The Issue Does Petitioner qualify for a consumer's certificate of exemption as a "church" as defined in Rule 12A-1.001(3)(c), Florida Administrative Code, or as a "religious institution" as defined in Section 212.08(7)(o) 2.a., Florida Statutes?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: Friends Housing and Care, Inc. (Petitioner), is a non-profit corporation exempt from federal income tax under Section 501(c)(3) of the Internal Revenue Code. Petitioner has filed under the fictitious name statute and is doing business under the name Woodmere at Jacarande. Petitioner's Amended Articles of Incorporation dated October 25, 1996, state Petitioner's purposes as follows: To provide elderly families, elderly persons, and handicapped persons housing and related facilities and services specially designed to meet the physical, social, psychological, economic and spiritual needs of the aged and contribute to their health, financial security, happiness and usefulness in longer living. To plan, construct, operate, maintain, and improve housing and related facilities and services for elderly families and elderly persons. To acquire by gift or purchase, hold, sell, convey, assign, mortgage, or lease any property, real or personal, necessary or incident to the provisions of housing and related facilities and services for elderly families and elderly persons. To borrow money and issue evidence of indebtedness in furtherance of any or all of the objects of its business; and to secure loans by mortgage, pledge, deed or trust, or other lien. To engage in any kind of activity, and enter into, perform and carry out contracts of any kind, necessary or in connection with, or incidental to the accomplishment of any one or more of the nonprofit purposes of the corporation. To conduct educational or scientific research on a non-profit basis and to cooperate with foundations, educational institutions, and research centers in promoting same, with the aim of increasing knowledge and enhancing life in our society. To foster and encourage spiritual life and bring the human spirit into intimate relation with the Divine Spirit, to provide definite, organized opportunity for the development of spiritual values and for the renewal of our strength in accordance with generally accepted faith and practice of the Religious Society of Friends. Note 1 of Petitioner's audited financial statements containing the independent auditor's report dated January 8, 1997, states that Petitioner ". . .was created by Friends (Quakers) to plan and develop a Not-for-Profit Condominium Retirement Community in Florida to meet the needs of Friends and others who wish to retire or live in a Quaker-sponsored retirement community in Florida. " Note 3 to the same financial statements indicates that Petitioner's operations have been devoted to raising capital, obtaining financing, purchasing land and beginning construction on the planned retirement community. As reflected in the unaudited financial statement dated April 30, 1997, of the total reflected year-to-date expenses of $820,681: $299,548 went to architectural fees; $71,985 was spent for engineering fees; $84,265 was spent for pre-construction management fees; and $40,331 went to advertising. Only $200 was directed to worship expenses. Neither the audited financial statements nor any of the notes thereto indicate that Petitioner is engaged in any religious activities or worship services. Petitioner's retirement community will comprise 32.7 acres, with a 3.7 acre easement. There will be about 700 condominiums constructed on this acreage. Currently, it is anticipated that the first condominiums will be available for occupancy sometime in 1999. Thus, currently there are no residents residing at the Petitioner's retirement community. Petitioner will be constructing an 80,000 square foot commons building which will contain an "auditorium chapel" consisting of approximately 5,500 square feet. This building has not been constructed. The "auditorium chapel" will be used for "religious purposes and multiple-purposes." It is anticipated that both silent and program services of the Friends (Quaker) faith will be held in the chapel. Other religious faiths would also be included. There will also be located within the commons building a 6,000 square foot dining facility, 4,000 square foot library, a gift shop, beauty and barber shops, post office, banking facility, game rooms, and lounge area. Petitioner sells its condominiums to members of the general public of retirement age, regardless of their religious affiliation or even if they have no religious affiliation. Purchasers do not have to be members of the Friends (Quaker) faith. In fact, the retirement community will be a "non- denominational community." The price of the condominiums ranges from about $82,000 for a one-bedroom (676 square foot) unit, to well over $200,000 for a large (2100 square foot) unit. In addition to the sales price, Petitioner will charge its residents a monthly condominium fee to cover maintenance. An activity or club fee will also be charged by Petitioner to cover residents' social activities and transportation costs. If a resident needs medical attention, Petitioner will provide the care and bill the resident's insurance company for the cost of the care. Several witnesses testified that the meetings held at Petitioner's location were held under the name "Woodmere Friends Fellowship," while other witnesses testified that the meetings held at Petitioner's location were held under the name "Woodmere Fellowship." The newspaper advertisements or other published advertisements advertising meetings at Petitioner's location did not refer to "Woodmere Friends Fellowship" or "Woodmere Fellowship." An advertisement appearing in "Quaker Life" in June 1997, indicated that "All Friends Fellowship" was located at Woodmere at Jacaranda. A newsletter from Petitioner dated January 1997, stated that "Friends Inter-Faith Fellowship" was begun at Woodmere Information Center and that several prospective residents from the Venice/Englewood area had "voiced interest in having a meeting in this area. Presently, these meetings are being held every Sunday evening at 6:30 p.m." Additionally, this newsletter stated that these meetings were consistent with Petitioner's federally-recognized religious affiliation. However, Petitioner is never identified as a church or religious institution in this newsletter. By letter dated February 17, 1997, William R. Martin, Petitioner's Chairman, advised the Department that "[o]ur Worship group is being identified as the Woodmere All Friends Fellowship." In an advertisement dated February 1, 1997, Woodmere at Jacaranda, a Quaker-sponsored, resident-owned retirement community, invites interested people to attend a fellowship hour at 6:00 p.m. the first and third Sunday of each month. This advertisement does not refer to Petitioner as a church or religious institution. The bulletins, advertisements, newsletters, and other evidence submitted by the Petitioner do not refer to Petitioner as a church or religious institution. The hours of operation posted on the doors to Petitioner's premises indicate that Petitioner is open Monday through Friday from 9:00 a.m. to 5:30 p.m., and Saturday from 9:00 a.m. to 1:00 p.m. There were no hours listed for Sunday. Additionally, there was nothing to indicate that worship service or religious activities were being conducted by Petitioner on its premises. Although there are meetings being held at Petitioner's location where religious services or activities are being conducted on a somewhat regular basis, there is insufficient evidence to show that Petitioner is responsible for, and conducting, those religious services or activities. Petitioner's sole purpose is not to provide free transportation services to church members, their families, and other church attendees. Petitioner is not a state, district, or other governing or administrative offices the function of which is to assist or regulate the customary activities of religious organizations or members. Petitioner does not own or operate a Florida television station whose programs are of a religious nature. Petitioner does not provide regular religious services to Florida state prisoners. Friends Housing and Care, Inc., d/b/a Woodmere at Jacaranda is a Quaker-sponsored, resident-owned, retirement community whose primary function is the development and marketing of a retirement community to members of the general public, regardless of religious affiliation. Petitioner intends to use its sales tax exemption primarily to purchase building materials, including those building materials for the condominiums which it produces for sale to the general public, regardless of their religious affiliation.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department enter a final order denying Petitioner's application for sales tax exemption. DONE AND ENTERED this 25th day of February, 1998, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6947 Filed with the Clerk of the Division of Administrative Hearings this 25th day of February, 1998. COPIES FURNISHED: Larry Fuchs Executive Director Department of Revenue 104 Carlton Building Tallahassee, Florida 32399-0100 Linda Lattera General Counsel Department of Revenue 204 Carlton Building Tallahassee, Florida 32399-0100 Nick Roknich, Esquire Dunlap, Moran, Roknich, and Gibson, P.A. 1819 Main Street, Suite 700 Sarasota, Florida 34236 Ruth Ann Smith, Esquire Department of Revenue Post Office Box 6668 Tallahassee, Florida 32314-6668
The Issue The issues for determination are: (1) whether Hillsborough County took any adverse employment action against Petitioner, David Moreda; (2) whether Petitioner disclosed information in the nature specified under Subsection 112.3187(5), Florida Statutes (2006); (3) if yes to the foregoing, whether such adverse employment action against Petitioner was causally related to any disclosure Petitioner made of information specified in Subsection 112.3187(5), Florida Statutes (2006); whether Petitioner provided above-referenced information to Respondent's chief executive officer; and (5) whether Petitioner timely filed a complaint of whistle-blower retaliation.
Findings Of Fact The County administrator, Patricia G. Bean, is the head of the Hillsborough County administrative organization and the chief executive officer of Hillsborough County. As County administrator, Ms. Bean is responsible for carrying out all decisions, policies, ordinances, and motions made by the Board of County Commissioners. She is also responsible for oversight of all the departments under the County Administrator's Office and uses approximately 24 departments within the Hillsborough County organization to achieve the functions necessary to County government. The Public Works Department (Public Works) and the Water Resource Services Department (Water Resource Services), formerly referred to as the Water Department, are each stand-alone departments. Most of the functions of Public Works and Water Resource Services are separate and distinct from each other. From approximately March 1986 through May 2006, Hillsborough County employed Petitioner in Water Resource Services. Petitioner began working for Hillsborough County as a senior groundskeeper. Thereafter, he became a landscape gardener, which involved cutting grass and maintaining wastewater facilities. Petitioner ultimately became a Plant Maintenance Mechanic I and then a Plant Maintenance Mechanic II. As a Plant Maintenance Mechanic II, Petitioner's duties were to operate and maintain lift stations for Water Resource Services. As of October 2003, Petitioner was employed as a Plant Maintenance Mechanic II and was assigned to work at the County's South Pump Station. In or about October 2003, Petitioner was injured in a nonwork-related motorcycle accident which resulted in Petitioner's breaking both of his feet. As a result of his injuries, Petitioner requested and the County granted a medical leave of absence. Petitioner tried to return to work in April 2004, but it was too soon after his motorcycle accident. After Petitioner's attempt to return to work was unsuccessful, and apparently premature, his doctor placed him on another medical leave. Initially, Petitioner was on short-term medical leave for about six months, followed by a long-term disability leave for the next year or so. Hillsborough County preserved Petitioner's employment status while he was on these leaves of absence necessitated by injuries he sustained in the motorcycle accident. Some time prior to January 2005, in anticipation of returning to work, Petitioner applied for a transportation worker position in Public Works. In March 2005, the County sent Petitioner to have a doctor complete a "Fitness for Duty Report" form. Petitioner went to his orthopedic surgeon, who completed the form on March 16, 2005. The doctor noted on the form that Petitioner could return to work on April 4, 2005. As he prepared to return to work after his one and one-half years of medical leave, Petitioner began to request work location transfers. Petitioner requested three such transfers within Water Resource Services, where he was employed. Two of the three work location transfers were granted. In the instance when Petitioner's work location transfer was not granted, Petitioner was allowed to transfer to another work team at his assigned work site. On January 24, 2005, while still on leave of absence, Petitioner requested a transfer of work location from the County's South Pump Station, where he was assigned before he went on medical leave, to the Central Pump Station. According to Petitioner, he requested this transfer because the Central Pump Station was closer to his home. The director of Water Resource Services, Paul Vanderploog, granted Petitioner's request. By letter dated March 29, 2005, about two months after Petitioner's first request for transfer of work location was granted, and while he was still on leave, Petitioner requested another transfer. This time Petitioner requested to be transferred from the County's Central Pump Station to the Northwest Pump Station.1/ When Petitioner requested a transfer from the Central Pump Station to the Northwest Pump Station, he told Vanderploog that if this request were honored, he (Petitioner) would not request another transfer. Petitioner specifically asked to be placed under either Wally Peters or Charlton Johnson, both of whom were team leaders at the Northwest Pump Station. In addition to requesting the transfer from the Central Pump Station, Petitioner advised Mr. Vanderploog that he was looking for another position in the County and had been looking for the past six months. Petitioner's March 29, 2005, letter stated, in part, the following: I pledge to you, right now, that I will return to full-duty under either Wally Peters or Charlton Johnson with NO other requests for movement. I promise you, as a gentleman, that I will accept the assignment at NW [Northwest] pump stations [sic] with no subsequent requests for lateral movement contingent upon my return. However, I will be looking for another position in the County, as I have done for the past 6+ months. I want to do something different with my life, and until the right opportunity comes along, I will "stick it out" in pump stations. Vanderploog granted Petitioner's second transfer request and transferred Petitioner from the Central Pump Station to the Northwest Pump Station. On April 4, 2005, the day Petitioner's physician had stated Petitioner could return to work, Petitioner was scheduled to begin work at the Northwest Pump Station. However, Petitioner called in sick that day and did not report to work. When Petitioner returned to work, he reported to the Northwest Pump Station and worked there about two weeks. Meanwhile, on or about April 6, 2005, two days after he was to report to work, Petitioner requested a third transfer of work location. This time he wanted to be transferred from the Northwest Pump Station to the South Pump Station, where he was initially assigned. According to Petitioner, he requested the transfer from the Northwest Pump Station because he was not comfortable working on the team lead by Charlton Johnson, to which Petitioner had been assigned. Mr. Vanderploog denied Petitioner's request to transfer from the Northwest Pump Station to the South Pump Station. The reason Mr. Vanderploog denied the request was that he knew Petitioner and the team chief at the South Pump Station had communication problems and did not get along very well. Petitioner had detailed his perception of these problems in his March 29, 2005, letter to Mr. Vanderploog, referred to in paragraph 13 and 15 above. Mr. Vanderploog believed that if he transferred Petitioner back to the South Pump Station, the team chief with whom Petitioner did not get along, may have left that location, and he (Vanderploog) did not consider this an acceptable tradeoff. Less than two weeks after Petitioner requested his third transfer (from the Northwest Pump Station to the South Pump Station) and Mr. Vanderploog denied the request, Petitioner wrote and sent an e-mail dated April 17, 2005, to the County administrator, Ms. Bean, and other upper management. In the April 17, 2005, e-mail, Petitioner stated that he believed it was inappropriate to employ Synrick Dorsett, a sexual predator, in Water Resource Services in an unsupervised capacity. Specifically, Petitioner stated: The problem is that an employee of the Water Department, who is a registered sexual predator, is allowed to roam unsupervised through out [sic] Brandon and Valrico (and anywhere he cares to go) as part of his job assignment in the Water Department. His name is Syndrick Dorsett. . . He is on FDLE's website as a sexual predator. He should NOT be allowed to roam freely in a County vehicle. At the time Petitioner wrote the e-mail to the County administrator, he had already known for ten years that there was a sexual predator working in Water Resource Services. In fact, Synrick Dorsett’s status as a sex offender was well known in Water Resource Services for many years. Petitioner testified that he wrote the April 17, 2005, e-mail, after he "had certain thoughts" about another County employee named Synrick Dorsett. Petitioner testified that he began to have these thoughts after the County Commissioners proposed putting photos of sexual predators in County parks. Petitioner claimed that Dorsett came to mind in light of those proposals, because he was under the impression that Dorsett was a "sexual predator" and was a County employee as of April 2005. However, this testimony is not credible in light of Petitioner's admission to a County investigator. In the summer of 2005, Petitioner admitted to the County, through Bob Sheehan, the chief investigator of the County's Professional Responsibility Section of the Consumer Protection and Professional Responsibility Agency, that he sent the April 17, 2005, e-mail to the County officials in order to better his leverage to obtain the position he wanted in Water Resource Services. In fact, about two weeks after Petitioner sent the April 17 e-mail, even though Mr. Vanderploog had denied Petitioner's third work location request (from the Northwest Pump Station to the South Pump Station), Vanderploog attempted to address Petitioner's concern that he (Petitioner) was uncomfortable working on the team to which he was assigned. In order to accommodate Petitioner, on or about May 2, 2005, Mr. Vanderploog moved Petitioner from the work team that he was initially assigned at the Northwest Pump Station to the other work team at that location. In or about April 2005, Petitioner interviewed with Public Works for a position as a transportation worker, the position he had applied for several months earlier. Prior to accepting the transportation worker position in Public Works, Petitioner indicated by his signature on two different County forms that he understood the job description for the position and could perform the functions of the job. Petitioner signed the County's pre-printed job description form on April 21, 2005, indicating that he read and understood the basic job description. A few days later, on May 2, 2005, Petitioner signed an Acknowledgement of Position Description Review form, in which he acknowledged that he "is able to perform the function" of the transportation worker without accommodations. On or about May 4, 2005, Petitioner accepted the position of transportation worker with Public Works. On a County form, Petitioner acknowledged that he understood that his new position with Public Works, county-wide, is a voluntary demotion (in terms of the hourly pay rate) and that if he did not successfully complete the six-month probationary period, he would no longer be employed by Hillsborough County. Petitioner was scheduled to start his new position as transportation worker on May 23, 2005. As noted above, Petitioner notified Mr. Vanderploog in the March 29, 2005, letter that he was looking for another position with the County. However, Petitioner never notified any manager in Water Resource Services that he had accepted the transportation worker position in Public Works. Water Resource Services first learned that Petitioner had accepted the position of transportation worker on or about May 10, 2005, when Public Works contacted the interim section manager (section manager) of Water Resource Services' wastewater operations and requested that his office complete a change of status form for Petitioner. After learning from Public Works that Petitioner had accepted the transportation worker position, the section manager wrote an e-mail to Petitioner. In the e-mail, the section manger told Petitioner that he had been notified that Petitioner had accepted the transportation worker position and, therefore, Petitioner needed to resign from his current position as Plant Maintenance Mechanic II. The resignation was necessary in order to process the paperwork to effectuate Petitioner's move to his new position as transportation worker. Prior to learning that Petitioner had accepted the position with Public Works, the section manager was concerned that Petitioner had only worked one day after he received medical clearance to return to work. In light of this concern, the section manager had instructed Petitioner's supervisor to initiate a written reprimand for Petitioner's failure to come to work. However, after receiving notice from Public Works that Petitioner had accepted a job in that unit, the section manager decided he would not pursue the previously-planned disciplinary action. Petitioner was aware of the contemplated disciplinary action. However, in the e-mail referred to in paragraph 31, in which he asked Petitioner to submit a resignation letter, the section manager also advised Petitioner that he (the section manager) would not pursue any disciplinary action against Petitioner since Petitioner was leaving Water Resource Services and taking another job. On May 10, 2005, Petitioner voluntarily resigned from his position in Water Resource Services, after he received the e-mail from the section manager and after he had accepted the position as a transportation worker in Public Works. Before starting his new job with Public Works in May 23, 2005, Petitioner asked Water Resource Services to rescind his resignation. Water Resource Services declined Petitioner's request because of his refusal to show up for work and his behavior toward, and inability to appropriately interact with, people in the entire department. After arriving at the job site in Public Works on his first day of work as a transportation worker, Petitioner testified that he knew that taking this job was a mistake. His first assignment involved installing a guardrail, work which was very labor intensive. Petitioner believed that the physical requirements of this job could result in his re-injuring himself. Given his concerns, Petitioner did not work the entire day and left after only a few hours and never returned. After his first and only day working as a transportation worker, Petitioner indicated he could not perform the duties of that job. Thereafter, Public Works temporarily assigned Petitioner to the storm water unit in the County Center, where he performed duties such as filing, making copies, and "running" mail. He worked in this temporary assignment four or five months, including the summer of 2005. The County scheduled a Fitness-for-Duty examination for Petitioner that occurred on June 16, 2005. The health care professional who conducted the examination concluded Petitioner must observe a lifting restriction and must walk only on even ground; he could not walk on rough, uneven terrain. The health care provider also indicated that Petitioner's physical condition that required these restrictions was a permanent condition. On August 8, 2005, Petitioner signed a County form, indicating that he could not perform any of the functions of a transportation worker. A Fitness-for Duty meeting was conducted on August 11, 2005. During that meeting, Public Works reviewed all information regarding Petitioner's physical capabilities and the job tasks associated with the transportation worker position and other positions to which he requested a transfer, Plant Maintenance Mechanic I or II in the Storm Water section of Public Works. Public Works, in conjunction with the Human Resources Department, determined that Petitioner could not perform the essential functions of the transportation worker position or the Plant Maintenance Mechanic I and/or II positions. Given the outcome of the Fitness-for-Duty meeting, by letter dated August 23, 2005, the County notified Petitioner that he had 90 days from the date of the letter to find another position or Public Works would have to terminate his employment.2/ As the 90-day deadline was about to expire, Public Works determined that it needed to have a due process hearing on Petitioner's employment status. The time required for culmination of the hearing process resulted in the 90-day period Petitioner was given to find a job being extended by more than two additional months. On or about August 26, 2005, Petitioner began an approved leave of absence in conjunction with his search for another position. After Petitioner sent the e-mail discussed in paragraph 31, Petitioner was invited to interview for four positions with the County, including positions in the Library Services Department, Public Works, and the Parks, Recreation and Conservation Department. On or about October 20, 2005, Petitioner was interviewed for a position with the Library Services Department. However, he was not selected for that position because that position required that the person be bilingual, and Petitioner was not bilingual. The Parks, Recreation and Conservation Department attempted to interview Petitioner on two different occasions. In the first instance, Petitioner failed to show up for an interview scheduled for August 4, 2005, at a time agreed upon by Petitioner. On or about November 19, 2005, Petitioner declined an interview for a second position with the Parks, Recreation and Conservation Department because the salary was too low. On or about November 23, 2005, Public Works requested an extension of Petitioner's leave of absence. The Hillsborough County Civil Service Board (the Board) approved the extension. In December 2005, Petitioner was interviewed for one of three vacant positions as an inspector/spray/equipment operator in the Mosquito and Aquatic Weed Control Section of Public Works. That position required some degree of expertise in spraying for mosquitoes and handling chemicals used for controlling pests on grass. Most of the interview questions were designed to determine the interviewee's level of technical knowledge about the required job duties. Petitioner's score on the interview rating was lower than any of the other candidates. Therefore, the more qualified applicants were offered the positions. In a memorandum dated December 7, 2005, Scott Cottrell, P.E., engineering director, Public Works, requested a due process hearing for the purpose of seeking to terminate Petitioner from the transportation worker position. Mr. Cottrell cited the following reasons for seeking this action: (1) Petitioner's last active day of work was August 25, 2005, and he had been on medical leave since August 26, 2005; (2) at the interviews for the transportation worker position, Petitioner had read and signed a Job Description form and indicated he understood the duties of that position; (3) after reporting to work the first day, Petitioner advised the unit that he could not finish the day's work activities due to his physical condition; (4) Petitioner had worked only part of one day as a transportation worker; (5) the determination at the August 11, 2005, Fitness-for-Duty meeting that Petitioner was unable to perform the essential functions of his position as transportation worker; and (6) the determination that Petitioner could not perform the duties of Plant Maintenance Mechanic I or II positions in the Stormwater Section of Public Works due to his medical restrictions. The memo randomly noted that Petitioner had been given 90 days to seek and secure other employment, but had been unable to do so. Finally, Mr. Cottrell wanted to fill the position with someone who could perform the job. According to Mr. Cottrell, "[d]ue to our [Public Works] mission, it is imperative that we keep our positions actively filled; therefore, it has become necessary to proceed with further action to seek the termination of [Petitioner]." On or about February 1, 2006, the Appointing Authority conducted a due process hearing regarding Petitioner's employment. On February 10, 2006, Hillsborough County dismissed Petitioner from his position with Public Works. The notice of dismissal stated that Petitioner's dismissal was based on a determination at a Fitness-for-Duty meeting on August 11, 2005, where it had been determined that Petitioner was unable to perform the essential functions of the transportation worker position for Public Works. The notice stated that the dismissal was based on Civil Service Board Rule 11.2(27). Civil Service Board Rule 11.2(27) provides that an employee in the classified service, such as Petitioner, may be dismissed where the employee demonstrates a mental or physical impairment that prevents such employee, with or without accommodation, from performing the essential functions of his or her position. The notice of dismissal dated February 10, 2006, specified that the dismissal was effective on that date. The notice also advised Petitioner that he could appeal the dismissal to the Board by filing a request for hearing within ten calendar days from the date of receipt of the notice. Petitioner challenged his dismissal and filed an appeal request on February 20, 2006. On the appeal request form, Petitioner indicated that he received the notice of dismissal on February 13, 2006. On June 5, 2006, the Board heard Petitioner's appeal of his dismissal. During this proceeding, at which both parties were represented by counsel, the Board considered the County's Motion for Summary Judgment, the opposition thereto, exhibits in the record, and argument of counsel. On June 20, 2006, the Board entered a Final Summary Judgment in the case affirming Petitioner's dismissal, after finding certain material facts to be undisputed. Among the undisputed material findings was Petitioner's admission at the February 1, 2005, due process hearing, that he could not perform the duties of transportation worker.3/ On or about July 10, 2006, Petitioner sent a memorandum to Camille Blake, the County's Equal Employment Opportunity manager, and Robert Sheehan requesting an investigation. In the memorandum, Petitioner alleged that Water Resource Services harassed and retaliated against him for reporting and exposing to the media "a register [sic] sexual predator on the payroll." According to the memorandum, Petitioner began looking for another position in the County as a result of the alleged harassment and retaliation, and this job search resulted in Petitioner's being offered and accepting the job in Public Works. Petitioner's statement in the July 10, 2006, memorandum, that he began looking for a job because he was being harassed and retaliated against by persons in Water Resource Services is not credible contrary to Petitioner's March 29, 2005, letter to Mr. Vanderploog. In that letter, Petitioner stated he had been looking for another position in the County for the "past 6+ months," because he "want[ed] to do something different with [his] life." Based on the foregoing, Petitioner returned to work in April 2005 and took the transportation worker position, not because he was being harassed or retaliated against, but because he wanted to do "something different with [his] life." In the July 10, 2006, memorandum, Petitioner also stated that although he accepted the job in Public Works, he really wanted to stay in Water Resource Services so he did not immediately submit his resignation. In fact, Petitioner stated that he was "about to" call Public Works and rescind his acceptance, but before he could do so, he received the May 10 e-mail from the section manager, referred to in paragraph 31, "demanding" Petitioner's resignation. Petitioner's July 10, 2005, memorandum stated that the only reason he submitted the resignation letter to Water Resource Services was because he had been previously told he was "insubordinate and facing charges," and he wanted to "avoid more consternation and strife and to not be insubordinate." According to the memorandum, Petitioner attempted to rescind his resignation letter the day after it was submitted, but the manager in Water Resource Services rejected Petitioner's attempt to rescind his resignation. Notwithstanding Petitioner's July 10, 2006, memorandum stating that he was forced to resign, Petitioner's resignation was voluntary, and Water Resource Services was under no obligation to accept Petitioner's offer to rescind his resignation and to rehire him. By letter dated July 14, 2006, Petitioner filed a complaint with the County administrator. The complaint challenged the Board's Final Summary Judgment affirming Petitioner's dismissal under the state's Whistle-blower Act. The sole reason the County terminated Petitioner's employment was that he could not perform the functions of the transportation worker position in Public Works. Civil Service Board Rule 11.2(27) provides that employees in classified service, such as Petitioner, may be dismissed if a demonstrated physical impairment prevents the employee from performing the essential functions of his position. The evidence does not support Petitioner's claims that after he filed a Whistle-blower claim on April 17, 2005, he was forced to transfer to Public Works, and then was dismissed from that job.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Hillsborough County Board of County Commissioners enter a final order finding that Petitioner did not timely file his Whistle-blower complaint and dismissing the Petitioner's complaint. DONE AND ENTERED this 11th day of April, 2007, in Tallahassee, Leon County, Florida. S CAROLYN S. HOLIFIELD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 11th day of April, 2007.
The Issue The issue in this case is whether Respondent, the Department of Revenue, should grant Petitioner's application for a consumer's certificate of exemption from sales and use tax.
Findings Of Fact Petitioner is a nonprofit organization incorporated under the laws of the State of Florida on or about August 27, 1997. Petitioner applied to Respondent for a consumer's certificate of exemption from sales and use tax. While the application indicates that it is based on exemption status as an "enterprise zone," Petitioner clarified at final hearing that it actually was basing its application on exemption status as a "charitable institution." ("Enterprise zone" is not an exemption category under the applicable statutes. See Conclusions of Law, infra.) The IRS has determined that Petitioner is exempt from federal income tax under IRC Section 501(a) as an organization described in IRC Section 501(c)(3). A letter dated February 2, 1999, stated that Petitioner: was formed in 1997 to plan and implement redevelopment efforts in the Greater Newtown Community which lead to overall improvement in the quality of life of its residents. In the short time since our inception, we have responded to community needs by implementing a broad range of programs that will have a positive impact on our community. But from the evidence presented (which included no testimony from either party), it is difficult to ascertain factual detail about Petitioner, its activities, or its finances. In addition to grant application and fund-raising activities, it appears that Petitioner has been involved in informational and participation-recruitment meetings and information-gathering surveys for planning purposes (called the Business Retention and Expansion Survey). Petitioner also appears to have been involved in a Storefront Renovation Program and several community celebrations. Petitioner has plans for other economic and community redevelopment activities. But it cannot be ascertained from the evidence which of the other economic development activities have taken place and which are still in grant application or planning stages. For example, documentation regarding Petitioner's involvement in one activity refers to the activity as the "proposed WAGES Employment Challenge." Petitioner obtained $128,000 of funding from the City of Sarasota for seed money for its economic redevelopment and other activities. Petitioner budgeted to spend the $128,000 in 1998. The entire budget consists of salaries, fringe benefits, and overhead expenses. According to a "Profit and Loss" statement for January through October 1998, Petitioner spent $30,581.49 during that time period. All of those expenditures were in the category of payroll and overhead expenses. One activity referenced in Petitioner's documentation is Petitioner's "partnering" with financial institutions and mortgage brokers to process mortgage loans for affordable housing. In that case, the expenditures would be by the other institutions, not by Petitioner. There is no information as to any other expenditures made by Petitioner.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Revenue enter a final order denying Petitioner's application for a consumer's certificate of exemption from sales and use tax. DONE AND ENTERED this 5th day of November, 1999, in Tallahassee, Leon County, Florida. J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 5th day of November, 1999. COPIES FURNISHED: Bill Nickell, Esquire Department of Revenue Post Office Box 6668 Tallahassee, Florida 32314-6668 Cynthia E. Porter, Executive Director Greater Newtown Community Redevelopment Corporation 1751 Dr. Martin Luther King, Jr., Way Sarasota, Florida 34234 Joseph C. Mellichamp, III, Esquire Office of Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 Linda Lettera, General Counsel Department of Revenue 204 Carlton Building Tallahassee, Florida 32399-0100 Larry Fuchs, Executive Director Department of Revenue 104 Carlton Building Tallahassee, Florida 32399-0100
Findings Of Fact The petitions herein were filed by Petitioner with PERC on June 16, 1975. (Hearing Officer's Exhibits 1 and 2). The final hearing was scheduled to be conducted on September 17, 1975, by Notice dated August 26, 1975. (Hearing Officer's Exhibit 3). The Intervenor filed a petition with the Public Employees Relations Commission on June 26, 1975. (Hearing Officer's Exhibit 6). The Intervenor's petition was dismissed by the Chairman of PERC on August 6, 1975. The Motion to Intervene was filed with PERC on September 8, 1975. (Hearing Officer's Exhibit 8). The School Board of Broward County is a Public Employer within the meaning of Florida Statutes Section 447.002(2). (Stipulation, TR, vol. I, pp. 13, 14). The Petitioner is an employee organization within the meaning of Florida Statutes Section 447.002(10). (Stipulation, TR, vol. I, pp. 14, 15). The Intervenor is an employee organization within the meaning of Florida Statutes Section 447.002(10). (Stipulation, TR, vol. I, pp. 14, 15). There is no contract bar to holding an election in this case. (Stipulation, TR, vol I, p. 15). PERC has previously determined that the Petitioner is a duly registered employee organization. (Hearing Officer's Exhibit 4). No evidence was offered at the hearing to rebut the administrative determination previously made by PERC. PERC has previously determined that the Petitioner filed the requisite showing of interest with its petition. (Hearing Officer's Exhibit 5). Intervenor offered approximately 88 signed statements into evidence at the hearing as Intervenor's Exhibit 5. The statements express the signers' desire to resign from membership in the Petitioner. The statements were not accompanied by any testimony or other evidence with respect to their authenticity, and they were not, therefore, received in evidence. No additional evidence was offered at the hearing to rebut the administrative determination previously made by PERC respecting Petitioner's showing of interest. PERC has previously determined that the Intervenor is a duly registered employee organization. (Hearing Officer's Exhibit 7). No evidence was offered at the hearing to rebut the administrative determination previously made by PERC. In order to make a proper showing of interest in support of its Motion to Intervene, Intervenor offered authorization cards which had previously been forwarded to PERC in Case No. 8H-RC-754-2177, and which were not found by PERC to be stale and untimely. Intervenor offered additional authorization cards at the hearing, which cards have been forwarded to PERC by the undersigned. At the time of the hearing no administrative determination had been made by PERC with respect to the Intervenor's showing of interest. No evidence was offered at the hearing to rebut such an administrative determination in the event that one is made. The Broward Educational Secretaries Association is an employee organization which is seeking to represent a unit of clerical personnel employed by the Public Employer. Petitioner and Intervenor are not seeking to represent the same employees which the Broward Educational Secretaries Association is seeking to represent except that the Intervenor wishes to include employees in the Purchasing and Warehousing Departments in the unit in this case. The International Union of Operating Engineers, Local 675; the Plumbers and Pipe Fitters, Local Union 719; the International Brotherhood of Electrical Workers, Local 728; and the Air Conditioning Local 725, are building trades unions which are seeking to represent employees of the Public Employer who perform building trades labor. At the time that the hearing was held none of these organizations had filed any petition with PERC seeking to represent employees of the Public Employer, and no motions to intervene were made at the hearing. The organizations had joined to form a new organization, the Broward County Public Employees Maintenance Committee. This new organization had registered with PERC, and is actively seeking to represent employees of the Public Employer. The new organization had not filed any petition with PERC, and made no motion to intervene at the hearing. The Petitioner, the Intervenor, and the Public Employer agree that the appropriate collective bargaining unit would include the following employees: Bus Drivers, Bus Driver Aides, Substitute Bus Drivers and Aides, Mail Service Employees, Garage Employees, Assistant Head Custodians, and Head Custodians, Warehousemen and Maintenance Men, except that there is a disagreement as to whether tradesmen should be included. The parties agree that the following employees should be excluded: all instructional personnel, and confidential and managerial employees. The functions of the School Board of Broward County are divided both functionally and geographically. The School Board of Broward County serves as the legislative body of the Broward County School System. The superintendent is the Chief Executive Officer. The central school board office is divided into four primary departments: Instructional Services, headed by a Program Superintendent for Instruction and a Program Director; Business Services, headed by a Program Director; Operational Services, headed by a Program Director, and Personnel Services, headed by a Director. Many school board functions are administered on a decentralized basis in four geographic areas. Each of the schools within the Broward County system fall within one of the areas. The principal of each school is charged with the responsibility for administering both instructional and non-instructional functions at the school. Each geographic area performs support functions for the schools. Four departments have been established in each area to perform the support functions. These departments are headed by a Curriculum Analyst, a Business Analyst, a Supervisor of Maintenance and Operations, and a Supervisor of Transportation. Employees involved in this case are employed in the Central Operational Services Department, in the purchasing and warehousing office of the Central Business Services Department, in the area Maintenance and Operations and Transportation Departments, and at the individual schools. There are five departments within Operational Services. The School Facilities Department is headed by a Director. This department is responsible for planning the construction of new schools or additions to already existing schools. Personnel in the department serve as a liaison between educational personnel and the school board architects. Once a project is approved by the School Board and the State, and has been contracted, the School Facilities Department supervises construction. The Minor Capital Outlay Department is headed by a Coordinator. The Coordinator prepares the budget for the Department, assigns duties, and coordinates the activities of the Department with maintenance personnel in the areas. When area maintenance personnel have special problems that cannot be handled in the ordinary course of their work day, the area supervisor from Maintenance and Operations will request assistance from Minor Capital Outlay. Five supervisors work under the Coordinator. The Plumbing Supervisor is responsible for seeing that supplies are furnished, determining what jobs need to be performed, assigning personnel to the jobs, and seeing that all jobs are accomplished. The Plumbing Supervisor submits a proposed budget to the Coordinator, coordinates purchases with area supervisors, and serve as the first step in the grievance procedure. The Electrical Supervisor, Custodial Services Supervisor, Portable Classroom Supervisor, and Painting Supervisor have the same duties and responsibilities as the Plumbing Supervisor within their respective realms. Functions performed by the Minor Capital Outlay Department which are not supervised in the `foregoing manner are supervised by foremen or leadmen. These personnel answer directly to the Coordinator. They are responsible for submitting budget information to the Coordinator, serve as the first step in the grievance procedure, and coordinate purchases with area supervisors. The Auxiliary Services Department, which is headed by a Director, covers the garage, transportation, and mailroom. The garage is responsible for maintaining buses and all school board vehicles. The Garage Coordinator is responsible for supervising activities at the garage. A Body and Paint Foreman, a Shop Foreman, and Day and Night Shift Mechanic Foremen answer to the Garage Coordinator. These foremen are working foremen. The Transportation Division is headed by a Coordinator. The Central Transportation office coordinates with transportation offices in each area. Area Transportation Supervisors work out bus routes for the individual schools based upon information submitted by the school principals. The central office coordinates with the area offices to assist in routing of buses. Bus drivers answer to the Area Transportation Supervisors, and to the Principals at the individual schools. The primary function of the Central Transportation Office is to coordinate activities of the Area Transportation offices. The mailroom provides intra-school mail service. The mailroom is headed by a mailroom specialist. The Pupil Accounting and Sight Planning Department is responsible for maintaining demographic records of the county, in order to determine where future schools should be built, and when they should be built. The department coordinates the acquisition of school sites. The department consists of a Director, two secretaries and three clerk typists. The Safety Department was previously a division of the Auxiliary Services Department. It is now a separate department under Operational Services. The Department consists of a Coordinator and two Inspectors. These personnel are certified by the State Department of Education to make health and safety inspections of the school facilities. In the event of an accident, these personnel would make an investigation and report. Such an investigation might result in disciplinary action being taken against other employees. A part of the Safety Inspector's function might be to testify at grievance hearings relating to accidents. These employees would be eligible for membership in the Petitioner, but the Constitution of Petitioner would not permit the employees to file reports that might cause disciplinary action to be taken against another member of the Petitioner. Each area is headed by an Area Superintendent. The Area Superintendent is responsible for both instructional and non-instructional matters within the area. School principals answer to the Area Superintendent. The Supervisor of Maintenance and Operations, and the Supervisor of Transportation for each area also answer to the Area Superintendent. There is no intermediate management in the non-instructional divisions of the areas. Various functional divisions of the Maintenance and Operations Departments may have working foremen which generally direct the activities of the crews. There is, for example, a small mower foreman in each area. Employees in the areas receive the same salaries and benefits, and work the same hours as the employees in the central office. A journeyman electrician assigned to the Maintenance and Operations Department of an area would receive the same employment benefits as a journeyman electrician assigned to the Minor Capital Outlay Department of Operational Services in the central office. School principals are in charge of both instructional and non- instructional matters at the schools. The principal is responsible for hiring and firing the school's custodians and on-site repairmen. The on-site repairmen will coordinate their activities with the area maintenance and operations office, but they will nonetheless answer to the principals. Head custodians provide principals with information respecting monetary needs, but they play no other budget role. Head custodians play no policy or collective bargaining role. Head custodians do serve as the initial step in the grievance procedure. Some of the principals in the school system place strong reliance upon their head custodians; others do not. Some principals assign the head custodians the responsibility of interviewing prospective employees, and such principals rely upon the head custodian's recommendations respecting hiring, firing, promotion, and vacations. Head custodians generally perform the same functions as other custodians, in addition to their supervisory functions. Head custodians will open the school plants, perform maintenance chores, clean floors, and move heavy objects. Some head custodians are given virtually no supervisory role respecting other custodians. Some of the schools employ student custodians. Student custodians answer to the Head Custodian and to the Principal. They work on a part-time, irregular basis during the school year. Regular custodians work on a full-time regular schedule, twelve months per year. Student custodians are paid less than regular custodians. The Purchasing and Warehousing Department is located within Business Services. The Director of Purchasing and Warehousing answers to the Program Director of Business Services. The Purchasing and Warehousing Department is divided into a Purchasing Division, a Property and Inventory Control Division, and a Warehouse Division. The Purchasing Division is headed by a supervisor who answers to the Director of Purchasing and Warehousing. The Purchasing Division is responsible generally for purchasing all supplies for the school system. Supplies are sent to the warehouse and are delivered from the warehouse to the schools. There are twenty-one employees in the Purchasing Division. Fifteen are Clerks or Clerk Typists. These employees generally type invoices and do filing. There are four Buyers in the Division. These employees process requisitions, process bids, and write bid specifications. The Buyers will consult with maintenance and instructional supervisors respecting supplies. The Purchasing Division is in constant contact with the warehouse, although the division is located approximately five miles from the warehouse. Three Purchasing Clerks work at the warehouse. These employees sit at desks and do not wear warehouse uniforms. Many persons in the Purchasing Division have been members of the Broward Educational Secretaries Association for some time, and wish to be represented in collective bargaining by that organization. Other employees of the Purchasing Division have been members of the Intervenor. The Public Employer employs numerous employees who perform work generally classified as in the building trades. Trade unions affiliated with the AFL-CIO have a long-standing agreement among themselves that they will not seek to represent members of another affiliated union's trade. The trade unions commonly refer to members of their trade as within their "jurisdiction". Neither the Petitioner, the Intervenor, nor the Public Employer are parties to that agreement. Tradesmen employed by the Public Employer do perform non-trade work. All tradesmen will drive trucks. The crane operator is often not engaged in that activity and will perform other maintenance work. Plumbers are occasionally called upon to dig ditches. Approximately 90 percent of the tradesmen's work is in their trade. The School Board has participated in an apprenticeship program which is managed in part by the trades unions. Through this program an employee of the School Board can become a journeyman. The program is not mandatory, and employees can become journeymen without participating in it. No evidence was offered at the hearing showing any direct conflict between tradesmen and other employees of the Public Employer. ENTERED this 12 day of March, 1976 in Tallahassee, Florida. G. STEVEN PFEIFFER Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida
The Issue The issues in this case are: (1) whether the Tampa Port Authority is an agency subject to the rulemaking requirements of Chapter 120, Florida Statutes (2006)1; and, if so, (2) whether Respondent's statements and policies in an e-mail from the Tampa Port Authority's general counsel constitute an unadopted rule within the meaning of Section 120.56, Florida Statutes; and (3) whether specified provisions in the Tampa Port Authority's "rules" are an invalid exercise of delegated legislative authority.
Findings Of Fact Petitioner is an applicant for a marine construction permit from Respondent. Respondent, Tampa Port Authority, is the local authority empowered to issue permits for marine construction in areas within its jurisdiction. Legislative History of Tampa Port Authority The Legislature enacted Chapter 23338, Laws of Florida (1945) (hereinafter referred to as the "1945 Act" or "Chapter 23338"), which established a Port District in Hillsborough County, Florida, to be known as the "Hillsborough County Port District" (hereinafter referred to as "Hillsborough County Port District" or "Port District"). Pursuant to Section 2 of Chapter 23338, the Hillsborough County Port District comprised and included the territory within Hillsborough County as described in the 1945 Act. However, the designated territory did not include all of Hillsborough County. The 1945 Act created and designated the Hillsborough County Port Authority as the governing body and authority for the Hillsborough County Port District. Later, the name of the governing entity for the Port District was changed from the Hillsborough County Port Authority to the Tampa Port Authority5 (hereinafter referred to as the "Tampa Port Authority" or "Port Authority"). The Tampa Port Authority is, and has been since its inception, a political and corporate body whose operation is a proper governmental function."6 Chapter 23338 was a special act, which, by it own terms, would become effective "only upon the affirmative vote of a majority of the votes cast at a special election" called and conducted by the Hillsborough County Election Board.7 The 1945 Act further provided that only "duly registered and qualified voters residing within the territorial boundaries of the [Hillsborough County Port] District were eligible to vote" in the special election. See § 23 of Chap. 23338. The referendum passed and, thereupon, the 1945 Act became effective. In January 1948, the submerged lands located within the boundaries of the Port District, as described in the 1945 Act and pursuant to the Certificate of Territorial Designation No. 19396, were conveyed to the Tampa Port Authority.8 The submerged lands conveyed to the Tampa Port Authority were within the boundaries of Hillsborough County and included in the Government Channel in Hillsborough Bay and the waters of Tampa Bay and Old Tampa Bay, all located in Hillsborough County, Florida. Chapter 70-716, Section 2, Laws of Florida, revised the Port Authority's enabling act by expanding the territory of the Hillsborough County Port District to "comprise and include all the territory within Hillsborough County." In November 1970, in accordance with Chapter 70-716, Section 2, Laws of Florida, and pursuant to the Certificate of Territorial Designation No. 25215, all the submerged lands lying within Hillsborough County were conveyed to the Tampa Port Authority.9 As a result of the 1970 conveyance, the jurisdiction of the Tampa Port Authority was extended to include all the submerged land within the Port District. Since 1970, the Hillsborough County Port District has comprised and included all of the territory within Hillsborough County, including all the submerged lands lying within that county. See Chap. 70-716, § 2; and Chap. 95-488, § 2, Laws of Florida. In 1984, the Legislature enacted Chapter 84-447, Laws of Florida, which superseded and repealed Chapter 23338, as amended. Eleven years later, the Legislature enacted Chapter 95-488, Laws of Florida, which superseded and repealed Chapter 84-447, Laws of Florida. The foregoing acts made no changes affecting the designated geographic territory of the Hillsborough County Port District. Further, those acts made no significant or substantive changes regarding the powers and duties of the Tampa Port Authority. Rather, Chapter 84-447, Laws of Florida, and later, Chapter 95-488, Laws of Florida, merely consolidated, compiled, and codified extant laws pertaining to the Hillsborough County Port District. The legislative intent in enacting Chapter 84-447 and, subsequently, Chapter 95-488, Laws of Florida, was to "preserve, confirm, and perpetuate the ratification by referendum of the Hillsborough County Port District and the Hillsborough County Port Authority by the electorate of the Port District." See Chap. 84-447, § 1 and Chap. 95-488, § 1, Laws of Florida. Jurisdiction, Powers, and Duties of the Tampa Port Authority The Tampa Port Authority has "title to, right of entry upon, and the right to regulate the improvement of any and all submerged lands belonging to the State of Florida contained within the port district," subject to the riparian rights of respective owners of the uplands adjacent thereto. See Chap. 95-488, § 6, Laws of Florida. The Tampa Port Authority has exclusive jurisdiction, control, supervision and management over all publicly-owned docks and wharfs in Hillsborough County Port District. The Tampa Port Authority is required to make or cause to be made investigations, studies, surveys, plans, drawings, etc., as are necessary and, thereafter, prepare and adopt a comprehensive plan for development and improvement of the harbor and shipping facilities of that port district. See Chap. 95-488, § 5, Laws of Florida. The Tampa Port Authority has "all the powers necessary to carry out the provisions of the act" which created the authority. The Tampa Port Authority has the specific responsibility of planning and of carrying out plans for the long-range development of the facilities of and traffic "through the port in the [P]ort [D]istrict." See Chap. 95-488, § 7, Laws of Florida. In addition to the foregoing, the Tampa Port Authority is empowered to do the following: operate, manage, and control all projects acquired or constructed under this act; exercise such police powers as it deems necessary for the effective control and regulation of all facilities, areas, and districts under its jurisdiction; adopt rules and regulations governing the speed, operation, docking, movement, and stationing of all watercraft plying waterways in the port district under the jurisdiction of the Port Authority; and subject to state and federal law, regulate, control, license, and establish safety regulations for any common carrier of passengers by water which common carrier is operated for compensation in intrastate commerce over a regular route and which embarks from and returns to any portion of the waters within the port district. See Chap. 95-488, §§ 7(k),(n), (s), and (y), Laws of Florida. Marine Construction in the Port District Chapter 95-488, Section 25, Laws of Florida, sets forth the comprehensive scheme for marine construction in the Hillsborough County Port District, including the application and approval process for such construction. Chapter 95-488, Section 25(b), Laws of Florida, provides that anyone filling or dredging "within the boundaries of the [P]ort [D]istrict and bordering on or in the waters of the [P]ort [D]istrict" is required to make application to the Tampa Port Authority for the appropriate permit authorization. For the purposes of regulation of marine construction, the term, "waters of the district," is defined as follows: "Waters of the district" means all waters lying within the port district which are affected by the ebb and flow of the tide; Lake Thonotosassa; Lake Keystone; and those portions of the Hillsborough River, Alafia River and Little Manatee River within the port district upstream from Tampa Bay to the limits of sovereign submerged land ownership." [Emphasis added.] Chapter 95-488, § 25 (a)(13), Laws of Florida. Based on the definition above, the regulatory requirements for marine construction are limited to the confines of the Hillsborough County Port District, which is limited to the territorial boundaries of Hillsborough County. The Hillsborough County Port Authority is required to adopt rules and regulations regarding the receipt, form, and content of the applications for marine construction permits. See Chap. 95-488, § 25(a)(13)(h), Laws of Florida. Chapter 95-488, Section 25(n), Laws of Florida, authorizes the Tampa Port Authority to adopt minimum construction specifications for all marine construction projects subject to approval under that section. At issue in this proceeding are the Tampa Port Authority's requirements for marine construction in the Hillsborough County Port District provided by Chapter 95-488, Subsection 25(n), Laws of Florida. The Port Authority's special acts have provided for specific power to adopt rules and regulations under a procedure that requires notice and a public hearing on the rules being adopted. The process for adoption of rules and regulations of the Tampa Port Authority is specifically mandated by the Legislature in the Port's enacting legislation. The rulemaking procedures specified by Chapter 95-488, Section 25(n), Laws of Florida, which govern marine construction in the Port District, state as follows: Prior to the adoption of such specifications, the port authority shall conduct a public hearing to consider the impact of the proposed specifications. Notice of such hearing, specifying time and place shall follow the same notice procedure as provided in subsection (e). The referenced subsection (e) requires notice in a newspaper of general circulation, published in the Hillsborough County Port District, at least 20 days prior to the hearing. Chap. 95-488, § 25(e), Laws of Florida. There are no provisions in either general or special law or existing judicial decisions that make the Tampa Port Authority expressly subject to the Administrative Procedures Act (APA) for rulemaking.10 Ultimate Findings The Tampa Port Authority was created by a special act and, as the governing body of the Hillsborough County Port Authority, operates only within Hillsborough County. The Tampa Port Authority has not been made expressly subject to the APA for rulemaking procedures. The Tampa Port Authority does not consider itself an agency subject to Chapter 120, Florida Statutes, rulemaking requirements. Consequently, the Port Authority has not complied with any of the Chapter 120, Florida Statutes, requirements for the adoption of its rules challenged by Petitioner. The Tampa Port Authority admits that the alleged "rules and agency statements" challenged by Petitioner were not adopted pursuant to Subsection 120.54(1)(a), Florida Statutes. Further, the Port Authority stipulates that it would not meet the requirements of Subsection 120.52(8)(a), Florida Statutes, since the Tampa Port Authority's rules at issue in this proceeding were not adopted pursuant to Chapter 120, Florida Statutes, requirements.
