Findings Of Fact Jaime Fernandez was transferred in 1977 to Clearwater Traffic Engineering Department as an electrician's helper from the Clearwater Pollution Control Department. Prior to coming to Water Pollution Control, Respondent had been a CETA employee in the Parks Department from which he was fired for incompetence (Respondent's testimony). Although the exact situation was not made clear to the Hearing Officer, it appeared that Respondent appealed his firing from the Parks Department alleging some type of discrimination, and, following a hearing, the City was required to reemploy him. At all times here relevant, Respondent was an employee in the Classified Civil Service of Clearwater. Respondent testified that the evaluations he received at Water Pollution Control were satisfactory overall, and the request for a transfer was initiated by him. As an electrician's helper, Respondent was one of six or seven electrician's helpers. When he was subsequently transferred to the position of ET helper, he was the only ET helper in the Traffic Engineering Department. With a larger number of electrician's helpers it was easier to assign trench digging, painting and other similar menial jobs to Respondent without detracting from the overall efficiency of the Department than it was when Respondent became the only ET helper in a group with two ET's. Respondent served as an electrician's helper in the Traffic Engineering Department for approximately two years before he was transferred to the position of ET helper. During these two years as an electrician's helper, Respondent failed to get a satisfactory overall evaluation and never received a merit pay increase. He was transferred to the electronics shop as an ET helper in late 1979. In the six months follow-up review of Respondent's unsatisfactory evaluation report dated 2-9-80, the Director of the Traffic Engineering Department recommended Fernandez be terminated for incompetence. This recommendation was rejected by the Personnel Department because of insufficient documentation of the events giving rise to the recommendation. On August 25, 1978, Respondent was given a letter of reprimand following an accident involving a truck, driven by Respondent, and a building in which Respondent's inattention contributed to the accident (Exhibit 6). On April 14, 1980, Respondent was suspended from duty without pay for three days on charges of incompetence and inefficiency in his work product, errors in daily time cards and other reports, and continuous performance evaluations indicating improvement needed. On the instant charges the evidence was unrebutted that during the period August 1, 1980, through March 15, 1981, 19 errors were made by Respondent on the time sheets he submitted. Twenty-seven other employees in the same Department fill out time sheets and, during the same period, the next highest number of errors was eight. Most of the employees made only one or two errors in completing their time sheets. During the period February 2, 1981 to February 5, 1981, Respondent was given a work order to construct and install back boards in two transit controllers (Exhibit 1). Included in the work order was a drawing showing how the panel was to be connected and detailed instructions on how the work was to be performed. Despite close supervision, Respondent failed to follow the instructions, cut the wires longer than the maximum three feet lengths as shown on the work order, installed grounding bar in the wrong location, and did not properly lace the harness. This work order was within the capability of a reasonably qualified ET helper to complete in twenty hours. Respondent took forty-seven hours to accomplish this work and made numerous errors which had to be corrected by others. During a period in mid-February; 1981, Respondent was assigned a detector to repair. Repair of this equipment was also within the capability of a reasonably qualified ET helper in about four hours. After working on this detector for twenty-one hours, Respondent was still unable to repair it. It was given to an electronics technician who repaired the detector in approximately one hour. Respondent, in work order 136, was given an LT 169 load pack to repair. Test equipment is set up in the petitioner's shop for trouble shooting this equipment. After testing this load pack, Respondent replaced the part he thought defective but, when tested by someone else, the equipment was still inoperative. The part replaced by Respondent was the part most frequently found defective in this load pack. In this instance, this part was not the cause of the equipment being in operative. This was a routine work order that a reasonably qualified ET helper should have been able to complete. Respondent has been counselled and evaluated numerous times by different supervisors in the Traffic Engineering Department for the past three years and has yet to be assigned a satisfactory evaluation. No other employee has been retained in a position with the City of Clearwater for such an extended period with unsatisfactory evaluations. Respondent testified that he has completed a two-year course in electronics at Pinellas County Vocational School and has one year of college. Accordingly, he deemed himself better qualified as an ET helper than as an electrician's helper. He felt he should have been disciplined for incompetency as an electrician's helper during the two years he worked in that Division, rather than as an ET helper in which position he has worked for approximately one year. Respondent's testimony, that he was denied earned leave or pay for this leave when he was dismissed, was not rebutted. However, the City of Clearwater's regulations relating to leave were not presented to the Hearing Officer, and without access to these regulations, Respondent's claim cannot be resolved.
Findings Of Fact The Department of Environmental Regulation (hereinafter "DER") issued a letter of "intent to issue" a permit based upon an application submitted by Respondent John H. Voorhees for a weedgate and associated fences to be placed at the mouth of the Hollerich Subdivision canal in Big Pine Key, Monroe County, Florida. The majority of owners of lots in the Hollerich Subdivision are in favor of the gate. The Hollerich Subdivision canal is approximately 1,200 feet long. it is an east-west dead-end canal with its mouth facing east. Floating seaweeds, grasses and detritus (a/k/a wrack are blown into the canal by the prevailing east and southeast winds. Although some surface wrack may blow back out of the canal with the occasional west wind, the sunken weeds will not. The accumulation of windblown wrack results in a stench caused by hydrogen sulfide gas from rotting weeds. The odor causes nausea, sore throats, and sneezing. Water quality tests of dissolved oxygen (DO) taken both in April 1985 and in November 1986 show the water in the canal to be below state standards. The low DO levels found in the canal are primarily due to the rotting weeds although the nutrients leaching from the surrounding yards also contribute to those low levels. The area outside the canal is better able to diffuse and absorb the wrack problem than the area inside the carnal. Accumulations of wrack outside the canal are more temporary and therefore produce less navigational difficulty and less deterioration of water quality. The navigational problems caused by weeds choking the canal range from difficulty in steering to poor visibility. The decaying wrack also causes growth on boat bottoms, can damage boat cooling systems, and turns the water in the canal red. The amount of wrack entering the canal and accumulating there has been increasing over the last five years. The proposed structure will stop wrack from entering the canal and will function as a weedgate. The design of the gate will not cause any navigational hazards, although the weedgate should have navigational aids to assure safety. Although the weedgate will not improve water quality in the canal so as to meet state standards, it will result in an improvement. DER has no jurisdiction to resolve property disputes. The proposed weedgate is to be placed in front of the canal with no on-land attachments, and Respondent Voorhees has given reasonable assurances that the proposed gate is not on privately owned property. The proposed structure will be placed in Class III Outstanding Florida Waters. DER has balanced the positive public interest effects that will accrue to the owners of property along the canal against the' negative public interest effects that may accrue to owners of property at the mouth of the canal. Respondent Voorhees has given reasonable assurances that the project will be clearly in the public interest. Respondent Voorhees has given reasonable assurances that the proposed project will meet all applicable DER rules and standards.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that a Final Order be entered (1), granting Respondent Voorhees' permit application and (2), authorizing the issuance of a permit subject to all permit conditions contained in the Department's letter of Intent to Issue the permit and also including the condition that no trespassing occur on the property at the mouth of the canal attendant to either the construction or the maintenance of the weedgate and associated fences. DONE and RECOMMENDED this 17th day of February, 1987, at Tallahassee, Florida. LINDA M. RIGOT, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of February, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NOS. 86-0599, 86-0600, 86-0601, 86-0954, and 86-0955 l. Respondent Department of Environmental Regulation's proposed findings of fact numbered 1-5, 9, 10, 12-15, 17-20, the first and last sentences of 21, 23, 28, and 29 have been adopted in this Recommended Order either verbatim or in substance. The remainder of the Department's proposed findings have been rejected as follows: 6-8, 11 and 16, as being unnecessary for determination herein; the remainder of 21 and 22 as being immaterial to the issues herein; and 24-27 as being subordinate. 2. Respondent Voorhees' proposed findings of fact numbered l, 3, 8, and 13 have been adopted in this Recommended Order. The remainder of Voorhees' proposed findings of fact have been rejected as follows: 2 and 16 as being subordinate; 9 and 10 as being unnecessary; and 11, 12, 14 and 15 as not being supported by the evidence in this cause. COPIES FURNISHED: Douglas H. MacLaughlin, Esquire Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 John H. Voorhees Route 1, Box 612 F Big Pine Key, Florida 33043 H. Ray Allen, Esquire 618 Whitehead Street Key West, Florida 33040 Dale Twachtmann Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301
The Issue The issue for consideration in this case is whether Respondent should be disciplined, to include a three day suspension without pay, because of the misconduct alleged in the Notification of Suspension issued herein.
Findings Of Fact At all times pertinent to the issues herein, Respondent, William T. Mooney, worked as a laboratory technician for the City of Clearwater's Public Works/Water Pollution Control Division. On April 15, 1993, Doreen Spano, the City's utility lab supervisor, held a meeting of her division personnel at which she identified Iracema Drysdale as the lead worker and, in order to clarify any misconceptions among lab workers as to work deadlines, presented a policy letter for the lab, entitled "New Work Schedule". The schedule set guidelines and deadlines for the daily workload. The memorandum contains inconsistent statements, however. For example, while Ms. Spano indicated both in the memo and at hearing that the instructions therein are merely guidelines, she also used such imperatives as "must" and "will" in the memo. Specifically, the memorandum indicates the daily plant BOD must be in the incubator by 12:00 PM, and the daily plant bacteria must be in the incubator by 12:30 PM. Respondent has worked in this City laboratory for approximately 14 years. During this time he has developed a method of accomplishing his tasks which is described by Ms. Drysdale as less than efficient. She indicates he frequently misses his time deadlines and works at his own pace. Respondent, on the other hand, claims he has always completed his tasks according to the Standard Methods Manual, but, due to the time the samples are received in the lab, could not accomplish both the BOD and the bacteria procedures within the guidelines set in that manual and the Environmental Protection Agency standards manual. Either one or both would be late. This controversy, much of which was made by both sides, is, in reality, only peripherally related to the issue in controversy here which is whether Respondent was insubordinate or not on September 9, 1993. Both Ms. Drysdale and the Respondent signed the memorandum in question here indicating their receipt and understanding of the directions contained therein. Thereafter, on September 9, 1993, Ms. Drysdale entered the lab shortly before the lunch period to find the bacteria procedure not done and Respondent working on the BOD procedure. It appears that the bacteria sample was taken at 6:00 AM on this day and, under EPA guidelines, had to be preserved in the incubator within six hours or the results of the procedure would be invalid and not eligible for reporting to the EPA. When Ms. Drysdale asked Respondent why he was doing the BOD when the bacteria procedure had not been accomplished, he indicated that Ms. Spano's memorandum required the BOD to be done by 12:00 noon and the bacteria not until 12:30 PM. He considered this a directive and indicated he would complete his work consistent therewith. Again, there is a contradiction in the testimony as to the nature of the conversation between Ms. Drysdale and the Respondent. Ms. Drysdale asserts that about noon on the day in question, she suggested to Respondent that he start the bacteria procedure first and then do the BOD procedure. Respondent refused because he believed he had to follow the new work schedule prepared by Ms. Spano. Ms. Drysdale then told him to do the bacteria procedure first and she would assume the responsibility. Respondent still refused and, raising his voice to her, completed the BOD procedure. When he finished that, he did the bacteria procedure but by that time, the sample was too old and had to be discarded. Respondent's recounting of the incident is somewhat different. He claims he was approached by Ms. Drysdale who asked him why he did the bacteria procedure after the BOD procedure. When he pointed out the dictates of the memorandum, she claimed to know nothing about it even though her signature, along with that of Respondent and Mr. Olson, appears on the bottom thereof. Nonetheless, according to Respondent, Ms. Drysdale said she would check on it. After lunch, according to Respondent, Ms. Drysdale came back with the Standard Methods book. When he showed her the new work rules, he claims, she admitted she was aware that Ms. Spano had written them. When he asked her what Ms. Spano had said about the situation, she allegedly replied, "Why don't you do it the way I say and if Doreen (Ms. Spano) asks, I'll take the responsibility." Respondent was upset because, he contends, things like this always happen. Respondent, in subsequent testimony, denied ever getting a direct order from Ms. Drysdale or that she indicated she would assume responsibility. On balance, while there is little doubt in Ms. Drysdale's testimony as to what happened, Respondent tells two different stories regarding the conversation. At one point he claims she asked him why he didn't do it her way and that if he did, she'd assume responsibility. At another, he claims she merely asked why he was doing the procedures as he was and made no mention of assuming responsibility. It is clear that Ms. Drysdale wanted the bacteria procedure done first, and while she might not have couched her request in directory language, there can be little doubt she communicated her desires to Respondent, albeit in a perhaps more gentle manner. In any case, she was Respondent's supervisor and he knew it. She wanted the work done as she indicated and her request, made under the authority she had to get the work done as she desired, had the force and effect of a direct order which Respondent disobeyed at his peril. Ms. Spano indicated she discussed not only the appointment of Ms. Drysdale as lead worker at the April 15, 1993 meeting, but also the six hour requirement for specimens. Respondent denies this, but it is found he knew exactly what the requirements were. He claims he has been doing things the way the memorandum calls for ever since it was promulgated and this is not inconsistent with his current position on doing the BOD procedure first. When this incident took place, Mr. Reckenwald, the superintendent of the water and pollution control division, and the overall supervisor of the laboratory operation in question, received a recommendation for discipline, primarily because of Respondent's failure to follow orders. In addition, however, the incident created a problem for the City which has to report to the EPA and other federal agencies. Because of this report requirement, it is imperative the work be done properly. If it is not done properly, the work is worthless and may result in sanction action against the city by federal regulatory agencies. Not the least of concerns, also, is the public health consideration since effluent, the source of samples for both BOD and bacteria procedures, is discharged into the public waterways. On the basis of the above, a recommendations was made that Respondent receive a three day suspension. This is consistent with disciplinary guidelines contained in the City's Guidelines For Disciplinary Action. Respondent appealed the action to the City Manager who reviewed his submittal but nonetheless upheld the disciplinary action proposed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that the City of Clearwater take final action in this matter to consist of suspension of the Respondent without pay for three days and imposition of 40 disciplinary action points. RECOMMENDED this 24th day of May, 1994, in Tallahassee, Florida. ARNOLD H. POLLOCK, 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 24th day of May, 1994. COPIES FURNISHED: Miles A. Lance, Esquire Assistant City Attorney City of Clearwater P.O. Box 4748 Clearwater, Florida 34618 William T. Mooney 1433 Laura Street Clearwater, Florida 34615 Michael J. Wright City Manager City of Clearwater P.O. Box 4748 Clearwater, Florida 34618-4748
The Issue The issue in this case is whether the decision of the Planning and Zoning Board denying Petitioner's application for conditional use approval should be sustained.
Findings Of Fact On or about February 16, 1990, the Petitioner filed an application for conditional use approval with the Respondent seeking permission to operate a personal watercraft rental business at a motel and restaurant located at 601 South Gulf View Boulevard on Clearwater Beach. According to the application, the Petitioner proposes to rent two "Hobie cat" catamaran sailboats, and four to ten "wave runners". The Petitioner proposes that the vessels would be escorted westward, north of and parallel to, the marked boat channel in Clearwater Pass, then northwestward to open waters where, according to Petitioner, a "safewatch and service unit of nonpropeller power" would "monitor" customer activities. The subject property is located between South Gulf View Boulevard and Clearwater Pass, west of the Clearwater Pass Bridge, and is comprised of two zoning districts, an upland portion that is zoned CR-28, or Resort Commercial "Twenty-eight", and a beach front portion that is zoned OS/R, or Open Space/Recreation. Clearwater Pass separates Clearwater Beach and Sand Key Islands, and is the only open access between Clearwater Harbor and the Gulf of Mexico. A convenience store is located north of the property, and hotels are located east and west of the property. At the hearing before the Respondent's Planning and Zoning Board on March 13, 1990, the Planning and Development Department recommended denial of the application. In its written report to the Board, the planning staff based its recommendation upon the recommendations of the City's Harbormaster and Marine Advisory Board, which in turn were based upon concerns for safety due to the heavy boat traffic in the Clearwater Pass channel and at jetties along the southern end of Clearwater Beach and the northern end of Sand Key, all of which are located in the vicinity of the subject property. Based upon the testimony of Harbormaster Bill Held, it is found that state and federal approval of markers to mark off a private corridor in Clearwater Pass to accommodate Petitioner's proposed activities would be unlikely. During the hearing before the Board, the Board heard testimony from several persons in opposition to this application based upon concerns regarding the safety of swimmers due to careless operation of similar types of vessels, and strong currents in Clearwater Pass. At the conclusion of the public hearing, the Board discussed the application prior to voting. Members of the Board expressed concerns regarding public safety due to the dangerous condition of the area. The Board then voted unanimously to deny the application. Subsequently, the Petitioner timely filed a notice of appeal, resulting in this case. During this final hearing, Ronald Hollins, President of Gulf Fun, Inc., and agent for the Petitioner, testified that his proposed business would operate seven days a week, from sunrise to sunset, or approximately twelve hours daily. Petitioner testified that his personal watercraft rental vessels would be escorted during trips both from the subject property westward to the waters of the Gulf of Mexico and also during return trips, and that a "safety service" boat would monitor the rental vessels while in operation, with the escort boat and the "safety service" boat being in radio contact with a base unit at the motel property. The rental vessels would be prohibited from crossing Clearwater Pass to the south side of the boat channel, and would be limited to an area of operation bounded on the south by Clearwater Pass and on the north by Pier 60 on Clearwater Beach. Petitioner proposes to employ only three or possibly four employees to operate the escort boat, the "safety service" boat, and the base location, to rent the personal watercraft vessels, show a video tape and give a safety booklet to customers, as well as to otherwise supervise the rental vessels during the approximately 84 hours per week that his business would be in operation. Petitoner has never operated a similar business. Based upon the testimony of Richard Howard, captain of a charter boat which regularly goes in and out of Clearwater Pass, it is found that personal watercraft vessels frequently present a hazard to navigation due to the manner in which they are customarily operated. Specifically, personal watercraft operators in Clearwater Pass engage in practices such as towing swimmers on inner tubes, purposely spraying water at boats, and jumping the wakes of boats in the Pass. The activities proposed by Petitioner would exacerbate the insufficient clearance between boats in the channel, boats anchored at the beach, and swimmers, and would, therefore, be inappropriate in Clearwater Pass. The currents in Clearwater Pass are found to be dangerous to boaters on a regular basis, based on the testimony of Arnold Abramson, bridge tender at the Clearwater Pass bridge and Harbormaster Bill Held. A significant number of personal watercraft operators do not demonstrate an understanding of the rules of navigation, or of the currents in the Pass. Based on the testimony of Marine Patrol Office Bill Farias, it is found that the lack of apparent common sense which is frequently demonstrated by personal watercraft operators in Clearwater Pass creates a dangerous condition for others. A common practice is to jump the wake of boats, which results in a loss of control in mid-air. The jetty at the western end of Clearwater Pass obscures vision, making it difficult for incoming boaters to see personal watercraft in the vicinity of the motel, and also making it difficult for personal watercraft operators to see incoming boats. There is another boat rental operation in the area of this subject property, located at the Hilton Hotel, but this existing operation predates the adoption of the Clearwater Land Development Code. The Clearwater Pass bridge had 12,000 drawbridge openings in the past year, and is one of the busiest in Florida.
The Issue Whether Respondent Wilton Hill committed the violations alleged in the Decision-Making Leave and Mandated EAP Referral notice; and, if so, the appropriate discipline that should be imposed.
Findings Of Fact The City is a municipality governed by a city council. A city manager oversees the City’s operations. On September 8, 2015, Petitioner hired Respondent to work as a senior systems programmer, which is categorized by the City as a “Classified” service position. The Clearwater Civil Service Board has adopted rules and regulations which govern the conduct of all City employees. Chapter 13 of the CSR provides the framework for suspending, demoting, and dismissing City employees. By correspondence dated February 22, 2021, Petitioner provided Respondent with what is commonly referred to as a “predetermination notice” and advised Respondent therein that it was believed that he “committed an offense warranting formal discipline.” The predetermination notice states, in material part, that Respondent violated “Integrity Standards, listed on page iv of the official PBMP manual, adopted by the City of Clearwater on February 15, 1998 and revised on July 1, 2014, to wit: [1] Violation of the provisions of Chapter 13, Section 3, of the City Civil Service Rules and Regulations[;] [and] [2] [d]ishonesty or untruthfulness or willful refusal to provide information or otherwise cooperate during an internal investigation or when directed to do so by competent authority.” The notice also specifically alleges that Respondent violated chapter 13, section 3(b), (f), and (l) of the CSR. The City seeks to discipline Respondent based on events that occurred on or about February 1, 2, 3, and 10, 2021, respectively. On February 24, 2021, Respondent met with the director of his department and presented his version of the events in question. Following the meeting, the City, by correspondence dated March 5, 2021, notified Respondent that he would be placed on “a two-day Decision-Making Leave and mandated EAP for ... violating the Clearwater PBMP Citywide Personal Responsibility, Integrity, and Excellence standards.” Performance and Behavior Management Program (PBMP) The City developed the PBMP in order “to provide a method of working with employees whose performance or behavior does not meet the City’s standards.” The philosophy of the program “is based upon the belief that, in most cases, employees can change behavior and improve performance when standards and expectations are clear and when employees are given opportunities to change.” Whenever practicable, “the City will provide intervention, coaching, and corrective guidance or counseling ... for employees ... in order to bring their performance or behavior up to standard.” The program recognizes, however, “that some behaviors that are serious and are direct violations of City Policy may warrant immediate disciplinary action up to and including termination.” According to the PBMP manual, there are three categories of performance and behavior: (1) Personal Responsibility; (2) Integrity; and (3) Excellence. As to each, the manual notes that: These categories are based on employees’ willingness or ability to meet standards of behavior or performance. Willingness refers to the employees’ decision to meet expectations, follow rules and policies, and perform work that meets efficiency and quality standards. Ability refers to the employees’ capability and skills in performing job tasks. The first two categories, Personal Responsibility and Integrity, are considered “will do” categories because they typically involve situations wherein the employee has a choice and makes a decision about whether or not to meet the standards. The third category, Excellence, is considered a “can do” category, because it most often refers to a situation where the employee is not able to perform up to standard because of a lack of resources, skill, or capability. City of Clearwater expectations for each of these three categories are stated below. Personal Responsibility (“Will Do” Issues) - City of Clearwater employees will be held personally accountable for the actions they take in meeting the customer service needs of the City and the community the organization serves. Employees are expected to take full responsibility for their conduct and job performance and exhibit commitment to fulfilling their responsibilities to the best of their ability. Integrity (“Value and Ethics” Issues) - As public employees representing the citizens of Clearwater, employees are expected to commit to the highest standards of personal and professional integrity. The City expects employees to communicate openly and continually demonstrate honesty, fairness, and respect for others. Employees should do what is ethically appropriate. Employees are expected to adhere to City policies. Excellence (“Performance/Can Do” Issues) - City of Clearwater employees have an obligation to provide the highest quality of service and results to our customers. This commitment to excellence involves developing the job knowledge and skills needed to perform the tasks required and to continually improve the City’s ability to meet the needs of the community we serve. The PBMP manual generally lists 75 Personal Responsibility Standards, 14 Integrity Standards, and 41 Excellence Standards. Regarding the Integrity Standards, the PBMP manual notes in bold print that “immediate formal discipline, up to and including termination, may be recommended” for a violation of these standards. The PBMP manual does not set forth any such illumination for the other standards. As previously noted, the City contends that Respondent violated several of the PBMP Integrity Standards and should therefore be subjected to formal discipline. Background – Family Medical Leave Act (FMLA) Respondent suffers from a serious medical condition that occasionally impacts his ability to perform his job. Under the City’s policy related to FMLA, an employee may intermittently take leave under FMLA “whenever medically necessary … because the employee is seriously ill and unable to work.” The policy also instructs that “[e]mployees should make a reasonable effort to schedule intermittent leave as to not unduly disrupt office operations.” Because of Respondent’s underlying medical condition, Petitioner, since at least November 2020, has allowed Respondent “4 [to] 5 episodes per month” during which Respondent can take FMLA leave without having to submit documentation related to the same. As a practical matter, this means that when Respondent experiences a medical episode that impairs his ability to work, he is to contact his supervisor, if possible, and let the supervisor know that he is utilizing FMLA leave for his anticipated absence from work. Herein lies “the rub” in the instant dispute. Respondent’s Understanding of Leave Protocol According to the City’s governing manual for supervisory, administrative, managerial, and professional employees (SAMP), “Classified employees who have successfully completed an initial probationary period become certified to regular employment status and have certain rights of appeal through the Civil Service grievance process.” The SAMP manual also provides that “Classified SAMP employees will not be disciplined except for just cause.” Section 2 of the SAMP manual provides that “Classified SAMP employees must obtain approval from a person of competent authority prior to working any hours outside of their established work schedule, either before their designated starting time or after their designated quitting time or during an unpaid meal period. Chapter 22, section 1, of the CSR provides as follows: Normal Work Hours -- The number of hours constituting a regular schedule work week for City Employees is specified by the City and excludes meal periods. In positions requiring shift work, the City reserves the right to include meal periods as actual time worked. Regularly scheduled work hours may be adjusted or “flexed” within a specific work week with proper notification and at the mutual convenience of the employee and the respective department. Such adjustments or flexing of work hours must be approved in advance by the respective department…. Chapter 4 of the CSR defines “flex time” as “the process whereby an employee’s regularly scheduled hours of work within a specific workweek are adjusted with proper notification and at the mutual convenience of the employee and the respective department. Such flexing of work hours must be approved in advance by the respective department….” Respondent, at all times material hereto, understood that he was to first contact his supervisor before taking time off related to a medical episode. Evidence of Respondent’s understanding is illustrated in emails that he sent to his supervisor on December 2 and 31, 2020. February 1 and 2, 2021 Sometime around January 2021, the City implemented a number of workplace measures designed to mitigate the risk of contracting and spreading the COVID-19 virus. One such mitigation effort allowed employees “to work from home on their assigned remote day.” During February 2021, Tuesdays were Respondent’s assigned days to telecommute. On Monday, February 1, 2021, the following emails were exchanged between Respondent and his supervisor: From: Williams, Jeremy Sent: Monday, February 1, 2021 (2:12 p.m.) To: Hill, Lloyd Subject: Feb 01, 2021 Hi Lloyd, Where are you? Thanks, Jeremy From: Hill, Lloyd Sent: Monday, February 1, 2021 (2:15 p.m.) To: Williams, Jeremy Subject: Feb 01, 2021 At lunch From: Hill, Lloyd Sent: Monday, February 1, 2021 (2:21 p.m.) To: Williams, Jeremy Subject: Feb 01, 2021 Precisely; (Respondent provided the email address for the auto/electronics store where he was located) From: Williams, Jeremy Sent: Monday, February 1, 2021 (4:00 p.m.) To: Hill, Lloyd Subject: Feb 01, 2021 Can you confirm what time you arrived today? From: Hill, Lloyd Sent: Monday, February 1, 2021 (4:04 p.m.) To: Williams, Jeremy Subject: Feb 01, 2021 Is anyone else required to confirm their time today? From: Williams, Jeremy Sent: Monday, February 1, 2021 (4:08 p.m.) To: Hill, Lloyd Subject: Feb 01, 2021 I put the timesheets on your desk for time entry this AM and noticed that your laptop was not here and your desk looked to be unoccupied, at 2:30 your desk looked the same. We need to make sure to charge your time correctly, so if you had an appointment not reflected on my calendar I need to update it. Please confirm your arrival time, and how long of a lunch you took for my records please. Thank you, Jeremy On Tuesday, February 2, 2021, Respondent and his supervisor exchanged additional emails regarding Respondent’s absence from work: From: Williams, Jeremy Sent: Tuesday, February 2, 2021 (10:21 a.m.) To: Hill, Lloyd Subject: Feb 01, 2021 Hi Lloyd, Can you confirm your times for yesterday as I requested please? Thank you, Jeremy Soon after sending the email to Respondent at 10:21 a.m., on February 2, 2021, Mr. Williams met with Respondent via videoconference. During the videoconference, Mr. Williams again asked Respondent about his whereabouts and arrival time to the office on February 1, 2021. Mr. Williams credibly testified that Respondent, in response to his inquiry, became argumentative by wanting to know if other employees where being questioned about their whereabouts and arrival time to work. Respondent never answered the questions posed to him by Mr. Williams, but instead, advised Mr. Williams that his time away from the office on February 1, 2021, should be charged as one of his monthly FMLA episodes. Mr. Williams was confused by Respondent’s request, in part, because Respondent was requesting FMLA leave that covered time when Respondent actually performed certain work-related tasks, albeit via unauthorized telecommuting. Shortly after the videoconference ended, Respondent and Mr. Williams had additional discussions regarding the matter as reflected in the following emails: From: Hill, Lloyd Sent: Tuesday, February 2, 2021 (11:12 a.m.) To: Williams, Jeremy Subject: Re: Lloyd - ? 5.0hrs I am using this as one episode of FMLA. My [redacted] was too high to drive. I am notifying you after the incapacity has passed as allowed by law. From: Williams, Jeremy Sent: Tuesday, February 2, 2021 (11:32 a.m.) To: Hill, Lloyd Subject: Re: Lloyd - ? 5.0hrs Hi Lloyd, We will need to refer to HR as to what is allowed. I will update this outage once we hear back from them. Thank you, Jeremy From: Hill, Lloyd Sent: Tuesday, February 2, 2021 (11:35 a.m.) To: Williams, Jeremy Subject: Re: Lloyd - ? 5.0hrs To be clear, I have notified you that I was incapacitated due to an underlying condition covered by my FMLA on the morning of February 1st. From: Williams, Jeremy Sent: Tuesday, February 2, 2021 (11:37 a.m.) To: Hill, Lloyd Subject: Re: Lloyd - ? 5.0hrs Hi Lloyd, I only have record of your FMLA request for the AM of 2/1/2021 on a video call that occurred on 2/2/2021. Can you send me the notification that you sent me on the 1st indicating this? It[’s] possible that I missed it. Thanks, Jeremy From: Hill, Lloyd Sent: Tuesday, February 2, 2021 (12:14 p.m.) To: Williams, Jeremy Subject: Re: Lloyd - ? 5.0hrs I think you missed it. I don’t have a copy. From: Williams, Jeremy Sent: Tuesday, February 2, 2021 (12:46 p.m.) To: Hill, Lloyd Subject: Re: Lloyd - ? 5.0hrs Hi Lloyd, This doesn’t make any sense. Either you requested the time or you didn’t. If you don’t have a record, you didn’t request it. I certainly did not receive anything. I have re-reviewed my emails, teams and sms and see nothing from you indicating that you would be out of the office on Monday (2/1/21) morning and early afternoon. We will confer with HR as to what we can use to charge your time. Thank you, Jeremy As previously mentioned, the City, on or about February 22, 2021, informed Respondent that it intended to suspend him for two days. In response to the City’s notice of disciplinary suspension, Respondent stated the following with respect to matters that transpired on February 2 and 3, 2021: On February 1, 2021, I began working from home at about 7 AM. I typically log on the server in the morning before leaving for work to check on emails and overall functioning of all systems, as well as respond to the system users. Due to severe anxiety arising out of my continuing concern over the risk to my health posed by the pandemic as well [as] the ongoing dispute with the City over my ADA reasonable accommodation request to telecommute, I experienced [redacted] symptoms. My first … reading taken was [redacted] putting me in the range of an ... emergency. As such, I decided to remain at home and continue to work. I did not feel safe to drive to the office and kept monitoring my [redacted] to determine whether I needed to go to the emergency room. When my readings returned to a safe level, I arrived at the office later that day around 3 PM. My manager acknowledged my presence because I walked past his office several times. I am more than willing to provide documentation of the ... readings I took that day. On February 2, 2021, I had a video meeting with my manager and explained to him the stress that I was experiencing. At that time, I requested 5 hours of leave (against my available intermittent FMLA leave) because he would not consider time I spent at home earlier that day as hours worked, despite the fact that I performed my job duties during that period. Respondent’s suggestion of incapacity is not supported by the evidence. By his own admission, Respondent, on the morning of Monday, February 1, 2021, was able to log onto the City’s server which allowed him to “check on emails and overall functioning of all systems, as well as respond to the system users.” Respondent also admits that after his first elevated reading he decided to “remain at home and continue to work” because he did not “feel safe to drive.” The issue is not whether Respondent felt well enough to drive, but whether he felt well enough to send an email. If Respondent felt well enough to “respond to the system users, and continue to work,” then he was certainly capable of sending an email to his supervisor. There is no credible evidence that Respondent suffered from any form or type of medical condition on the morning of February 1, 2021, which prevented him from notifying his employer that he was taking an “episode” of FMLA leave for the workhours in question. It is undisputed that Monday, February 1, 2021, was not Respondent’s designated day to telecommute. Chapter 12, section 1, of the CSR clearly provides that the City determines normal work hours for its employees, and that employee-initiated changes to the normal work hours “must be approved in advance.” The uncontroverted evidence establishes that Respondent was not authorized to telecommute on Monday, February 1, 2021, and that he did so in violation of the CSR and SAMP manual. Respondent’s assertion that he did not violate City rules and regulations “because he performed [his] job duties” while at home on February 1, 2021, is irrelevant because, as noted above, he lacked authority to telecommute on the day in question. February 3, 2021 Respondent reported to work on February 3, 2021, and worked until leaving the building at 1:30 p.m. Respondent did not return to work on this date and several hours later initiated the following email chain with his supervisor: From: Hill, Lloyd Sent: Wednesday, February 3, 2021 (4:27 p.m.) To: Williams, Jeremy Subject: One FMLA Episode From Now Till Tomorrow [There was nothing written below the subject line]. From: Williams, Jeremy Sent: Wednesday, February 3, 2021 (5:13 p.m.) To: Hill, Lloyd Subject: RE: One FMLA Episode From Now Till Tomorrow I have you down for Tomorrow in the AM, you’ll confirm with me the specific amount of time when you get in. See you tomorrow, Jeremy From: Williams, Jeremy Sent: Wednesday, February 3, 2021 (5:21 p.m.) To: Hill, Lloyd Subject: RE: One FMLA Episode From Now Till Tomorrow Hi Lloyd, Did you mean to say that you took off work at 4:30 p.m. today (using FMLA)? I stopped by your desk to clarify what you meant by this email, you weren’t there (5:20 p.m.). Office 365 saw you last at 4:48 p.m. I’m pretty confused if you can clarify, I’d appreciate it. Thank you, Jeremy From: Hill, Lloyd Sent: Wednesday, February 3, 2021 (5:47 p.m.) To: Williams, Jeremy Subject: One FMLA Episode From Now Till Tomorrow Correct Before Respondent prematurely ended his workday on February 3, 2021, he had been assigned that morning to provide IT support services for the City’s recreation centers. Mr. Milou Louis, who worked as senior systems programmer at the City’s recreation centers, was retiring from employment with the City, and Respondent, because of his availability and skill set, was tasked with replacing Mr. Louis. In explaining his actions related to his early departure from work on February 3, 2021, Respondent stated the following: On February 3, 2021, I was informed that I was required to be on-site at the City’s Parks & Rec centers where COVID-19 infection rates were among some of the highest for City employees. Notably, this documented infection rate does not consider infected members of the public who may use the centers. I immediately informed my manager, who rendered his lay opinion that I was at no higher risk than anyone else. Notably, I had not previously been assigned to be on-site, let alone during a pandemic. Thereafter, I suffered a sever anxiety attack because I legitimately feared for my health. At that point I left the building. Management told me I left at 1:30 PM. I contacted my supervisor at around 4 PM informing him I would take available FMLA leave for the rest of the day. As an initial matter, there is no credible evidence of record that Respondent’s particular work environment at the recreation centers would have been any more at risk for COVID-19 exposure than his regular work environment, or say, the electronics store where Respondent stopped during his lunch break on February 1, 2021. During Respondent’s email exchange with his supervisor on February 3, 2021, Mr. Williams clearly communicated to Respondent that he was confused about Respondent’s FMLA leave request. Respondent, despite having the opportunity to do so, never sought to clarify his leave request, and, for whatever reason, chose not to correct Mr. Williams’ erroneous belief that Respondent left work at 4:30 p.m., when all the while Respondent knew that he actually left work several hours earlier at 1:30 p.m. With respect to the events of February 3, 2021, the evidence establishes that Respondent violated City rules and regulations by failing to inform his supervisor of his early departure from work under circumstances where he clearly had the opportunity to do so. Also, as noted above, the email that Respondent sent at 4:30 p.m., on February 3, 2021, advised that Respondent was taking “One FMLA Episode From Now Till Tomorrow.” Because Respondent’s email was misleading as to when he actually left work, Respondent actually had a three-hour unauthorized absence from work (i.e., from 1:30 p.m. to 4:40 p.m.) and misled his supervisor as to the amount of FMLA leave that was being requested. February 10, 2021 On February 10, 2021, Respondent reported to work at his scheduled time and then left the office from 2:00 p.m. to 4:40 p.m. When asked by his department supervisor to account for the missing time, Respondent could not do so and instead elected to quibble with his supervisor about whether his authorized lunch break was 30 minutes or one hour in duration. Respondent’s unauthorized leave was charged against his accrued vacation hours.
Conclusions For Petitioner: Owen Kohler, Esquire City of Clearwater 600 Cleveland Street, Suite 600 Clearwater, Florida 33755 For Respondent: Richard Michael Pierro, Esquire Calciano Pierro, PLLC 146 Second Street North, Suite 304 St. Petersburg, Florida 33701
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that that the Civil Service Board of the City of Clearwater enter a final determination suspending without pay Respondent’s employment for a period of two days. DONE AND ENTERED this 31st day of August, 2021, in Tallahassee, Leon County, Florida. S LINZIE F. BOGAN Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of August, 2021. COPIES FURNISHED: Owen Kohler, Esquire City of Clearwater 600 Cleveland Street, Suite 600 Clearwater, Florida 33755 Rosemarie Call, City Clerk City of Clearwater Post Office Box 4748 Clearwater, Florida 33758-4748 Richard Michael Pierro, Esquire Calciano Pierro, PLLC 146 Second Street North, Suite 304 St. Petersburg, Florida 33701
Findings Of Fact The Respondent, Russell W. Doran, was certified as a law enforcement officer by the Petitioner, the Criminal Justice Standards and Training Commission, on November 19, 1982. He holds Certificate Number 02-32144. He was employed as a police officer by the City of Clearwater Police Department from July 12, 1982, through December 6, 1990. On the evening of November 10, 1990, at approximately 8:06 p.m., while on duty patrolling by himself in a squad car in the Clearwater Beach area, the Respondent radioed the police dispatcher to advise that he was at 1198 Mandalay Point, which is in an exclusive residential area at the north end of the beach called Carlouel, and that he had seen a black male slipping from the the front of the house there towards the side and back of the house. The Respondent advised that he was going after the suspect and asked the dispatcher to call for backup. After his initial transmission, the Respondent did not call back, and the radio dispatcher was unable to raise the Respondent on the police radio. Several officers in the area who overheard the dispatcher's transmissions, in addition to those specifically asked to respond, headed for the Respondent's location. The first officers to arrive saw the Respondent's empty squad car parked in front of the driveway to 1198 Mandalay and began looking for the Respondent. While they were looking, they heard an emergency radio transmission coming from the Respondent's squad car. When they got back to the squad car, they saw the Respondent lying on the front seat of the car with his head towards the steering wheel and his legs out the passenger-side door. He was apparently unconscious. Apparently, he had returned to the car, opened the passenger side of the car, leaned into the car, put the keys in the ignition and pushed the emergency radio signal. The first officers at the scene pulled the Respondent out of the car and laid him on his back in the street. His shirt was soaked with a liquid that smelled like, and was, gasoline. He had a small cut and a small amount of blood on the back of his head. The officers called the dispatcher to report what had happened and to ask for emergency medical technicians and for more help to the seal off the area and search for the apparent assailant while the Respondent was being attended. Immediately, a Morton Plant Hospital ambulance was dispatched to the scene, and as many units from the west side of Clearwater as possible were sent at high speed to the Carlouel area. When they arrived, they sealed off the area from the south, where a wall separated Carlouel from the rest of Clearwater Beach. The only other ways to escape from the scene would have been by boat-- either to the west to the Gulf of Mexico, to the east to the Intracoastal Waterway, or to the north towards Caladesi Island--or by walking or swimming across the shallow water to Caladesi Island, from which one would have to leave by boat or swim approximately a half mile across the Intracoastal Waterway to Dunedin. To apprehend the apparent suspect, the Clearwater Police sent two K-9 units to the scene to trail the freshest scents. The also had them search the house at 1198 Mandalay and all the nearby houses in Carlouel. Other officers scoured the area. They searched the immediate area and searched the beaches to the north and west of 1198 Mandalay, both by foot and by all-terrain vehicle. They went door to door throughout Carlouel to ask residents for information. They searched every dock and every boat in Carlouel. In addition, the police helicopter was dispatched to the scene and participated in the search. Meanwhile, a road block was set up at the entrance to Carlouel and all vehicles going north or south were stopped, checked and questioned. Clearwater Police also enlisted the help of the United States Coast Guard to stop and search boats in the Intracoastal Waterway, and the rangers on Caladesi Island were alerted. Crime scene investigators also were dispatched to the scene. As the searches were put in motion, the Respondent opened his eyes and looked at the officer helping him. Although he had worked with all of the officers at the scene and knew them well, he acted as if he did not know any of them, acted scared of them, and tried to get away from them. The officers were required to physically restrain them. The Respondent acted incoherent and confused. He did not communicate with any of the officers and continued to act as if he did not know who any of them were. The officers assumed that he had incurred a concussion and had amnesia. Out of concern for the Respondent's apparent medical condition, the officers were insisting that the Bayflight emergency medical helicopter also be dispatched to the scene to transport the Respondent to Bayfront Hospital to be seen as soon as possible at its neurological unit for head trauma. The emergency medical technicians vetoed this request. They saw no medical reason to helicopter the Respondent to Bayfront. There was little of the bleeding and swelling that would be consistent with a concussion or any blow to the head hard enough to cause a concussion or amnesia. They also observed that the Respondent's combativeness and other behaviors were not consistent with "retrograde amnesia," which frequently is seen with head trauma patients. With "retrograde amnesia," the patient is more likely to simply repeat questions over and over. The ambulance transported the Respondent to the Morton Plant emergency room, where he was admitted to the hospital. Meanwhile, the search for the Respondent's supposed assailant continued until approximately 11:30 p.m., but no one was apprehended, and there were no suspects. There were no footprints leading away from 1198 Mandalay. The dogs picked up no trails other than the Respondent and the first officer to arrive at the scene. There were no witnesses to anything suspicious. At the crime scene, some bushes had been trampled in the front of the house where the dogs indicated the Respondent had been. There also was a broken beverage bottle on the side of the house, where some cloth soaked with gasoline also was found, and where there was a strong odor of gasoline. The bottom and neck of the bottle were intact; the middle of the bottle had been shattered. The officers also found two beverage bottles under a palm tree on the front law of the house at 1198 Mandalay. The beverage contents had been decanted, and the bottles were filled with gasoline and wrapped together in a black T-shirt. While the investigation continued, the Respondent remained in the hospital. At first, he seemed to have total amnesia and not recognize anyone. But while he still acted as if he did not know some people, and acted towards them as if he did not even know who he was, he acted towards a select two as if he knew exactly who they were and who he was. Specifically, while still acting towards others as if he had amnesia, the Respondent had normal conversation with Christine Collin, a fellow police officer who was his former girlfriend, and with Alan Whitacre, another fellow police officer who was Collin's current boyfriend. The Respondent had known Collin for approximately three years. She was a police aide when he first met her. Later, she got her certificate and was sworn as an officer in the Clearwater Police Department. They became friends, and the relationship became romantic and intimate. The two discussed at length the problems in the Respondent's marriage and the Respondent's ambivalence about staying married. The Respondent indicated to Collin that he was still married only for the sake of his young son. In September, 1990, Collin decided to end the affair with the Respondent and to begin dating others. In approximately October, 1990, she made it known to the Respondent that she was seeing Whitacre. The Respondent acted as if he understood Collin's decision, in view of his marriage, and as if he was supportive of Collin. But on November 10, 1990, the Respondent called Collin and asked her to lunch. He said that his wife had gone to a wedding even though he had not been invited and it was his birthday. He indicated that this upset him and, to him, underscored the weakness of his marriage. He then told Collin that he was in love with her. He still was ambivalent about his marriage but professed that he was ready to end it. Collin was surprised and did not react as the Respondent had hoped. Eventually, she told the Respondent that she did not want him to be in love with her and that she did not want to resume their affair. When he heard Collin's response, the Respondent became even more depressed about the entire situation in which he found himself. The Respondent felt trapped in his marriage. His wife's father is a former major in the Clearwater Police Department. During the course of the rest of the day, in bits and pieces, the Respondent hatched an ill-conceived scheme to extricate himself from the situation. He decided to fake an arson attempt and fake being assaulted and hit over the head, hard enough to be knocked out or injured, with a bottle containing gasoline supposedly being used by the arsonist. He hoped that this would be enough to get himself out of the situation at least for a few weeks. It is possible that he also planned to fake amnesia, thinking that somehow this would enable him to get out of his marriage and pursue his love interest with Collin. After dinner, between approximately 7:30 and 8:00 p.m., the officer who was riding with the Respondent that day returned to the local police substation. The Respondent used this opportunity to stop and get three empty beverage bottles out of a trash dumpster. He then went to a service station and filled the bottles with gasoline. He stopped at a store and bought a T-shirt. He used the T-shirt to wrap together two of the bottles of gasoline so that he could carry them in one hand. He then drove north to a secluded area of the beach and 1198 Mandalay, a house the Respondent knew from previous patrols probably was vacant. The Respondent parked his squad car and got the bottles and T-shirt out of the trunk. He placed the two bottles he had wrapped together at the base of a palm tree on the front lawn. He then went up to the side of the house, which appeared to be unoccupied. At this point, he began to have second thoughts about what he was about to do, thinking that it was "ridiculous." He gave some thought to just "eating a bullet" instead. But, following his plan, he telephoned the dispatcher and falsely reported sighting a black male in front of the house. See Finding 2. He then attempted to crack himself in the head. To the Respondent's great dismay, after calling the dispatcher, he found that it was not as easy as he had hoped to knock himself out or injure himself. It also hurt more than he planned. Instead, he decided to hold the bottle over his head in one hand and break it with his police flashlight with the other hand. The glass shattered, spilling gasoline over the Respondent's neck and upper back. The Respondent took a shard of glass and cut himself in the back of the head to make it look like the bottle shattered when it struck him in the head. He then walked back to his squad car. Back at his squad car, the Respondent saw that another police vehicle already had arrived at the scene. He decided to push the emergency call button in the car and fake unconsciousness. If he had not already decided to do so, he also decided to fake amnesia. Once he initiated his scheme, the Respondent found that, rather than getting himself out of a stressful dilemma, he had gotten himself into another one that was just as difficult to get out of. Between November 10 and December 5, 1990, the Respondent made various false statements to various people, including investigating law enforcement officers. At times during this time period, especially at first, the Respondent professed that he had total amnesia. Later, he said he had partial memory. Some of the false statements he made to law enforcement officers investigating the matter were under oath; some were not. Some of the statements he made were inconsistent, as his story changed to meet contradictory evidence that had been obtained and to explain prior inconsistent statements with which he was confronted. Eventually, on December 6, 1990, as part of an agreement under which the Clearwater Police Department would allow the Respondent to resign and not have him prosecuted, the Respondent made a tape-recorded and written statement, under oath, in which he essentially admitted to what he had done. In this case, the Respondent is taking the position essentially that neither his admissions to nor his denials of false statements to law enforcement authorities were true. He claims that, in truth, he never has had, and still does not have, any actual present memory of what happened on or about November 10, 1990. He claims that, initially, he had temporary total amnesia. He claims that the false statements he initially made about what happened on that day were the product of his efforts to piece together, and make sense of, bits and pieces of information that were "leaked" to him. Essentially, he states that he now believes he "created" a memory for the police to help them solve the crime, and to help him make sense out of what everyone was telling him. Essentially, he says the same process was at work when he later admitted to his false statements. He claims that, when investigators disclosed to him their difficulties with the inconsistencies and illogic of some of the Respondent's statements, they essentially convinced him that his earlier statements must have been wrong and that the Respondent "must have done it." The Respondent claims that, in actuality, he has no present recollection of what happened on November 10, 1990. As reflected in these Findings of Fact, the Respondent's assertions are rejected as being the next in a series of fabrications and falsehoods invented by the Respondent in an attempt to extricate himself from the circumstances he created for himself. The Respondent attempted to base his latest fabrication on the expert testimony of a psychiatrist. But, at bottom, the psychiatrist's opinion is based on the assumption that the Respondent's selective amnesia results from an actual traumatic incident on the evening of November 10, 1990, in which the Respondent actually was assaulted by an arsonist whom the Respondent caught in the act. It has been found that no such assault ever occurred. If the Respondent was under stress from trauma resulting from the events of November 10, 1990, it was from the stress of recognizing the foolishness of what he had done, and from the personal and career repercussions that would result if was caught in his lie. The Respondent offered in evidence the videotape of an interview given by the Respondent to his expert witness while the Respondent was under the influence of Brevitol, a drug which is known to some as "truth serum." It is found that the Respondent's evidence did not establish that the results of Brevitol interviews are the kind of evidence commonly relied upon by reasonably prudent persons in the conduct of their affairs. At best, the expert established that Brevitol and similar drug-assisted interviews are useful in obtaining certain information from persons who actually have some kind of trauma-induced amnesia. For example, it is used with some success by health care professionals trying to diagnose and treat patients who present with amnesia and are unable to give their identity or the identity of their next of kin, friends or neighbors, or any other necessary personal information. The evidence did not establish that these interviews are commonly used to ascertain whether someone claiming amnesia is telling the truth. Nor was it established to the satisfaction of this Hearing Officer that these kinds of interviews separate fact from fantasy. (It also is possible that, if not conducted properly, the interview can result in suspect, sleepy affirmations to leading questions, but this defect probably could be detected from a review of the interview itself.)
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Criminal Justice Standards and Training Commission enter a final order revoking the certification of the Respondent, Russell W. Doran. RECOMMENDED this 27th day of April, 1993, in Tallahassee, Florida. J. LAWRENCE JOHNSTON 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 27th day of April, 1993. COPIES FURNISHED: D. David Sessions, Esquire Assistant General Counsel Department of Law Enforcement Division of Criminal Justice Standards and Training Post Office Box 1489 Tallahassee, Florida 32302 Bruce G. Howie, Esquire Battaglia, Ross, Hastings & Dicus 980 Tyrone Boulevard Post Office Box 41100 St. Petersburg, Florida 33743 A. Leon Lowry, II, Director Criminal Justice Standards and Training Commission Post Office Box 1489 Tallahassee, Florida 32302 James T. Moore Commissioner Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Michael Ramage, Esquire General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
Findings Of Fact At all times pertinent to the allegations contained herein, the Criminal Justice Standards and Training Commission, (Commission), was the state agency responsible for the certification of law enforcement officers in Florida. Respondent, Kenneth E. Beck, was a police officer, certified by the Petitioner, and employed by the City of Clearwater Police Department. In September, 1988, Joyce Ann Cooper Horten, currently of Easley, S.C., was residing in Clearwater, Florida. At that time, she was approximately 16 years old. On the evening in question, two of her friends, a boy and girl, had "egged" a neighbor's apartment and the neighbor called the police. In response to this call, the Respondent came to the scene and was talking to Ms. Horten's friends in back of the house. When he had completed his conversation with them, he told Ms. Horten he had to search her for a knife, and took her into a hallway where he put his hands up under her shirt and around her shoulders and sides. In addition, he touched her legs by putting his hands on both sides of each leg, running them all the way up to the crotch. After this search, Respondent took Ms. Horten into her apartment where he searched for the knife in the kitchen. Finding nothing, he took her into the bedroom, went into her closet, and looked through her clothes as well as through her chest of drawers. Finding nothing, Respondent then had Ms. Horten roll up her skirt from both the back and the front and when she did so, pulled her panties out from the front. When he did this, he could observe her pubic area though he did not touch her there. He then had her roll up her shirt, both in the front and the back. Since she was not wearing a bra, when she rolled up her shirt front, her breasts were exposed to his view. After finishing his search, he gave Ms. Horten his card, with his name on it, and went back outside to talk to the other young people. Ms. Horten did not think that what Respondent was doing to her was appropriate, but claims that since she was not familiar with the law, she did not know she could resist. Nonetheless, she later told her mother and the neighbor who had initially called the police. This neighbor apparently filed a report with the police and Ms. Horten thereafter taped a statement as to the matters previously discussed, a typed copy of which she subsequently signed under oath. At approximately 3:50 AM on April 16, 1989, Tara D. Grey, then a 17 year old college student, was driving her car eastward on Drew Street in Clearwater, Florida when she was pulled over by the Respondent who was in a police cruiser and in uniform. Initially he did not tell her why he had stopped her, but asked for her driver's license and registration, which he took back to his cruiser. After approximately 5 minutes, he came back and told her that her license did not check out and asked for additional identification which, he claimed, did not check out either. Finally, she gave him her social security card which seemed to satisfy him. After an extended series of questions regarding her drinking, her use of illegal drugs, or her prior arrest record, all of which she denied, he required her to get out of her car, after which he administered a sobriety test to her. He then asked if he could search her car, to which she consented. While he conducted the initial search, he asked her to stand behind the car, but then requested her to take the numerous items which were on the car floor out so he could see what he was doing. At time she was wearing a miniskirt and boots, along with a sweater, and when she did what he asked of her, she had to bend over and her skirt came up in the back, giving him a broad view of her posterior. When she finished cleaning out her car to his satisfaction, Respondent asked her with whom she lived and why she had other clothing in the car. After several other questions, he finally told her, after about 45 total minutes of interview, that she had been stopped because she was speeding. He then indicated he would have to follow her to her friend's home, (the place to which she was in progress when stopped), and kept her license while he followed her there. Before he allowed her to go into the house, he indicated he would have to frisk her, and in doing so, had her put her hands up on the top of his car. He then ran his hands across her shoulders and across her hips and bottom, but did not touch either her pubic area or her breasts. He also checked her socks and in doing that, felt her legs down in that area but did not run his hands up over her bare legs. After finishing the frisk, he drove off and Ms. Grey went into her friends's home. In April, 1990 Louise Ann Frattaruolo, Respondent's former mother-in- law, received a letter through the mail which, when opened, indicated that her husband had broken his word and must pay the penalty. The letter then went on to indicate that all the Frattaruolos must die. This letter was unsigned, but Mrs. Frattaruolo turned it over to her daughter, a police officer, who released it to the Clearwater Police Department. A latent fingerprint was developed on the envelope in which the letter was sent, which was subsequently analyzed and determined to be that of the Respondent. From the date of the postmark on the letter, the day it was mailed, to the day the fingerprint identification was made, there was absolutely no opportunity for Respondent to have handled either the letter or the envelope. Therefore, it is concluded that the envelope containing the letter was at least touched by the Respondent prior to mailing, and was most likely mailed by him. On October 30, 1990, Patrick J. Lombardi was working as a security officer at the Clearwater Mall and was approached by a man and lady who pointed out an individual allegedly exposing himself on a bench within the mall. Mr. Lombardi got his supervisor, Mr. O'Dell, and both officers observed an individual, subsequently identified as the Respondent, sitting on a bench, wearing bright yellow jogging shorts that were split up the sides. They observed him sitting in such a manner whereby whenever a woman or a group of women walked by, he would open his legs and then slap them together, and both officers observed that when he did this, his genitalia, which had been released from the inner lining of his shorts, would fall out onto the bench. To insure they were not making a mistake, the two officers went to one of the jewelry stores in the mall and contacted Janine M. Edwards, a clerk who they asked to walk by the individual and tell them what she observed. When she did so, she observed the Respondent open his legs and expose himself to her. She noted that the liner of his shorts had been pulled to one side allowing his penis and testicles to be fully exposed. She also observed Respondent do this in front of a couple, and she is convinced it was not accidental. Respondent appeared nervous and when she first saw him, he was hunched over. When he saw her, however, he turned toward her and opened his legs to show her his private parts. It is concluded, therefore, that his actions were intentional. Shortly thereafter, Respondent was observed by a mall employee leaving the mall and getting into a blue Ford automobile. The employee got the license number of the vehicle which was subsequently traced to the Respondent. Thereafter, Sgt. Joseph Tenbieg, of the Clearwater Police Department, put together a package of 5 or 6 photographs of individuals, including Beck, all of whom resembled the Respondent, which he showed, independently, to Officers O'Dell and Lombardi, as well as to Ms. Edwards. All three identified the photograph of the Respondent, which was taken from his police personnel records, as the individual who was exposing himself in the mall.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, therefore recommended that a Final Order be entered revoking the Respondent, Kenneth E. Beck's certification as a law enforcement officer. RECOMMENDED this 29th day of April, 1991, in Tallahassee, Florida. ARNOLD H. POLLOCK, 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 29th day of April, 1991. COPIES FURNISHED: Elsa Lopez-Whitehurst, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Kenneth E. Beck 28 Valencia Circle Safety Harbor, Florida 34695 James T. Moore Commissioner Florida Department of Law Enforcement P.O. Box 1489 Tallahassee, Florida 32302 Jeffrey Long Director Criminal Justice Standards and Training Commission P.O. Box 1489 Tallahassee, Florida 32302 Rodney Gaddy General Counsel FDLE P.O. Box 1489 Tallahassee, Florida 32302
Findings Of Fact Petitioner, Jack E. Moore is the owner of real property in Fort Myers Beach known as Lot 9 of Indian Bayou, a subdivision in Section 33, Township 46 South, Range 24 East, Lee County, Florida. Moore's property is bordered on the north by the waters of Indian Bayou and Estero Bay. The northern portions of Moore's property are vegetated by juvenile and mature red and black mangroves. Red and black mangrove are the dominant species of vegetation on the northernmost portions of the property, waterward of the fill pad on which Moore's house is built. On April 19, 1983, Petitioner applied to DER for a permit to dredge approximately 1480 cubic yards to a depth of 4' mean low water to create a boat basin behind his house on the property referenced above, and to construct a walkway and fishing dock encompassing approximately 1,235 square feet. The proposed project lies and would be performed in waters of the State of Florida. On April 25, 1983, DER notified Petitioner that his application was incomplete and that certain specified information was necessary to evaluate the application and to deem it complete. On May 24, 1983, DER received additional information from Petitioner, in response to its request. However, certain information was still lacking, including aerial photographs, a hydrographic survey, and consent from the Department of Natural Resources (DNR) for the use of state-owned lands which may be involved in the project. On June 1, 1983, DER notified Petitioner that all of the requested information had not been submitted. Petitioner did not respond to DER's correspondence. On July 19, 1983, DER requested Petitioner to notify DER if he wanted to proceed with his application. Petitioner responded on August 1, 1983, that he needed additional time to supply requested information. On September 20, 1983, Petitioner sought advice from DER about whether he could delete the dredging portion of his project and get approval only for the proposed walkway and dock. DER responded by letter on September 28, 1983, notifying Petitioner that the proposal was a major modification of his application, and enclosing a form to be submitted to DER along with such modification. The letter notified Petitioner that even if only the dock was sought to be permitted, DNR approval would still be required, and DER has no control over the DNR approval process. Petitioner did not contact DER in response to its latest correspondences. On November 28, 1983, DER then issued a notice of intent to deny the application for Petitioner's failure to provide necessary information which would render the application complete and fully reviewable by the DER staff. Petitioner has still not provided aerial photographs, a hydrographic survey, or DNR approval to DER, and offered no such evidence at hearing. The aerial photographs are necessary to review the project's potential impacts on surrounding properties and water bodies. The hydrographic survey is essential since Petitioner is proposing to entrain a large body of water which may not be able to meet State water quality standards. DNR approval is required by statute before DER can issue a permit that may involve state-owned lands. The Petitioner's testimony and evidence merely established his belief that he originally thought the dock and channel project exempt, that he thought settlement of federal litigation with the U.S. Army Corps of Engineers and his predecessor in title, permitted the installation of his rip-rap seawall and fill and that, at DER's behest, he later dismantled the dock and partially refilled the hand-dug channel leading to it. Nowhere in Petitioner's case was evidence offered of reasonable assurances that the "pollution events, envisioned by the authority cited below, will not occur, nor that DNR approval of the use of State submerged lands for the project has been secured.
Findings Of Fact Respondent, Lori Goldston, was employed by the Petitioner, City of Clearwater, for approximately seven and one-half years as a Building Construction Inspector II. On April 13, 1994, Respondent was placed on administrative leave and on April 21, 1994, she was terminated and all pay and other benefits were terminated as of 4:00 p.m. on April 21, 1994. Specifically, Respondent was terminated for alleged violations of Rule 14, Sections 1(b), (d), (k), and (1) of the Civil Service Rules and Regulations of Respondent, to-wit: (b) Is incompetent in the performance of the specific duties of [her] position. (d) Has been careless or negligent in the care of the property of the City; or has participated in the unauthorized use thereof. Has been . . . guilty of conduct un- becoming a City employee defined as scandalous or disgraceful conduct while on or off duty where such conduct tends to embarrass the City or bring its service into public disrepute. Has violated any lawful and reasonable official regulation or order or failed to obey any lawful and reasonable direction made and given . . . by [her] superior officer when such violation or failure to obey amounts to insubordination or serious breach of discipline which may reasonably be expected to result in a lower morale in the department or to result in loss, inconvenience, or injury to the City or the public. During the week of April 4, 1994, Tom Chaplinsky received two complaints that a City vehicle was observed leaving the city limits with a magnetic sign covering the City seal. The complainants related that the driver appeared to be Respondent and that the vehicle was heading north on alternate route 19 when it was so observed. Vick Chadora, assistant central planning director, requested that Chaplinsky investigate the complaints. Chaplinsky along with Kevin Garriot, a building code analyst, initiated an investigation to check Respondent's inspection schedule and job sites for the day of April 11, 1994. Chadora and Chaplinsky reviewed Respondent's inspection schedules and job sites on April 11, 1994, and discovered that most of Respondent's inspections were completed by mid-morning. Chadora then instructed Chaplinsky to check Respondent's residence which is located north of Palm Harbor, approximately 8 to 10 miles outside of the city limits. During mid-morning on April 11, 1994, Chaplinsky parked near the end of the dead end street on which Respondent's residence is located. He saw what appeared to be her city vehicle but was unable to make a positive identification. On Tuesday, April 12, 1994, Chaplinsky again found that a majority of Respondent's inspections had been completed by mid-morning. Chaplinsky contacted her by radio at approximately 11:00 a.m., to determine her location and she replied that she was in Clearwater Beach. Chadora drove to the beach area while Chaplinsky and Garriot drove to Respondent's residence between 11:00 and 11:15 a.m. Messrs. Chaplinsky and Garriot parked at the entrance to the dead end street where Respondent resides and waited. At approximately 11:45 a.m., Chaplinsky and another staff assistant began trying to reach Respondent by radio. At approximately 12:55 p.m., Respondent answered her radio. At that time, Respondent was asked to investigate a complaint on the beach. At approximately 1:20 p.m., Messrs. Chaplinsky and Garriot observed Respondent in her city vehicle, with the City seal covered, leaving her neighborhood. They lost Respondent in traffic but later caught up with her at the site of the complaint. At that time, the City seal on her vehicle was no longer covered. On April 13, 1994, Messrs. Chaplinsky and Garriot again drove to Respondent's residence during mid-morning and waited at the entrance to her street. Respondent was observed leaving the City in the city vehicle with the City seal covered. At approximately 2:55 p.m. on April 13, 1994, with Messrs. Chaplinsky and Garriot present, Respondent was advised by Chadora that two people had complained that she was using her city vehicle with the City seal covered while leaving the city limits. Before Chadora could complete his inquiry, Respondent immediately denied that it was her. Upon Respondent's repeated and adamant denial, Chadora told her that he and Garriot has observed her leaving her residence on Tuesday, April 12 and Wednesday, April 13 in the City vehicle. Upon being confronted with that information, Respondent admitted that they had caught her in a lie and she admitted that she did leave the city limits in the city vehicle. Respondent indicated that she was trying to complete a construction project at home in order to re-finance and satisfy a balloon note which was coming due and the lender was insisting that certain renovations be completed prior to closing. During 1990, Respondent was disciplined for leaving the city limits and going to her home. At that time she was specifically advised that she should not leave the city limits to return home in the city vehicle without first obtaining permission from her supervisor. For that offense, Respondent was suspended for four days. Petitioner has a system of progressive discipline in effect which is utilized to discipline employees who engage in conduct contrary to the City's rules and regulations. An employee who violates the rules accumulates points under the disciplinary system. An employee who receives up to 60 points within a specified period (24 months), can be subjected to discharge. Respondent accumulated 140 points for the alleged infractions that she received for leaving the City limits during the days April 11-13, 1994. Petitioner also has a liberal sick leave policy which employees may avail by demonstrating need to use sick leave. Respondent did not advise Petitioner that she was suffering from any medical disability or other infirmity which would warrant the utilization of sick leave prior to her discharge. Respondent maintained that she failed to advise Petitioner of her need for sick leave -- she suffers from severe depression which is prompted by a chemical imbalance in her brain -- because she did not want other employees to know about her problems as she feared it would be common knowledge among her colleagues. Respondent attempted to show that she was being treated unfairly and more harshly than other employees had been treated for similar misconduct. Specifically, Respondent related an incident wherein an employee threw a temper tantrum during a grievance meeting, tossed a beeper against a bookcase and was generally insubordinate when he was questioned about an infraction. Petitioner explained that that employee "blew up" when he was confronted about a simple rule infraction and that employee was suspended as was Respondent when she was first disciplined for leaving the City in a vehicle without authorization in 1990. Respondent failed to show that she was treated more harshly or that she was the recipient of disparate treatment by Petitioner. Respondent demonstrated that the other employee was similarly treated when Petitioner was disciplined in 1990. Moreover, that employee was subjected to discharge when he later violated the city's rules and regulations (a drug offense-employee failed a urinalysis screen). Petitioner had no way of knowing prior to April 21, 1994, that Respondent requested or was otherwise in need of "an accommodation" due to her health in April of 1994.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order dismissing Respondent from her position of a Building Construction Inspector II effective April 21, 1994. DONE AND ENTERED this 28th day of February 1995 in Tallahassee, Leon County, Florida. JAMES E. BRADWELL 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 28th day of February 1995. APPENDIX The following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. Paragraph 1, adopted as modified, paragraphs 2, 18, and 19, Recommended Order. Paragraph 3, rejected, unnecessary. Paragraph 4, adopted as modified, paragraph 18, Recommended Order. Paragraph 7, rejected, irrelevant. Paragraph 8, conclusionary and argument. Paragraph 11, adopted as modified, paragraph 22, Recommended Order. Respondent's Proposed Findings of Fact. Paragraph 5, rejected, contrary to the greater weight of evidence, paragraph 16, Recommended Order. Paragraph 8, rejected, irrelevant. Paragraph 11, rejected, contrary to the greater weight of evidence, paragraphs 2, 14, and 19, Recommended Order. Paragraph 13, rejected, contrary to the greater weight of evidence. Paragraphs 15 and 16, rejected, contrary to the greater weight of evidence, paragraph 23, Recommended Order. Paragraph 17, adopted as modified, paragraphs 17-20, Recommended Order. Paragraph 18, rejected, contrary to the greater weight of evidence, paragraph 23, Recommended Order. Paragraphs 19-22, rejected, irrelevant and unnecessary. COPIES FURNISHED: Miles A. Lance, Esquire Assistant City Attorney City of Clearwater Post Office Box 4748 Clearwater, Florida 34618-4748 Robert McCormack, Esquire Prestige Professional Park 2655 McCormick Drive Clearwater, Florida 34619 Karleen DeBlaker City Clerk City of Clearwater P.O. Box 4748 Clearwater, Florida 34618-4748
The Issue The central issue in this case is whether the application for a surface water management permit (permit no. 4-009-0077AM) filed by the Respondent, David A. Smith (Applicant), should be approved.
Findings Of Fact Based upon the prehearing stipulations of the parties, the testimony of the witnesses, and the documentary evidence received at the hearing, the following findings of fact are made: The Applicant is the owner of the subject property. The Applicant filed an application for a permit to construct a stormwater management system which was proposed to serve a residential and golf course development to be known as Sabal Hammocks. The site of the proposed project is approximately 720 acres in size and is located in township 24 south, sections 28, 29, 30, 32, 33, and 34, range 35 east, Brevard County, Florida. The entire project site for the Sabal Hammocks development is located within the boundaries of the St. Johns River Water Management District. To the west of the project site is an 140 acre public park that treats its own stormwater and releases pre-treated stormwater during some storm events into the canals on the Sabal Hammocks site. The Applicant's site is located adjacent to Lake Poinsett and prior uses of the land have included cattle grazing and the cultivation of rye and oats. The Applicant filed his application for the stormwater management permit (permit NO. 4-009-0077AM) on December 22, 1989. That application was deemed complete by the District on June 19, 1990. The District issued a notice of its intended action to approve the permit application on June 28, 1990. Save timely filed a petition challenging the proposed action. By law the District is the appropriate agency charged with the responsibility of reviewing applications for stormwater management permits within the subject area. Save is an association of individual persons and representatives from groups who utilize the waters of Lake Poinsett and its surrounding areas for recreational and business purposes. The receiving waters for stormwater discharge from the proposed Sabal Hammocks development will be Lake Poinsett. That water body is classified as Class III waters. Currently, a dike system exists along the southern boundary of the subject property. That dike system separates the internal grazing lands of the parcel from the lower marsh and flooded areas external to the dike. A series of ditches cross the parcel to drain the interior areas. Two agricultural discharge pumps are currently in use at the site. The operation of those pumps has been authorized pursuant to a consent order approved by the District's governing board on December 13, 1990. The dike system on the subject site has been in place since the 1970s. The original construction specifications of the dike are unknown. Sometime in the 1980s, several openings or breaches were cut in the dike system. Those breaches were opened pursuant to permits issued by the District and the Department of Environmental Regulation (DER) . The breaches were cut to a sufficient width and depth to allow boats to navigate through to interior areas of the subject property during those times when the water levels outside the dike would allow such entrance. The breaches were not cut to ground level and the original dike remained intact and uncompromised by the breaches. That is, the dike has not failed to impede water movement and the integrity of the dike was not weakened by the breaches. The original outline, dimension of the dike, remained visible despite the breaches. In 1986, the Applicant requested permission from the District staff in order to close or restore the dike breaches. At that time, the District staff advised David Smith that a permit would not be required to restore the dike since such improvements would be considered a maintenance exemption. Subsequently, and in reliance upon the representations made by the District's director,, the Applicant closed the breaches and restored the continuity of the dike system of the subject property. The Applicant's work to close the breaches was performed in an open manner, would have been visible to persons using the adjacent marsh or water areas for recreational purposes, and was completed at least one year prior to the application being filed in this case. Neither the District nor DER has asserted that the work to complete the original dike in the 1970s, nor the breaches completed in the 1980s, nor the restoration of the breaches in 1986 was performed in violation of law. Further, the District had knowledge of the subject activities. Save contends that the restoration of the dike system was contrary to law and that it was not afforded a point of entry to contest the closure of the breaches. Additionally, Save infers that the original construction of the dike system in the early 1970s was without authorization from authorities. Save's contention is that the prior condition of the property, ie. the parcel with breached openings, must be considered the correct pre- development condition of the land. The District, however, considered the pre- development condition of the parcel to be that of a diked impoundment separated from Lake Poinsett. The same assumption was made regarding the pumping of water from the area enclosed by the dike via an existing 36 inch pump which discharges to Bass Lake (and then to Lake Poinsett) and an existing 12 inch pump that discharges into the marsh areas adjacent to the property (between it and Lake Poinsett). The District's consideration of the site and the application at issue was based upon the actual condition of the land as it existed at the time this application was filed. The pre-development peak rate and volume of discharge from the site was calculated based upon the maximum discharge capacity of the two existing pumps (described above). Accordingly, the maximum pre-development rate of discharge from the two existing pumps is in the range of 90-107 cubic feet per second. The pre-development volume of discharge, based upon actual pump records, was calculated as 710 acre-feet for a 25 year, 96 hour storm event. The total areas encompassed by the Applicant's proposal are the 720 acre site where the golf course and residential homes will be located together with 140 acres from an adjacent public park. The runoff entering the stormwater system from that public park will have already been treated in its own stormwater management system. The Applicant's proposed stormwater system will consist of a series of lakes and interconnected swales. This wet detention system will capture the runoff and direct its flow through the series of swales and lakes via culverts. The waters will move laterally from the northwestern portion of the parcel to she southeastern end of the site. From the final collecting pond, she waters will be pumped to Bass Lake and ultimately flow to Lake Poinsett. Wet detention systems generally provide greater pollutant treatment efficiencies than other types of stormwater treatment systems. The maintenance associated with these systems is also considered less intensive than other types of treatment systems. The wet detention system proposed for Sabal Hammocks accomplishes three objectives related to the flow of stormwater. The first objective, the collection of the. stormwater, requires the creation of several lakes or pools into which water is directed and accumulates. The size and dimension of the lakes will allow the volume of accumulated water to be sufficient to allow stormwater treatment. The capacity of the lakes will also provide for a sufficient volume to give adequate flood protection during rainfall events and storms. The second objective, the treatment of the stormwater, requires the creation of a littoral zone within the system. The littoral zone, an area of rooted aquatic plants within the lakes or ponds, provide for the natural removal of nutrients flowing into the system. The plants serve as a filtering system whereby some nutrients are processed. The proposed littoral zone in this project constitutes approximately 37 percent of the detention system surface area and therefore exceeds District size requirements. The depth of the treatment volume for the proposed system will not exceed 18 inches. A third objective accomplished by the creation of the series of lakes is the provision for an area where pollutants flowing into the detention system may settle and through sedimentation be removed from the water moving through the system. The average residence time estimated for runoff entering the Sabal Hammocks detention system is 48 days. The permanent pool volume will, therefore, be sufficient to assure the proposed project exceeds the District's requirements related to residence time. The design and volume of the Sabal Hammocks system will also exceed the District's requirements related to the dynamic pool volumes. In this case the Sabal Hammocks system will provide for approximately 65 acre-feet of runoff. Thus, the proposed system will adequately control and detain the first 1 inch of runoff from the site. The length to width ratio for the proposed lakes, 18:1, exceeds the District's minimum criteria (2:1). The final lake or pond into which the stormwater will flow will be 17 acres and will have 15 acres of planted wetland vegetation. Before waters will be released into Bass Lake, the site's runoff will pass through 3100 linear feet of this final lake before being discharged. The proposed project will eliminate the two agricultural pumps and replace them with one pump station. That station will contain four pumps with a total pumping capacity of 96 cubic feet per second. Under anticipated peak times, the rate of discharge from the proposed single station is estimated to be less than the calculated peak pre-development rate of discharge (90-107 c.f.s.). The estimated peak volume of discharge will also be lower than the pre-development discharge volumes for the comparable storm events. The proposed pump station is designed to be operated on electrical power but will have a backup diesel generator to serve in the event of the interruption of electrical service. Additionally, the pumps within the station will be controlled by a switching device that will activate the pump(s) only at designated times. It is unlikely that all four pumps will activate during normal rainfall events. The Applicant intends to relinquish maintenance responsibilities for the stormwater system including the pump station to Brevard County, Florida. Finished floor elevations for all residential structures to be built within the Sabal Hammocks development will be at a minimum of 18.2 mean sea level. This level is above that for a 100 year flood. The floor elevations will be at least one foot above the 100 year flood elevation even in the event of the dike or pump failure or both. Finished road elevations for the project will be set at 17.5 feet mean sea level. This elevation meets or exceeds the County's requirements regarding the construction of roadways. It is estimated that the Sabal Hammocks system will retain at least 26 percent of all storm events on site. If the lake system is utilized to irrigate the golf course the proposed system could retain 45 percent of all storm events on site. Of the 31.27 acres of wetlands within the proposed site, only 4.73 acres of wetlands will be disturbed by the construction of this project. Some of the wetlands are isolated and presently provide minimal benefits to off-site aquatic and wetland dependent species. No threatened or endangered species are currently utilizing the isolated wetlands. The areas of wetlands which are productive and which will be disturbed by the development will be replaced by new wetlands to be created adjacent to their current location at a lower elevation. The new wetlands should provide improved wetland function since those areas will be planted with a greater diversity of wetland plant species. Additionally, other wetland areas will be enhanced by the removal of invader species and increased hydroperiod in the area. The integrated pesticide management plan for the proposed project will be sufficient with the additional condition chat use of Orthene, Subdue, and Tersan LSR will be authorized when approved insecticides or fungicides have not been effective. In this case, the estimates regarding the water quality for the proposed project were based upon data from studies of multifamily residential projects. Data from single family/ golf course developments was not available. Therefore, based upon the data used, the projected runoff concentrations for this project should over estimate pollutants and are more challenging to the treatment system than what is reasonably expected to occur. In this regard, the overall treatment efficiencies are estimated to be good for all of the parameters of concern with the exception of nitrogen. The projected increase in nitrogen, however, will not adversely impact the receiving water body. The projected average concentration for each constituent which may be discharged is less than the state standard with the exceptions of cadmium and zinc. In this regard, the District's proposed conditions (set forth in the District's exhibits 4 and 9) adequately offset the potential for a violation of state water quality standards. More specifically, the use of copper-based algaecides in the stormwater management system should be prohibited; the use of galvanized metal culverts in the stormwater management system, or as driveway culverts, should be prohibited; and the use of organic fertilizers or soil amendments derived from municipal sludge on the golf course should be prohibited. Additionally, a water quality monitoring plan should be implemented by the Applicant. The monitoring plan mandates the collection of water samples from areas in order to adequately monitor the overall effectiveness of the treatment facility. The source of cadmium is not be expected to be as great as projected since the most common source for such discharge is automobiles. It is unlikely that the golf course use will generate the volume of discharge associated with automobile use that the multifamily data presumed. The projected quality of the discharges from this project should be similar to the ambient water quality in Lake Poinsett. In fact, the post- development pollutant loading rates should be better than the pre-development pollutant loading rates. The discharge from the proposed Sabal Hammocks project will not cause or contribute to a violation of state water quality standards in Lake Poinsett nor will the groundwater discharges violate applicable state groundwater quality standards. The floodways and floodplains, and the levels of flood flows or velocities of adjacent water courses will not be altered by the proposed project so as to adversely impact the off- site storage and conveyance capabilities of the water resource. The proposed project will not result in the flow of adjacent water courses to be decreased to cause adverse impacts. The proposed project will not cause hydrologically-related environmental functions to be adversely impacted The proposed project will not endanger life, health, or property. The proposed project will not adversely affect natural resources, fish and wildlife. The proposed project is consistent with the overall objectives of the District.
Recommendation Based upon the foregoing, it is RECOMMENDED: That the governing board of the St. Johns River Water Management District enter a final order approving the application for permit number 4-009-0077AM with the conditions outlined within the District's exhibits numbered 4, 8, and 9 and as previously stated in the notice of intent. DONE and ENTERED this 2 day of July, 1991, in Tallahassee, Leon County, Florida. Joyous D. Parrish Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2 day of July, 1991. APPENDIX TO CASE NO. 90-5247 RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE APPLICANT: Paragraphs 1 through 3 are accepted. Paragraph 4 is rejected as irrelevant. Paragraphs 5 and 6 are accepted. The first sentence of paragraph 7 is accepted the remainder is rejected as irrelevant. Paragraph 8 is accepted. Paragraphs 9 through 11 are accepted. Paragraph 12 is rejected as irrelevant. 8 Paragraphs 13 through 21 are accepted. Paragraph 22 is rejected as irrelevant. Paragraphs 23 through 25 are accepted. The last two sentences of paragraph 26 are accepted, the remainder is rejected as irrelevant. Paragraph 27 is accepted. Paragraph 28 is rejected as comment, irrelevant, or unnecessary to the resolution of the issues of this case. Paragraph 29 is accepted. Paragraph 30 is rejected as irrelevant. Paragraph 31 is rejected as argumentative. Paragraphs 32 and 33 are accepted. With regard to paragraph 34 it is accepted that compensating storage was not required. Otherwise, unnecessary, irrelevant, or comment. With regard to paragraph 35, it is accepted the proposed system meets the first 1 inch of runoff requirement otherwise, unnecessary or irrelevant or comment. Paragraph 36 is accepted. Paragraphs 37 through 41 are rejected as irrelevant, argumentative or comment. Paragraphs 42 and 43 are accepted. With the deletion of the last sentence which is irrelevant, paragraph 44 is accepted. Paragraphs 44 through 49 are accepted. The second sentence of paragraph 50 is accepted, the remainder of the paragraph is rejected as irrelevant or contrary to the weight of the evidence. The first sentence of paragraph 51 is accepted, the remainder is rejected as irrelevant or contrary to the weight of the evidence. Paragraphs 52 through 56 are rejected as irrelevant, comment, or recitation of testimony. Paragraph 57 is accepted. Paragraph 58 is accepted. Paragraphs 59 and 60 are rejected as irrelevant, comment, or argumentative. Paragraphs 61 and 62 are accepted. The first sentence of Paragraph 63 is accepted. The remainder of the Paragraph is rejected as contrary to the weight of the evidence. The proposed project will benefit the wetland areas in an unquanitifiable measure due to the enhancements to prior wetlands and the creation of new wetlands. The first sentence of paragraph 64 is accepted. The remainder is rejected as contrary to the weight of the evidence. Paragraph 65 is accepted. Paragraph 66 is rejected as argument or irrelevant. Paragraph 67 is accepted. Paragraphs 68 and 69 are accepted. Paragraph 70 is rejected as irrelevant or contrary to the weight of the evidence. Paragraphs 71 through 73 are accepted. Paragraph 74 is rejected as irrelevant or unnecessary. Paragraphs 75 through 78 are rejected as argument, irrelevant, or unnecessary to the resolution of the issues of this case. Paragraphs 79 through 82 are accepted. Paragraph 83 is rejected as irrelevant. Paragraphs 84 and 85 are rejected as argument or comment. It is accepted that the Corp and DER are aware of the restoration of the dike and that neither has asserted such work was performed contrary to law. Paragraph 86 is rejected as comment on the evidence or irrelevant. It is accepted that the District advised Applicant that he could restore the dike system and that the District was apprised of the completion of that work. With regard to paragraph 87, it is accepted that the restoration of the dike entailed filling the breaches to conform to the dike's original design; otherwise, rejected as irrelevant. Paragraphs 88 and 89 and the first sentence of Paragraph 90 are accepted. The remainder of paragraph 90 and Paragraphs 91 through 93 are rejected as irrelevant, argument, or comment. Paragraph 94 is accepted. RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE DISTRICT: Paragraphs 1 through 78 is accepted. Paragraph 79 is rejected as argumentative. Paragraph 80 is accepted. RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY SAVE: None submitted. COPIES FURNISHED: Mary D. Hansen 1600 S. Clyde Morris Boulevard Suite 300 Daytona Beach, Florida 32119 Brain D.E. Canter HABEN, CULPEPPER, DUNBAR & FRENCH, P.A. 306 North Monroe Street Tallahassee, Florida 32301 Wayne Flowers Jennifer Burdick St. Johns River Water Management District Post Office Box 1429 Palatka, Florida 32178
