The Issue Whether the proposed site falls within an "improved commercial or residential area?"
Findings Of Fact Salter seeks a permit to erect a sign on the north side of Interstate Highway 10 about .15 mile west of State Road 291 in Escambia County. The proposed site is outside the city limits of Pensacola in an unzoned area of Escambia County. In the vicinity of the proposed site, commercial and/or industrial facilities are so situated that, if the facility owned and operated by Energy Services of Pensacola, a gas utility owned by a local governmental entity, is also deemed commercial or industrial, a permit should be issued. The parties stipulated to the foregoing facts.
The Issue Whether the subject site is within Petitioner's permitting jurisdiction and whether an earthen dam constructed at the subject site required a permit? Whether Respondent should be required to remove the earthen dam and/or be required to pay Petitioner's investigative costs?
Findings Of Fact Petitioner is the agency of the State of Florida that regulates dredge and fill activities conducted in wetlands within its statutory jurisdiction as set forth in Chapters 373 and 403, Florida Statutes. Respondent owns the subject property, which is located in the 200 block of Jan Drive in Section 18, Township 4 South, Range 13 West, Bay County, Florida. On July 22, 1999, Mr. Keisker met informally with Respondent at Respondent’s request and made a field visit to the subject property. Mr. Keisker told Respondent that he thought the subject property was within Petitioner’s permitting jurisdiction. Although Mr. Keisker took soil samples, surveyed the plant life of the area, and observed the hydrology of the area, his visit was not intended to be an official determination that the subject property was within Petitioner's permitting jurisdiction. There is no dispute that an earthen dam was constructed across the unnamed creek, described in findings of fact paragraph 5, in late 1999 or early January 2000. The central issue in dispute is whether the site of the earthen dam is within Petitioner’s permitting jurisdiction. Respondent asserts that the area at issue is a drainage ditch that did not naturally occur and is not within the permitting jurisdiction of Petitioner. Petitioner asserts that the area is an unnamed creek in a historical, natural wetland that is within its permitting jurisdiction. The greater weight of the credible, competent evidence established that Respondent’s property contains an unnamed creek that is located in an area of historically natural wetlands that was likely excavated in the 1970's by the local Mosquito Control District. This area of natural wetlands drains and connects into Rogers Pond and Calloway Bayou, which are Class III waters of the State of Florida. The site is within the permitting jurisdiction of Petitioner. 2/ Respondent did not receive a permit prior to the construction of the earthen dam. Construction of the earthen dam constitutes unpermitted fill activity in a wetland within Petitioner's regulatory jurisdiction. Shortly after Petitioner received a complaint in January 2000 that it had been constructed, the dam was partially breached as the result of a heavy rain event. To prevent further pollution of the unnamed creek, the remaining portion of the earthen dam should be removed by non- mechanical means. Mr. Keisker testified that he calculated Petitioner’s investigative costs based on the amount of time he expended in investigating this matter multiplied by his hourly rate of pay. In calculating his hourly rate of pay, he took his annual salary and added to that 52 percent of his annual salary for fringe benefits. He then divided that sum by 2000, which represents 50 work weeks of 40 hours per week. He used 50 weeks to calculate the hourly rate to adjust for two weeks of paid vacation. Based on his calculations, Mr. Keisker testified that Petitioner incurred costs and expenses in excess of $750.00 during its investigation of this matter.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order adopting the findings and conclusions contained herein and requiring Respondent to remove the remaining portions of the earthen dam by non-mechanical means. DONE AND ENTERED this 29th day of March, 2001, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 29th day of March, 2001.
Findings Of Fact During April or May 1988, Respondent solicited business as a private investigator from two credit unions in Hillsborough County, Florida. He approached employees of the credit unions and held himself out as a private investigator by discussing repossession services he could provide. He distributed a brochure and introductory materials describing the fees charged and services provided by Recovery, which included missing persons, child custody, investigations, escorts, surveillance, as well as repossessions. According to two former employees of Recovery, these solicitations continued through the Summer of 1988. The materials distributed to these credit unions by Respondent included a purported license number A-8700255 for Recovery issued by Petitioner on February 26, 1988. In fact, this license was a forgery, and had never been issued to Recovery. The license number shown on this forgery is that of another private investigative agency, the Boucher Agency located in Lutz, Florida. Respondent employed Janice Boucher during April and May 1988, for the specific purpose of using her license to operate Recovery. During an investigation into these matters in May 1988, Respondent gave to Petitioner's special investigator, Daniel Cabrera, a business card showing the name of Recovery with Boucher's license number. The card states that Recovery is "licensed," and includes the name of Respondent, as chairman. Finally, Respondent's business card represents that Recovery is specializing in collateral recovery. Respondent was responsible for, and ordered another employee of Recovery to prepare a forged license for Recovery using Boucher's license. Respondent was the owner of Recovery, at all times material hereto. Boucher did not authorize or participate in this forgery. In May 1988, Respondent obtained a Hillsborough County occupational license for Recovery which states it is for a "private investigative agency, Lic. A-8700255." The private investigative agency number shown on this occupational license is for the Boucher Agency, not Recovery. Neither Respondent nor Recovery have ever been licensed by Petitioner to engage in the business of a private investigative agency, and have never possessed either a "Class A" private investigative agency license, or a "Class C" private investigator license.
Recommendation Based upon the foregoing, it is recommended that Petitioner enter a Final Order imposing an administrative fine in the amount of $2,000 on Respondent, Jack Warren. DONE and ENTERED this 14th day of March, 1989, in Tallahassee, Leon County, Florida. DONALD D. CONN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 904/488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of March, 1989. APPENDIX (DOAH CASE No. 88-4313) Rulings on Petitioner's Proposed Findings of Fact Adopted in Finding of Fact 6. Adopted in Findings of Fact 1, 4. 3-4. Adopted in Findings of Fact 1, 2. 5-6. Adopted in Finding of Fact 4. Adopted in Finding of Fact 3. Adopted in Findings of Fact 3,5. 9-10. Adopted in Findings of Fact 1, 4, but otherwise rejected as irrelevant. COPIES FURNISHED: R. Timothy Jansen, Esquire Department of State The Capitol Tallahassee, Florida 32399-0250 Jack Warren 1502 East Trampnell Road Plant City, Florida 33566 Ken Rouse, Esquire General Counsel Department of State The Capitol, LL-10 Tallahassee, Florida 32399-0250 The Honorable Jim Smith Secretary of State The Capitol Tallahassee, Florida 32399-0250
Findings Of Fact At all times material hereto, Respondent has been licensed as a Class "C" private investigator and Class "MA" agency manager, having been issued licenses numbered C-0002856 and NA-8600240, respectively. On or about November 10, 1988, Respondent was engaged in an investigation and surveillance involving Joseph King to determine if King was disabled for purposes of a worker's compensation claim which was being disputed by the insurance carrier. As a result of Respondent's investigation, King was eventually denied certain benefits which he would otherwise have received. Respondent was performing this work through the Hillsborough County branch office of TRACE, Inc., a licensed private investigative agency which he managed. He was accompanied in this investigation and surveillance of King by two other licensed private investigators. During the course of this investigation,and surveillance, King became aware of Respondent and the other two investigators who were following him. He confronted one of the investigators named Tony Hobbs, and after it became apparent that King was preventing Hobbs from leaving, Respondent came to his aid and attempted to calm down the situation. King continued to refuse to allow the investigators to leave, and eventually Deputy Sheriffs arrived and secured Hobbs' release. At hearing, Mr. and Mrs. King both testified that Respondent and the other investigator, Hobbs, falsely identified themselves as federal agents who were allegedly involved in an undercover drug investigation. Respondent denies that he ever made such a representation to the Kings. Hobbs was not present to testify, but in a statement given to the Petitioner's investigator, John Matlack, in the regular course of his investigation of this incident Hobbs stated that he had been told by one of the Deputy Sheriffs that Respondent had made this statement. However, Hobbs was fired from TRACE, Inc., a couple of weeks after this incident, and therefore, has a motive for placing Respondent's license in jeopardy. Based upon the demeanor and testimony of Respondent and the Kings at hearing, as well as the motive which existed for the Kings to try to get back at Respondent for their loss of certain benefits resulting from his investigation, it is found that Respondent did not falsely identify himself as a federal agent at any time during the course of this investigation. Respondent was calm, orderly, logical, coherent and professional in his recollection of events, while Mr. King was aggressive and hostile towards Respondent. It was King who provoked the confrontation with Hobbs by restraining and preventing him from leaving. It was King who was angry with the investigators, including Respondent, and who allowed them to leave only after Deputy Sheriffs arrived. At hearing, it was King who was unclear in his recollection of specific details about the events of November 10, 1988, and he was clearly still angry with Respondent. The Petitioner also alleges that Respondent falsely identified himself as a federal agent to a neighbor of King, but that neighbor was not present to testify and his absence was not explained. Therefore, there is no competent substantial evidence in the record to support this allegation concerning a statement allegedly made by Respondent to King's neighbor. It is against the policy of Respondent's company, TRACE, Inc., for any agent to represent himself to be a federal agent, and such misrepresentation is a basis for termination. Respondent is well aware of this policy, and credibly testified that he did not violate it in his investigation of King.
Recommendation Based upon the foregoing, it is recommended that the Petitioner enter a Final Order dismissing the charge that Respondent violated Section 493.319(1)(i) Florida Statutes, as set forth in the Administrative Complaint. DONE AND ENTERED this 5th day of March, 1990 in Tallahassee, Florida. DONALD D. CONN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Filed with the Clerk of the Division of Administrative Hearings this 5th day of March, 1990. APPENDIX Rulings on the Petitioner's Proposed Findings of Fact: Adopted in Finding of Fact 1. Adopted and Rejected in part in Findings of Fact 2-5. Rejected in Finding of Fact 6. Rulings cannot be made on the narrative statement filed by the Respondent on March 1, 1990, since it does not contain separately numbered proposed findings of fact and does not evidence that Respondent has provided a copy to counsel for the Petitioner. COPIES FURNISHED: Henri C. Cawthon, Esquire Department of State The Capitol, Mail Station 4 Tallahassee, FL 32399-0250 Michael R. Heiland P. O. Box 152143 Tampa, FL 33614 Ken Rouse, Esguire General Counsel The Capitol, LL-10 Tallahassee, FL 32399-0250 The Honorable Jim Smith Secretary of State The Captol Tallahassee, FL 32399-0250
Findings Of Fact Richard K. Black submitted his application for a Class "A" Private Investigative Agency license and a Class "C" Private Investigator license to the Department of State on November 11, 1982, together with all the fees. By letter dated November 19, 1982, the Department advised Mr. Black of the approval of the issuance of the Class "A" license subject to certain qualifications, which were not challenged by Mr. Black and are not at issue. By letter dated November 18, 1982, the Department advised Mr. Black that it had denied his application for licensure as a Class "C" Private Investigator because Mr. Black failed to meet the experience requirements of Section 493.306(4), Florida Statutes. Mr. Black made a timely request for a formal hearing pursuant to Section 120.57, Florida Statutes. The parties have stipulated that Mr. Black is qualified to hold a Class "C" Private Investigator license except for his lack of experience. Investigative activities of a private investigator include, but are not limited to, searching records, interviewing witnesses, making personal observations of physical evidence, conducting surveillances, and reporting the results and conclusions of these activities. While a student at Broward Community College during 1974 and 1975, Mr. Black served as a member of the "504 Committee," a volunteer organization whose purpose is to assist persons protected by Section 504 of the Federal Rehabilitation Act of 1973. Mr. Black's primary duties with said committee consisted of receiving complaints of alleged violations of the Rehabilitation Act concerning lack of physical access to public facilities, taking physical measurements of said facilities, performing library research to determine the applicability of the Act to said facility, and attempting to obtain compliance of the owner of the facility when a violation was found. Of these duties, the interviewing process and taking physical measurements would be qualified experience. No evidence was presented by Mr. Black regarding the specific amount of time which he devoted to these functions. While a student at Broward Community College during 1976 and 1977, Mr. Black engaged in a volunteer voter registration project for the handicapped. Mr. Black's primary duties in this regard consisted of obtaining voter registration data from public records, identifying areas in which registration of the handicapped was low, conducting house-to-house registration drives in said areas, writing letters, and arranging car pools. None of these activities qualify as experience for licensure as a private investigator. Mr. Black served as a volunteer firefighter for the North Andrews Volunteer Fire Department from 1972 to 1976. During this time, he attended a bomb and arson investigation seminar and assisted in a few arson investigations. Mr. Black did not document the specific number of investigations which he conducted or the amount of time spent in said investigations. During 1979 and 1980, during the tenure in office of Sheriff Ken Katsaris, Mr. Black served as a volunteer "special deputy" in Leon County. Mr. Black's primary duties consisted of inspecting polling places in the county to determine if proper access existed for the physically handicapped and reporting non-complying conditions to the Sheriff. While not all of Mr. Black's activities were qualified experience, he spent approximately 120 total hours on all activities in this project in 1980. For approximately three months, from August until October 1981, Mr. Black served as a nonpaid intern with the Florida Parole and Probation Services. Approximately 50 percent of this time was devoted to the qualified activities of locating probationers and parolees and assisting in investigations. Mr. Black assisted in processing service-connected or related disability claims for disabled veterans on a volunteer basis in the Leon County area. He assisted on five or six cased during the last several years. No evidence was submitted to document the specific amount of time Mr. Black devoted to the investigation of these claims. Mr. Black assisted the Alburquerque, New Mexico, police in locating the whereabouts of a fugitive from justice. This assistance was as a volunteer, and Mr. Black testified that he spent 20 to 25 hours a week for three months on this project. While attending Florida State University, Mr. Black participated in various programs to assist handicapped students. These activities are similar to the activities in which Mr. Black engaged as described in Paragraph 6 above. No evidence was presented as to the amount of time spent in qualified investigative activities during this time period. Mr. Black completed a four-day course in crisis intervention in 1981. Mr. Black obtained a Bachelor of Science degree in psychology from Florida State University. Although some of his course work in general subjects would be the same as the general course work required for a degree in criminology and some of the psychology courses which Mr. Black took would be helpful to an investigator, none of the course work which Mr. Black took is directly related to training as a private investigator. In evaluating the experience requirement for a Class "C" Private Investigator experience which is substantially identical and equal in force, power, effect and import as the experience gained in actually performing the services of a private investigator as a Class "CC" intern investigator. In evaluating the amount of time spent in investigative activities, the Department applies a standard 40-hour work week to the hours submitted by the applicant. The Department does not count volunteer experience in evaluating whether an applicant has met the time requirement unless the number of hours worked and the supervision exercise can be fully documented. Mr. Black has never been licensed as a Class "CC" intern investigator.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the application of Richard K. Black for licensure as a Class "C" Private Investigator be denied. DONE and RECOMMENDED this 20th day of May, 1983, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of May, 1983. COPIES FURNISHED: Mr. Richard K. Black 249 Oakview Drive Tallahassee, Florida 32304 Stephen Nall, Esquire Office of General Counsel Department of State The Capitol Tallahassee, Florida 32301 The Honorable George Firestone Department of State The Capitol Tallahassee, Florida 32301
Findings Of Fact Albert Spain is an applicant otherwise qualified for licensure as a private employment agency/agent except for the lack of three years continuous experience immediately preceding his application, the question which is at issue in this case. Spain was employed with a trade association as a vice president for 15 years until December 31, 1976. His experience in this position meets the requirements of equivalent experience as an employment clerk and is accepted as such by the Division. Spain was employed from February 28, 1977, until March 31, 1978, with Life of Georgia in Orlando, Florida. Thereafter, Spain was employed as manager of an employment agency which experience is accepted by the Division as equivalent experience as an employment clerk. The head of the Life of Georgia agency and Spain's immediate superior, William Richardson, testified concerning Spain's employment. Richardson needed an agent supervisor for his agency to assist him in recruiting, training and supervising agents for the company's Orlando operation. Richardson met Spain and was impressed with his background, feeling that Spain could fill this position as agent supervisor. However, in order to fill this position, the incumbent must be a licensed insurance salesman and have experience in insurance sales. Richardson offered Spain a position as a salesman with the understanding that if Spain gained experience in sales and was licensed he would have the opportunity to become the agent supervisor if his performance was otherwise satisfactory. Spain accepted the employment, obtained his insurance license and worked as an insurance salesman for approximately one year. Richardson was satisfied with Spain's progress and would have considered Spain for the supervisor's job had Spain not left the agency. Although Spain's duties primarily related to sales, he also recruited salesmen, worked in training other sales people, and did other work as was assigned by Richardson. Certain of these duties involved work which would be the equivalent of that of an employment clerk; however, Spain spent only approximately 50 percent of his time in such duties.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer would recommend that the application of Albert Spain for licensure as a private employment agent/agency be granted. DONE and ORDERED this 20th day of February, 1979, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of February, 1979. COPIES FURNISHED: Gerald Curington Division of Licensing The Capitol Tallahassee, Florida 32304 Albert L. Spain 4264C Lake Underhill Drive Orlando, Florida
Findings Of Fact Respondent, Heartland Private Industry Council (Council), is a thirty- four member council established under an interlocal agreement by five area counties in Central Florida. The counties are Polk, DeSoto, Hardee, Highlands and Okeechobee. The Council's office is located at 300 Parkview Place, Lakeland, Florida. The Council has entered into a contract with petitioner, Department of Labor and Employment Security, Division of Labor, Employment and Training (Division), under which it receives federal grant monies provided by the Job Training Partnership Act (JTPA). As is pertinent here, the Council used the funds to provide summer job training for disadvantaged youths. The Division is charged with the responsibility of ensuring that all grant moneys are properly expended. Under federal regulations, the Council was required to engage the services of an independent public accounting firm to perform a financial and compliance audit on its contract expenditures made during the fiscal period July 1, 1985 through June 30, 1986. During the period in question, the Council had total expenditures of approximately $7.9 million. Under the audit program developed by the accounting firm, the firm sampled and reviewed at random various expenditures. Among those reviewed were two checks dated August 23 and October 10, 1985 in the amount of $239 each payable to one Joyce Barber, a JTPA participant from the City of Auburndale. The expenditure was questioned, but not disallowed, on the ground the first check written to Joyce Barber had apparently been stolen and cashed by another person. A second check in the same amount was then issued to Barber. The auditors questioned whether, under these circumstances, the first expenditure was appropriate. In addition, the auditors noted a $13 mathematical error and recommended that amount be disallowed. Other than these two items, which totaled $252, there were no other proposed adjustments in the audit report. The audit report was forwarded by the Council to the Division on or about June 29, 1987. The report itself is not in evidence. The Division then reviewed the audit report and preliminarily concluded that both expenditures ($239 and $13) should be disallowed. After the matter could not be resolved informally, the Division issued proposed agency action in the form of a "Final Determination" on January 4, 1988. That prompted the Council to request a hearing to contest the action. Barber was one of approximately fourteen hundred youth participants during the summer of 1985 who received job training sponsored by the Council. In addition to their training, these youths were compensated by the Council for their services. There were several hundred employers in the five county area who were involved in the project. Because of the sheer number of participants and employers, the Council mailed its checks directly to the participants, including Barber. According to the Council's in-house certified public accountant (CPA), this was a reasonable manner of disbursing the payroll. The CPA also concluded that the Council's internal controls were adequate. After the checks had been mailed, the Council received a complaint that Barber did not receive her $239 check. It then requested that the Sheriff's office investigate the matter. Based upon that investigation, the Council concluded that the check had been stolen and cashed by another person, and it sent a second check to Barber. From this factual setting, it can be reasonably inferred that the money was either stolen or was not received by Barber. The Council could have obtained insurance to cover this type of loss. However, it would not be economically prudent to do so when comparing the money lost to the cost of a policy. The Council did not deny that a $13 mathematical error was made on one expenditure. Therefore, it is found that such an error occurred, and an adjustment in favor of the Division is appropriate. There are no Division or federal regulations governing the loss of grant monies under the circumstances that occurred here. However, the Division bases its disallowance on the theory that the contractor (Council) received no benefit from the first $239 check sent to Barber. The specific regulation which supports this theory was not cited or offered in evidence. Even so, the Council did not show what benefits, if any, it received from the lost moneys.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a Final Order be entered requiring respondent to repay $252 in JTPA funds to petitioner. DONE and ENTERED this 16th day of March, 1989, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of March, 1989.
Findings Of Fact Respondent/Applicant, North Orlando Water and Sewer Company, filed an application on August 11, 1981, with Respondent, Department of Environmental Regulation, seeking a permit to authorize the construction of sewage effluent disposal ponds in Winter Springs, Seminole County, Florida. On August 16, 1981, the Department advised the Applicant that additional information was required. This information was supplied by Applicant on September 11, 1981. After reviewing the application and supplemental information, the Department determined that Applicant had provided reasonable assurance that the proposed percolation ponds would not adversely affect waters of the State and thereafter issued Permit No. DC59-46435 on September 22, 1981, authorizing the construction of the requested activity. Petitioners are owners of the property on which one of the disposal ponds is to be constructed. On June 12, 1981, Applicant instituted condemnation proceedings in Circuit Court for Seminole County under Chapters 73, 74 and 361, Florida Statutes, seeking to condemn the property so that the facilities could be constructed. The suit remains pending until all necessary permits from the Department are acquired by Applicant. The parties agree that based on plans, test results and other information, the construction of the proposed installation will not discharge, emit, or cause pollution in contravention of Department standards, rules or regulations. The permit was issued without formal public notice. However, it falls under the class of permits enumerated in Rule 17-1.62(3)(a), Florida Administrative Code. That rule makes publication of a notice discretionary on the part of the Department, and no abuse of discretion was shown. Item D(i) on page 7 of the application requires that the Applicant "[i]ndicate the number of potable water supply wells within 500 feet of effluent disposal area, the depths of these wells and their approximate distances from the disposal area." Applicant answered "None". There are no public potable water supply wells within 500 feet of the effluent disposal area. There are several private potable water supply wells within 500 feet of the pond but adequate buffer zones between these private potable water supply wells and the actual effluent disposal area exist. Moreover, Petitioners' expert witness conceded that seepage would be minimal, should not be a concern, and the failure to list the private wells on the application had no effect on the substantive merits of the application. Applicant construed the term "potable water supply wells" to mean only public wells since DER has no jurisdiction over private wells. For this reason, it answered the question in the manner that it did. The Department concurs in this interpretation.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Permit No. DC59-46435 be issued to Applicant, North Orlando Water and Sewer Company. DONE and ENTERED this 23rd day of July, 1982, in Tallahassee, Florida. DONALD R. ALEXANDER 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 23rd day of July, 1982.
