710.84 against REID. The Amended Order of Penalty Assessment included a Notice of Rights wherein REID was advised that any request for an administrative proceeding to challenge or contest the Amended Order of Penalty Assessment must be filed within twenty-one (21) days of receipt of the Amended Order of Penalty Assessment in accordance with Sections 120.569 and 120.57, Florida Statutes. The Amended Order of Penalty Assessment was served on REID by personal service on October 26, 2006. A copy of the Amended Order of Penalty Assessment is attached hereto as "Exhibit B" and incorporated herein by reference. On November 17, 2006, REID timely filed a Petition requesting a formal administrative hearing. The matter was referred to the Division of Administrative Hearings, where it was assigned Case No. 06-4937. On February 8, 2007, the Department filed a Stipulated Joint Motion to Close DOAH Case File With Leave to Re-Open, and on February 9, 2007, Administrative Law Judge Barbara J. Staros entered an Order Closing File, relinquishing jurisdiction to the Department. On July 3, 2008, the Department and REID entered into a Settlement Agreement, pursuant to which the Department agreed to issue a 2nd Amended Order of Penalty Assessment in the amount of $14,817.78, and REID agreed to pay a penalty in the amount of $14,817.78 in order to resolve Case No. 06-283-D1. On June 30, 2008, the Department issued a 2nd Amended Order of Penalty Assessment to REID in Case No. 06-283-Dl. The 2nd Amended Order of Penalty Assessment assessed a total penalty of $14,817.75 against REID. The 2nd Amended Order of Penalty Assessment contained a Notice of Rights wherein REID was advised that any request for an administrative proceeding to challenge or contest the 2nd Amended Order of Penalty Assessment must be filed within twenty-one (21) days ofreceipt of the 2nd Amended Order of Penalty Assessment pursuant to Sections 120.569 and 120.57, Florida Statutes. The 2nd Amended Order of Penalty Assessment was served on REID's counsel by certified mail on July 7, 2008. A copy of the 2nd Amended Order of Penalty Assessment is attached hereto as "Exhibit C" and is incorporated herein by reference. REID did not file a Petition requesting an administrative proceeding to challenge or contest the 2nd Amended Order of Penalty Assessment.
The Issue Whether the Order of Fine was properly imposed.
Findings Of Fact The Watsons admit that they placed a large amount of fill dirt on their property. The property upon which the fill was placed is a vacant lot (Lot 13) that is contiguous to the property upon which the Watsons reside. The Watsons also admit that they did not obtain a permit from Lake County that authorized them to place the fill dirt on Lot 13. Lake County Code Enforcement Special Master Charles Johnson issued an Order of Enforcement on September 14, 2007, which required the Watsons to remove the fill dirt or to obtain a “proper permit” within 14 days. The Watsons appealed the Order of Enforcement to the circuit court, which remanded the case to the Special Master to allow the parties an opportunity to file written memoranda in support of their positions. Following the remanded an identical Order of Enforcement was issued by the Special Master on May 10, 2008. The Watsons did not want to remove the fill dirt. Therefore, after the 2007 Order of Enforcement was issued, Mr. Watson contacted Lake County staff to obtain a permit. Mr. Watson said he spoke to Jennifer Meyers, the development processing coordinator in the Public Works Department to obtain a permit for lot grading, but she told him that department only issued development orders for subdivisions. Mr. Watson spoke to Carmen Carroll in the Building Services Division about obtaining a building permit for lot grading. She told him the County did not issue building permits for lot grading. Ms. Carroll stated at the hearing that her division had never issued a building permit for lot grading, alone. Lot grading is often involved in a building permit, but only as a part of a proposal to construct a building. Mr. Watson said he arranged in September 2007 to meet on site with an engineer from the Public Works Department, but the engineer cancelled the meeting without an explanation. Mr. Watson claims that Lake County thwarted his efforts to obtain the proper permit for the fill dirt through the failure of its employees to tell him what permit to get. Lake County bears some responsibility for the confusion that existed about the "proper permit" that was needed. However, the Watsons' efforts to obtain a permit fell short of reasonable. Mr. Watson says he told the Lake County employees he needed a permit to satisfy the Order of Enforcement, but his testimony on this point was vague. It was not made clear that all of these County employees understood the circumstances of the Order of Enforcement and the daily fine the Watsons were facing. There is no evidence that Mr. Watson, when confronted with the responses from Ms. Meyers and Ms. Carroll, requested to speak to their supervisors or asked them to contact the County Attorney's office so that the issue could be resolved. There is no evidence that the Watsons sought information about the proper permit from the code enforcement staff of the County. There is no evidence that Mr. Watson contacted the Lake County Attorney's office until many months later. Mr. Watson said that after the 2008 Order of Enforcement was issued, he saw no purpose in speaking again with Lake County staff about obtaining a permit because he thought it would be a waste of time. That was not reasonable behavior. It was not reasonable for the Watsons to let daily fines accumulate for months because they were frustrated by the statements made by some County employees. Furthermore, the Watsons' attorney, Allison Strange, immediately began settlement negotiations with the County's legal staff in which the parties contemplated Lake County's issuance of a permit in a couple of weeks. The Watsons put an end to those discussions when they refused to provide engineering support for their lot grading proposal. The County was concerned about a steep slope on the northwest part of Lot 13 and fill dirt in the drainage easement. The Watsons proposed to install a retaining wall called a “Sierra Slope System.” Mr. Watson claimed that the proposal was “rejected” by the County, but the County simply told the Watsons that the proposal would have to be submitted by a licensed engineer in order to be evaluated. That was a reasonable request, but Mr. Watson did not want to spend the money for an engineer. The Watsons never applied for a permit for the fill dirt before the Order of Fine was issued. Taking all of the relevant evidence into account, it is found that the Watsons were not prevented by Lake County from obtaining a permit for the fill dirt. A claim not raised by the Watsons until the hearing in this appeal is that they do not owe any fines because Lake County abated the daily fines during settlement negotiations in May 2008 and the abatement was never lifted. On May 22, 2008, Ms. Strange sent a letter to Assistant County Attorney LeChea Parsons indicating their agreement about abating the fines: I appreciate your agreement to abate the issuance of any fines against Mr. and Mrs. Watson until Lake County has had adequate time to perform its inspections and issue the development order or permit, as ordered by the Special Master. Per our discussion this morning, it seems that Tuesday, June 10, 2008 would provide sufficient time and that no fine would accrue prior to then. The parties agree that one purpose of the May 2008 letter was to try to resolve the matter before the Watsons' deadline for filing an appeal of the Order of Enforcement. A Lake County employee made an inspection of Lot 13 and the County told the Watsons, through their attorney, Ms. Strange, of the County's concerns about the existing grading. The Watsons responded with their proposal for the Sierra Slope System. However, when the Watsons refused to submit their proposal through an engineer the negotiations broke down and the Watsons filed the appeal. The County contends that it only agreed to abate the fines until June 10, 2008. The fact that the Watsons did not raise the issue of the abatement until the hearing in this case suggests that at the time of the settlement negotiations in 2008, the Watsons did not think the fines had been abated beyond June 10, 2008. Taking all the relevant record evidence into account, the most reasonable meaning to ascribe to the parties' representations and actions is that the abatement of fines was to last until June 10, 2008, because that was considered sufficient time to get a permit and was the last day to settle the dispute before an appeal was filed. When the Watsons refused to submit engineering plans and filed the appeal, the negotiations were terminated and so was the abatement of fines. The County claims that because the Watsons never came into compliance with the Order of Enforcement, the offer of the abatement of fines had no effect. However, just because the negotiations were unsuccessful does not void the period of abatement. The fines were abated from May 27, 2008 (the deadline for compliance set out in the Order of Enforcement) through June 10, 2008, a period of 15 days. It does not appear from the record that the Watsons had further contact with Lake County officials about obtaining a permit until October 2009. During this period, the parties were in litigation over the Order of Enforcement. In an email dated October 15, 2009, Mr. Watson asked Ms. Marsh to tell him what “proper permit” he needed. Ms. Marsh replied that the proper permit would be a building permit. Even after being so informed, Mr. Watson still did not apply for a building permit. On September 14, 2009, the Watsons' property was inspected by Lake County Code Enforcement Inspector Jessica Jorge who observed that the fill had not been removed. An Affidavit of Non-Compliance was prepared, but it does not appear from the record that it was referred to the Special Master. On April 22, 2010, Ms. Jorge inspected the property again and she observed that the fill had still not been removed. Ms. Jorge checked the records of the County and determined that no permit had been issued for the fill. Ms. Jorge executed an Affidavit of Non-Compliance, which was presented to Special Master Johnson. On May 12, 2010, Special Master Johnson, without a hearing, entered the Order of Fine. He ordered the Watsons to pay a fine for non-compliance during the period from May 27, 2008 (the deadline for compliance) through April 22, 2010 (the date of inspection), which is 695 days, at the rate of $50.00 per day, plus the $500 fine assessed in the Order of Enforcement. The total fine imposed was $35,250. Lake County Code of Ordinances Section 8-10(a)(2) sets out factors the Special Master is to consider in determining the amount of the daily fine: In determining the amount of the fine, if any, the special master shall consider the following factors: The gravity of the violation; Any actions taken by the violator to correct the violation; Any previous violations committed by the violator. Special Master Johnson could not remember whether he applied these factors before issuing the Order of Fine. The factors will be considered now. The gravity of the violation is not great. There was no evidence presented of actual harm done to neighboring properties and no evidence that there were complaints from neighbors. The potential for erosion and drainage issues existed, but the County did not show that actual problems occurred or that the potential for harm was significant. The actions taken by the Watsons to correct the noncompliance have been discussed above. The Watsons made efforts to comply, but stopped short of reasonable efforts because they did not submit any kind of permit application and were not willing to employ an engineer to produce a grading plan. The Watsons claim they could have complied with the Order of Enforcement by getting approval for a lot grading plan under an new ordinance, but Lake County prevented them from doing so. In September 2008, the Lake County Code was amended to add procedures for approving lot grading plans. The Watsons were not aware of the new ordinance when it was adopted. The County did not inform them that about the new ordinance. Ms. Marsh said she did not inform Mr. Watson because she was unaware of the new ordinance. The record does not show when the Watsons learned about the new ordinance, but it was after the Order of Fine was issued. When the Watsons learned about the new ordinance, they submitted a Lot Grading Plan in October 2011. The plan was prepared by a licensed engineer. The Watsons' Lot Grading Plan was approved by the County on January 10, 2012. On that date, the Watsons finally came into compliance with the Order of Enforcement. Although the County's failure to inform the Watsons is relevant to the mitigation of fines, it does not excuse the Watsons' failure to apply for a permit for the fill dirt. If they had applied for a permit, the new ordinance would likely have been used by the County. The Watsons also claim they were misled by the County to believe that they did not need to obtain a permit for the fill until they were ready to build a house on the property. However, that representation was part of a settlement proposal which would have required the Watsons to terminate their lawsuits. The Watsons did not terminate their lawsuits, so it is unreasonable for the Watsons to rely on the County’s representation. It appears that the Watsons, convinced that the Order of Enforcement was wrong, were not willing to expend the money necessary to get a permit. In addition, obtaining a permit would have undermined their argument in the ongoing litigation over the Order of Enforcement that no permit was needed. There was no evidence presented regarding previous code violations by the Watsons. Section 8-10(a)(2) allows for as daily fine up to $1,000.00 per day. Special Master Johnson set the daily fine at the very low end of this range. Taking the factors into account, $50.00 a day is a reasonable daily fine amount.1/
Findings Of Fact 8. The factual allegations contained in the Order of Penalty Assessment issued on September 22, 2009, which is fully incorporated herein by reference, are hereby adopted as the Department’s Findings of Fact in this case.
Conclusions THIS PROCEEDING came on for final agency action and Alex Sink, Chief Financial Officer of the State of Florida, or her designee, having considered the record in this case, including the Order of Penalty Assessment served in Division of Workers’ Compensation Case No. 09-235-D3-OPA, and being otherwise fully advised in the premises, hereby finds that: 1. On July 8, 2009, the Department of Financial Services, Division of Workers’ Compensation (hereinafter “Department”) issued a Request for Production of Business Records for Penalty Assessment Calculation in Division of Workers’ Compensation Case No. 09-235-D3- OPA to JUAN MERLO D/B/A MERLO HARVESTING. 2. On July 8, 2009, the Request for Production of Business Records for Penalty Assessment Calculation was served by personal service on JUAN MERLO D/B/A MERLO HARVESTING. A copy of the Request for Production of Business Records for Penalty Assessment Calculation is attached hereto as “Exhibit A” and incorporated herein by reference. 3. On September 22, 2009, the Department issued an Order of Penalty Assessment in Division of Workers’ Compensation Case No. 09-235-D3-OPA to JUAN MERLO D/B/A MERLO HARVESTING. The Order of Penalty Assessment assessed a total penalty of $104,004.19 against JUAN MERLO D/B/A MERLO HARVESTING. The Order of Penalty Assessment included a Notice of Rights wherein JUAN MERLO D/B/A MERLO HARVESTING was advised that any request for an administrative proceeding to challenge or contest the Order of Penalty Assessment must be filed within twenty-one (21) days of receipt of the Order of Penalty Assessment in accordance with Sections 120.569 and 120.57, Florida Statutes. 4. On September 25, 2009, the Order of Penalty Assessment was served by certified mail on JUAN MERLO D/B/A MERLO HARVESTING. A copy of the Order of Penalty Assessment is attached hereto as “Exhibit B” and incorporated herein by reference. 5. On October 13, 2009, JUAN MERLO D/B/A MERLO HARVESTING filed a petition for administrative review with the Department. The petition for administrative review was forwarded to the Division of Administrative Hearings on October 22, 2009, and the matter was assigned DOAH Case No. 09-5854. 6. On December 14, 2009, JUAN MERLO D/B/A MERLO HARVESTING filed A Notice of Voluntary Dismissal with the Division of Administrative Hearings. A copy of the Notice of Voluntary Dismissal is attached hereto as “Exhibit C” and incorporated herein by reference. 7. On December 16, 2009, the Administrative Law Judge issued an Order Closing File which relinquished jurisdiction to the Department for final agency action. A copy of the Order Closing File is attached hereto as “Exhibit D” and incorporated herein by reference.
Conclusions 479.17 and Section 479.10, Florida Statutes, inasmuch as the failure to secure permits is for the years 1971-1975. RECOMMENDED ORDER: Remove subject signs within (5) five days from date of Final Order unless Respondent either removes said sign and makes application and thereafter secures said permit. DELPHENE STRICKLAND Hearing Examiner Date: 5/14/75
Findings Of Fact 11. — The factual allegations in the Stop-Work Order and Order of Penalty Assessment issued on February 3, 2009, and the Fourth Amended Order of Penalty Assessment issued on February 5, 2010, which are fully incorporated herein by reference, are hereby adopted as the Department’s Findings of Fact in this case.
Conclusions THIS PROCEEDING came on for final agency action and Alex Sink, Chief Financial Officer of the State of Florida, or her designee, having considered the record in this case, including the Stop-Work Order and Order of Penalty Assessment and the Fourth Amended Order of Penalty Assessment served in Division of Workers’ Compensation Case No. 09-014-D2, and being otherwise fully advised in the premises, hereby finds that: 1. On February 3, 2009, the Department of Financial Services, Division of Workers’ Compensation (hereinafter “Department”) issued a Stop- Work Order and Order of Penalty Assessment in Division of Workers’ Compensation Case No. 09-014-D2 to ASSOCIATED WINDOW AND DOOR, INC. (ASSOCIATED). The Stop-Work Order and Order of Penalty Assessment included a Notice of rights wherein ASSOCIATED was advised that any request for an administrative proceeding to challenge or contest the Stop- Work Order and Order of Penalty Assessment must be filed within twenty-one (21) days of receipt of the Stop-Work Order and Order of Penalty Assessment in accordance with Sections 120.569 and 120.57, Florida Statutes. 2. On February 3, 2009, the Stop-Work Order and Order of Penalty Assessment was served via personal service on ASSOCIATED. A copy of the Stop-Work Order and Order of Penalty Assessment is attached hereto as “Exhibit A” and incorporated herein by reference. 3. On April 10, 2009, the Department issued an Amended Order of Penalty Assessment to ASSOCIATED in Case No. 09-014-D2. The Amended Order of Penalty Assessment assessed a total penalty of $99,761.78 against ASSOCIATED. The Amended Order of Penalty Assessment included a Notice of Rights wherein ASSOCIATED was advised that any request for an administrative proceeding to challenge or contest the Amended Order of Penalty Assessment must be filed within twenty-one (21) days of receipt of the Amended Order of Penalty Assessment in accordance with Sections 120.569.and 120.57, Florida Statutes. 4. The Amended Order of Penalty Assessment was served on ASSOCIATED by personal service on April 13, 2009. A copy of the Amended Order of Penalty Assessment is attached hereto as “Exhibit B” and incorporated herein by reference. 5. On April 30, 2009, the Department issued a Second Amended Order of Penalty Assessment to ASSOCIATED in Case No. 09-014-D2. The Second Amended Order of Penalty Assessment assessed a total penalty of $76,081.13 against ASSOCIATED. The Second Amended Order of Penalty Assessment contained a Notice of Rights wherein ASSOCIATED was advised that any request for an administrative proceeding to challenge or contest the Second Amended Order of Penalty Assessment must be filed within twenty-one (21) days of receipt of the Second Amended Order of Penalty Assessment in accordance with Sections 120.569 and 120.57, Florida Statutes. 6. The Second Amended Order of Penalty Assessment was served on ASSOCIATED by personal service on May 1, 2009. A copy of the Second Amended Order of Penalty Assessment is attached hereto as “Exhibit C” and is incorporated herein by reference. 7. On May 22, 2009, ASSOCIATED filed a timely Petition for a formal administrative hearing in accordance with Sections 120.569 and 120.57, Florida Statutes. The Petition was forwarded to the Division of Administrative Hearings and assigned Case No. 09- 3044. . 8. On February 5, 2010, the Department issued a Fourth Amended Order of Penalty Assessment to ASSOCIATED in Case No. 09-014-D2. The Fourth Amended Order of Penalty Assessment assessed a total penalty of $1,256.24 against ASSOCIATED. The Fourth Amended Order of Penalty Assessment was served on ASSOCIATED through the Division of Administrative Hearings. A copy of the Fourth Amended Order of Penalty Assessment is attached hereto as “Exhibit D” and is incorporated herein by reference. 9. ‘On February 10, 2010, ASSOCIATED filed a Motion to Close File Due to Settlement in DOAH Case No. 09-3044. A copy of the Motion to Close File Due to Settlement filed by ASSOCIATED. is attached hereto as “Exhibit E.” 10. On February 10, 2010, Administrative Law Judge Errol H. Powell entered an Order Closing File, relinquishing jurisdiction to the Department. A copy of the February 10, 2010 Order Closing File is attached hereto as “Exhibit F.”
