The Issue Whether Respondent Heath Currier committed the violations alleged in the Final Notice of Discipline, and if so, the appropriate discipline that should be imposed.
Findings Of Fact The fire chief, on behalf of the City of Cape Coral Fire Department, is responsible for terminating the employment of employees of the fire department. At all times relevant to the this proceeding, Respondent was employed by Petitioner as a firefighter. The employment position that Respondent occupies is included in the positions covered by the collective bargaining agreement between Petitioner and the Cape Coral Professional Fire Fighters Local 2424 of The International Association of Fire Fighters (Union). Petitioner has the authority to monitor and regulate its employees in accordance with the laws and rules of the State of Florida, the City of Cape Coral Charter, ordinances and rules promulgated thereunder, and the collective bargaining agreement between Petitioner and the Union. According to the Joint Pre-Hearing Statement, “Article 7(d)(2) of the union contract states that employees are entitled to Notice of Intended Discipline” and, according to Respondent, “Heath Currier wasn’t advised that his employment was being terminated until after the fire chief’s pre-disciplinary hearing.” The referenced article of the union contract was not offered into evidence. However, chapter 2, division 7 of the City of Cape Coral Ordinances (division 7), was received into evidence and this ordinance sets forth Respondent’s procedural disciplinary notice rights. Section 2-31.4(b) of division 7 provides in part that “[w]hen disciplinary action against an employee with regular status is contemplated by the city, the department head shall provide the employee with written notice of the intended action(s).” Section 2-31.4(c)(6) provides further that “[i]n no event shall the discipline imposed be greater than that specified in the notice of proposed disciplinary action.” On or about December 22, 2015, Respondent received a notice of proposed disciplinary action from Petitioner which informed him that the fire chief was considering disciplinary action including, but not limited to, “written reprimand, suspension, demotion, and/or termination of employment with the City.” Following the issuance of the notice of proposed disciplinary action, an investigation was conducted which resulted in the issuance of a final notice of disciplinary action which advised Respondent that his employment with the City of Cape Coral was being terminated “effectively immediately.” The notice of proposed disciplinary action provided Respondent with notice that termination of his employment with the City of Cape Coral was a possible consequence resulting from his alleged misconduct, and the notice was issued in accordance with the requirements of division 7. Respondent, at the time of the occurrences that provide the basis for the instant action, was a seven-year member of the Cape Coral Fire Department, and, during all times relevant hereto, worked primarily in the department’s division of operations. The fire department’s division of operations is divided into two battalions, “fire north” and “fire south.” Respondent was assigned to the fire south division. The division of professional standards is another division within the fire department, and, during all times relevant hereto, was under the supervision of then special operations battalion chief Timothy Clark. Housed within the fire department’s division of professional standards is the department’s special operations unit, which includes the department’s dive/rescue team. Mr. Clark, in his capacity as battalion chief for special operations, had the authority to direct fire department employees in matters related to dive/rescue operations. To become a member of the dive/rescue team, a firefighter must go through a competitive process that, if successfully completed, results in the firefighter receiving additional pay in the form of a wage supplement. Members of the dive/rescue team, according to Mr. Clark, must be proficient in the operation of dive-related equipment to the point of knowing the equipment “inside and out, upside down, sideways, backwards, eyes closed, [and] blindfolded.” Respondent is a member of the department’s dive/rescue team. At some point (the exact date is not clear in the record), Respondent was assigned to the fire station where the dive/rescue team is located. The dive/rescue team is under the direct supervision of Ryan Corlew. The dive/rescue team has regular training exercises which require members of the team to perform certain tasks so as to maintain operational efficiency. Mr. Corlew, when working with Respondent, determined that Respondent’s knowledge of the operational aspects of some of the dive/rescue equipment was deficient and in need of remediation. Special operations battalion chief Clark was informed of Respondent’s problems with the dive/rescue equipment, and armed with this information, met with Respondent to discuss the issue. Mr. Clark explained to Respondent that he was displeased that Respondent was not as proficient with the dive/rescue equipment as he should be, and that he was placing Respondent on a non-punitive three-week remedial training program. Mr. Clark “instructed [Respondent] at that time to work with the other guys in [his] station, the lieutenant, the engineer, the firefighters, all the divers there, to work with them and train with them and have them teach [you] so that when I come back in three weeks, [you will know] this stuff inside out . . . backwards . . . [and] blindfolded.” Respondent explained that after he was instructed by Mr. Clark to work with the other guys at his station, he repeatedly asked (“morning, noon, and evening”) his lieutenant, Mr. Corlew, for training, and each time he was refused. According to Mr. Corlew, Respondent, while at the dinner table one night, asked if Mr. Corlew could personally train him, and Mr. Corlew, as Respondent’s supervisor, told Respondent to first work with firefighters Stalions and Johnson, both of whom are extremely knowledgeable about the workings of the dive equipment. Mr. Corlew went on to advise Respondent that he would personally work with him once firefighters Stalions and Johnson raised Respondent’s proficiency with the equipment to an acceptable level. Firefighter Stalions testified that during this same discussion at the dinner table, he offered to train Respondent, but Respondent refused and said that he wanted to be trained instead by Mr. Corlew. Respondent testified that “[e]very single day [he] would take all of the dive equipment out of the compartments, disassemble it completely, reassemble it and do that at least twice a day.” In an attempt to corroborate this testimony, Respondent called Steven Jobe as a witness. Mr. Jobe testified that he “didn’t necessarily see [Respondent] putting [the dive equipment] together and taking it apart.” Although Mr. Clark told Respondent to be ready to demonstrate his proficiency three weeks from the time of their meeting, it was actually four weeks later when Mr. Clark again met with Respondent. During the follow-up meeting, Mr. Clark gave Respondent “a simple scenario that engine 2 had come back from a call, all the equipment was trashed and everything needed to be replaced.” According to Mr. Clark: I needed [Respondent] to go in the back room, get all the stuff together and assemble a dive setup, check it out and test it and make sure it was ready to go if a call came in. He fumbled through it. It took him a long time to put stuff together. He ultimately figured a couple things out throughout the process of elimination, but there was [sic] still some things that he had wrong. He had the weights, they weren’t properly in the BCs (undefined), which is a critical safety issue, because if you lose your weights on the call, it could cause you to bolt to the surface, which could cause injury to yourself or others. So by placing the weights improperly the way he did, to me was a huge [problem]. (Hearing transcript pg. 83). Mr. Clark went on to explain that “once we were all done, like I said, he had some issues and I knew--it was obvious that he hadn’t done what I instructed him to do[,] [s]o I asked him at the time who he had worked with over the course of that four weeks.” Mr. Clark explained that he asked Respondent who he had trained with during the four-week period because if the individuals that remediated Respondent were performing at or near the same level as Respondent, then Mr. Clark believed that he had a larger issue of operational preparedness that he needed to address by personally retraining all concerned. In response to Mr. Clark’s request for names, Respondent told Mr. Clark “the only people that I’ve had consistently with me are two firefighters that I’ve worked with,” named Johnson and Stalions. Soon after meeting with Mr. Clark, Respondent sent the following text message to firefighters Johnson and Stalions: Hey guys heads up, I just had my “non punative [sic] dive gear quiz” with [C]lark and I missed a few things. He asked who I had been working with and I reluctantly gave him your names after [C]orlew told him I never went to [M]edero for help. Not sure if there will be any fallout but I wanted to let you both know ahead of time. Mr. Johnson credibly testified that he was surprised to have received the referenced text message from Respondent given that he had never been asked to, nor had he ever provided any type of training to Respondent. Firefighter Stalions credibly testified that after receiving the text he spoke with Respondent and “told him I didn’t appreciate being pulled into it because training wise, I didn’t do any formal training with him and it kind of to me felt like he was looking for kind of some backup on it.” Firefighter Stalions went on to explain that he had never trained with Respondent, but certainly would have had he been asked. Because Respondent did not train with either firefighter Johnson or Stalions, Respondent lied to Mr. Clark when informing him that Respondent had trained with these individuals. Respondent’s poor performance on his remedial test, combined with the fact that not a single witness corroborated Respondent’s testimony of having disassembled and reassembled the dive equipment twice a day, every single day, makes incredible his testimony regarding self-directed remedial training. Respondent testified that he “did everything [he] thought [he] could do” to comply with Mr. Clark’s directions and recommendations. Respondent’s assertion is, however, belied by the evidence which demonstrates that Respondent did not train on the dive equipment with firefighters Madero and Johnson, and refused a direct offer from firefighter Stalions to assist Respondent with training. It was solely the fault of Respondent that he did not secure remedial training as directed by Mr. Clark.
The Issue Whether Permit Number 9330008850 (a building permit for the construction of a single-family residence and swimming pool) issued by Monroe County, Florida, to Fred Snowman is inconsistent with Monroe County's setback requirement pertaining to beach berms that are known turtle nesting areas.
Findings Of Fact Petitioner is the state land planning agency charged with the responsibility to administer the provisions of Chapter 380, Florida Statutes, and the regulations promulgated thereunder. Petitioner has the authority to appeal to the Florida Land and Water Adjudicatory Commission any development order issued in an area of critical state concern. Sections 380.031(18), 380.032, and 380.07, Florida Statutes. Monroe County is a political subdivision of the State of Florida, and is responsible for issuing development orders for development in unincorporated Monroe County, Florida. Monroe County issued the development order that is the subject of this appeal. Respondent Fred Snowman is a general contractor and is the owner of real property known as Lot 75, Matecumbe Ocean Beach subdivision, Lower Matecumbe Key, in Monroe County, Florida. The subject property is a residential lot that measures 100 feet by approximately 225 feet and was acquired by Mr. Snowman in September 1992. The subject property is bounded on the landward side by U.S. 1 and fronts the Atlantic Ocean. Respondent's lot is within the Florida Keys Area of Critical State Concern. On September 30, 1993, Monroe County issued building permit, Permit Number 9330008850, to Fred Snowman as Owner and General Contractor. This building permit is a development order in an area of critical state concern and is the subject of this proceeding. As reflected by the approved site plans, the permit authorizes the construction of a 2,472 square foot single-family residence with 1,568 square feet of porches, a 1,435 square foot storage enclosure below base flood elevation, and a swimming pool on the property. As permitted, all construction will be setback at least 75 feet from the mean high water line. There is no dispute between the parties as to where the mean high water line is located. Sections 9.5-335 through 9.5-345, Monroe County Code, are land development regulations that contain certain environmental performance standards relating to development. The purpose of these standards is "to provide for the conservation and protection of the environmental resources of the Florida Keys by ensuring that the functional integrity of natural areas is protected when land is developed." See, Section 9.5-335, Monroe County Code. Included in the environmental standards of the land development regulations is Section 9.5-345, Monroe County Code, entitled "Environmental design criteria," which provides, in relevant part: Disturbed Lands: All structures developed, used or occupied on land which are [sic] classified as disturbed on the existing conditions map shall be designated, located and constructed such that: * * * (3) On lands classified as disturbed with beach berm: * * * f. No structure shall be located within fifty (50) feet of any portion of any beach-berm complex which is known to serve as an active nesting or resting area of marine turtles, terns, gulls or other birds; There is little dispute that Lower Matecumbe beach is an active nesting area for marine turtles. Loggerhead turtles, the primary marine turtles which nest on Atlantic beaches in the Keys, are a threatened species under the federal Endangered Species Act. There are thirty beaches in the Florida Keys which consist of loggerhead nesting habitat. The beach that fronts Mr. Snowman's property on Lower Matecumbe Key is a known turtle nesting beach that is ranked as the second most heavily nested beach in the Keys. The Monroe County comprehensive plan recognizes the beaches on Lower Matecumbe Key as known loggerhead turtle nesting beaches. Pursuant to the comprehensive plan, the County has prepared endangered species maps as a tool to be utilized in identifying known turtle nesting areas. At the time Mr. Snowman obtained approval of his permit application from Monroe County, the County's endangered species maps omitted an approximately 1.5 mile stretch of Lower Matecumbe Beach, including Mr. Snowman's property, from its map designation of a known nesting habitat. However, since that approval, the map, which is subject to periodic updates, has been updated by the County to reflect that all of Lower Matecumbe Key, including Mr. Snowman's property, is considered by the County to be known turtle nesting habitat. Mr. Snowman did not rely on the designation on the endangered species map in making his decision to purchase the subject property or in designing the improvements he seeks to construct on the property. Surveys of turtle nesting behavior in the Florida Keys are accomplished through a network of volunteers. The nesting survey information obtained from this volunteer network provides very general locations with varying degrees of accuracy depending on the number and ability of the volunteers and the extent to which they can obtain access to privately owned beach front property. Because of the limitations in the survey data, is it generally not possible to determine whether turtles have nested on a particular lot. There was no evidence that turtles actually nest on Mr. Snowman's property. Marine turtles most commonly nest within the first 50 feet landward of the mean high tide line, although they have been known to go farther upland. Because of the compressed beach and berm habitat in the Keys, loggerhead turtles have been known to nest in grassy vegetation and woody vegetation more than 50 feet landward of the mean high water line. Mr. Snowman's property is properly designated as "Disturbed Lands" and there exists on this property a "beach-berm complex" which is known to serve as an active nesting area of marine turtles within the meaning of Section 9.5- 345, Monroe County Code. The setback requirement found in Section 9.5-345, Monroe County Code, applies to this development. Consequently, no construction of any structure may be located within fifty (50) feet of any portion the beach- berm complex which is known to serve as an active nesting area of marine turtles. There was a conflict in the evidence as to how much of Mr. Snowman's property should be considered to be a beach-berm habitat. The County has identified the landward extent of the beach-berm to be twenty-five feet from the mean high water line, so that the setback would be to a point at least 75 feet from the mean high water line. The Department has identified the landward extent of the beach berm to be 80 feet from the mean high water line so that the setback would be to a point at least 130 feet from the mean high water line. Section 9.5-4(B-3) contains the following definition that is pertinent to this proceeding: (B-3) "Beach berm" means a bare, sandy shoreline with a mound or ridge of unconsolidated sand that is immediately landward of, and usually parallel to, the shoreline and beach. The sand is calcareous material that is the remains of marine organisms such as corals, algae and molluscs. The berm may include forested, coastal ridges and may be colonized by hammock vegetation. There are two distinct ridges located on the Snowman property. Beginning at the mean high water line, there is an area of sandy beach followed by a ridge (the first ridge) that levels off approximately 25 feet from the mean high water line. Behind this first ridge is another ridge that levels off approximately 80 feet landward of the mean high water line. This second ridge contains the highest elevation point on Mr. Snowman's property, with the crest of the second ridge corresponding with the 5.9 foot elevation reflected on Respondent's site plan. There is no vegetation on the beach, which is an area of sandy substrate, until the landward downslope of the first ridge, where vegetation in the form of grasses and sea oats appear. Grasses and sea oats extend approximately 30-40 feet landward into the beginning of the second ridge. Behind the grasses and sea oats is woody vegetation, Bay Cedar, and shrubbery typical of beach front property. Also found on the property and landward of the first ridge are sea grape, wild sage, gray nicker pod, and prickly pear cactus. Monroe County considers this first ridge to be the extent of the beach berm complex on the Snowman property. The County identifies the back of the berm on the subject property as measuring 25 feet landward of mean high water and applied the 50 foot setback requirement from that point. The determination of the extent of the beach berm by the County is consistent with the definition of the term "beach berm" contained in Section 9.5-345(3)f, Monroe County Code, and is supported by the greater weight of the evidence presented at the formal hearing. Consequently, it is found that the beach berm complex on the Snowman property extends 25 feet landward of the mean high water mark so that the setback requirement was properly applied when the development order was issued. The Department asserts that the second ridge should be considered to be part of the beach berm. The Department's determination of the extent of the beach berm is bottomed on a more expansive definition of the term "beach berm" derived from its interpretation of various portions of the Monroe County Comprehensive Code. Inexplicably, the Department's interpretation of what should be considered to be included as part of the "beach berm" ignores the definition contained in Section 9.5-345(3)f, Monroe County Code. The Department interprets the term "beach berm" to include not only the initial increase and decrease in elevation near the shoreline, but also those areas of calcareous substrate that form the second ridge and include the highest elevation on the subject property. The Department considers the beach berm to terminate 80 feet from the mean high water line where the elevation of the second ridge decreases and levels off to a more consistent grade. The Department characterizes the first ridge as a primary dune the second ridge as a secondary dune. In support of its position, the Department cites the discussion of beach berms in the Florida Keys contained in Volume I of the Monroe County Comprehensive Plan. That discussion describes a berm in the Keys as the "higher, mostly vegetated dense-like sand ridges." According to the Comprehensive Plan, the biota characteristics of beach systems in the Keys occur in up to four distinct generalized zones or associations, assemblages of plants and animals that have adapted to the environmental conditions of that zone. The zones on Keys beaches are described by Volume I of the Comprehensive Plan as follows: The strand-beach association is dominated by plants that are salt tolerant, root quickly, germinate from seed rapidly, and can withstand wave wash and shifting sand. Commonly found species include Sea Purslane, . . . Beach Grass, . . . Sea Oats, . . . [and] Bay Cedar. On most Keys beaches this association occurs only atthe base of the berm since the beach zone is very narrow. These plants also occupy themost seaward portion of the berm and continuesome distance landward. * * * The next zone, "strand-dune" association,begins with a steep and distinct increase inslope upward from the beach. . . . The bermmay be elevated only several inches or as much as several feet above the level of the beach and may extend landward hundreds of feet as a flat-topped plateau or beach ridge. The foreslope of the berm, or beach ridge, is vegetated primarily by the above-listed species of the beach association. Grasses and herbaceous plants, which serve to stabilize this area, are most common. Proceeding landward, these pioneer species are joined by other species. * * * The strand-scrub association is generallyconsidered a transition zone between strand-dune and hammock forest. Shrubs and occasional trees occur more frequently here and become more abundant as one proceeds landward. Species often found include Seagrape, . . . Wild Sage (Lantana involucrata), [and] Gray Nicker. . . . The most landward zone on the berm is occupied by tropical hardwood hammocks. The term "berm" is identified in the Monroe County comprehensive plan as . . . a mound or ridge of unconsolidated sand that is immediately landward of, and usually parallel to, the shoreline and beach. A berm is higher in elevation than both the beach and the area landward of the berm. * * * The height and width of berms in the Keys is highly variable. They may range in height from slightly above mean high water to more than seven (7) feet above mean sea level. The width of berms in the Keys varies from tens of feet to more than 200 feet. Despite the support the Department found in the Comprehensive Plan for a more stringent setback requirement, the Department is not at liberty to ignore the definition of the term beach berm contained in the land development regulations. While both ridges that exist on the Snowman property may be considered berms or dunes, only the first should be considered a beach berm. The first ridge is ". . . a bare, sandy shoreline with a mound or ridge of unconsolidated sand" within the meaning of Section 9.5-4(B-3), Monroe County Code. The second ridge is above the vegetation line and is not ". . . a bare, sandy shoreline" within the meaning of the definition of beach berm contained in the Monroe County land development regulations.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Land and Water Adjudicatory Commission enter a final order that adopts the findings of fact and the conclusions of law contained herein and denies the appeal filed by the Department of Community Affairs as to building permit number 9330008850 issued by Monroe County, Florida. DONE AND ENTERED this 25th day of October, 1994, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 25th day of October, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-7165DRI The following rulings are made on the proposed findings of fact submitted by the Petitioner. The proposed findings of fact in paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 13, 14, 15, 16, 17, 18, 21, 25, 26, 27, 29, 32, and 33 are adopted in material part by the Recommended Order. The proposed findings of fact in paragraphs 9 and 23 are rejected as being unnecessary to the conclusions reached. The proposed findings of fact in paragraphs 10, 11, 12, 24, 28, and 31 are rejected as being subordinate to the findings made. The proposed findings of fact in paragraph 19 are rejected as being unsubstantiated by the evidence and as a misconstruction of the cited testimony. The proposed findings of fact in paragraphs 20, 22, and 34 are rejected as being unsubstantiated by the evidence. The proposed findings of fact in paragraph 30 are rejected as being unnecessary to the conclusions reached since the setback is from any portion of the "beach berm complex" and not from any area that may be considered to be turtle nesting habitat. The following rulings are made on the proposed findings of fact submitted by the Respondent. The proposed findings of fact in paragraphs 1, 2, 3, 4, and 5 are summaries of testimony that are subordinate to the findings made. The proposed findings of fact in paragraph 6 are rejected as being unsubstantiated by the evidence and contrary to the findings made. The proposed findings of fact in paragraph 7 and 8 are adopted in material part by the Recommended Order. COPIES FURNISHED: Sherry A. Spiers, Esquire Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399-2100 Nicholas W. Mulick, Esquire 88539 Overseas Highway Tavernier, Florida 33070 Randy Ludacer, Esquire Monroe County Attorney Fleming Street Key West, Florida 33040 Mr. Fred Snowman Post Office Box 771 Islamorada, Florida 33035 Carolyn Dekle, Director South Florida Regional Planning Council Suite 140 3400 Hollywood Boulevard Hollywood, Florida 33021 David K. Coburn, Secretary Florida Land & Water Adjudicatory Commission Carlton Building Tallahassee, Florida 32301
The Issue The issues in these cases are whether the Agency for Health Care Administration (AHCA or Agency) should discipline (including license revocation) Bayou Shores SNF, LLC, d/b/a Rehabilitation Center of St. Pete (Bayou Shores) for the statutory and rule violations alleged in the June 10, 2014, Administrative Complaint, and whether AHCA should renew the nursing home license held by Bayou Shores.
Findings Of Fact Bayou Shores is a 159-bed licensed nursing facility under the licensing authority of AHCA, located in Saint Petersburg, Florida. Bayou Shores was at all times material hereto required to comply with all applicable rules and statutes. Bayou Shores was built in the 1960s as a psychiatric hospital. In addition to long-term and short-term rehabilitation residents, Bayou Shores continues to treat psychiatric residents and other mental health residents. AHCA is the state regulatory authority responsible for licensure of nursing homes and enforcement of applicable federal regulations, state statutes, and rules governing skilled nursing facilities, pursuant to the Omnibus Reconciliation Act of 1987, Title IV, Subtitle C (as amended) chapters 400, Part II, and 408, Part II, Florida Statutes, and Florida Administrative Code Chapter 59A-4. AHCA is responsible for conducting nursing homes surveys to determine compliance with Florida statutes and rules. AHCA completed surveys of Bayou Shores’ nursing home facility on or about February 10, 2014;5/ March 20, 2014; and July 11, 2014. Surveys may be classified as annual inspections or complaint investigations. Pursuant to section 400.23(8), Florida Statutes, AHCA must classify deficiencies according to their nature and scope when the criteria established under section 400.23(2) are not met. The classification of the deficiencies determines whether the licensure status of a nursing home is "standard" or "conditional" and the amount of the administrative fine that may be imposed, if any. AHCA surveyors cited deficiencies during the three surveys listed above (paragraph 4). Prior to the alleged events that prompted AHCA’s actions, Bayou Shores had promulgated policies or procedures for its operation. Specifically, Bayou Shores had policies or procedures in place governing: (Resident) code status, involving specific life-saving responses (regarding what services would be provided when or if an untoward event occurred, including a resident’s end of life decision); Abuse, neglect, exploitation, misappropriation of property; and Elopements. CODE STATUS Bayou Shores’ policy on code status orders and the response provided, in pertinent part, the following: Each resident will have the elected code status documented in their medical record within the Physician’s orders & on the state specific Advanced Directives form kept in the Advanced Directives section of the medical record. Bayou Shores’ procedure on code status orders and the response also provided that the “Physician & or Social Services/Clinical Team” would discuss with a “resident/patient or authorized responsible party” their wishes regarding a code status as it related to their current clinical condition. This discussion was to include an explanation of the term “'Do Not Resuscitate’ (DNR) and/or ‘Full Code.’” Bayou Shores personnel were to obtain a written order signed by the physician indicating which response the resident (or their legal representative) selected. In the event a resident was found unresponsive, the procedure provided for the following staff response: 3 Response: Upon finding a resident/patient unresponsive, call for help. Evaluate for heartbeat, respirations, & pulse. The respondent to the call for help will immediately overhead page a “CODE BLUE” & indicate the room number, or the location of the resident/patient & deliver the Medical Record & Emergency Cart to the location of the CODE BLUE. If heartbeat, respirations, & pulse cannot be identified, promptly verify Code Status - Respondent verifies Code Status by review of the resident’s/patient’s Medical Record. If Code Status is “DNR” – DO NOT initiate CPR (Notify Physician, Supervisor & Family). If Code Status includes CPR & respondent is CPR certified, BEGIN Cardio Pulmonary Resuscitation. If respondent is not CPR certified, STAY with the RESIDENT/PATIENT – Continue to summon assistance. The first CPR certified responder will initiate CPR. If code status is not designated, the resident is a FULL CODE & CPR will be initiated. A scribe will be designated to record activity related to the Code Blue using the “Code Blue Worksheet.” The certified respondent will continue CPR until: Relieved by EMS, relieved by another CPR certified respondent, &/or Physician orders to discontinue CPR. A staff member will be designated to notify the following person(s) upon initiation of CPR. EMS (911) Physician Family/Legal Representative * * * 5) Review DNR orders monthly & with change in condition and renew by Physician’s signature on monthly orders. (Emphasis supplied). Bayou Shores’ “Do Not Resuscitate Order” policy statement provides: Our facility will not use cardiopulmonary resuscitation and related emergency measures to maintain life functions on a resident when there is a Do Not Resuscitate Order in effect. Further, the DNR policy interpretation provides: Do not resuscitate order must be signed by the resident’s Attending Physician on the physician’s order sheet maintained in the resident’s medical record. A Do Not Resuscitate Order (DNRO) form must be completed and signed by the Attending Physician and resident (or resident’s legal surrogate, as permitted by State law) and placed in the front of the resident’s medical record. (Note: Use only State approved DNRO forms. If no State form is required use facility approved form.) Should the resident be transferred to the hospital, a photocopy of the DNRO form must be provided to the EMT personnel transporting the resident to the hospital. Do not resuscitate orders (DNRO) will remain in effect until the resident (or legal surrogate) provides the facility with a signed and dated request to end the DNR order. (Note: Verbal orders to cease the DNRO will be permitted when two (2) staff members witness such request. Both witnesses must have heard and both individuals must document such information on the physician’s order sheet. The Attending Physician must be informed of the resident’s request to cease the DNR order.) The Interdisciplinary Care Planning Team will review advance directives with the resident during quarterly care planning sessions to determine if the resident wishes to make changes in such directives. Inquiries concerning do not resuscitate orders/requests should be referred to the Administrator, Director of Nursing Services, or to the Social Services Director. Bayou Shores’ advance directives policy statement provides: “Advance Directives will be respected in accordance with state law and facility policy.” In pertinent part, the Advance Directives policy interpretation and implementation provides: * * * Information about whether or not the resident has executed an advance directive shall be displayed prominently in the medical record. In accordance with current OBRA definitions and guidelines governing advance directives, our facility has defined advanced directives as preferences regarding treatment options and include, but are not limited to: * * * b. Do Not Resuscitate – Indicates that, in case of respiratory or cardia failure, the resident, legal guardian, health care proxy, or representative (sponsor) has directed that no cardiopulmonary resuscitation (CPR) or other life-saving methods are to be used. * * * Changes or revocations of a directive must be submitted in writing to the Administrator. The Administrator may require new documents if changes are extensive. The Care Plan Team will be informed of such changes and/or revocations so that appropriate changes can be made in the resident assessment (MDS) and care plan. The Director of Nursing Services or designee will notify the Attending Physician of advance directives so that appropriate orders can be documented in the resident’s medical record and plan of care. (Emphasis supplied). A DNR order is an advance directive signed by a physician that nursing homes are required to honor. The DNR order is on a state-mandated form that is yellow/gold (“goldenrod”) in color. The DNR order is the only goldenrod form in a resident’s medical record/chart.6/ The medical record itself is kept at the nursing station. DNR Orders should be prominently placed in a resident’s medical record for easy access. When a resident is experiencing a life-threatening event, care-givers do not have the luxury of time to search a medical record or chart to determine whether the resident has a DNR order or not. Cardiopulmonary resuscitation should be started as soon as possible, provided the resident did not have a DNR order. Bayou Shores had a policy and procedure regarding DNR orders and the implementation of CPR in place prior to the February 2014 survey. The policy and procedure required that DNR orders be honored, and that each resident with a DNR order have the DNR order on the state-mandated goldenrod form in the "Advanced Directives" section of the resident’s medical record. ABUSE, NEGLECT, EXPLOTATION, AND MISAPPROPRIATION OF PROPERTY PREVENTION, PROTECTION AND RESPONSE POLICY AND PROCEDURES Bayou Shores’ “Abuse, Neglect, Exploitation, and Misappropriation of Property Prevention, Protection and Response” policy provided in pertinent part: Abuse, Neglect, Exploitation, and Misappropriation of Property, collectively known and referred to as ANE and as hereafter defined, will not be tolerated by anyone, including staff, patients, volunteers, family members or legal guardians, friends or any other individuals. The health center Administrator is responsible for assuring that patient safety, including freedom from risk of ANE, hold the highest priority. (Emphasis supplied). Bayou Shores’ definition of sexual abuse included the following: Sexual Abuse: includes but is not limited to, sexual harassment, sexual coercion, or sexual assault. (Emphasis supplied). Bayou Shores’ ANE prevention issues policies included in pertinent part: The center will provide supervision and support services designed to reduce the likelihood of abusive behaviors. Patients with needs and behaviors that might lead to conflict with staff or other patients will be identified by the Care Planning team, with interventions and follow through designed to minimize the risk of conflict. Bayou Shores’ procedure for prevention issues involving residents identified as having behaviors that might lead to conflict included, in part, the following: patients with a history of aggressive behaviors, patients who enter other residents rooms while wandering. * * * e. patients who require heavy nursing care or are totally dependent on nursing care will be considered as potential victims of abuse. Bayou Shores’ interventions designed to meet the needs of those residents identified as having behaviors that might lead to conflict included, in part: Identification of patients whose personal histories render them at risk for abusing other patients or staff, assessment of appropriate intervention strategies to prevent occurrences, Bayou Shores’ policy regarding ANE identification issues included the following: Any patient event that is reported to any staff by patient, family, other staff or any other person will be considered as possible ANE if it meets any of the following criteria: * * * f. Any complaint of sexual harassment, sexual coercion, or sexual assault. (Emphasis supplied). Bayou Shores’ ANE procedure included the following: Any and all staff observing or hearing about such events will report the event immediately to the ABUSE HOTLINE AT 1-800-962-2873. The event will also be reported immediately to the immediate supervisor, AND AT LEAST ONE OF THE FOLLOWING INDIDUALS, Social Worker (ANE Prevention Coordinator), Director of Nursing, or Administrator. Any and all employees are empowered to initiate immediate action as appropriate. (Emphasis supplied). Bayou Shores’ policies regarding ANE investigative issues provided the following: Any employee having either direct or indirect knowledge of any event that might constitute abuse must report the event promptly. * * * All events reported as possible ANE will be investigated to determine whether ANE did or did not take Place [sic]. Bayou Shores’ procedures regarding ANE investigative issues included the following: Any and all staff observing or hearing about such events must report the event immediately to the ANE Prevention Coordinator or Administrator. The event should also be reported immediately to the employee’s supervisor. All employees are encouraged and empowered to contact the ABUSE HOTLINE AT 1-800-962-2873. [sic] if they witness such event or have reasonable cause to suspect such an event has indeed occurred. THE ANE PREVENTION COORDINATOR will initiate investigative action. The Administrator of the center, the Director of Nurses and/or the Social Worker (ANE PREVENTION COORDINATOR) will be notified of the complaint and action being taken as soon as practicable. (Emphasis supplied). Bayou Shores’ policy regarding ANE reporting and response issues included the following: All allegations of possible ANE will be immediately reported to the Abuse Hotline and will be assessed to determine the direction of the investigation. Bayou Shores’ procedures regarding ANE reporting and response issues included the following: Any investigation of alleged abuse, neglect, or exploitation will be reported immediately to the Administrator and/or the ANE coordinator. It will also be reported to other officials, in accordance with State and Federal Law. THE IMMEDIATE REPORT All allegations of abuse, neglect, . . . must be reported immediately. This allegation must be reported to the Abuse Hotline (Adult Protective Services) within twenty-four hours whenever an allegation is made. The ANE Prevention Coordinator will also submit The Agency for Health Care Administration AHCA Federal Immediate/5-Day Report and send it to: Complaint Administration Unit Phone: 850-488-5514Fax: 850-488-6094 E-Mail: fedrep@ahca.myflorida.com THE REPORT OF INVESTIGATION (Five Day Report): The facility ANE Prevention Coordinator will send the result of facility investigations to the State Survey Agency within five working days of the incident. This will be completed using the same AHCA Federal/Five Day Report, and sending it to the Complaint investigation Unit as noted above. DESIGNATED REPORTERS: Shall immediately make a report to the State Survey Agency, by fax, e-mail, or telephone. All necessary corrective actions depending on the result of the investigation will be taken. Report any knowledge of actions by a court of law against any employee, which would indicate an employee is unfit for service as a nurse aide or other facility staff to the State nurse aide registry or other appropriated [sic] licensing authorities. Any report to Adult Protective Services will trigger an internal investigation following the protocol of the Untoward Events Policy and Procedure. (Emphasis supplied). Bayou Shores’ abuse investigations policy statement provides the following: All reports of resident abuse, . . . shall be promptly and thoroughly investigated by facility management. Bayou Shores’ abuse investigations interpretation and implementation provides, in pertinent part, the following: Should an incident or suspected incident of resident abuse, . . . be reported, the Administrator, or his/her designee, will appoint a member of management to investigate the alleged incident. The Administrator will provide any supporting documents relative to the alleged incident to the person in charge of the investigation. The individual conducting the investigation will, as a minimum: Review the completed documentation forms; Review the resident’s medical record to determine events leading up to the incident; Interview the person(s) reporting the incident; Interview any witnesses to the incident; Interview the resident (as medically appropriate); Interview the resident’s Attending Physician as needed to determine the resident’s current level of cognitive function and medical condition; Interview staff members (on all shifts) who have had contact with the resident during the period of the allege incident; Interview the resident’s roommate, family members, and visitors; Interview other residents to whom the accused employee provides care or services; and Review all events leading up to the alleged incident. The following guidelines will be used when conducting interviews; Each interview will be conducted separately and in a private location; The purpose and confidentiality of the interview will be explained thoroughly to each person involved in the interview process; and Should a person disclose information that may be self-incriminating, that individual will be informed of his/her rights to terminate the interview until such time as his/her rights are protected (e.g., representation by legal counsel). Witness reports will be obtained in writing. Witnesses will be required to sign and date such reports. The individual in charge of the abuse investigation will notify the ombudsman that an abuse investigation is being conducted. The ombudsman will be invited to participate in the review process. Should the ombudsman decline the invitation to participate in the investigation, that information will be noted in the investigation record. The ombudsman will be notified of the results of the investigation as well as any corrective measures taken. * * * The individual in charge of the investigation will consult daily with the Administrator concerning the progress/findings of the investigation. The Administrator will keep the resident and his/her representative (sponsor) informed of the progress of the investigation. The results of the investigation will be recorded on approved documentation forms. The investigator will give a copy of the completed documentation to the Administrator within working days of the reported incident. The Administrator will inform the resident and his/her representative (sponsor) of the results of the investigation and corrective action taken within days of the completion of the investigation. The Administrator will provide a written report of the results of all abuse investigations and appropriate action taken to the state survey and certification agency, the local police department, the ombudsman, and others as may be required by state or local laws, within five (5) working days of the reported incident. Should the investigation reveal that a false report was made/filed, the investigation will cease. Residents, family members, ombudsmen, state agencies, etc., will be notified of the findings. (Note: Disciplinary actions concerning the filing of false reports by employees are outlined in our facility’s personnel policy manual.) Inquiries concerning abuse reporting and investigation should be referred to the Administrator or to the Director of Nursing Services. Bayou Shores’ reporting abuse to facility management policy statement provides the following: It is the responsibility of our employees, facility consultants, Attending Physicians, family members visitors etc., to promptly report any incident or suspected incident of . . . resident abuse . . . to facility management. Bayou Shores’ reporting abuse to facility management policy interpretation and implementation provides the following: Our facility does not condone resident abuse by anyone, including staff members, . . . other residents, friends, or other individuals. To help with recognition of incidents of abuse, the following definitions of abuse are provided: * * * c. Sexual abuse is defined as, but not limited to, sexual harassment, sexual coercion, or sexual assault. All personnel, residents, family members, visitors, etc., are encouraged to report incidents of resident abuse or suspected incidents of abuse. Such reports may be made without fear of retaliation from the facility or its staff. Employees, facility consultants and /or Attending Physicians must immediately report any suspected abuse or incidents of abuse to the Director of Nursing Services. In the absence of the Director of Nursing Services such reports may be made to the Nurse Supervisor on duty. Any individual observing an incident of resident abuse or suspecting resident abuse must immediately report such incident to the Administrator or Director of Nursing Services. The following information should be reported: The name(s) of the resident(s) to which the abuse or suspected abuse occurred; The date and time that the incident occurred; Where the incident took place; The name(s) of the person(s) allegedly committing the incident, if known; The name(s) of any witnesses to the incident; The type of abuse that was committed (i.e., verbal, physical, . . . sexual, . . .); and Any other information that may be requested by management. Any staff member or person affiliated with this facility who . . . believes that a resident has been a victim of . . . abuse, . . . shall immediately report, or cause a report to be made of, the . . . offense. Failure to report such an incident may result in legal/criminal action being filed against the individual(s) withholding such information. * * * The Administrator or Director of Nursing Services must be immediately notified of suspected abuse or incidents of abuse. If such incidents occur or are discovered after hours, the Administrator and Director of Nursing Services must be called at home or must be paged and informed of such incident. When an incident of resident abuse is suspected or confirmed, the incident must be immediately reported to facility management regardless of the time lapse since the incident occurred. Reporting procedures should be followed as outlined in this policy. Upon receiving reports of . . . sexual abuse, a licensed nurse or physician shall immediately examine the resident. Findings of the examination must be recorded in the resident’s medical record. (Note: If sexual abuse is suspected, DO NOT bathe the resident or wash the resident’s clothing or linen. Do not take items from the area in which the incident occurred. Call the police immediately.) (Emphasis supplied). C. ELOPEMENT A/K/A EXIT SEEKING Bayou Shores’ elopement policy statement provides the following: Staff shall investigate and report all cases of missing residents. Bayou Shores’ elopement policy interpretation and implementation provides the following: 1. Staff shall promptly report any resident who tries to leave the premises or is suspected of being missing to the Charge Nurse or Director of Nursing. * * * If an employee discovers that a resident is missing from the facility, he/she shall: Determine if the resident is out on an authorized leave or pass; If the resident was not authorized to leave, initiate a search of the building(s) and premises; If the resident is not located, notify the Administrator and the Director of Nursing Services, the resident’s legal representative (sponsor), the Attending Physician, law enforcement officials, and (as necessary) volunteer agencies (i.e., Emergency Management, Rescue Squads, etc.); Provide search teams with resident identification information; and Initiate an extensive search of the surrounding area. When the resident returns to the facility, the Director of Nursing Services or Charge Nurse shall: Examine the resident for injuries; Contact the Attending Physician and report findings and conditions of the resident; Notify the resident’s legal representative (sponsor); Notify search teams that the resident has been located; Complete and file an incident report; and Document relevant information in the resident’s medical record. FEBRUARY 2014 SURVEY A patient has the right to choose what kind of medical treatment he or she receives, including whether or not to be resuscitated. At Bayou Shores there may be multiple locations in a resident’s medical record for physician orders regarding a resident’s DNR status. A physician’s DNR order should be in the resident’s medical record. When a resident is transported from a facility to another health care facility, the goldenrod form is included with the transferring documentation. If there is not a DNR, a full resuscitation effort would be undertaken. In late January, early February 2014, AHCA conducted Bayou Shores’ annual re-licensure survey. During the survey, Bayou Shores identified 24 residents who selected the DNR status as their end-of-life choice. Of those 24 residents, residents numbered 35,7/ 54 and 109, did not have a completed or current “Do Not Resuscitate Order” in their medical records maintained by Bayou Shores.8/ As the medical director for Bayou Shores, Dr. Saba completed new DNR orders for patients during or following the February survey. In one instance, a particular DNR order did not have a signature of the resident or the representative of the resident, confirming the DNR status. Without that signature, the DNR order was invalid. In another instance, a verbal authorization was noted on the DNR forms, which such is not sufficient to control a DNR status. A medication administration record (MAR) is not an order; however, it should reflect orders. In one instance, a resident’s MAR reflected a full code status, when the resident had a DNR order in place. During the survey, Bayou Shores was in the midst of changing its computer systems and pharmacies. At the end of each month, orders for the upcoming month were produced by the pharmacy, and inserted into each resident’s medical record. Bayou Shores’ staff routinely reviewed each chart to ensure the accuracy of the information contained therein. Additionally, each nurse’s station was given a list of those residents who elected a DNR status over a full-code status. Conflicting critical information could have significant life or death consequences. The administration of cardio- pulmonary resuscitation (CPR) to a resident who has decided to forgo medical care could cause serious physical or psychological injuries. As the February survey progressed, and Bayou Shores was made aware of the DNR order discrepancies, staff contacted residents or residents’ legal guardians to secure signatures on DNR orders so that resident’s last wishes would be current and correct. Bayou Shores had a redundant system in place in an effort to ensure that a resident’s last wishes were honored; however, the systems failed. MARCH 2014 SURVEY On March 20, 2014, AHCA conducted a complaint survey and a follow-up survey to the February 2014 survey. During the March 2014 survey, Janice Kicklighter served as the ANE prevention coordinator for Bayou Shores. On February 13, 2014,9/ Resident BJ was admitted to Bayou Shores from another health care facility. Sometime after BJ was admitted, paperwork indicating BJ’s history as a sex offender was provided to Bayou Shores. Exactly when this information was provided and to whom is unclear. Once BJ was assigned to a floor, CNA Daniels was assigned to assist BJ, and tasked to give BJ a shower. CNA Daniels observed that BJ was unable to transfer from his bed to the wheelchair without assistance; however, CNA Daniels, with assistance, was able to transfer him, and took him to the shower via a wheelchair. It is unclear if CNA Daniels shared his observation with any other Bayou Shores staff. Several hours after BJ’s admission, Mr. Thompson, Bayou Shores’ then administrator, was informed that BJ had been admitted. Mr. Thompson conferred with the director of nursing (DON) and the director of therapy (director). The director immediately assessed BJ that evening. The director then advised Mr. Thompson and the DON that her initial contact with BJ was less than satisfactory. BJ declined to cooperate in the assessment, and the director advised Mr. Thompson and the DON that BJ could not get out of bed without assistance. Mr. Thompson, the DON and the director did not provide any further care instructions or directions to Bayou Shores staff regarding BJ’s care or stay at that time. A failure to cooperate does not ensure safety for either BJ or other residents. The day after his admission, BJ was assessed by a psychiatrist. Thereafter, Mr. Thompson notified nearby schools and BJ’s roommate (roommate) that BJ was a sexual offender. Shortly after his conversation with the roommate, Mr. Thompson directed that a “one-on-one” be established with BJ, which means a staff member was to be with BJ at all times. BJ was evaluated again and removed from the facility. Bayou Shores did not immediately implement its policy and procedures to ensure its residents were free from the risk of ANE. Hearsay testimony was rampant in this case. Mr. Thompson testified that he spoke with BJ’s roommate about an alleged sexual advance. However, the lack of direct testimony from the alleged victim (or other direct witness) fails to support the hearsay testimony and thus there is no credible evidence needed to support a direct sexually aggressive act. Rather, the fact that Mr. Thompson claims that he was made aware of the alleged sexual attempt, yet failed to institute any of Bayou Shores policies to investigate or assure resident safety is the violation. JULY 2014 COMPLAINT SURVEY In June 2015, Resident JN left the second floor at Bayou Shores without any staff noticing. A complaint was filed. At the time of the June 2014 incident (the basis for the July Survey), Bayou Shores’ second floor was a limited access floor secured through a key system. Some residents on the second floor had medical, psychiatric, cognitive or dementia (Alzheimer) issues, while other residents choose to live there. There are two elevators that service the second floor; one, close to the nurses’ station, and the second, towards the back of the floor. There was no direct line of sight to the nurses’ station from either elevator. To gain access to the second floor, a visitor obtained an elevator key from the lobby receptionist, inserted the key into the elevator portal which brought the elevator to the lobby, the elevator doors opened, the visitor entered the elevator, traveled to the second floor, exited the elevator, and the elevator doors closed. To leave the floor, the visitor would use the same system in reverse. At the time of the June incident, visitors could come and go to the second floor unescorted. Additionally, Bayou Shores had video surveillance capabilities in the elevator area, but no staff member was assigned to monitor either elevator. Mr. Selleck, Advanced Center’s administrator, sought JN’s placement at Bayou Shores because he thought Bayou Shores offered a more secure environment than Advanced Center. Advanced Center was an unlocked facility and the only precaution it had to thwart exit-seeking behavior was by using a Wander Guard.10/ JN was admitted to Bayou Shores on Friday evening, June 20, 2014, from Advanced Center. Based upon JN’s admitting documentation, Bayou Shores knew or should have known of JN’s exit-seeking behavior. JN slept through his first night at Bayou Shores without incident. On June 21, his first full day at Bayou Shores, JN had breakfast, walked around the second floor, spoke with staff on the second floor and had lunch. At a time unknown, on June 21, JN left the second floor and exited the Bayou Shores facility. JN did not tell staff that he was leaving or where he was going. Upon discovering that JN was missing, Bayou Shores’ staff thoroughly searched the second floor. When JN was not found there, the other floors were also searched along with the smoking patio. JN was not found on Bayou Shores’ property. Thereafter, Bayou Shores’ staff went outside the facility and located JN at a nearby bus stop. The exact length of time that JN was outside Bayou Shores’ property remains unknown. Staff routinely checks on residents. However, there was no direct testimony as to when JN left the second floor; just that he went missing. Staff instituted the policy and procedure to locate JN, and did so, but failed to undertake any investigation to determine how JN left Bayou Shores without any staff noticing. NOTICE OF INTENT TO DENY AHCA’s Notice was issued on January 15, 2015. Bayou Shores was cited for alleged Class I deficient practices in each of the three conducted surveys: failure to have end-of-life decisions as reflected in a signed DNR order; failure to safe- guard residents from a sexual offender; and failure to prevent a resident from leaving undetected and wandering outside the facility.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Health Care Administration enter a final order revoking Bayou Shores license to operate a nursing home; and denying its application for licensure renewal. DONE AND ENTERED this 21st day of July, 2016, in Tallahassee, Leon County, Florida. S LYNNE A. QUIMBY-PENNOCK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 21st day of July, 2016.
The Issue The issues as alluded to in the Statement of Preliminary Matters and as will be more completely described in the course of this Recommended Order concern the question of whether the Respondent has committed offenses as a tenured instructor with the Petitioner, Daytona Beach Community College, which would cause disciplinary action to be taken against her, to include termination?
Findings Of Fact Background Facts Petitioner, Daytona Beach Community College, is an educational institution within the State of Florida charged with the responsibility of providing post-secondary education. To that end, it operates in accordance with the rules of the State Board of Education and State Board of Community Colleges and such rules, procedures and policies as its board of trustees would deem appropriate. Among the responsibilities of that board of trustees would be the hiring and firing of employees, to include instructional staff. See Section 240.319, Florida Statutes. Respondent, Amanda Leavitt, is an employee of the Daytona Beach Community College. She is a tenured faculty member. She holds the position of instructor and has been in a continuing contract position since August 17, 1981. Respondent, in addition to being an instructor, is the program manager in the Dental Assisting Program within the Division of Health, Human and Public Service Occupations of the Daytona Beach Community College. She had been an active member of the faculty until October 8, 1987, when she was suspended based upon the allegations that form the basis of this dispute. That suspension has remained in effect pending the outcome of the proceedings involving the charges at issue. The description of the procedural events that brought about the hearing in this case as set forth in the preliminary matters statement within this Recommended Order are incorporated as facts. The Petitioner, through its charges of October 12 and 23, 1987, has given sufficient notice to the Respondent to allow her to prepare and defend against those accusations. Respondent made a timely request for formal hearing in this case. This case began following complaints made by a number of students undergoing training in the Dental Assisting Program in the academic year 1986- 1987. Specifically, on June 11, 1987, these students, approximately twelve in number, met with the chairman of the Allied Health Department and program manager for the Respiratory Therapy Program, Charles Carroll, to describe their sense of dissatisfaction with certain circumstances within the Dental Assisting Program. Out of that conference, Carroll pursued the matter with Respondent Leavitt, and the Petitioner employed the offices of its internal auditor, Tom Root, to ascertain information about the contentions made by the students. Among other matters being examined by the auditor, was a question concerning the collection of money from the students within the Dental Assisting Program in that academic year, unrelated to the normal fee collections associated with enrollment at the Daytona Beach Community College. In furtherance of his task, the auditor prepared Internal Audit #83, which is constituted of the majority of Petitioner's exhibits. The audit was concluded on September 24, 1987, and contained twelve specific findings. Those findings, which were not favorable to the Respondent, formed the basis of her suspension on October 8, 1987, and underlie the five charges dating from October 12, 1987. Further investigation was done by the auditor subsequent to September 24, 1987, and that continuing investigation and certain conduct by the Respondent which the Petitioner regarded as actionable led to the two supplemental charges of October 23, 1987. Mr. Carroll had given the Respondent certain instructions concerning the allegations made by the students in which he sought the Respondent's assistance in clarifying what had occurred within the program and rectifying any problems that might exist. He was not satisfied with her response, as to the timeliness or the comprehensiveness of her reply to his instructions. The internal auditor in the face of Respondent's remarks about the funding dispute related to the payment of monies by the students sought to verify those observations by the Respondent by contact with members of the Dental Assisting Class in the academic year 1986-1987 and met with a considerable difference of opinion between those students and the Respondent. This led the auditor to believe that the Respondent was being less than candid in her relation of vents, so much so that the audit critical of the Respondent ensued. There is now related a discussion of the specific charges made against the Respondent: Charges 1 and 2 (October 12, 1987) Misconduct in office in the form of collecting and allowing those under your supervision to collect funds from students under false pretenses (i.e. claiming that these funds were lab fees) also the sale by you and those under your supervision of college program supplies, class handouts, and textbooks during the 1985-86, and 1986-87 school years. These collections were in violation of college policies and procedures and also violated the Code of Ethics of the Education Profession in Florida, principle one, concerning instructor's responsibilities for dealing justly and considerately with each student and avoiding exploitation of professional relationships with students. Misconduct in office in the form of the existence of a cash shortage of approximately $400.00 together with a total lack of records as to the disposition of these funds which were collected from dental students during the Fall semester 1986-87 and the improper depositing of some of these funds in an off-campus account during the Fall semester 1986-87. The academic year 1986-1987 was constituted of the Fall semester in 1986, the Winter semester in 1987 and a shortened semester described as a Spring semester in 1987. In that school year Respondent was issued contracts for the period August 18, 1986 through May 1, 1987 and May 5, 1987 through June 29, 1987. This included approximately one week of employment prior to the students coming on campus in the Fall 1986 and two weeks beyond the time of their final exams in the Spring term of 1987. The 1986-1987 Daytona Beach Community College Catalog describing the Dental Assisting Program had a reference to an estimated cost for a "lab kit" as being $50. This was the first time that any such reference had been made in the college catalog. In addition, within the Dental Assisting Student Handbook related to the Dental Assisting Program published for the Fall of 1986, there was a similar reference to the "lab kit .....$50" fee. This had not been referenced in the student handbook for the academic year 1985-1986. The reference for "lab kit.....$50," was again stated in the student handbook for the Winter term 1987. These remarks in the publications concerning the "lab kit $50. " were placed under the auspices of the Respondent. The origins of the reference to the $50 amount came about when the Respondent and another employee of the Daytona Beach Community College, Sharon Mathes, had visited Santa Fe Community College in Gainesville, Florida, and observed that the students in a similar dental assisting program to that of the Daytona Beach Community College program had individual laboratory kits. Respondent and Mathes then discussed that it might be beneficial to have individual laboratory kits for the students in the Daytona Beach Community College program. This individual disbursement in their mind might assist in the preservation of the school's property and teach responsibility on the part of the students. The materials that were to be placed in the kit for the academic year 1986-1987 were purchased through the ordinary purchase order process for the provision of supplies for the Dental Assisting Program at school expense. This was a process in which an inventory check was made and necessary implements to fill out kits for an anticipated student enrollment of 25 participants were purchased. In this planning, a discussion was entered into between Respondent and Mathes concerning the question of whether the students should repurchase those materials that had been paid for through the ordinary expenditures associated with the program. Specifically, Respondent had made mention of the fact of the students buying the contents. However, it was never decided that they would buy those materials based upon a decision made between the Respondent and Mathes. Mathes surmises that it was not decided because the cost of those materials would be in excess of $70-75, an amount which exceeded the "lab kit. $50." The students did purchase the container or art box into which the materials were placed. This purchase was made from the campus bookstore and was not part of the $50 fee. At the commencement of the academic year 1986-1987, their uncertainty remained as to the use of any $50 amount to be collected from each student, reference the "lab kit." Respondent and Mathes had discussed the fact that, if the students returned laboratory kit items and some were missing or broken, that some of the money that had been gained from the students might be used to replace those items and avoid having to issue further purchase orders to be paid for by the Daytona Beach Community College for the replacement of those items that were no longer available for use. It was also discussed that the money might be used to offset other expenses such as costs of graduation, to send a student to a seminar, or possibly establishing a fund for students that may become financially stricken and might not be able to complete the program without financial assistance directed toward their tuition. There had also been discussion of reimbursement of monies not used for these general purposes, but no amount was arrived at concerning reimbursement. In the final analysis, the impression that Mathes was given out of these discussions was that the money would be used in the program and dispensed however it might be needed. In any event, it was determined by the Respondent and Mathes that $50 additional money over and above other fees authorized by the Daytona Beach Community College would be collected for each student participating in the Dental Assisting Program in the 1986-1987 academic year. It was explained to the students the $50 additional cost, a product of the Respondent and Mathes unrelated to authorized collections through the Daytona Beach Community College, was an additional cost item. The students were told that if it were a fee that was too much, they would have the opportunity to drop out of the program. Thus, the fee was presented as a mandatory fee. At the orientation at the beginning of in the academic year 1986-1987, Respondent, and Mathes, participated in the explanation about the $50 charge. The presentation by the Respondent and Mathes pointed out to the students that the $50 extra cost described as "lab kit-$50" was related to materials such as plaster that the students would employ in their course work and to defray expenses associated with graduation. The impression given to the students was that the materials were being rented or leased. The explanation given was that the $50 amount must be paid before graduation. In furtherance of this purpose, Respondent and Mathes continued to pursue the collection of this $50 amount from the students throughout the Fall term 1986. Laboratory fee amounts were collected from 16 students. Nine students paid the amount by check and seven through cash payments. The checks totalling $450 and cash in the amount of $50 was deposited in an off-campus bank account, unauthorized by the Daytona Beach Community College. This account was described with the Sun Bank of Volusia County, Daytona Beach, Florida, as DBCC Student Dental Assistants' Association. Checks by the students were made over to the Dental Assisting Program of DBCC or Daytona Beach Community College. There were $300 in funds collected from the students which had not been deposited into the bank account, and the exact whereabouts of those funds has not been established. The money collected and deposited and that which is unaccounted for had been held in an area of the physical plant related to the Dental Assisting Program to which faculty and students had easy access. Placement of the $50 fees on the grounds of the Daytona Beach Community College included placement in a cigar box in a file drawer and one $50 cash payment was kept or maintained separately in Respondent's desk drawer for what is described on the receipt given to that student as "...for cash." That student was Susan Woodstock. That $50 was part of the $300 which has not been explained in terms of its ultimate disposition. Respondent has contended that these $50 collections were in the way of club dues similar to those that had been collected in years previous for students participating in the Dental Assisting Program, as recently as the academic year 1985- 1986. In that year and other years as well which predate 1986- 1987, the students had paid incremental dues, usually $5 per month, for participation in a club. On the occasion of the academic year 1986-1987, collections for participation in a student club were not made. Therefore, the $50 amounts paid were unrelated to club dues. Having considered the facts in this case, it is evident that the Respondent was aware that the $50 collections from the 16 students were not associated with club dues. Respondent also participated in and condoned the unauthorized sale of X-ray film and pencils to the students in the academic year 1986-1987 and in other school years. These monies were collected in the way of petty cash maintained in envelopes in the Respondent's desk or in a cigar box maintained in another area. No receipts were given concerning the collection of these monies and no records were maintained. Mary Reep, a dental assisting student at Daytona Beach Community College in the academic year 1985-1986 paid $5 for the student handbook associated with that coursework. This handbook should have been provided without paying her program instructors. The payment was made to the Respondent and Mathes who were participating in the sale of the handbook. Reep also observed other people purchase the student handbook in that year. Mathes participated in other sales of handbooks than the transaction with Reep in the academic year 1985-1986, Fall semester. On this occasion, Respondent remarked to Mathes that if the community college knew of this collection of $5 for the handbooks, Respondent would be "fired." This practice of the sale of the handbooks continued in the academic year 1986-1987, at which time a number of students purchased the Fall 1986 student handbook from the Respondent and Mathes. During the time that Mathes had been working in the Dental Assisting Program, this had been the common practice, i.e. the collection of funds for the student handbook. On every occasion, the students had been entitled to be provided a student handbook without charges beyond those authorized by the Daytona Beach Community College. The community college had not allowed for additional charges by faculty placed against the students when distributing the student handbooks. Charge 3 (October 12, 1987) Misconduct in office for your intentional overpayment of assistants for work not performed by them during December 1985 and January 1986. On August 28, 1985, Respondent wrote to Charles Carroll, her supervisor, and asked, among other things, that two instructors be hired to help manage and oversee 24 students. This related to making available two persons who had a familiarity with the University of Florida's dental school, at which the students would be involved in an externship program commencing in January, 1986, or the Winter term of the academic year 1985-1986. In turn, Carroll referred this to his superior, Dr. Lynn O'Hara, describing the transport and involvement in the Winter term. This memo to Carroll from O'Hara is of September 9, 1985. On September 16, 1985, O'Hara wrote a memo to Carroll in which it was indicated that one position could be approved to be shared by two persons, if the hiring did not commence during the Fall term. Nonetheless, Respondent arranged for and took Denise Dorne and Kim Rockey to the dental school in Gainesville, Florida on December 18, 1985, during the Fall semester. No indication was made in the Respondent's request for leave that she would intend to take Dorne and Rockey. Respondent followed this trip by including eleven hours of paid time for the December 18, 1985 trip for Dorne and Rockey on their initial pay request for the month of January, 1986, which was signed by the Respondent. In effect, these two individuals had, contrary to the instructions of the Respondent's superior, been allowed to undertake activities at a time which they were not authorized to participate as employees in the Dental Assisting Program at Daytona Beach Community College. Dorne and Rockey were paid for eight trips made for class participation in the Winter term of 1986 in the externship at the dental school in Gainesville, Florida, as shown in pay requests that were signed and submitted by the Respondent for the benefit of those employees. This action by the Respondent was taken knowing that the two individuals had not attended one of the sessions in Gainesville. This circumstance is mitigated by the fact that the Respondent had the two individuals undertake other assignments of equal value to make up for the nonattendance at the externship session. Charge 4 (October 12, 1987) Willful neglect of duty and misconduct in office for your absence without authorized leave and failure to perform your duties on January 23, 1986 for which you received pay; your failure to teach all classes as indicated on your Load Letter as your teaching responsibility during the Fall semester 1986; and Absence without Leave and failure to fulfill prescribed duties for the period of June 22 through June 29, 1987, for which you received pay. On January 15, 1986, Respondent made request for annual leave for January 24 and 27, 1986, which was approved. She also determined to take leave and was absent on January 23, 1986, without authorization. On January 23, 1986, she was on a ski trip in North Carolina. The fact of her being away from the Daytona Beach Community College is acknowledged in a slip found within the Petitioner's Exhibit 32 in which she says, "I had leave on 1/23/86." This references the reason why she is not seeking to collect money for participation in the externship at the dental school in Gainesville, Florida on that date as discussed in Petitioner's Exhibit 32. Related to this nonattendance, Respondent has been less than forthcoming. Only when confronted with details by way of evidence demonstrating her whereabouts on January 23, 1986, that is, Bannerelk, North Carolina, did she reluctantly acknowledge not being at her job on January 23, 1986. The impression given is that she deliberately took time off from her employment on January 23, 1986 without permission. An item referred to as a Load Letter forms the basis of describing the requirement of an instructor with the Daytona Beach Community College to teach the number of hours and the courses, at the prescribed times as set out in that document. This is the bargain which the instructor makes with the community college. The Fall semester 1986 Load Letter indicates that the Respondent was to teach Class #1671 on Monday morning at 11:00 to 11:53 and Class #1669 on Monday afternoon from 1:00 to 4:53. Contrary to her obligation, Respondent did not teach those classes. Instead, she used Sharon Mathes to teach Class #1671 (dental anatomy) on Wednesday morning and Class #1669 (biomedical sciences) on Monday afternoon at its scheduled time. The reason for changing the dental anatomy class slot was to accommodate the students by not causing them to be confronted with too much in the way of difficult material on Monday, and which would have also placed them in the position of not being prepared for a Tuesday afternoon laboratory which needed a lecture class by way of predicate. Sharon Mathes was paid as an instructor in the Fall 1986 term in her dental materials class, taught on Monday morning. She received a different classification of pay at a lesser rate for the classes taught which had appeared on the Respondent's Load Letter, Class #1671 and Class #1669. Respondent was also paid as the instructor teaching those classes listed on Respondent's Load Letter. The student evaluations forms related to Class #1671 and Class #1669 taught by Mathes in the Fall term 1986 show the Respondent's name as the instructor providing contact hours with the students in those two classes. Moreover, in a part-time instructional monthly report and salary voucher related to Class #1671, Respondent indicates that she taught this course on Monday morning, when in fact it was taught on Wednesday morning by Sharon Mathes. This part-time instructional report relates to an overload payment beyond the basic salary structure associated with Respondent's duties under contract, which are to teach a load of 15 hours. The first 15 hours of that 17 hours tame under her normal salary structure and included Class #1669. Respondent's protestations that this arrangement in the Fall of 1986 in which Mathes taught classes on the Respondent's Load Letter, Mathes was paid at a rate not commensurate with service as an instructor, evaluations were made by students related to an instructor who did not teach them, Respondent was paid for her normal teaching load and an overload for classes not taught were items contemplated by an accreditation arrangement with the American Dental Association and countenanced by the Daytona Beach Community College are unavailing. These arrangements which Respondent made concerning her responsibilities for teaching in the Fall 1986 were misleading, unauthorized and contrary to her employment agreement with the community college. Charge 5 (October 12, 1987) Gross insubordination for your failure to comply with DBCC Procedure #1091 which requires your cooperation with the College as it attempted to determine the accuracy of the various allegations made against you by the students and the additional matters described above which were discovered by the College Administration during its investigation. In the afore-mentioned meeting of June 11, 1987 between students in the Dental Assisting Program and Charles Carroll, a discussion was entered into concerning the payment of the $50 fees which has been described as the "lab kit- $50." Other complaints were aired as well, leading Carroll to focus on the overall program and the "lab kit" cost in particular. To this end, Carroll contacted the Respondent on the same date and discussed his concerns with her. Following that meeting, among the instructions given by his memorandum of June 15, 1987, Carroll told Respondent to immediately dissolve the student association and to provide a detailed accounting of the disposition of club assets as he had had those described to him by the Respondent. He informed the Respondent that she should operate student club activities under the guidelines established by the Student Government Association on campus. In addition, he asked the Respondent to meet with him before the school year concluded, that is the school year 1986-1987, so that they might review the student handbook and grading policies. Respondent was instructed to bring copies of those materials for his records. Related to the checking account which was associated with the Sun Bank, Respondent explained to Carroll in the June 11, 1987 meeting that checks were outstanding and although she did not indicate that checks would have to be written to conclude other expenses within the academic year, she did describe that those expenses were forthcoming. This discussion about expenses pertains to a check written to K-Mart on June 9, 1987 in the amount of $19.89 for Cross pens for two dentists associated with the Dental Assisting Program in recognition of that association; a check written in the amount of $52.30 to the Belleview Florist on June 9, 1987 for flowers for the graduation dinner for the students in the 1986-1987 class, and a check that would be written to Marker 32 in the amount of $155.35 for costs of the graduation dinners, that check being written on June 12, 1987. The checks of June 9, 1987 cleared the bank on June 11, 1987, and the June 12, 1987 check cleared the bank on June 16, 1987. Ultimately, a balance was left in the account of $127.18. Following the June 11, 1987 meeting, Respondent informed Carroll that she was waiting for the last bank statement before closing out the account. Petitioner's Exhibit 115 is the last bank statement rendered with an ending balance of $130.18 from which $3 was deducted, leaving the balance at $127.18. The ending balance reflects the date June 30, 1987. Prior to the rendering of this bank statement, on June 23, 1987, Carroll had written to the Respondent and told her that it was unacceptable for her to wait for the normal statement of ending balance and expressed his belief that the bank would provide a final accounting upon closure of the account. In this case, the proof is missing on whether the bank would have provided an accounting at the closure of the account following the clearing of the last check on June 16, 1987. As of June 30, 1987, when the account ending balance was established, Respondent was between school years and not under active employment by the Petitioner. She did not take any action to close the account in June and July, 1987. Nor did the Respondent provide a copy of the student handbook; instead, she excerpted three pages from that handbook and gave those to Carroll. Carroll was unable to find the Respondent on campus during the work week June 22 through June 25, 1987, and wrote a memorandum on June 29, 1987 referring to the fact that he had made several attempts to contact her and noting that she was unavailable in her office and not subject to contact at her home. He admonished her about not being in attendance or on authorized leave, and by his remarks referred to the need to discuss urgent matters. In fact, Respondent, as alluded to in Charge 4, was not at her work place June 22 through June 25, 1987 and had not been granted permission to miss that time. On July 15, 1987, beyond the contract year, Respondent was written by Carroll in which he references his correspondence of June 15 and 23, 1987, and complains about the failure to provide evidence that the Student Dental Assisting Association has been dissolved, and that an accounting has been made related to what he refers to as "club assets." He also indicates that he did not feel that the Respondent was cooperating in providing requested information. On July 23, 1987, Charles R. Mojock wrote to the Respondent referring to the fact that he did not believe that the bank account related to the Student Dental Assisting Association was legal, and that he believed it was contrary to State statute and to community college policy, based upon his discussion with others in the administration at the community college. As a consequence, he reminded the Respondent that, the sooner the funds were removed from that account, the easier it would be to settle the matter. He recounts in this memorandum what he believed to be a problem with the Respondent's compliance with the requests related to the account. The memorandum is basically conciliatory indicating that it was not intended to make accusations, but to resolve the problem. Eventually on August 3, 1987, Respondent wrote to Tom Root, the auditor at the community college, and apprised him of her willingness to provide information that he sought upon his return from leave. This return to his job was supposed to occur on August 12, 1987. On August 13, 1987, the Respondent turned over to Root the balance of the funds in the Sun Bank account by cashier's check which was credited to the Community College Foundation account and a receipt given to the Respondent. Those funds were left to be used for the benefit of needy dental assisting students. The amount of cash found within the instructional area of the Dental Assisting Program, was $15.08. Respondent also provided the auditor with an item dated August 3, 1987, on stationary of the Daytona Beach Community College, referred to as a Student Dental Assistant 1986-1987, listing officers and the comment that dues were collected in the amount of $5 per month as the source of revenue. This reference too $5 dues as already found is false. It goes on to state that no fund-raising had been undertaken. It states, "I do not think there were any fund-raising activities." This is taken to mean what the Respondent asserted, according to this document. Under "expenditures," there is a reference to open house refreshments, Halloween party, buffet lunch, gifts for speakers, flowers and cards for classmates, reference books from the book rack, donation of a magnifying glass, graduation flowers and dinners. On August 18, 1987, the internal auditor wrote to the Respondent requesting additional information related to receipts for the funds paid by the students in the 1986-1987 year and bank statements. He opines in this memorandum that the Respondent either was misunderstanding his request or was misrepresenting the way the funds were collected. Respondent replied to the memorandum of August 18, 1987 by a memorandum of August 20, 1987 and through a phone conversation with the auditor. In the memorandum by the Respondent, she indicates that she was unaware that funds were collected by Mathes until after the fact, meaning the $50 collection and that the students had been misled about the intent of the funds in their student account. This contention in the memorandum of August 20, 1987 is patently false and is seen as thwarting the efforts on the part of the auditor to discern the true facts of the matter. Respondent was aware of the $50 fee collection. Other suggestions within the memorandum refer to the fact that she had been told that part of the funds were to be used for replacement of lost items in the lab kit pertaining to the students, and from there came the phrase "lab kit rental." She talks in terms of the fact that the students were aware that the money was being used for name tags, open house, doctor's gifts and graduation. She states that this strongly suggests that the dues were mandatory. She goes on to describe that Ms. Mathes, once she left, had no records of who had or had not paid, and no effort was made to collect unpaid dues, and the fact that this was the obligation of the student treasurer. All of these comments were apparently designed to deflect the attention away from the true status of the matter, which included the fact that no student dues were collected in the amount of $5, that the Respondent was thoroughly acquainted with the collection of the $50 fee amounts for use of laboratory materials and graduation, and that the student treasurer had no part to play in the collection of these $50 fees or the deposit of those sums. By contrast, Respondent had been involved in the collection of fees and the endorsement of checks and payment of those fees which were deposited. Furthermore, her disclaimer of having knowledge of what was on the front of the checks she endorsed in terms of the reason for the $50 checks being written, five in number and that she only endorsed the backs without a knowledge of the reason for the checks is incredulous. The facts of this case lead to the conclusion that Respondent did know what those five checks were for. The Respondent was also in possession of Exhibit 42 offered by her at the hearing which showed a list of student signatures reflecting both those who had not paid and subsequent dates of when the students had paid. This exhibit was not revealed to the auditor during his investigation, though such information was sought by the auditor. It only became a matter within his knowledge on February 8, 1988. The memorandum of August 20, 1987 by the Respondent indicates having discussions with the students concerning ways to use the money that had been given for the laboratory kits or fee and the fact that it was decided that a certain workbook referred to as a Core Packet should not be assigned, meaning in the future, but be used as a reference in the future. This Core Packet had been purchased by the students for course work in the amount of approximately $40 and ordered from an off-campus bookstore. Additional copies remained from the order that had been placed with that bookstore, and these were purchased from that store known as the Campus Bookrack, six Core packets in all at the expense of $178.08 taken from the Student Dental Assisting account at the Sun Bank. Contrary to the memorandum and her testimony, the students had no knowledge of this purchase and did not condone it. Neither did the students condone the purchase of a magnifying glass to be used for the sharpening of dental instruments in one of the classes related to this program. The memorandum says the students agreed that a lighted magnifying glass would help them in sharpening instruments, and discussion between Respondent and the students led to the students donating that magnifying glass. No discussion of this nature was held with the students as outlined in the memorandum of August 20, 1987, and described in testimony by the Respondent at hearing. Respondent did spend $47.20 in the purchase of the magnifying light. In summary, Respondent had been involved with the establishment of the $50 extra fee as listed in the 1986-1987 college catalog and in the Fall 1986 and Winter 1987 student handbooks, but she failed to advise the auditor about this or that she was present while it was being discussed with the students at orientation in the Fall of 1986 or that she had endorsed checks comprising the initial deposit of the $50 collections in the bank account. This together with other items as described greatly impeded the efforts of the college at determining the reason for the $50 charge, who was responsible for placing the charge and who among the students had paid the money. The principal manifestation of the impediment was experienced by the internal auditor when all sixteen students who paid the $50 fee held a different and generally consistent viewpoint from that of Respondent concerning the fee and its usage. This lead to additional effort by the auditor in ascertaining the true facts. Charge 6 (October 23, 1987) Gross Insubordination for your willfully altering information related to the College's investigation, which is in violation of DBCC procedure #1091. In support of this charge, the following witnesses; Mr. Robert Schreiber, Mr. Charles Carroll, Mr. Tom Root, Ms. April Pulcrano, and Mr. Charles R. Mojock will testify that they were present (or in telephone contact) during the discussion regarding the possibility of your tendering your resignation. They will refute your statement that you were informed that if you did not resign, "the case would be turned over to the State Attorney for a theft prosecution." They will further refute that you were told "that this was extremely important so that the College could cover the alleged fund shortage from detection by state auditors." On October 8, 1987, counsel for the Respondent wrote to the Board of Trustees of the Daytona Beach Community College and discussed his interest in reconciling the differences between the parties amicably. In that correspondence, there is found the following reference "...Early in the school year, Mrs. Leavitt was notified by several of her superiors that, if she did not resign, her case would be turned over to the State Attorney for a theft prosecution. In addition, she was told that this was extremely important so that the college could cover the alleged fund shortage from detection by state auditors." This is an attorney's attempt to state his client's position and from this event the prosecution seeks to have the Respondent found insubordinate. Having considered the testimony of Charles Carroll, Robert Schreiber and Chuck Mojock, together with the Respondent, there is clearly a difference of opinion about what was said in various meetings between the Respondent and administration officials within the community college. On balance, the exact facts may not be found which describe insubordination for remarks found within correspondence by counsel for the Respondent attributable to his client. Charge 7 (October 23, 1987) Misconduct in office for your use of part- time employees and a student teacher to teach a substantial portion of your assigned instructional load during the Winter of 1987. Specifically, the College will show that the externship program (Section 1667) with local dentists' offices, was conducted totally by Ms. Elizabeth Switch and Ms. April Pulcrano. In addition, Ms. Switch taught Practice Management (Section 1664) and Ms. Pulcrano taught Preventive Dentistry and Nutrition (Section 1665). Ms. Pulcrano will testify (and students enrolled in the Externship course will confirm this fact) that only she and Ms. Switch made visits to the local externship sites, and that Ms. Pulcrano had responsibility for writing up the reports, meeting with students, and assigning grades for this course. Ms. Pulcrano will further testify that you approached her during the first week of the Fall term in this academic year and asked her to teach the Dental Anatomy and Physiology course, but to be paid at the staff assistant pay rate instead of the appropriate adjunct instructional pay rate. The numbers of hours on the Load Sheet pertaining to the Respondent for the Winter term 1987 showed 14 semester hours for which courses are set out. Respondent routinely taught only one of those classes, Chairside Assisting II, on Fridays from 10:00 a.m. until noon. This was two lecture hours and two hours of contact. The remaining four contact hours for laboratory, which equated to two semester hours of the four total hours associated with Chairside Assisting II, Course #1666, were not done by the Respondent. As the Load Letter contemplates, the laboratory was done by an adjunct instructor. On the Load Letter for Winter 1987 and in keeping with the continuing contract entered into on August 17, 1981 and at subsequent times Respondent should have taught the remaining courses reflected on her Load Letter for the Winter semester 1987. One of those courses was Course #1664, Practice Management, a course for which she was entitled to receive an overload payment, according to the Load Letter. Respondent turned in the overload pay sheet for that course certifying that she had taught the class, when in fact Elizabeth Switch, a part- time instructor, taught that class and was paid for her work. In this same term, Winter 1987, April Pulcrano, a student from the University of Central Florida, served as a student teacher in the Dental Assisting Program. She was hired by the Respondent to teach Chairside II laboratories on Monday afternoon and on Wednesday afternoon. She also was made responsible for the externship of students during the Winter semester consisting of her visitations to dental offices where the students had been placed to gain clinical experience as part of their studies at' the community college. Pulcrano's involvement in the externship included administrative paperwork, involving forms of evaluation which the dental offices made of the performance of students who were externed. She summarized and provided grades to the externship students in this program. These activities by Pulcrano were done on a routine basis in which she was primarily responsible for the externship program with assistance one day a week on the part of Elizabeth Switch. The externship program involving six semester hours and 12 contact hours per week in Course #1667 was the responsibility of the Respondent, according to her Load Letter in the Winter term 1987. Respondent had initial contact with this responsibility on the first day that the students were dispatched to various dental offices throughout Volusia County, Florida, and some occasional contact beyond that point. This involvement by the Respondent did not approach the kind of responsibility contemplated by the assignment in her Load Letter. A course on the Load Letter of Winter 1987 related to the Respondent was what is referred to as Prevention and Nutrition, Course #1665. This is a two hour course with two contact hours. This course was taught by Pulcrano and not the Respondent. Respondent did not assist Pulcrano in the laboratory portion of a Chairside Assisting II class, and the Respondent placed Pulcrano into the class without introduction or explanation. As with the circumstance related in Charge 4, the failure to teach courses on the Load Letter pertaining to the Fall semester 1986, Respondent had not been relieved of the necessity to teach her courses reflected in the Load Letter pertaining to the Winter semester 1987.
Recommendation Based upon the full consideration of the facts found and the conclusions of law reached, it is RECOMMENDED: That a final order be entered terminating Amanda Leavitt's employment with the Daytona Beach Community College and providing for the forfeiture of her pay received for January 23, 1986 and January 22, 1987 through January 29, 1987. DONE and ENTERED this 15th day of April, 1988, in Tallahassee, Florida. CHARLES C. ADAMS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of April, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-4937 Petitioner has offered fact finding in its proposed recommended order. Respondent gave argument but declined to offer fact proposals. Petitioner's facts have been used as subordinate facts with the exception of the following which are rejected for reasons described: Charges 1 and 2: Paragraph 9 is not necessary to the resolution of the dispute. Paragraph 17 is rejected because the evidence was not sufficient to find violations in the years contemplated in Charge 1. Paragraph 18 describes facts which are not contemplated within the charging documents. Charge 6: Paragraphs 3-7 are contrary to facts found. Charge 7: Paragraph 1 is not relevant. Paragraph 3 is not relevant. COPIES FURNISHED: J. Dana Fogle, Esquire FOGLE & FOGLE, P.A. Post Office Box 817 DeLand, Florida 32721-0817 Jason G. Reynolds, Esquire COBLE, BARRIN, ROTHERT, GORDON, MORRIS, LEWIS & REYNOLDS, P.A. 1020 Volusia Avenue Post Office Drawer 9670 Daytona Beach, Florida 32020 Dr. Charles Polk, President Daytona Beach Community College Post Office Box 1111 Daytona Beach, Florida 32015 Board of Trustees Daytona Beach Community College c/o J. Dana Fogle, Esquire FOGLE & FOGLE, P.A. Post Office Box 817 DeLand, Florida 32721-0817
Findings Of Fact The School Board of Broward County, Florida, is an "agency" as defined in Section 120.52(1), Florida Statutes, and is charged by law with direction and control of grades Kindergarten through 12 for all public schools in Broward County, Florida. As of September, 1980, there were approximately 130,000 students enrolled in the Broward County School System, which makes that system one of the largest in the country. Respondent is required by statute to promulgate rules and regulations that establish attendance zones for grades Kindergarten through 12. During late 1980 and early 1981 the School Board engaged in its annual review of existing attendance boundaries to determine whether changes should be made for the 1981- 82 school year. In performing such reviews and in making necessary recommendations, it is the School Board's policy to consider the following factors: existing overcrowded schools; proper utilization of existing physical facilities; maintaining a unitary school system; student safety; student feeder patterns; transportation costs; establishment of new schools; consolidation of small school attendance areas; and community involvement. The dispute in this proceeding arises from the School Board's rezoning decision as it relates to four north area high schools: Coral Springs; Ely; Pompano Beach; and J. P. Taravella. In reaching its rezoning decision for these four high schools, the School Board was concerned primarily with the existence of overcrowded schools, underutilized physical facilities and the problem of racial composition in the various schools. In order to fully understand the import of the School Board's ultimate decision, and the magnitude of the problem which the Board faced, some historical perspective is necessary. Prior to 1970, the school system in Broward County was operated on a dual, biracial basis, with separate school facilities for black and white students. In 1970 litigation was commenced in Federal District Court which resulted in the School Board being ordered to commence efforts to establish a "unitary" school system. The Board's proposal to close Dillard High School in Fort Lauderdale and Ely High School in Pompano Beach, both of which were predominantly black, was rejected by the Federal Court. Instead, the School Board was ordered to redraw attendance zones in such a fashion as to assure the operation of these schools as racially integrated facilities. Although Ely High School was closed for a time due to inadequate physical facilities, it was later reopened. The Federal District Court subsequently relinquished jurisdiction in the desegregation litigation on July 31, 1979. In an attempt to continue compliance with the Federal Court directive to maintain a "unitary" school system, the School Board has prudently determined, to the maximum extent possible, to maintain approximately the same percentage of minority enrollment in its high schools as existed at the time the Federal Court relinquished jurisdiction in 1979. The School Board's policy in this regard is based on the assumption that the "unitary" status of the school system as it existed in 1979 met with Federal Court approval, as evidenced by the order relinquishing jurisdiction. The dynamic growth of Broward County over the last several years has, however, to some extent complicated the Board's efforts to maintain a "unitary" system. The primary problem in this regard has been a change in the demographic makeup of the school-age population in Broward County. Over the last several years the location of the high-school-age population in Broward County has shifted from the eastern portion of the county to the west. Because the bulk of the high-school-age population has historically resided in the eastern portion of the county, the majority of physical plant facilities had been constructed there. In recent years, however, the western portion of the county has developed rapidly to such an extent that those physical facilities located in that portion of the county are now seriously overcrowded, and the older facilities located in the eastern portion of the county have become "underenrolled," and, therefore, "underutilized." For example, Coral Springs High School, which is located in the western portion of the county, had a student enrollment of 2,168 for the 1976-77 school year; 2,994 students for the 1977-78 school year; 3,406 for the 1978-79 school year; 3,704 for the 1979-80 school year; and, 3,764 students for the 1980-81 school year. The physical plant at Coral Springs High School has a student capacity of 2,283, thereby requiring the School Board to operate Coral Springs High School on double sessions. As a result of overcrowding at Coral Springs High School, the School Board determined to build a new facility, J. P. Taravella High School, which opened in August, 1981. This new high school, with a student capacity of 1,829, opened in August, 1981, with a total enrollment of 1,228 students, all but seven of whom were reassigned from Coral Springs High School. Taravella High opened under its design capacity because the Board determined not to require students to change schools for their senior year, so that Taravella presently serves only grades 9 through 11. As a result of the construction and opening of J. P. Taravella High School, Coral Springs High School is no longer on double session. In addition, the percentage of black students attending Coral Springs High School as the result of the reassignment of students to J. P. Taravella High School will actually rise from six percent during the 1980-81 school year to nine percent during the 1981-82 school year. A complicating factor in the School Board's rezoning decision as it relates to these high schools was the problem of underenrollment at Ely High School and Pompano Beach High School. Ely High School has a physical plant capacity of 1,857, and Pompano Beach High School has a physical plant capacity of 1,921. During the 1979-80 school year, there were 1,172 students enrolled at Ely High School, and 1,793 enrolled at Pompano Beach High School. For the 1980- 81 school year there were 1,430 students enrolled at Ely and 1,634 students enrolled at Pompano Beach High School. During the 1980-81 school year, the student population of Ely High School was 53 percent black, and, under the rule being challenged in this cause, that percentage remained the same for the 1981-82 school year. Blacks comprised 14 percent of the student population at Pompano Beach High School during the 1980-81 school year, and that percentage fell only one percent under the school attendance zones being challenged in this proceeding. As previously indicated the population of the western portion of Broward County has markedly increased over the last several years. Most of the increase in school-age population in the western portion of the county is composed predominantly of white students. The black population in Broward County is concentrated in the eastern portion of Broward County. Consequently, in order to maintain the desired racial composition in the county schools, relieve overcrowded conditions in some of its schools, and, at the same time efficiently utilize the physical facilities of all its schools, it became necessary for the Board to make some extremely difficult policy choices. The choice ultimately made by the Board is reflected in the rule here being challenged. Petitioners Barton, Mascolo and Tripodi are each residents of the Sunflower-Heathgate section of the City of Tamarac, with children who, under the rule here in dispute, are assigned to Ely High School. Ely High School is located approximately 10-12 miles from the City of Tamarac, while the recently opened J. P. Taravella High School is approximately one and one-half to two miles away. Petitioners object to their children being assigned to Ely High School when they could more conveniently attend the newly opened J. P. Taravella High School, which is located much closer to their residences. Petitioners object to their children being subjected to a lengthy bus ride twice daily to and from Ely High School, and further assert that the children are unable to participate in after-school extracurricular activities because of the distances from their homes to their assigned schools. Although the School Board furnishes transportation in the form of an "activity bus," Petitioners assert that this mode of transportation is at best unreliable, and is, therefore, an unacceptable substitute for what they consider a more appropriate school assignment. The record reflects that the Tamarac area in which all Petitioners' residences are located has been zoned to attend Ely High School since approximately 1977. Consequently, the rule being challenged in this proceeding does not change the school assignments for these families from that which has been in existence for several years. However, J. P. Taravella High School has been in the planning stages for several years, and Petitioners' families had anticipated that upon completion of the new high school their children would no longer have to be bused to attend high school. In the process of adopting the rule challenged in this proceeding the Board conducted a series of public meetings which were well publicized and, as far as can be determined from the record, properly advertised in accordance with Chapter 120, Florida Statutes. Petitioners submitted no evidence to indicate either any serious insufficiency in the notice procedures utilized by the Board, or any prejudice suffered by Petitioners in this regard. Finally, prior to adopting the challenged rule, the Board prepared an economic impact statement that, on its face, addressed all the requirements of Section 120.54, Florida Statutes. Although Petitioners disagree with the conclusions contained in the statute, there is no evidence in this record to ever suggest that the methodology used or the conclusions reached in the statement are in any way inaccurate.
The Issue The issue is whether the Department of Environmental Regulation (DER) should modify permit number 599070329, issued to the City of Boca Raton (City), to allow construction of an approved beach restoration project to commence on May 1, 1988, rather than on June 1, 1988.
Findings Of Fact On November 21, 1986, DER issued number 500970329 to the City for a beach restoration project. Issuance of the permit followed resolution of a dispute between DER and the City of Boca Raton which was the subject of an earlier proceeding before this hearing officer. See, City of Boca Raton, et al., v. Florida Department of Environmental Regulation, et al., DOAH Case number 86-0991 (Final Order of Dismissal rendered November 21, 1986). Although the City maintained in this case that the Coral Reef Society and Sierra Club, who are petitioners here, were intervenors in that prior proceeding through an umbrella organization, Save and Protect our Aquatic Resources and Environment (SPARE), no evidence was adduced supporting that contention. In the 1986 proceeding SPARE alleged that it was "a coalition of various environmental and commercial groups with a common interest in the protection of Florida's unique and fragile aquatic resources" (Amended Petition for Leave to Intervene in Case 86-0991, filed September 2, 1986). The groups which made up the coalition were not identified in that prior proceeding or in this one. SPARE filed a voluntary dismissal in the prior proceeding after learning that DER had decided to support issuance of a permit to the City of Boca Raton. After further administrative proceedings at the federal level, the U.S. Army Corps of Engineers issued a permit to the City of Boca Raton for the beach restoration project on or about January 28, 1988. The project, as currently permitted, involves the placement of approximately 980,000 cubic yards of sand, dredged from offshore, onto 1.45 miles of the City of Boca Raton's beachfront. The project will be constructed within and adjacent to two city Spanish River Park and Red Reef Park, and the waters of the Atlantic Ocean. The mean grain size of the dredged sand to be added to the beach is .32 millimeters. The dredged material is 99.6 percent sand and .4 percent silt or clay. The sand to be pumped onto the beach has characteristics almost identical to the current beach sand. As part of the approval process, the City of Boca Raton received a variance from turbidity standards otherwise applicable to Florida Class 3 waters. Turbidity is, to some extent, an unavoidable by-product of beach renourishment dredging. DER approved a mixing zone of 10,000 feet by 1,000 feet in which state water quality standards for turbidity could be violated during the construction period. The City of Boca Raton has also constructed artificial reefs comprised of natural limestone boulders and a protective groin approximately one-half mile south of the project area. Specific Condition Number Three (3) of the DER permit restricts project construction to the months of June, July, and August. In a letter dated February 12, 1988, the United States Fish & Wildlife Service (the Service) requested that the City of Boca Raton seek a modification of its DER permit to allow construction of the project to begin on May 1, 1988. The Service maintained the modification was important to avoid conflict with the peak nesting season of sea turtles, which are protected species. The Service did not make its request to the City to advance the project start date until February 12, 1988, because the Service was under the impression that the City had already requested permission from DER to commence construction sooner. In May of 1987, the City of Boca Raton had requested that the three month construction restriction of Specific Condition Number Three be deleted completely from the permit. When this request was made, the City of Boca Raton had hoped to begin construction of the project in the fall of 1987, and avoid construction during the sea turtle nesting season. DER's hydrographic engineer, Dr. Kenneth Echternacht, opposed this initial request to delete the construction limitation period. Due to delays in the federal permitting process and other logistical problems, the City of Boca Raton withdrew this earlier modification request. In order to meet the concerns of the Service, the City of Boca Raton applied by letter to DER dated February 22, 1988 for the suggested permit modification. Upon review of additional climatological and wave height data and littoral drift calculations from Dr. Robert Dean of the Costal and Oceanographic Engineering Department of the University of Florida College of Engineering, Dr. Echternacht supported a permit modification which would allow the construction period to begin in March, 1988. DER indicated its intention to grant the modification on March 10, 1988, acknowledging the concern of the Service and finding "the proposed modification is not expected to result in any adverse environmental impact or water quality degradation. " American Littoral Society, South Florida Chapter, and the Sierra Club, Florida Chapter, jointly, and the Coral Reef Society, independently, filed virtually identical petitions on March 22, 1988, objecting to DER's proposed approval of the modification request, and each requested a formal administrative proceeding. Those petitions not only questioned the permit modification, but also sought to reopen the issue whether the beach restoration project should be undertaken at all. During a telephone conference hearing on the City of Boca Raton's motion to strike portions of the petitions, held on April 8, 1988, the issue in this proceeding was narrowed to whether DER's proposed approval of the modification, expanding the construction "window" by one month, was proper. The time for objecting to the entire project has passed and the permit modification proceeding cannot be used to reopen the issue whether the beach renourishment now permitted for June, July, and August may go forward. The purpose of the restriction of construction to June, July, and August in Specific Condition Number Three of the permit was to confine construction to the months of minimum wave height. In southeast Florida, the summer months are climatologically the months of minimum average wave height. The amount of sand transported by the coastal littoral system, and consequently, the amount of optical turbidity due to suspension of particulate matter in the water column such as fine sand, is a function of wave height and longshore currents. The lesser the wave height and calmer the sea, the less sand is resuspended and the lower are the turbidity levels. During the months of June, July, and August, the waves propagate from the southeast and the corresponding longshore littoral direction is predominantly to the north. The remainder of the year, the littoral drift is primarily to the south. DER determined that project construction during the period of predominantly northerly littoral transport would better protect Red Reef Rock, a large rock outcropping located to the south of the project area. The Red Reef Rock area supports rich and diverse fish resources as fish are attracted to the rock for feeding and take advantage of the relief the rock outcroppings provide. The City of Boca Raton agreed to construct a groin composed of limestone boulders in order to afford additional protection to Red Reef Rock against the drift of sand to the south. The City is also limited by Specific Condition Number Ten of the permit, which remains in effect, and restricts disposal of material in the southernmost .15 mile portion of the beach to times when the prevailing longshore current is from south to north. Nonetheless, construction during May increases the possibility that some material suspended in the water column as the result of the renourishment will be transported over the Red Reef Rock area. Although project construction during the months of June, July, and August presents the optimum conditions from a water quality perspective, construction during that period conflicts with the height of the sea turtle nesting season. The City of Boca Raton has been monitoring sea turtle nesting activity on the Boca Raton public beaches from Spanish River Boulevard to Palmetto Park Road, a distance of 2.6 miles which encompasses the project area, for the past 11 years. Three species of sea turtles, logger head, green and leatherback turtles have been known to nest on the beaches of Boca Raton within and adjacent to the project area. All three species are protected under state and federal law. Loggerhead sea turtles, by far the most numerous nesters on Boca Raton's beaches, are classified as a threatened species by the U.S. Department of Commerce. Green sea turtles and leatherback sea turtles are classified as endangered species. Compared to the number of nests historically established by loggerhead turtles, green sea turtles are infrequent nesters on Boca Raton's beaches. Leatherback turtles are very rare nesters in this area. Southeast Florida is not a significant nesting habitat for leatherbacks. During the eleven-year monitoring period an average of only 2.4 leatherback sea turtles nested on the beach each year, the largest number nesting in a single year was 7; an average of 8 to 9 green sea turtle nests have been recorded annually in this area. By way of comparison, during the same period an average of 333 loggerhead sea turtle nested in this area. Sea turtle nesting in Boca Raton has historically occurred from April through September. The earliest nest of the year recorded by the City of Boca Raton occurred on April 2, 1987, and was a leatherback. The latest nest of the year occurred on September 13, 1983, and was a loggerhead. Leatherbacks nest early, and green turtles are late to nest. Loggerhead nests commonly begin in May, with the peak nesting period occurring in late June and early July. In light of the facts set out above concerning the likely timing of sea turtle nesting, which also being cognizant of DER's water quality concerns, the Service requested the City of Boca Raton to seek a modification of its DER permit to allow construction to begin on May 1, 1988. This would enable the City of Boca Raton to avoid construction during the peak of the sea turtle nesting season in late June, July, and August. The construction should take about 30 days. In addition to the permit modification request, the Service has recommended several other "reasonable and prudent measures" to avoid possible adverse effects to sea turtle nesting activity during the renourishment of the beach. These include a) tilling the beach to soften the new sand if it becomes compacted over a certain degree, b) relocation of nests is undertaken only by trained persons, c) lighting on the dredge is minimized to reduce any confusion it could cause to turtles attempting to locate the beach for nesting, and d) the addition of dune plants to the project area. The City of Boca Raton has agreed to implement these measures. The Boca Raton beach restoration project will enhance sea turtle nesting activity in the future. Currently, the beach in the project area is critically eroded, posing an immediate threat to successful sea turtle nesting. Nests are at risk of being inundated by sea water or washed away if not found and relocated by City of Boca Raton staff. The project will provide a long-term benefit to sea turtles by providing a wider dry beach area for safer nesting and better nest site selection. The City proved that wave heights, littoral drift, and other climatological conditions in southeast Florida do not vary dramatically, on the average, between the months of May and June. May is a transitional month, and there is net littoral movement south due to cold fronts and northeast winds in the area, along with swells caused by storms out in the Atlantic Ocean. While there is a potential for isolated events in May which could have an adverse impact on Red Reef Rock by causing a shift of newly dredged material south over the reef, the evidence presented by petitioners did not persuade the hearing officer that the risk of such events was unacceptably large when balanced against the value of advancing the construction into May to minimize conflict with the peak nesting season of loggerhead sea turtles. The petitioners' evidence did not quantify the likelihood of storm-related events with enough energy to adversely affect the Red Reef Rock area. The hearing officer is, therefore, more persuaded by Dr. Echternacht's testimony that long-term (i.e., average) data is more useful when assessing safety margins, and the available data gives reasonable assurance that renourishment may take place in May. Consequently, construction commencing during the month of May would not present any adverse water quality or marine resource effects. Petitioners have not persuaded the hearing officer that the subject permit modification would adversely affect water quality to such an extent as to be contrary to the public interest. The City has obtained a permit for a mixing zone which will accommodate all the turbidity which is likely to be caused by the beach renourishment. There is insufficient evidence that climatological event in May are likely to cause the turbidity to extend beyond the approved mixing zone.
Recommendation It is recommended that the Department of Environmental Regulation enter a final order granting the permit modification. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 3rd day of May, 1988. WILLIAM R. DORSEY, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of May, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-1590 The following are my rulings on the proposed findings of fact submitted by the petitioners pursuant to Section 120.59(2), Florida Statutes, (1985). Rulings on Petitioners' Proposed Findings of Fact Covered in finding of fact 2. Covered in finding of fact 5. 3-4. Covered in finding of fact 6. 5. Covered in finding of fact 7. 6-7. Covered in finding of fact 8. Rejected because while wave heights are higher in May, there is insufficient evidence that higher wave height would cause turbidity in violation of the mixing zone which has been permitted. Covered in finding of fact 8. 10-11. Rejected as unnecessary. 12-15. Covered in finding of fact 8. 16. To the extent appropriate, covered in finding of fact 9. 17-20. Covered in finding of fact 9. 21-22. Covered in finding of fact 10. 23-24. Rejected because the Hearing Officer accepts the testimony of Mr. Possardt that southeast Florida is not a significant nesting habitat for leatherbacks, and therefore rejects the argument that leatherbacks are entitled to greatest protection. The Boca Raton Beach is a significant habitat for loggerhead turtles, and it is more appropriate to assess the impact of the project based on the predominate species of turtles nesting on the beach, rather than the impact of the project on a species which only rarely nest on this beach and has predominate nesting areas elsewhere. Rulings on Respondent DER's Proposed Findings of Fact Covered in finding of fact 2 and 4. Covered in finding of fact 3. Rejected because the evidence adduced at the hearing did not support findings concerning three systems of hard bottom and rock outcroppings. 4-6. Covered in finding of fact 8. Covered in finding of fact 8 and 13. Covered in finding of fact 14. Rejected as cumulative. Rejected for lack of evidence. Covered in finding of fact 13 and 14. Covered in finding of fact 10-12 Covered in finding of fact 10-12. 14-20. Rejected as unnecessary because the only evidence submitted pertain to potential violations of water quality standards or adverse affect on habitat of endangered species. Rulings of Respondent Boca Raton's Findings of Fact 1. Covered in finding of fact 1. 2. Covered in finding of fact 2. 3. Covered in finding of fact 5 and 6. 4. Covered in finding of fact 7. 5. Covered in finding of fact 8. 6. Covered in finding of fact 9. 7. Covered in finding of fact 10. 8. Covered in finding of fact 11 and 12. 9. Covered in finding of fact 8. Covered in finding of fact 13. Rejected as argument. COPIES FURNISHED: Alexander Stone Judy Schrafft, President South Florida Director Coral Reef Society American Littoral Society 357 North Lake Way 75 Virginia Beach Drive Palm Beach, Florida 33480 Key Biscayne, Florida 33149 Alfred Malefatto, Esquire Karen Brodeen, Esquire David C. Ashburn, Esquire Department of Environmental Post Office Box 24615 Regulation West Palm Beach, Florida 33416 Twin Towers Office Building 2600 Blair Stone Road Alan J. Kan, Esquire Tallahassee, Florida 32399-2400 Penthouse Suite 11088 Biscayne Boulevard Jonathan Shepard, Esquire Miami, Florida 33181 5355 Town Center Road Suite 801 Dale Twachtmann, Secretary Boca Raton, Florida 33486 Department of Environmental Regulation Daniel H. Thompson, Esquire 2600 Blair Stone Road General Counsel Tallahassee, Florida 32399-2400 Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400
Findings Of Fact Respondent, Department of Community Affairs, is the state land planning agency charged with the responsibility of administering the provisions of Chapter 380, Florida Statutes, and the regulations promulgated thereunder. The Department has the authority to appeal to the Florida Land and Water Adjudicatory Commission any development order issued in an area of critical state concern pursuant to Sections 380.031(18), 380.032, and 380.07, Florida Statutes. At all times pertinent to this proceeding and to DOAH Case Number 93- 7165DRI, Petitioner, Fred Snowman, owned the real property known as Lot 75, Matecumbe Ocean Beach subdivision, Lower Matecumbe Key, in Monroe County, Florida (the subject property). A building permit issued by Monroe County, described below, for this property was the subject of DOAH Case Number 93- 7165DRI (the underlying proceeding.) The lot is approximately 100 feet wide and, at different points, between 200 and 225 feet deep. The subject property is bounded on the landward side by U.S. 1 and fronts the Atlantic Ocean in an area known as Matecumbe Beach. Matecumbe Beach is a known resting and nesting habitat for marine turtles. This building permit constituted a development order on property within the Florida Keys Area of Critical State Concern. On September 30, 1993, Monroe County issued to Mr. Snowman, as the owner and general contractor, building permit number 9330008850, which authorized the construction on the subject property of a single-family residence containing 2,472 square feet of heated and cooled area, 1,568 square feet of porches, 1,435 square feet of storage enclosure below base flood elevation, and a swimming pool. The authorized construction was to be consistent with the building site plan, which was also approved by Monroe County. On November 18, 1993, the Department timely appealed the subject building permit to the Florida Land and Water Adjudicatory Commission (FLWAC) pursuant to Section 380.07, Florida Statutes. FLWAC referred the matter to the Division of Administrative Hearings where it was assigned DOAH Case Number 93- 7165DRI. A formal hearing was conducted in DOAH Case Number 93-7165DRI in Key West, Florida, on June 30, 1994. Following the formal hearing, the parties were afforded the opportunity to file post-hearing submittals. Thereafter, a recommended order was entered which recommended that FLWAC enter a final order that dismisses the Department's appeal. After the entry of the recommended order, the Department voluntarily dismissed its appeal. FLWAC subsequently entered a final order of dismissal. Petitioner, Fred Snowman, was the prevailing party in DOAH Case Number 93-7165DRI. SMALL BUSINESS PARTY The issue as to whether Petitioner is a "small business party" as defined by Section 57.111(3)(d), Florida Statutes, was disputed by the Department in this proceeding. The parties stipulated that Mr. Snowman meets the remaining criteria contained in Section 57.111, Florida Statutes, for an award of attorney's fees and costs. The following testimony elicited by Petitioner's counsel of the Petitioner was the sole evidence pertaining to the number of employees of the Petitioner: Could you tell us a little bit about your business? What's the nature of your business? Primarily I'm a speculation - spec builder and general contractor in the Florida Keys, and have been since 1973. Q. How many employees do you maintain on a regular basis? A. I mainly have subcontractors. Occasionally when I have a job, I hire for that particular job. But I'm the sole proprietor and I'm the employee. (Transcript, page 9, lines 12-22.) While the foregoing testimony establishes that as of May 15, 1995, Petitioner was the sole proprietor and sole employee of his business, it does not establish that Petitioner had fewer than 25 employees in 1993 when the Department initiated its actions against him. 1/ The following testimony elicited by Petitioner's counsel of the Petitioner pertains to his net worth: Q. What is your net worth? Let me ask you this. Does your net worth exceed a million dollars? A. No. Q. Less than a million dollars? A. Yes. (Transcript, page 9, line 23 through page 10, line 3) The following testimony elicited by Respondent's counsel of the Petitioner on cross examination also pertains to his net worth: Q. When you're identifying your net worth, what exactly are you considering? A. Well, net worth is all my assets minus my liabilities. Q. All of your personal assets? A. Which are far and few between (sic) today. Q. Do you have business assets? A. No. Q. Do you own any property? A. Lot 75. Q. Any property other than Lot 75? A. I own three lots, small lots in Plantation Key. Q. Are they developed or undeveloped? A. No, they're undeveloped. Q. Do you know how much they're worth? A. They're valued at fifteen thousand per lot. Q. They're not on the water? A. Not on the water. Q. Lot 75, do you know what that property's worth? A. That property is worth about a hundred and seventy-five thousand. Q. Without the house on it? A. Without the improvements, yes. Q. How about in its improved condition? A. I would say, in the improved condition, with this home, it would be about five hundred thousand. Q. Okay. Other than the real estate, do you have any personal or business investments, stocks or -- A. No. Q. No? A. Just my condo. (Transcript, page 10, line 8 through page 11, line 13.) There was no other evidence presented as to Petitioner's net worth. While the foregoing testimony establishes that as of May 15, 1995, Petitioner had a net worth of less than two million dollars, it does not establish that his net worth was below that figure in 1993 when the Department initiated its actions against him. SUBSTANTIAL JUSTIFICATION The Department's appeal initially raised several issues. All issues in the underlying proceeding but one were voluntarily dismissed by the Department either prior to the hearing or at the hearing. The only issue litigated at the formal hearing in DOAH Case Number 93-7165DRI was the appropriate setback from the portion of the beach-berm complex located on the subject property known to serve as an active nesting or resting area of marine turtles. Pertinent to this proceeding, Section 9.5-345(3)(f), Monroe County Code, provides: f. No structure shall be located within fifty (50) feet of any portion of any beach-berm complex which is known to serve as an active nesting or resting area of marine turtles, terns, gulls or other birds; There was no dispute in Case 93-7165DRI that the turtle nesting setback applied to Mr. Snowman's property. The dispute was how to apply the setback. There was a bona fide factual dispute as to the extent of the beach berm complex on the subject property that should be considered to be "beach berm complex which is known to serve as an active nesting or resting area of marine turtles" within the meaning of the setback ordinance. The Department established that it followed its standard procedures in deciding to appeal the subject development order. The Department maintains a field staff in the Florida Keys that routinely reviews development orders issued by Monroe County for consistency with the land development regulations, the Monroe County comprehensive plan, and Chapters 163 and 380, Florida Statutes. The permit package typically reviewed, and reviewed in this case, includes the permit, a permit conditions sheet, surveys, and site plans. The Department staff usually reviews a biological survey or habitat evaluation index, reviews the County's entire file, reviews aerial photographs and conducts a field assessment. In this case, the Department also looked at records of the Department of Natural Resources and of the Save A Turtle volunteer environmental group. In this case, the Department conducted a field assessment of Mr. Snowman's lot and measured the point it considered to be the landward extent of the turtle nesting setback line. Kate Edgerton, an experienced biologist employed by the Department, measured the point the Department asserted was the landward extent of the turtle nesting setback line. Ms. Edgerton made a good faith assessment of the beach berm complex and considered the property to contain one beach berm complex. (Transcript, DOAH Case 93-7165DRI, page 166, line 17.) Ms. Edgerton testified in the underlying proceeding that she considered herself bound by the definitions in the Monroe County land use regulations and that she believed herself to be applying the pertinent definition when she measured the setback line. (Transcript, DOAH Case 93- 7165DRI, page 163, lines 20-23.) Following field staff review, a report is prepared and forwarded to Tallahassee for review by additonal staff, including the Department's administrator of the critical state concern program. Department staff in Tallahassee review the field staff report and participate in formulating a recommendation as to whether to appeal the permit. The appeal decision is then made either by the Department Division Director or by the agency head. Each material step in the Department's customary practice of reviewing permits was followed in reviewing the subject permit. Section 9.5-4(B-3), Monroe County Code, contains the following definition of the term "beach berm" that was found to be pertinent to the underlying proceeding: (B-3) "Beach berm" means a bare, sandy shore- line with a mound or ridge of unconsolidated sand that is immediately landward of, and usually parallel to, the shoreline and beach. The sand is calcareous material that is the remains of marine organisms such as corals, algae and molluscs. The berm may include forested, coastal ridges and may be colonized by hammock vegetation. The term "berm" is identified in the Monroe County comprehensive plan as . . . a mound or ridge of unconsolidated sand that is immediately landward of, and usually parallel to, the shoreline and beach. A berm is higher in elevation than both the beach and the area landward of the berm. At the formal hearing in the underlying appeal, there was conflicting evidence as to the extent of the beach berm complex on the subject property. The Recommended Order found that there were two distinct ridges located on the subject property. The issue of whether both ridges could be considered part of the "beach berm complex" was one of first impression. Succinctly stated, it was the position of the Department in the underlying appeal that both ridges were in an area of potential habitat on a beach that is known habitat and it asserted the position that both ridges should be considered to be one beach berm complex. The Department asserted the position that the setback should be measured from the landward extent of the second ridge (the more landward of the two ridges). Monroe County had measured the setback from the landward extent of the first ridge. Mr. Snowman agreed with the County's determination of the setback. Mr. Snowman presented evidence that the County had, for several years, applied the setback from the landward extent of the first ridge and argued that, based on the foregoing definitions each ridge should be considered to be a separate beach berm, but that only the first should be considered to be a beach berm. The Department presented evidence that the County had applied the setback provision in an inconsistent manner by measuring from the crest of berms in some cases and measuring from the landward extent of berms in other occasions. The Recommended Order rejected the Department's position and concluded that the definition of "beach berm" contained in Section 9.5-4(B-3), Monroe County Code, and the description of "berm" in the comprehensive plan were unambiguous. Although the Department argued that other provisions of the code and comprehensive plan supported their construction of the setback requirement, it was concluded that the issues should be resolved based on the unambiguous definition of "beach berm". It was also concluded that no deference should be afforded the Department's construction of the term "beach berm" because there is a plain and unambiguous definition of the term that is a part of the Monroe County Code. It was observed that "[w]hile a greater setback may better serve the goals of the comprehensive plan, as argued by the Department, the imposition of a greater setback requirement should come from a change in the Monroe County Code." This observation was made because the Department had found support for its interpretation of the setback requirement from other parts of the code and comprehensive plan. This case involved bona fide disputed issues of material fact and legal issues that were of first impression. It is found that those issues, although resolved against the Department following the formal hearing, were of sufficient merit to substantially justified the Department's actions in initiating the underlying appeal.
