The Issue Whether the Petitioner committed the violations alleged in the Administrative Complaint dated October 25, 2004, and, if so, the penalty that should be imposed.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The Education Practices Commission ("EPC") of the Department of Education is the state agency with the authority to suspend or revoke the teaching certificate of any person holding such a certificate in the State of Florida. § 1012.795(1), Fla. Stat. The Commissioner of Education is the state official responsible for making a determination of probable cause that a teacher has committed statutory or rule violations based on the investigation conducted by the Department of Education. § 1012.796, Fla. Stat. Mr. Mitchell holds Florida Educator's Certificate No. 715339. At the times material to this proceeding, Mr. Mitchell was employed as a teacher by the Palm Beach County School Board.3 T.P. was born on March 19, 1984, and she was a student at Palm Beach Lakes High School in January 2000. T.P. met Mr. Mitchell in January 2000. At the time, Mr. Mitchell was 29 years old and was a teacher at J.F.K. Middle School. T.P. withdrew from school in June 2000. Mr. Mitchell and T.P. applied for a marriage license on July 28, 2000, and were married on September 25, 2000. On May 29, 2001, T.P. gave birth to a son, who was Mr. Mitchell's child.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a final order dismissing all charges against Michael Mitchell. DONE AND ENTERED this 1st day of June, 2007, in Tallahassee, Leon County, Florida. S PATRICIA M. HART Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of June, 2007.
The Issue The issues are whether Respondent violated section 112.313(6), Florida Statutes (2018), by exhibiting inappropriate behavior toward city staff; and, if so, what is the appropriate penalty.
Findings Of Fact Respondent served as a city commissioner of Madeira Beach from 2007 through March 2013, and was reelected to the office in March 2017. Shane Crawford served as the city manager of Madeira Beach from January 2012 through July 2017. Cheryl McGrady Crawford served as a full-time employee of Madeira Beach in different capacities: intern for the planning and zoning coordinator; in the building department; and city clerk. In addition, she served as the executive assistant to then-City Manager Shane Crawford from September 2012 through February 2017, where her job responsibilities included acting as deputy clerk when the city clerk was unable to attend a function or meeting. David Marsicano has been serving as Madeira Beach’s public works and marina director for 17 years. Travis Palladeno served as the mayor of Madeira Beach from 2011 through 2017. Terry Lister served as a city commissioner of Madeira Beach from 2008 through 2018. Francine Jackson was a Madeira Beach employee for approximately 11 years. Her last position was as the assistant to Public Works Director Marsicano from 2012 through 2014. Thomas Verdensky is the president of the Old Salt Foundation, which is a volunteer organization. Joseph Campagnola is a retired 13-year New York City police officer who has volunteered as head of security (coordinates sheriff’s department and personal guards) for Old Salt Foundation events for the past nine years. Nicole Bredenberg was present at the November 3, 2012, Madeira Beach City Commission (“City Commission”) meeting. Respondent is subject to the requirements of chapter 112, part III, the Code of Ethics for Public Officers and Employees, for her acts and omissions during her tenure as a city commissioner of Madeira Beach. See § 112.313(6), Fla. Stat. and City Charter Section 2-31 Duties and Responsibilities. As a city commissioner of Madeira Beach, Respondent took an oath “to faithfully perform the duties of [her] office and the Constitution of [sic] the laws of the State of Florida and the United States of America.” As a city commissioner of Madeira Beach, Respondent was prohibited from interfering with administration as provided: “The Board of Commissioners nor any member thereof shall give orders to any subordinate or Officer of said City, either publicly or privately, directly or indirectly.” As a city commissioner, Respondent’s responsibilities included attending City Commission meetings, regular or special. At the City Commission meetings, the city clerk is responsible for taking the meeting minutes. If the city clerk is unavailable, a substitute is needed or the meeting cannot be held. Mr. Palladeno told the new Madeira Beach city manager, Shane Crawford, that he wanted an outdoor meeting since they are a beach community. In November 2012, an outdoor City Commission meeting was held in conjunction with the King of the Beach Tournament, a fishing tournament occurring biannually in Madeira Beach. The meeting was to recognize Bimini, Bahamas, as Madeira Beach’s sister city with a presentation of a key to the city and a proclamation. The King of the Beach Tournament is organized by the Old Salt Fishing Foundation. The event was held on a baseball field having field lights, which turned on as it started to get dark. Respondent was present at this event in her official capacity to participate in the meeting. She had consumed alcohol at the all-day fishing tournament. Then-city clerk, Aimee Servedio, could not attend this meeting, so a substitute was required or the meeting could not go forward. Ms. McGrady (prior to her becoming Ms. Crawford) had been assigned the role of deputy clerk and was prepared to take minutes. Respondent dislikes Ms. Crawford because she believed, without any proof produced at hearing and a firm denial at hearing by Ms. Crawford, that she and Shane Crawford were having an affair at the time of the meeting at issue, which was prior to their marriage. The City Commission could not start the meeting the evening after the tournament because Respondent refused to go on stage due to Ms. McGrady’s role as deputy clerk. There was a heated discussion between Shane Crawford, Ms. McGrady, and Respondent. Respondent actually refused to attend the meeting if Ms. McGrady was present, and demanded that she be removed from the area. Mr. Palladeno and an official Bimini representative were in the vicinity of the heated discussion. Referring to Ms. McGrady, and in her presence, Mr. Palladeno heard Respondent say, “You need to get that f[***]ing b[itch] out of here.” Mr. Palladeno rushed in to move the Bimini representative away from the situation. Lynn Rosetti, who at that time was the planning and zoning director, had to fill in because Respondent refused to attend the meeting if city employee, Ms. McGrady, was allowed to substitute for the city clerk. Respondent’s actions interfered with Ms. McGrady’s job duties. After the meeting was over, Respondent approached Shane Crawford with Ms. McGrady, David Marsicano and his then- wife Shelley, and Nicole Bredenberg also in the immediate area. Using her tongue, Respondent licked City Manager Shane Crawford up the side of his neck and face. This act was witnessed by Ms. McGrady, Mr. Marsicano, Mr. Bredenberg, and Mr. Verdensky. Respondent then groped City Manager Shane Crawford by grabbing his penis and buttocks. This act was witnessed by Ms. McGrady and Mr. Bredenberg. Respondent then threw a punch at Ms. McGrady after she told Respondent that her actions were inappropriate. Mr. Marsicano’s ex-wife intervened and confronted Respondent. Mr. Verdensky, who testified that he had been licked by Respondent on a different occasion, called for the head of security, Joseph Campagnola. Mr. Campagnola arrived between one to two minutes after the call. By the time he arrived, Respondent was walking away. However, he found Shane Crawford, Ms. McGrady, and Ms. Marsicano. He was told by Mr. Crawford that Respondent licked his face and grabbed him, which was corroborated by Mr. Marsicano and Ms. McGrady. Mr. Marsicano, who testified he had also been licked by Respondent on a different occasion, has a distinct memory of Respondent’s actions at the November 2012 City Commission meeting because of the “disruptions and shenanigans” that happened before, during, and after the meeting. He had to lead his wife away because she was so upset with Respondent. Mr. Marsicano also testified that he witnessed the face-licking of Mr. Crawford by Respondent. He subsequently spoke with Francine Jackson about what happened at that meeting. Ms. Jackson was not present for the November 2012 City Commission meeting. However, that following Monday or Tuesday, she discussed the weekend with Mr. Marsicano and was informed by him that Respondent licked Mr. Crawford’s face. Ms. McGrady was placed in a predicament when Respondent’s animosity towards her became overt and physical. Respondent created a hostile environment and employees were rightfully fearful of retaliation if they reported Respondent’s actions. Robin Vander Velde is a former city commissioner of Madeira Beach and has known Respondent since 2007. Ms. Vander Velde was outraged about an ethics complaint being filed against her very good friend of ten years. Present in her capacity as a city commissioner at the November 2012 meeting, her recollection of the events was foggy, at best. Ron Little is Respondent’s best friend of 20 years and Ms. Vander Velde’s boyfriend. He honestly acknowledged that it is a given that he would want to help Respondent. Mr. Little was unaware of Respondent’s Driving under the Influence (“DUI”) arrest, petit theft arrest, alleged participation in a United States Postal Service (“USPS”) mail hoax, and the reasons why she left her City of Clearwater employment. Elaine Poe is a former city commissioner of Madeira Beach. Ms. Poe was unaware of Respondent’s petit theft arrest, alleged participation in a USPS mail hoax, and why she left her City of Clearwater employment. While Ms. Poe was at the November 2012 meeting, she did not recall the meeting starting late. Jim Madden is a former city manager of Madeira Beach. He was also unaware of Respondent’s petit theft arrest and alleged participation in a USPS mail hoax. Doreen Moore was unaware of Respondent’s petit theft arrest and alleged participation in a USPS mail hoax. Linda Hein met Respondent in 2016. She was unaware of Respondent’s petit theft arrest. Originally, Ms. Hein did not remember attending the November 2012 meeting until her memory was refreshed; regardless, she could not provide eyewitness testimony concerning the alleged licking incident. Michael Maximo, is the former Madeira Beach community services director. He testified he had been licked by Respondent on a different occasion, during the soft opening of a Bubba Gump’s Restaurant in John’s Pass Village. He recalled the details of the specific incident and said Respondent was inebriated at the time, and she came over to him and licked his face and neck in the presence of her husband, who quickly escorted her from the building. Mr. Maximo refuted the testimony of Respondent’s witnesses as his knowledge of Respondent’s reputation in the community was as a “fall down drunk,” who should not be representing the community. This was a different picture from the one painted by Respondent’s friends who, while admitting she liked to have a drink or several with them and others, they could not imagine her licking someone in public.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Ethics enter a final order finding that Respondent, Nancy Oakley, violated section 112.313(6), Florida Statutes, and imposing a public censure and reprimand and a civil penalty of $5,000. DONE AND ENTERED this 7th day of December, 2018, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 7th day of December, 2018. COPIES FURNISHED: Kennan George Dandar, Esquire Dandar & Dandar, P.A. Post Office Box 24597 Tampa, Florida 33623 (eServed) Melody A. Hadley, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 (eServed) Elizabeth A. Miller, Esquire Office of the Attorney General Plaza Level 01, The Capitol Tallahassee, Florida 32399 (eServed) Millie Fulford, Agency Clerk Florida Commission on Ethics Post Office Drawer 15709 Tallahassee, Florida 32317-5709 (eServed) C. Christopher Anderson, III, General Counsel Florida Commission on Ethics Post Office Drawer 15709 Tallahassee, Florida 32317-5709 (eServed) Virlindia Doss, Executive Director Florida Commission on Ethics Post Office Drawer 15709 Tallahassee, Florida 32317-5709 (eServed)
Recommendation Having found the Respondent technically guilty of a violation of Section 489.129(1)(d), and thereby guilty of violating Section 489.129(1)(m), Florida Statutes, and based upon the matters in mitigation, the Hearing Officer recommends that the Respondent receive a private letter of reprimand for his technical violation. DONE and ORDERED this 30th day of March, 1982, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, 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 30th day of March, 1982. COPIES FURNISHED: Michael E. Egan, Esquire 217 South Adams Street Post Office Box 1386 Tallahassee, Florida 32302 Mr. David H. Otto 1527 C Road Loxahatchee, Florida 33470 J. K. Linnan, Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32201 Samuel Shorstein, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
The Issue Whether Petitioner proved, by clear and convincing evidence, just cause to terminate Respondent's employment.
Findings Of Fact Hill was a School Board employee from 1978 up to and including December 15, 1999. In the 1999-2000 school year, Hill was assigned to Palm Beach Gardens High School. Although classified as a "teacher on special assignment," his employment responsibilities paralleled those of an Assistant Principal. Hill's job responsibilities included monitoring the halls, supervising the campus and working with students in various functions. He was also responsible for student discipline. Hill enjoyed his work with students and was good at it. He was very well liked by students and interacted positively with them. His authority was rarely challenged. In his last two annual evaluations, Hill was described as a "team player" who "maintains excellent rapport with all students" and serves a "vital role" in the operation of the school. Hill's life and previously unblemished career began to unravel on the night of December 16, 1999. Sometime around midnight, Hill was the subject of a traffic stop. Hill was driving a car owned by his sister, and was alone when pulled over on Atlantic Avenue, Delray Beach, Florida. Hill was detained because a Delray Beach police officer had observed that Hill's driving was erratic; that his left taillight was out; and the car's license tag was out of date. At all times during the traffic stop and the events which transpired after, Hill conducted himself as a "perfect gentleman." He was polite and fully cooperative with the police. After failing a roadside sobriety test, Hill was arrested and taken to the Palm Beach County Jail. Hill consented to a breath test, which revealed an unlawful blood alcohol level of .159/.158. The test result triggered an automatic suspension of Hill's driving privileges; however, those privileges were reinstated by the Department of Highway Safety and Motor Vehicles when it came to light that the so-called Intoxilyzer breath analysis machine on which Hill's test was performed had not been maintained in the manner required by law. While being held in custody, Hill's personal belongings, including the contents of his pockets, were taken from him at the jail. During this process, police claim to have found a baggie weighing 7.4 ounces and containing cocaine. The evidence established that at least two Delray Beach police officers were involved in the portion of the booking process which resulted in the alleged discovery of a "dime bag" of cocaine; however, at the final hearing, Delray Beach Police Officer Scott McGuire (McGuire) was the only witness produced by the School Board who claimed knowledge of the circumstances surrounding the alleged discovery of the baggie, which allegedly contained 7.4 grams of cocaine. McGuire's testimony fell far short of clear and convincing evidence that Hill did in fact possess a dime bag, a baggie, 7.4 grams of cocaine, or 7.4 grams of a substance containing cocaine. McGuire's testimony alternated general statements about what usually happens during the booking process with what happened with respect to Hill's booking on the night of December 16, 1999. McGuire's casual demeanor while testifying, coupled with the imprecise nature of the questions asked and the answers given by him, rendered the undersigned unable to conclude that an appropriate chain of custody had been maintained. In other words, the School Board failed to establish by clear and convincing evidence that the contents of Hill's pockets--and only the contents of Hill's pockets--were at all times accounted for and handled in a manner adequate to assure that no items were removed or added. Initially, the School Board, relying solely upon police reports, asserted that the baggie alleged to have been found in Hill's possession contained 7.4 grams of cocaine. That assertion was negated by Gina Evanzia (Evanzia), Senior Forensic Scientist for the Palm Beach County Sheriff's Office Crime Laboratory and the only School Board witness with personal knowledge of the actual baggie alleged to have been found among Hill's possessions. Evanzia testified that the baggie which the School Board attributed to Hill was not large enough to hold 7.4 grams of anything. The baggie provided to Evanzia for testing and alleged to have come out of Hill's pocket contained 18 milligrams of a substance which contained cocaine, and not the 7.4 grams alleged to have been found in Hill's possession on the night of December 16, 1999. At the time of Hill's arrest and at final hearing, neither McGuire nor any other witness provided a useful physical description of the baggie alleged to have been in Hill's pocket. The gaps in McGuire's testimony coupled with the unexplained discrepancies between the 7.4 gram baggie alleged to have been found in Hill's possession and the much smaller baggie about which Evanzia testified makes it impossible to determine what, if any, contraband was found on Hill's person. The alleged discovery of the 7.4 gram baggie resulted in the police recommending that Hill be charged with introducing contraband into a correctional facility. Declining to do so, the State Attorney instead charged Hill with possession of cocaine. Prior to the time Hill was transported to the jail, the arresting officers searched Hill's sister's car for contraband. Finding none, the police made arrangements for the car to be impounded and towed to a privately owned lot for storage. After the car was placed in the custody of the towing company, one of its employees claimed to have found two more baggies alleged to contain significant amounts of cocaine in plain sight on the floorboard of the car. Police tested the baggies for fingerprints but found none. There is no credible evidence that there was any cocaine on the floorboard of the car while it was in Hill's possession and control. The testimony of Officer V. Gray (Gray) that he failed to spot the baggies "[because he] didn't have a flashlight to go through the car real good" was so implausible that Gray was readily cross-examined out of it on the next page of transcript. 1/ No criminal charges were brought against Hill on account of these baggies. Although Hill had substantial and legitimate defenses to the criminal charges which the State Attorney did elect to file, Hill accepted responsibility for the arrest by accepting the State Attorney's offer to enter into a plea bargain which would take into account Hill's previously spotless record. The State Attorney, believing that Hill should be afforded an opportunity to atone for the aberrational events of December 16, 1999, and to rehabilitate himself, permitted Hill to plead guilty to a misdemeanor charge of driving while intoxicated, and to dispose of the cocaine charge by entering a pretrial intervention (PTI) program. At the time of the final hearing, Hill was in full compliance with all of the terms of the PTI agreement. At all times material to this case, Hill was appropriately contrite about the DUI arrest. He was and is willing to demonstrate his contrition and his commitment to public service by accepting any assignment, coupled with any degree of probation and/or supervision deemed appropriate by the School Board, to assure that he is fully rehabilitated before being allowed to resume contact with students.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board enter a Final Order reinstating Hill's employment with the School Board with back pay and benefits retroactive to the date of termination. DONE AND ENTERED this 13th day of June, 2001, in Tallahassee, Leon County, Florida. FLORENCE SNYDER RIVAS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of June, 2001.
Findings Of Fact Petitioner was hired by the Palm Beach Gardens Holiday Inn in 1974. She began work as a cashier and later worked as a hostess in the restaurant. She was promoted to Food and Beverage Manager in 1978. On November 27, 1978, Respondent purchased the Holiday Inn and appointed Mr. John Astarita as its general manager. Astarita made several personnel changes in late 1978 and early 1979, and on March 9, 1979, discharged Respondent. Immediately prior to her discharge, Petitioner had given information to an investigator regarding a sex discrimination complaint of a female employee who had been discharged earlier by Respondent. Astarita questioned Petitioner about her conversation with the investigator the day before he discharged her. She refused to give him the information he sought. Petitioner's evidence of sex discrimination is limited to a rumor she had heard that Astarita did not want women in management positions. This hearsay evidence lacks credibility and is uncorroborated. Respondent's evidence established that Petitioner's job performance was not satisfactory. The ratio of liquor costs to sales had increased above an acceptable level, and she had failed to clean up the bar area after having been instructed to do so by Astarita.
Recommendation From the foregoing, it is RECOMMENDED that the Florida Commission on Human Relations enter a Final Order dismissing Petitioner's complaint. DONE AND ENTERED this 20th day of May, 1983, at Tallahassee, Florida. R. T. CARPENTER, 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 20th day of May, 1983. COPIES FURNISHED: Ms. Catherine Scott 12712 Ellison-Wilson Road Juno Isles, Florida 33408 R. E. Williams, Executive Director Florida Commission on Human Relations 2562 Executive Center Circle, East Suite 100, Montgomery Building Tallahassee, Florida 32301 Eugene W. Murphy, Jr., Esquire Murphy, MacLaren & Littell, P.A. 341 Royal Poinciana Plaza Post Office Box 2525 Palm Beach, Florida 33480
The Issue Does a statement by an agency that its regulatory authority is limited by Section 161.58, Florida Statute, constitute a non- rule policy? Does a statement by an agency that fees levied under authority of Section 161.58, Florida Statutes, by county governments for beach driving do not constitute revenue for purposes of invoking its regulatory jurisdiction pursuant to Florida Administrative Code Rule 18-21.005 (Rule 18-21.005) constitute a non-rule policy?
Findings Of Fact Petitioners Petitioner Shirley Reynolds (Reynolds) resides and owns beachfront property overlooking the Atlantic Ocean in New Smyrna Beach, Volusia County, Florida. Reynolds does not own to the mean high water line, and her property is not adjacent to the sovereign submerged lands held by the Trustees. Reynolds “shares riparian rights with the public.” Reynolds has owned her oceanfront home since 1981. She has observed beach driving by the general public on the beach and in the shallow water in the vicinity of her home. She enjoys the beachfront for “regular recreational, traditional recreational purposes.” Petitioner Diann Bowman (Bowman) resides and owns property that extends to and adjoins the mean high water line of the Atlantic Ocean in New Smyrna Beach, Volusia County, Florida. Bowman has observed the general public driving on the beach and in shallow waters of the Atlantic Ocean in the vicinity of her property. Bowman goes swimming in the ocean, builds sand castles by the edge of the water with her grandchildren, and walks on the beach with friends. Petitioners did not have any requests for leases or applications for action pending before the BOT, and Volusia County had not made an application to the Trustees for any activity permit or lease. Petitioner Bowman was not even aware of Reecy's e- mail, and could not articulate how she was affected by it. Although Reynolds testified at length about the impacts of beach driving and beach concessions between her home and the ocean, she failed to show how she was affected by Reecy's statements that the BOT does not regulate beach driving. In response to counsel’s question of what personal interest she has in whether or not the Trustees require authorization to use state land for motor vehicle traffic in front of her home, she responded, “[I]f and when they ever deal with it, it will certainly raise the consciousness of the human safety element.” Petitioners testified regarding the adverse impacts of beach driving on their property and their enjoyment of their property. Beach driving has an adverse impact upon the property values and upon their enjoyment of their property. Respondents The BOT is an agency of the State of Florida, consisting of the Governor and Cabinet. (Art. IV, s. 4 (f), Fla. Const.) The BOT holds the title to the State’s sovereign submerged lands acquired at statehood “for the use and benefit of the people of the state,” pursuant to Chapter 253, Florida Statutes. (§§ 253.001, 253.03, and 253.12, Fla. Stat.) Private use of such lands generally requires consent of the BOT and must not be contrary to the public interest. The BOT is required to manage and conserve state-owned lands, including sovereignty lands, by law and is granted rulemaking authority to that end. The Department functions as the staff for the BOT, and issues leases and other authorizations for private parties to use sovereign submerged lands under Chapter 253, Florida Statutes, and Chapter 18-21, Florida Administrative Code. In carrying out its duties with relationship to the BOT, the Department implements policy as determined by the BOT, to include taking some final agency actions. The Department would be the agency through which the BOT would initiate rulemaking. The Department does not have delegated authority to adopt rules for the BOT. Ken Reecy (Reecy) is a Senior Management Analyst Supervisor in the Department’s Division of State Lands. One of Reecy’s job duties is to provide responses to requests for BOT’s public records housed in the Division of State Lands of the Department. On August 5, 2003, Ross Burnaman e-mailed Eva Armstrong of the Department the following public records request: Hi Eva-I am hoping that you can assist me with this inquiry for public records. I'm looking for any Trustees authorization for the use of state lands (including uplands and submerged lands) for beach driving by the general public or commercial vendors. While I'm aware of Section 161.58, Florida Statutes, I'm of the opinion that Trustees' authorization is still required for beach driving on state lands. Most local governments that allow beach driving (e.g. Gulf County, Volusia County) charge a fee for that activity. That would appear to trigger, Rule 18-21.005(b)(2), FAC, and the requirement for a lease. As I understand it, public beach driving is allowed in parts of the following counties: Nassau, Duval, Flagler, St. Johns, Volusia, Gulf and Walton counties. Thanks in advance for you assistance. Best regards, Ross Burnaman (phone number deleted) Ms. Armstrong passed this request to Ken Reecy of the Department who replied to Mr. Burnaman with the following e-mail message: Mr. Burnaman Concerning your request as to any authorization by the Board of Trustees for beach driving and fees triggering Rule 18- 21.005(b)(2)[sic]: We are unaware of any instance in which the issue of beach driving has been brought before the Board of Trustees for authorization. Further, in discussions with staff from our legal department, it is felt that s. 161.58 sufficiently covers the issue and that authorization from the Board is not necessary. We are also of the opinion that fees counties charge for beach driving would not trigger Rule 18-21.005(b)(2)[sic]. If you have any further questions on this issue, please contact Suzanne Brantley in EIP's Office of General Counsel (phone number deleted) The e-mail above contains two potential policy statements; one concerning a statute and the other concerning a rule. The analysis of each differs slightly. The BOT was authorized at one time to regulate all the uses of state sovereignty lands, to include regulation of driving on the state's beaches, i.e., that portion of land seaward of the mean high water line (hereafter: beach.) The BOT restricted the operation of private vehicles on the beaches via rule. The Legislature of the State of Florida enacted Section 161.58, Florida Statutes, which authorized those counties which had traditionally permitted driving on the beach to regulate the operation of privately owned vehicles on the beaches in their counties. Several of the counties which had traditionally permitted driving on the beach permitted privately owned vehicles to be operated on the beach in their counties and charged a small fee to defray the costs of providing parking, life guards, and traffic direction on the beaches. The BOT attempted to intervene in those counties which charged fees for beach driving on the basis that the fees being charged were "revenue" producing. The Legislature of the State of Florida amended Section 161.58, Florida Statutes, to specifically authorize the counties to collect reasonable fees to defray their costs of regulating beach driving. The statements that are challenged have not been adopted as a rule. Reecy testified at the hearing. Reecy only intended to give Burnaman information related to his public records request. The portion of Reecy's e-mail that is being challenged was intended to explain why no records were found. Reecy responded because Burnaman had sent follow-up e-mails to Reecy’s supervisor, Armstrong, the Director of the Division of State Lands. Reecy knew that Armstrong had a practice of providing information to the public when it was requested. Reecy is not charged with implementing or interpreting Florida Administrative Code Rule 18-21 and does not process applications for leases or other authorizations from the BOT. Reecy's statement that no records were found is not a policy statement and has not been alleged to be one by Petitioners. Reecy conferred with Department legal staff before issuing his statement about Section 161.58, Florida Statutes. Reecy did not state that Section 161.58 exempted counties from getting BOT authorization for beach driving, as Petitioners state in their Petition, for several reasons: first, Reecy is not the person on the BOT’s staff who makes such determinations; second, there was no factual determination pending, i.e., no request for declaratory statement or request for an exemption or authorization; and third, the statute cited and its history indicate that the Legislature has vested the exclusive authority to regulate beach driving in those counties in which it traditionally occurred to county government in those counties. James W. Stoutamire (Stoutamire) is the principal Department employee who is charged with interpreting and applying the BOT’s rules. Stoutamire was the person to whom authority had been delegated to make such policy determinations. Burnaman's request was not presented to Stoutamire, and Reecy did not consult with Stoutamire. Although it is a statement concerning general law, Reecy's first statement regarding Section 161.58, Florida Statutes, does not assert agency jurisdiction or exempt a specific factual predicate from agency jurisdiction. Reecy also discussed Burnaman’s reference to Florida Administrative Code Rule 18-21.005(1)(b)2. with the Department's legal staff. Reecy's references to the section mistakenly cites it as Rule 18-21.005(b)2. Regardless of Reecy's intent, his answer constitutes an interpretation of the rule as applied to the fees charged by counties for beach driving. The BOT's rules provide what types of private activities must have consent prior to their being undertaken on sovereign submerged lands. They do not contain a list of all of the many public activities that occur on Florida’s beaches, shores, and waters that do not require consent. The BOT's rules in Chapter 18-21 are not intended to prevent air or noise pollution, promote public safety, protect property values, provide peace and quiet, or protect quality of life. These are the concerns about which Petitioners testified as diminishing their peaceful enjoyment of their property rights. Beach concessions above the mean high water line do not fall within the Trustees jurisdiction or control.
