Findings Of Fact Petitioner, Walter J. Zawada, is the owner of Lot 43 in College Hill Estates located at 731 Oberlin Drive, Clearwater, Florida. A residential home is situated on the lot. The property is currently zoned RS-75 (Single-Family Residence District) and was created primarily for single-family residential development. A large oak tree sits in the front yard of Zawada's property. In order to avoid cutting down the tree, the house was constructed approximately seven feet closer to the rear property line. Consequently, the back yard is smaller in size than other property owners in the neighborhood. Petitioner has constructed a 15' x 30' swimming pool in his back yard. He has also placed a concrete deck around the pool. A six foot-wooden privacy fence has been erected on the rear and side property lines. Because of the small back yard, a distance of only eight feet, nine inches lies between the edge of the pool and the north side property line. The concrete deck is only two feet from the line. Petitioner wishes to construct an aluminum enclosure on the north side of the pool. An enclosure is required to shield the pool from oak tree leaves that have clogged the pool filter. Existing zoning regulations dictate that the minimum setback from the side property line for swimming pool enclosures be no less than six feet. Under the plans submitted by Petitioner, the enclosure would be erected two feet from the side property line, thereby requiring a four-foot variance from existing regulations. Petitioner contends the variance is necessary because, if none were granted, the enclosure would have to be constructed on top of the concrete decking. This in turn would leave only two feet, seven inches of space between the edge or lip of the pool and the inside of the enclosure. Petitioner estimates that at least three feet of space is necessary in order to safely permit construction of the enclosure. He also points out that the home is unique to other property owners because a large oak tree in the front yard resulted in a smaller back yard in which to place a swimming pool. The City opposes the application on the ground Petitioner created a self-imposed hardship. It reasons that he constructed the pool and deck too close to the property line and gave no consideration to the space that would be required should an enclosure be constructed at a future date. Therefore, it contends Petitioner does not qualify for a variance.
The Issue The issue in this case is whether the DER should exempt the stormwater discharge anticipated from the initial phase of a residential development proposed by Sam Rodgers from the licensing requirements laid down by Rule 17- 4.248, Florida Administrative Code.
Findings Of Fact Sam Rodgers (applicant) proposes to alter an existing stormwater conveyance system in connection with transforming part of an orange grove in Polk County into a residential development, Foxwood Lake Estates. If all goes according to plan, the development will eventually occupy all or parts of four distinct basins. The applicant's agents furnished DER data pertaining to all four basins. The only discharge at issue in these proceedings, however, is the stormwater expected to drain from Basin III. See DER Exhibit No. 1, Master Plan-Key Map. Phase I of the development, a trailer park, would lie completely within the 123-acre expanse of Basin III, but would not completely displace the citrus trees. According to the applicant, roofs, streets, parking lots and other impervious surfaces will comprise some two-fifths of the area, when developed. DER Exhibit No. 1. Construction activity increases suspended solids in stormwater draining from construction sites. Lesser but still elevated levels of suspended solids can be expected when people take up residence. Heavy metals from automobile exhaust will end up in stormwater draining from Basin III, if some of the people moving in bring cars. Residential development also increases the biochemical oxygen demand of stormwater washing over it. The applicant proposes sodded roadside swales of varying slope to collect stormwater and, together with occasional pipes under roads, to convey it to an existing pond (Foxwood Lake), which is to be enlarged to an area of 4.82 acres. Foxwood Lake would be 12 feet deep in places. Testimony that the swales and pond would fill with silt in two or three years has not been credited, although it may not take centuries, as another expert testified. The swales will require maintenance and the applicant plans to hire somebody for that purpose. The applicant also contemplates dedicating some road rights-of-way, including swales, to Polk County. Lake Foxwood's present surface elevation of 160.58 feet above mean sea level would remain virtually unchanged, during times of moderate rainfall, at 161 feet above mean sea level. Neither groundwater tables nor the soil's storage capacity would be perceptibly altered, even during periods when the lake was temporarily elevated by the control structure planned for it. The applicant has agreed to a design that would detain on his property a volume of water equal to one inch of rainfall over the whole of Basin III for five to seven days. At the western end of Foxwood Lake, a PVC overflow pipe with a diameter of six inches would be installed in a concrete outfall structure at an elevation of 161 feet above mean sea level. At 164.55 feet above mean sea level, a vertical V-notch in the weir would allow water to spill out of Foxwood Lake, if stormwater should raise the lake's surface to that elevation. Both the overflow pipe and the V-notch would empty through a pipe 36 inches across into an intermittent tributary to Blackwater Creek, which the parties stipulated to be Class III waters. The stream into which water leaving Foxwood Lake would flow meanders west to Martin Lake, about a mile away. James M. Pollock, Jr., owns property on the western edge of Martin Lake and farms land on the lake's edge. Mr. Forrest Sawyer of 1712 Gibsonia-Galloway Road owns land to the north of Mr. Rodgers' property. Mr. Sawyer's property is generally higher ground than the Rodgers property, although three or four acres of the Sawyer property lie in a low area into which drain water from the Rodgers property as well as water from elsewhere on the Sawyer property. No water drains onto the Sawyer property from Basin III, however. Charles C. Krug, his sister, and his brother together own 40 acres abutting the west side of the northwest 40 acres of the Rodgers property. A dike along the southern boundary of the Krug property prevents water entering from the south. No water has drained onto the Krug property from the Rodgers property in the last 45 years. Dorothy Thompson lives 300 or 400 feet east of Orange Avenue which is the eastern boundary of the Rodgers property. There is a small area east of Orange Avenue in Basin III which drains west through three culverts onto the Rodgers property. The Thompson home property evidently drains to the east; however, only since the widening of U.S. Highway 98, which runs north and south to the east of Mrs. Thompson's property have heavy rains resulted in flooding on her property. The applicant gave DER notice of the changes in stormwater discharge proposed for Basin III. Water discharged from the system the applicant proposes would meet the criteria for Class III waters, according to the uncontroverted evidence. Virtually all pollutants except colloidal solids should precipitate or be filtered out by the time water leaves Foxwood Lake for waters of the state. Respondent's witness' suggestion that the swales be paved to decrease the siltation overlooks the filtration and percolation grassy swales make possible. At one time DER required that developers design stormwater systems to detain, instead of a one-inch storm, the mean annual storm, for five to seven days. The applicant's system is designed to avoid any increase in the present rate of discharge under weather conditions up to and including a 100 year 24-hour storm.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That DER grant Sam Rodgers' application for exemption from stormwater discharge licensure for Phase I of the proposed Foxwood Lake Estates. DONE AND ENTERED this 8th day of December, 1980, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 Telephone: (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of December, 1980 COPIES FURNISHED: Andrew Reilly, Esquire Post Office Box 2039 Haines City, Florida 33844 Walter R. Mattson, Esquire 1240 East Lime Street Lakeland, Florida 33801 David Levin, Esquire 2600 Blair Stone Road Tallahassee, Florida 32301
The Issue The issue to determine in this matter is whether Petitioner James Jablon’s applications for a Personal Pet No Cost Permit (PPNC) and Class III Exhibition and/or Sale License (ESC) should be denied for the reason stated in Respondent Florida Fish and Wildlife Conservation Commission’s (FWC) Notice of Denial, dated May 24, 2019.
Findings Of Fact Mr. Jablon testified that he previously owned a male lion named Ed, and possessed the appropriate Class I Wildlife License. Ed then went to live at another wildlife facility near Gainesville. Mr. Jablon testified that in July 2015, Judith Watson, who owned a wildlife sanctuary near Spring Hill, Florida, contacted him and asked him to live in a guest house at her wildlife sanctuary and inquired whether he could relocate Ed to her wildlife sanctuary. Mr. Jablon stated that Ms. Watson had a female lion named Savannah, and it was his opinion that lions should live in a “group system” and not alone. Mr. Jablon testified that he then took steps to reacquire Ed from the Gainesville facility. On October 19, 2015, Mr. Jablon applied for a Class I and/or Class II Wildlife for Exhibition or Public Sale (ESA), in the name of Wildlife Rehabilitation of Hernando, in which he sought a license to possess, inter alia, a lion. The State of Florida classifies lions (panthera leo) as Class I wildlife. See Fla. Admin. Code R. 68A-6.002(1)(a)12. Among the numerous requirements for an ESA are requirements for the facilities for the housing of Class I wildlife, “[i]n order to assure public safety.” Fla. Admin. Code 68A-6.003(2). For example, Florida Administrative Code Rule 68A-6.003(2)(c)1. requires: Property ownership/lease: The facility shall be constructed on property owned or leased by the applicant. If leased[,] the lease shall be for a term of not less than one (1) year from date of application. Such lease shall be subject to initial and annual review and approval by the commission as a condition of said lease. If the property is leased, the lessee must have exclusive rights to occupy, possess and use the property with no restrictions that could prevent the lessee from adhering to the eligibility requirements for licensure with no other in holdings or easements. The existence of any such lease restrictions or termination of the lease shall result in the denial or revocation of the license or permit. As part of his ESA application materials, Mr. Jablon provided a “Residential Lease Agreement,” dated July 31, 2015, between Ms. Watson and “James Jablon/WROH,” that generally stated that Ms. Watson agreed to rent to Mr. Jablon (and Wildlife Rehabilitation of Hernando) real property in Spring Hill, Florida, for a term of almost three months. The Residential Lease Agreement contains the signatures of Mr. Jablon, and purportedly, Ms. Watson. Thereafter, Mr. Jablon submitted to FWC a “License renewal correction update,” dated November 16, 2015, in which he provided a “correction” to the lease term to show that it was for three years, and not almost three months. This “correction” contains the initials of Mr. Jablon, and purportedly, Ms. Watson. At the final hearing, Mr. Jablon admitted that the signatures of Ms. Watson on the Residential Lease Agreement and the initials on the “License renewal correction update” were not those of Ms. Watson, but his. Mr. Jablon testified that he signed Ms. Watson’s signature and initials to these documents with Ms. Watson’s permission. Mr. Jablon further testified: We weren’t really concerned about the legality of the lease, because neither one of us had any intention of enforcing the lease. I wasn’t technically a tenant there leasing the property. I was over there to help her run that facility and work with her. So if you look at the lease, there’s really nothing—it’s basically the way it came in the package. . . . So, I mean, we didn’t—we didn’t care about the lease. Ms. Watson testified that she never asked Mr. Jablon to create a lease for the Spring Hill property, never gave him permission to sign her name on a lease, and never gave him permission to sign a “License renewal correction update.” Ms. Watson, who testified that she was familiar with the requirements for an ESA for Class I wildlife, also testified, consistently with Mr. Jablon, that the two had discussed moving Ed to her property to live with Savannah. The undersigned does not find Ms. Watson’s testimony credible concerning the creation of a lease for the Spring Hill property. As an owner of a lion, who testified that she was familiar with the requirements for an ESA for Class I wildlife, Ms. Watson knew of rule 68A-6.003(2)(c)1.’s requirement that an ESA permittee must own or lease the property upon which the wildlife would reside. By asking Mr. Jablon to move Ed to her property to live with Savannah, the undersigned finds that Ms. Watson would have known of this requirement that Mr. Jablon either own or lease the property where Ed would live. As Mr. Jablon did not own Ms. Watson’s Spring Hill property, the undersigned finds that Ms. Watson would have known that Mr. Jablon would need to lease the Spring Hill property to legally possess an ESA and locate Ed on the Spring Hill property. However, the undersigned also finds, based on his own testimony, that Mr. Jablon falsified Ms. Watson’s signature on the lease, as well as her initials on the “License renewal correction update,” which he submitted to FWC as part of his ESA application. His explanation for doing so--that neither he nor Ms. Watson intended to enforce the lease and renewal documents-- further indicates to the undersigned that Mr. Jablon intended to submit materially false documents to FWC in the ESA application process. On February 19, 2019, FWC received Mr. Jablon’s application for a PPNC and ESC. In its May 24, 2019, Notice of Denial, FWC stated: On May 12, 2016, Ms. Watson provided a sworn statement to Investigator Chad Paul stating that the lease [submitted with the October 19, 2015, application for ESA] was a falsification. In comparing signatures from Ms. Watson over the years to the lease you submitted, FWC confirmed the signature did not belong to Ms. Watson. The Notice of Denial further states, “[b]ased on your prior submission of materially false information, your applications [for a PPNC and ESC] have been denied.” The undersigned finds that competent, substantial evidence supports FWC’s determination that Mr. Jablon submitted materially false information when he applied for an ESA in 2015.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, the undersigned RECOMMENDS that the Florida Fish and Wildlife Conservation Commission issue a final order denying Mr. Jablon’s PPNC and ESC applications. DONE AND ENTERED this 27th day of September, 2019, in Tallahassee, Leon County, Florida. S ROBERT J. TELFER III 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 27th day of September, 2019. COPIES FURNISHED: James Jablon 15297 Highfield Road Brooksville, Florida 34604 Joseph Yauger Whealdon, Esquire Florida Fish and Wildlife Conservation Commission 620 South Meridian Street Tallahassee, Florida 32399-1600 (eServed) Eric Sutton, Executive Director Florida Fish and Wildlife Conservation Commission Farris Bryant Building 620 South Meridian Street Tallahassee, Florida 32399-1600 (eServed) Harold G. “Bud” Vielhauer, General Counsel Florida Fish and Wildlife Conservation Commission Farris Bryant Building 620 South Meridian Street Tallahassee, Florida 32399-1600 (eServed)
The Issue The issue for consideration in this case is whether A-1 Security and Detective Agency’s Class B security agency license, and Mr. Rozzi’s Class MB security agency manager license should be disciplined because of the matters set out in the Administrative Complaint filed herein.
Findings Of Fact At all times pertinent to the issues herein, between May 5 and August 4, 1997, the Petitioner, Department of State, Division of Licensing (Division) was the state agency responsible for the licensing of security agencies and security agency managers in Florida. Respondent, A-1 Security and Detective Agency, Incorporated (A-1) held a Class “B” security agency license number B89-0115; and Respondent, Stephen V. Rozzi, held a Class “MB” security agency manager’s license number MB89-00186. Respondent Rozzi was President and operating manager of A-1. At some point during the period in issue, Gary Q. Floyd, an investigator with the Division, received a call from the owner of another security agency who reported a potential problem. At the time, Mr. Floyd was nearby and responded immediately to the apartment complex which belonged to a client of the individual who had called in. His review of the security logs revealed abnormal entries. Returning to the Division office, Floyd checked on the license status of the guard in question who had made the questionable entries and found that this guard was not licensed. The guard, Carmen Santiago, had applied for a class “D” license as a security guard, but because of a prior disciplinary problem out-of-state, the Division had indicated its intent to deny the license. Santiago was employed by Respondent, A-1. Coincidentally, the following morning, Respondent Rozzi came to the Division office on another matter and Floyd showed him the questioned logs. Respondent agreed that the entry was unusual, but said he had terminated Santiago from employment with A-1 as a guard on July 30, 1997, before the date of the questioned entry. Floyd asked Rozzi which guard had worked on the site on Wednesday, July 30, 1997, and on Thursday, July 31, 1997, after Santiago had been terminated. Respondent indicated the replacement guard was a Mr. Michelin. The log entries in question, which got the interest of Floyd, indicated that Santiago, who was not properly licensed as a Class “D” security guard, had served as such at the Whisper Woods Apartments. By pre-hearing stipulation dated June 10, 1998, Rozzi agreed that he had employed Santiago at Whisper Woods Apartments during the period July 30 to July 31, 1997, and that Santiago did not have the proper license at the time. Rozzi indicated at hearing that he received notice from the Division to the effect that Santiago’s application for licensure as a security guard was being denied, but claims he did not receive the notice until he picked up his mail at about 9:00 p.m., on July 31, 1997. As soon as he got that word, Rozzi claims, he called Santiago at home but was unable to reach him. Nonetheless, he left word on Santiago’s answering machine for him not to report for work that evening. In his report to the Division made previously, he indicated he had fired Santiago on July 30, 1997. At hearing Rozzi claimed he back-dated the firing to the date he received the information on the denial, which would have been July 30, not July 31, 1997. However, Rozzi had already indicated he had notified Mr. Michelin, who was scheduled to work on July 30 and 31 at Fletcher Woods Apartments, to go instead to Whisper Wood Apartments to relieve Santiago. Mr. Carter, another employee, was to take Michelin’s place at Fletcher Wood Apartments. When asked to asked to explain the inconsistencies, he could not do so. Carter, when interviewed by Floyd on August 5, 1997, as a part of the investigation, stated he did not work at Fletcher Woods Apartments that night nor has he ever worked there. Carter also indicated that when he was contacted by Rozzi shortly before August 5, 1997, Rozzi told Carter, to say, if he were asked, that he had worked at Fletcher Woods on the night of July 31, 1997. When Floyd advised Rozzi of Carter’s story, Rozzi still declined to change his version. Santiago is disqualified from licensure as a security guard in Florida because of his conviction of a felony in another state. Nonetheless, he applied for a security guard license in Florida in April or May 1997. At the time he applied, he received a temporary Class “D” license which allowed him to work pending action on the permanent license application, and he started work at A-1 as a security guard at different locations wherever he was posted. From time to time, including on July 30 and 31, 1997, he worked at Whisper Woods Apartments. On July 30, 1997, Santiago went to work at 4:00 p.m., intending to stay until relieved at the end of his shift, at 1:00 a.m., on July 31, 1997. At the time he went to work, he did not know that his application for licensure had been denied, nor did he know of the denial when he went to work on July 31, 1997. He claims he did not go home after work on either July 31 or early on August 1, 1997. Santiago claims he first learned of the denial when he got home later in the day on Friday, August 1, 1997, to find Floyd at his door. During the conversation he had with Floyd which followed, Floyd advised him that his license had been denied. This was the first he had heard of the denial, he claims. Santiago indicates that as soon as Floyd told him that, he left Floyd in his apartment and immediately went to his mailbox where he found the denial letter from the Division. There is some evidence to indicate that Santiago told Floyd in another interview prior to the hearing, that he had received the letter informing him of the denial on either July 30 or July 31, 1997. At hearing he claims that he was referring to a letter from the Division soliciting more information. This contention is rejected, however, since it is considered unlikely the Division would seek additional information and reject the application almost concurrently with the request. After Floyd left Santiago on August 1, 1997, Santiago immediately called Rozzi to tell him he could no longer work. Santiago claims Rozzi was upset with him when he called, claiming that he, Rozzi had tried to call Santiago a few days earlier to tell him not to go to work, but Santiago had not received the message or called him back. However, Santiago was at work at Whisper Woods Apartments from 4:00 p.m., on July 30, 1997, until 1:00 a.m., on July 31, 1997, and again that evening, and no one came to the job site either evening to talk with him about his status. This was, he claims, even after he told Rozzi that he, Rozzi, was going to get a letter indicating Santiago’s license was denied. Santiago claims that at no time after that notice did Rozzi terminate him or advise him he would be terminated when the letter came in. Rozzi contended at hearing that the first time he heard anything about the problem with Santiago working was on August 1, 1997, when he was in the Division office on a probation matter. It was at that time that Floyd showed him the logs from Whisper Woods Apartments and asked him about what appeared to be differences in the handwriting on them. Floyd also asked him at that time if he knew Santiago’s license was going to be denied. Rozzi said then that he had first learned of the problem on July 31, 1997. That same day, Rozzi claims, he made arrangements for someone else to cover that post so that Santiago would not be on duty, and Rozzi insists he did not know that this had not happened until the next day. Analysis of and comparison of the varied stories told by Rozzi regarding when he found out that Santiago’s license was being denied results in the conclusion that Rozzi found out on July 30, 1997. Had he not known, he would have had no reason to contact Michelin and tell him to switch duty assignments or to call Santiago and leave the message not to go to work any more. However, Michelin did not testify at the hearing, and the evidence of what he told Floyd regarding this is hearsay evidence. Even if Rozzi received the notice on July 30, 1997, as it appears, by his own admission he did not receive it until mid- evening, at a time when Santiago would have already been at work on the 4:00 p.m. to 1:00 a.m. shift. There is no way he could have reached Santiago that evening. Knowing this, Rozzi still did not make any effort to contact Santiago by going to the work site and relieving him by taking a relief guard with him. Consequently, it is found that regardless of which day Rozzi found out about Santiago’s disqualification, he did nothing to ensure that Santiago did not serve as a security guard without a license. Merely calling Santiago and leaving a message on the answering machine is not enough. At the least, he should have gone to the site to insure Santiago was not on duty. At this initial interview, Floyd also showed Rozzi a copy of one of A-1’s invoice forms which reflected at the bottom that the firm was available to perform certain tasks which were limited to a licensed detective agency and not permitted to a security agency. Rozzi indicated that he had copied the information from an advertisement of another agency, but assured Floyd that A-1 was not doing the unauthorized work. No evidence was introduced to indicate it was, and it is so found. Rozzi agreed to remove the inappropriate language from any form or communication used by the firm immediately. He did so. On December 31, 1996, the Director of the Division of Licensing entered a Final Order in Case No. C96-00855 relating to the two Respondents herein, adopting and incorporating the terms of a Stipulation and Settlement entered into between the division and the Respondents in that case. None of the documentation submitted in connection with that case indicates what offenses were alleged to have been committed by either Respondent. The terms of the Stipulation and Settlement called for the Respondents’ licenses to be placed on probation for a period of two years, and for Respondents to pay an administrative fine of four thousand dollars.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of State, Division of Licensing, enter a Final Order finding Respondents guilty of employing an unlicensed employee to perform services which require the possession of a license; of advertising the business of a private investigative agency without possessing the proper license; of failing to respond truthfully to questions asked by an authorized investigator during an official investigation; and of violating the terms of probation by committing violations of Chapter 493, Florida Statutes. It is further recommended that Respondents’ class “B” and Class “ MB” licenses as a security agency and security agency manager respectively, be revoked. DONE AND ENTERED this 25th day of August, 1998, in Tallahassee, Leon County, Florida. ARNOLD H. POLLOCK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6947 Filed with the Clerk of the Division of Administrative Hearings this 25th day of August, 1998. COPIES FURNISHED: Douglas D. Sunshine, Esquire Department of State Division of Licensing The Capitol Mail Station 4 Tallahassee, Florida 32399-0250 Rayford H. Taylor, Esquire Stiles, Taylor, Grace & Smith, P.A. Post office Box 1140 Tallahassee, Florida 32302 Honorable Sandra B. Mortham Secretary of State The Capitol Tallahassee, Florida 32399-0250 Don Bell, General Counsel Department of State The Capitol Plaza Level 02 Tallahassee, Florida 32399-0250
The Issue The issue in this case is whether the Homeowner’s Association of Eagle Creek, Inc., (Respondent) discriminated against Stanley Byrdsell (Petitioner) based on race or disability.
Findings Of Fact At all times material to this case, the Petitioner was a homeowner at, and resident of, a residential community identified as “Eagle Creek” in Orlando, Florida. The Petitioner is an African-American male. On occasions during his residency at Eagle Creek, the Petitioner relied on a wheelchair for mobility following surgeries related to injuries sustained in automobile accidents. The Respondent is the legal entity created, in relevant part, to manage common areas at Eagle Creek, to enforce various Eagle Creek property restrictions, and to collect assessments from Eagle Creek homeowners. The Petitioner’s complaint of discrimination by the Respondent was essentially focused on his interactions with Maria Loffredo, the Respondent’s manager during the time the Petitioner resided at Eagle Creek. Ms. Loffredo is no longer employed by the Respondent. The evidence is insufficient to establish that the Respondent, or any person employed by the Respondent, discriminated against the Petitioner in any manner based on his race or disability. The evidence is insufficient to establish that the Respondent, or any person employed by the Respondent, treated the Petitioner in any manner differently than any other resident of Eagle Creek. UNPAID ASSESSMENTS Collection of assessments from Eagle Creek homeowners appears to have been a substantial issue for the Respondent. At one point during the relevant period, approximately 60 percent of Eagle Creek homeowners, including the Petitioner, were delinquent in paying assessments to the Respondent. The Respondent routinely provided delinquent homeowners with an opportunity to become current on unpaid assessments by making periodic installment payments of the funds due. The periodic payment plans were documented by written agreements executed between the Respondent and the participating homeowners. The Petitioner was offered the opportunity to enter into such an installment payment plan to satisfy the unpaid assessments, but did not do so. The evidence fails to establish that the Respondent’s efforts to collect the unpaid assessments from the Petitioner were in any manner different from the collection efforts routinely applied to all Eagle Creek homeowners who were in arrears on assessment payments. The Petitioner testified that he and Ms. Loffredo entered into a verbal agreement whereby he would provide web design services to the Respondent in an amount equal to his unpaid assessments. The Petitioner offered no documentation to support the assertion. Ms. Loffredo denied entering into such an agreement and testified that she had no authority to enter into a contract with the Petitioner without approval by the Respondent’s board of directors. There is no evidence that the board of directors ever considered any such agreement between the Petitioner and the Respondent. The evidence fails to establish the existence of any agreement between the Petitioner and the Respondent regarding web design services. THE PLYWOOD RAMP As previously stated, the Petitioner occasionally relied on a wheelchair for mobility. During those times, the Petitioner placed a sheet of plywood across an entry step at the front of his house to facilitate his entry into the home. On more than one occasion, Ms. Loffredo contacted the Petitioner to inquire about his use of the plywood ramp. The Petitioner has asserted that Ms. Loffredo harassed him about the ramp, and that her inquiries were discriminatory. At the hearing, the Petitioner’s former girlfriend testified that she believed Ms. Loffredo was rude or disrespectful during the inquiries. The evidence fails to establish that Ms. Loffredo’s inquiries were discriminatory in any manner. The Respondent took no action whatsoever to prohibit or restrict the Petitioner’s use of the ramp. COMMUNITY INSPECTIONS The Petitioner has asserted that Ms. Loffredo targeted his home for various inspections in order to harass or intimidate him because of his race or disability. The evidence fails to establish that the Petitioner’s residence was inspected more frequently than that of other homeowners in Eagle Creek, or that the Petitioner was subjected to property restrictions different from those applied to other homeowners. RACIAL SLUR The Petitioner has asserted that, on one occasion, he observed Ms. Loffredo parked in front of his house, and alleged that when he approached her to ask about her presence, she responded by directing a racial slur towards him and then driving off. Ms. Loffredo testified that she routinely went through the Eagle Creek community to monitor homeowner compliance with property restrictions, but denied making the statement attributed to her by the Petitioner. The evidence is insufficient to establish that the alleged racial statement occurred. ENTRY GATE REMOTE CONTROLS Eagle Creek is a private community. Entry into Eagle Creek is through gated and guarded access points. Residents entering the community use coded electronic devices to open the gate. Residents, as well as non-residents, can also gain entry into the community by stopping at a guardhouse, where security personnel are present on a 24-hour basis. The Respondent’s governing documents provide that a resident’s electronic gate access can be suspended for non- payment of assessments. At some point after the Petitioner became delinquent in payment of assessments, the Respondent disabled the Petitioner’s entry codes, thereby suspending the Petitioner’s ability to enter the development through the electronic gate. The Respondent suspended electronic gate access for numerous residents who were delinquent in paying assessments. The evidence fails to establish that the suspension of the Petitioner’s electronic access codes was related to the Petitioner’s race or disability. Notwithstanding the Petitioner’s non-payment of assessments, the Petitioner’s ability to enter through the electronic gate system was restored after he provided a letter to the Respondent asserting that one of the Petitioner’s children had a medical condition. GATE INCIDENT At some point as the Petitioner drove a vehicle through an open electronic entry gate, the wooden gate came down onto the Petitioner’s vehicle before it had cleared the entry point. The gate was damaged as the Petitioner continued to drive as the gate came down. Ms. Loffredo became aware of the incident when witnesses who observed the Petitioner driving through the entry reported it to her. The gates are common property owned by the Respondent. Ms. Loffredo thereafter contacted law enforcement authorities to document the incident, and she went to the gate to observe the damaged gate. The evidence fails to explain why the gate closed while the Petitioner’s vehicle was proceeding through it. Although the Petitioner generally asserted that Ms. Loffredo committed some type of discriminatory act towards him in relation to these events, there is no evidence to support the assertion. VANDALISM On one occasion, a group of juveniles accompanied by an adult drove through a part of Eagle Creek while tossing raw eggs at presumably random houses and cars. The Petitioner’s residence and vehicle were hit and damaged by the eggs. Before the vandals managed to escape from Eagle Creek, the Petitioner and a neighbor managed to stop and detain them, and then contacted local law enforcement authorities. Ms. Loffredo became aware of the incident, and came to the scene while the law enforcement authorities were present. Ms. Loffredo determined that there was no damage to the Respondent’s property and apparently so advised the law enforcement authorities. The Petitioner has asserted that Ms. Loffredo also told law enforcement officers to refrain from prosecuting the vandals for the apparent damage to private property caused by the event, and that her actions in this regard were discriminatory towards him. There is no evidence that the Petitioner filed any complaint with local law enforcement or pursued any legal action against the vandals. Ms. Loffredo denied telling the law enforcement authorities not to prosecute the vandals for damage to private property. There is no evidence that Ms. Loffredo had any authority to prevent the prosecution of the vandals. Even presuming that Ms. Loffredo somehow had the authority to prevent prosecution of neighborhood vandals, the Petitioner’s claim that Ms. Loffredo discriminated against him based on race or disability would suggest that the vandals were prosecuted for damage to houses or vehicles owned by other residents of Eagle Creek. There was no evidence presented that the vandals were prosecuted on behalf of any Eagle Creek homeowner. The evidence fails to establish that Ms. Loffredo had any authority or took any action to prevent criminal prosecution of the vandals for damage to the Petitioner’s private property, or to that of any other Eagle Creek resident. LOCAL GOVERNMENT CODE ENFORCEMENT The Petitioner has asserted that the Respondent targeted his residence by frequently filing various complaints with the local housing code enforcement agency. While local housing code enforcement inspectors apparently received a number of complaints about the condition of the Petitioner’s residence, the evidence fails to establish that the Respondent was the source of the complaints. Further, there is no evidence that such complaints were related to the Petitioner’s race or disability.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief filed by Stanley Byrdsell. DONE AND ENTERED this 15th day of December, 2014, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM 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 15th day of December, 2014. COPIES FURNISHED: Karen Wonsetler, Esquire Suite 135 860 North Orange Avenue Orlando, Florida 32601 (eServed) Stanley Byrdsell Post Office Box 1645 Windermere, Florida 34786 (eServed) Cheyanne Michelle Costilla, General Counsel Florida Commission on Human Relations Suite 100 2009 Apalachee Parkway Tallahassee, Florida 32301 (eServed) Sarah Elizabeth Gammon, Esquire Law Office of Karen Wonsetler, P.A. Suite 135 860 North Orange Avenue Orlando, Florida 32801-1011 (eServed)
Findings Of Fact In 1982 Petitioner erected a stilt home on the beachfront lot located at 926 Eldorado Avenue. The property is zoned RS-50. Prior thereto the property had been vacant and fenced with a four-foot chain link fence to keep trespassers off the property. The original fence was erected before the zoning regulations were passed, and upon passage of these regulations the fence became nonconforming. This fence was removed to facilitate construction of the residence and, when Petitioner applied for a permit to replace the fence, he was told he needed a variance and the proceedings leading to this appeal were started. His application for a permit came within less than one year from the time the fence was removed. Property in the vicinity is characterized by the use of four-foot chain link fences. The property immediately to the north of Petitioner's property has a four-foot chain link fence across the front of the property. Most of the other fences in the area are located on the sides of the property. Although there is a public access to the beach in the near vicinity of Petitioner's property, people cross Petitioner's property to get to the beach, park in his driveway, discard litter on his property, and even use the private outdoor shower on his mother's adjacent property. The regulations would allow Petitioner to erect a 30-inch fence on the front of his property. This would not contain the large dog Petitioner has. If the front fence were set back to the front of Petitioner's house and from each corner thereof run to the fence at each side of his property, this would not keep trespassers off his property, because people could walk up his driveway and under the stilt house.
The Issue The issue is whether proposed amendments to the Collier County comprehensive plan are in compliance with the criteria of Chapter 163, Part II, Florida Statutes, and Chapter 9J-5, Florida Administrative Code.
Findings Of Fact Background Located in southwest Florida, south of the Caloosahatchee River and southeast of Lake Okeechobee, Collier County comprises about 2000 square miles or 1.28 million acres. The County borders the Gulf of Mexico on the west, Lee and Hendry counties on the north, Broward and Dade counties on the east, and Monroe County and the Gulf of Mexico on the south. Contiguous tracts of government-owned land occupy much of the County, especially the southeast portion of the County. These tracts include the Big Cypress National Preserve, Everglades National Park, Fakahatchee Strand State Preserve, Ten Thousand Islands Aquatic Preserve, Collier Seminole State Park, and, at the northwest corner of these public holdings, the Florida Panther National Wildlife Refuge. The area that is the subject of the present case is the Big Cypress Area of Critical State Concern (Big Cypress). The Big Cypress contains about 931,000 acres, of which about 778,000 are in Collier County. This represents about 60 percent of the County. Encompassing nearly all of the government-owned land identified in the preceding paragraph, as well as smaller areas of privately owned land, the Big Cypress will eventually extend to about 92 percent of the County. On July 23, 1996, the Collier County Board of County Commissioners adopted Ordinance No. 96-41. The ordinance would amend the future land use element (FLUE) of the comprehensive plan (as amended, the Plan) of Respondent Collier County (County). Petitioner Gary L. Beardsley (Beardsley) is an environmental consultant who has worked in Collier County since 1984. He appeared before the Collier County Board of County Commissioners when the Board was considering the adoption of the plan amendments. Petitioner Environmental Confederation of Southwest Florida, Inc. (ECOSWF) is a confederation of about 50 organizations in Collier, Lee, Hendry, Charlotte, Sarasota, and DeSoto counties. Through its representative, Beardsley, ECOSWF appeared before the Collier County Board of County Commissioners when the Board was considering the adoption of the plan amendments. Intervenors Barron Collier Partnership and Collier Enterprises are general partnerships. Intervenors Russell A. and Aliese Priddy; John E. Price, Jr.; and James E. Williams, Jr. are residents of, and maintain their primary places of business in, Collier County. Intervenors own over 56,000 acres in the Big Cypress. Their land is zoned agricultural, and they engage in active agricultural activities on much of this land. Barbara Cowley, as representative of Intervenors, submitted comments to the Collier County Board of County Commissioners while the Board was considering the plan amendments. Plan Provisions The challenged plan amendments would reinstate three agricultural exemptions from land-use restrictions otherwise imposed by the Plan upon agricultural activities in the Big Cypress. The land-use restrictions presently in effect limit site alterations, drainage, and structural installations in the Big Cypress with no exemption for agricultural activities. The Plan originally exempted agricultural activities from the prohibitions against site alterations, drainage, and structure installations in the Big Cypress. In 1991, when adopting its land development regulations, Collier County amended the Plan to eliminate these agricultural exemptions in the Big Cypress. Adopting a recommendation of a citizen advisory committee, Collier County reasoned that “agricultural uses are intensive uses which alter the land significantly and should be regulated with regard to the site alteration, drainage, and structure installation requirements as other land uses are within the Critical Area.” Five years later, Collier County decided to readopt the original agricultural exemptions in the land development regulations and the Plan. A fourth plan amendment in the adoption ordinance affects land uses outside the Big Cypress; it is restated below, but Petitioners have challenged only the three amendments reinstating the original agricultural exemptions. The proposed plan amendments would change the FLUE. Following the FLUE goals, objectives, and policies, the FLUE provides detailed explanations of the FLUE designations. Although not in the form of goals, objectives, and policies, these explanations are operative provisions of the Plan. The proposed plan amendments would revise the explanatory section entitled, “Area of Critical State Concern Overlay” (Overlay). The Overlay applies to land uses in the Big Cypress. As originally adopted, the Plan required that all “development orders” comply with Chapter 27F-3, Florida Administrative Code, which regulated activities in the Big Cypress. (Chapter 28-25 has since superseded Chapter 27F-3.) As amended in 1993, the Plan now provides that development orders in the Big Cypress must comply with the rules of Chapter 27F-3 or the Overlay provisions, whichever are more restrictive. Overlay Section A addresses site alterations, Overlay Section B addresses drainage, and Overlay Section D addresses structure installations. Overlay Section A.1 provides: Site alterations shall be limited to ten percent of the total site size, and installation of nonpermeable surfaces shall not exceed 50 percent of any such area. However, a minimum of 2,500 square feet may be altered on any permitted site. The original agricultural exemption for site alterations was contained in Overlay Section A.8, which provided: “This rule [i.e., the Overlay provisions governing site alterations] shall not apply to site alterations undertaken in connection with the agricultural use of land or for the conversion of land to agricultural uses.” The proposed plan amendments would readopt this original language. The plan amendment not challenged by Petitioners eliminates the percentage limitation for site alterations for conservation purposes. The unchallenged plan amendment states (new language underlined and repealed language stricken through): For land zoned agricultural Estates, outside of the Area of Critical State Concern, and identified as Southern Golden Gate Estates in Goal 2 of the Golden Gate Area Master Plan, that is engaged in or is proposing bona fide agricultural use(s), site alteration percentage limits may be adjusted for site alteration activities designed for conservation and/or environmental purposes as set forth in an environmental impact statement approved by the Board of County Commissions. Such site alteration activities include: (i) prescribed fires and associated firebreaks as approved by the Florida department of forestry; (ii) removal and control of listed exotic plant species; (iii) native habitat occurring plant species; (v) [sic] restoration of historical hydroperiods; and (vi) other activities designed for conservation and environmental purposes reviewed on a case by case basis. Overlay Section B addresses drainage in the Big Cypress. Section B.2 requires new drainage facilities to release water in a manner approximating the natural local surface flow regime . . . either on-site or to a natural retention or filtration and flow area. New drainage facilities shall also maintain a groundwater level sufficient to protect wetland vegetation through the use of weirs or performance equivalent structures or systems. Said facilities shall not retain, divert, or otherwise block or channel the naturally occurring flows in a strand, slough, or estuarine area. Originally, Section B.4 provided: “This rule shall not apply to drainage facilities modified or constructed in order to use land for agricultural purposes or to convert land to such use.” The proposed plan amendments would readopt this original language. Overlay Section D addresses the installation of structures in the Big Cypress. Section D.1 requires that the “[p]lacement of structures shall be accomplished in a manner that will not adversely affect surface water flow or tidal action.” Originally, Section D.3 provided: “This rule shall not apply to structures used or intended for use in connection with the agricultural use of the land.” The proposed plan amendments would readopt this original language. Goal 1 of the Conservation and Coastal Management Element (Conservation) states: “The County shall continue to plan for the protection, conservation, management and appropriate use of its natural resources.” Conservation Objective 1.1 states: By August 1, 1994, the County will complete the development and implementation of a comprehensive environmental management and conservation program that will ensure that the natural resources, including species of special status, of Collier County are properly, appropriately, and effectively identified, managed, and protected. . . . The FLUE also contains an overlay for areas of environmental concern. However, the only significance of this overlay is that the County promises later to adopt land development regulations governing development in such areas. As a Plan provision, this overlay does not directly protect any natural resources. The Plan contains definitions to clarify terms used in the Collier County Comprehensive Plan and not to establish or limit regulatory authority of other agencies or programs. Some definitions have been changed from those found in Chapter 163, Florida Statutes to reflect local usage. Paragraph 64 of the definitions defines “development” as the “act, process, or result of placing buildings and/or structures on a lot or parcel of land or clearing and/or filling of land.” A “note” at the end of the explains the meaning of “properly,” “appropriate(ly),” and “effective(ly).” The note explains that these words are used to allow the Board of County Commissioners flexibility in its decision making process for the issuance of development orders . . .. Because several areas of this plan identify future studies and/or programs, flexibility was reserved by the Board of County Commissioners until these studies and programs have been completed and specific statements could be developed for inclusion in the Growth Management Plan through the amendment process. DCA Review of the Proposed Plan Amendments The County transmitted the proposed plan amendments to Respondent Department of Community Affairs (DCA) to determine whether they are in compliance, as required by Section 163.3184(1)(b). By Objections, Recommendations, and Comments (ORC) issued February 9, 1996, DCA announced objections that, if not addressed, could have provided the basis for a determination that the plan amendments were not in compliance. The ORC contends that the plan amendments are not supported by data and analysis. The ORC states that Collier County did not provide any data and analysis to “justify reinstatement of the agricultural exemptions.” The ORC recommends that the County describe the conditions that have “occurred or changed to warrant reinstatement of the agricultural exemptions” and “consider and assess the practicality of allowing less than 100 percent clearing in areas where significant natural resources occur or could be adversely affected.” The ORC notes that Collier County provided no analysis of the environmental impacts that could result from reinstating the agricultural exemptions. The ORC contends that the plan amendments are internally inconsistent. The ORC explains that reinstatement of the agricultural exemptions creates a “potential for loss (through clearing activities) of natural resources such as wetlands and listed species['] habitats.” The ORC questions the consistency of the reinstatement of the agricultural exemptions, with the attendant loss of natural resources, with Conservation Goal 1 and Objective 1.1. The ORC suggests that the County consider additional protection from agricultural uses for areas within the Big Cypress that contain “significant natural resource areas.” The ORC contends that the plan amendments are inconsistent with Goal 8 and Policy 8.10 and Goal 10 and Policies 10.1, 10.3, 10.5, and 10.7 of the State Comprehensive Plan, as set forth at Section 187.201, Florida Statutes. The ORC contains the comments of various state and regional agencies, including the Southwest Regional Planning Council, Department of Environmental Protection (DEP), and South Florida Water Management District (SFWMD). The Southwest Regional Planning Council determined that the plan amendments were consistent with the Strategic Regional Policy Plan of the Southwest Regional Planning Council and recommended that Collier County, SFWMD, or another entity monitor the impacts in the Big Cypress of the agricultural activities that would be permitted by the amendments. DEP noted that Collier County had not analyzed the impact of the readoption of the agricultural exemptions on lands designated for agricultural use. DEP mentioned that agriculturally designated lands may include sensitive habitats used by threatened or endangered species and thus “deserve a special classification.” DEP also linked agricultural practices in the area to problems in water quality and quantity, as well as disturbed hydroperiods. For these reasons, DEP suggested that the County designate appropriate lands as Conservation and enlist DEP’s assistance in forming stewardship alliances with landowners in the Big Cypress to preserve these natural resources. SWFWMD commented that it does not exempt most agricultural activities from its Environmental Resource Permitting requirements. But SWFWMD added that the “site alteration and drainage regulations of the . . . Overlay represent a valuable addition.” The County did not revise the proposed plan amendments after receiving the ORC. Explaining the County’s position, a staff memorandum dated March 4, 1996, asserts that the proposed amendments are supported by data and analysis because the amendments achieve consistency with Chapter 28-25, do not prevent the County from adopting land development regulations to protect the affected natural resources, and affect a small amount of undeveloped land (14 of 81 square miles) as compared to the large amount of land owned or about to be owned by public entities. The March 4, 1996, memorandum disclaims any inconsistency between the proposed plan amendments and Conservation Goal 1 and Objective 1.1. In support of this claim the memorandum cites Policy 1.1.2, which calls for the adoption of land development regulations incorporating the Conservation goals, objectives, and policies; Policy 1.1.5, which is to avoid duplication of effort with private and public agencies; and Policy 1.1.6, which is to balance the benefits and costs of the County conservation program between the public and private sectors. On September 9, 1996, DCA published in the Naples Daily News its Notice of Intent to find the proposed plan amendments in compliance. On September 30, 1996, Petitioners filed their petition challenging the proposed plan amendments. Data and Analysis In its proposed recommended order, Collier County cites as supporting data and analysis the same items asserted in the March 4, 1996, memorandum. In isolation, these items offer little, if any, support for the readoption of the agricultural exemptions. In the context of the readily available data and analysis, the data and analysis on which the County relies provide no support for the blanket reinstatement of the agricultural exemptions proposed by the plan amendments. The County argues that the reinstatement of the agricultural exemptions is supported by the presence of an identical exemption in Chapter 28-25 for agricultural activities in the Big Cypress. This argument treats the rules protecting areas of critical state concern as a “safe harbor” so that, if incorporated into a local government’s comprehensive plan, they assure a finding of supporting data and analysis. The effect of this argument is that comprehensive plans would provide greater protection from agricultural activities to natural resources outside areas of critical state concern than they would provide the same natural resources in areas of critical state concern. The County implies that the proposed plan amendments would have little effect because relatively little land of the affected land remains undeveloped, most of the land is in public ownership, and much of the remainder of the land will be in public ownership. Although the percentage of such undeveloped, privately owned land may be low, the actual area remains significant. Also, proposed agricultural exemptions apply to land already in agricultural use, not just undeveloped land proposed for conversion to agricultural use. Each proposed exemption applies to activities “to use land for agricultural purposes or to convert land for such use.” Obviously, adding privately owned agricultural land to privately owned undeveloped land means that the proposed exemptions would affect even more land. Lastly, the County, in effect, argues for a relaxation of land-use restrictions on land just prior to its public acquisition. Such an action would jeopardize the purpose of what has been an ambitious land-acquisition program to protect the important natural resources of this area. The County argues that its land development regulations protect any natural resources left vulnerable by the reinstatement of the agricultural exemptions. As compared to plan provisions, land development regulations are easily repealed and do not generally, in the best of circumstances, supply much support, as data or analysis, for plan provisions. This case does not present the best of circumstances given the valuable and extensive natural resources and the reliance on land development’s regulations to the exclusion of the Plan provisions that the County effectively proposes to repeal with the reinstatement of the agricultural exemptions. The County argues that other permitting regimes govern agricultural uses in the Big Cypress. Most notably, the area of critical state concern program obviously does not. The vigorous participation of the Intervenors and the comments of the SFWMD suggest that the failure to reinstate the three agricultural exemptions in the Plan would meaningfully restrict agricultural activities. In any event, authority dictating avoidance of duplicative permitting regimes was not intended to prohibit the County from strengthening Plan protections for the natural resources found in the Big Cypress. For the reasons stated in the preceding paragraphs, the County’s data and analysis do not support the proposed plan amendments. In fact, the proposed plan amendments are repudiated by considerable data and analysis that the County has ignored. These data and analysis have emerged since the adoption of the Plan and 1993 plan amendments, but prior to the adoption of the proposed plan amendments. Two sources of these data and analysis are the Florida Panther: Habitat Preservation Plan—South Florida Population, which was issued in November 1993 by individuals employed by the U.S. Fish and Wildlife Service, Florida Game and Fresh Water Fish Commission, Florida Department of Environmental Protection, and National Park Service for the Florida Panther Interagency Committee (Habitat Preservation Plan), and Closing the Gaps in Florida’s Wildlife Habitat Conservation System, which was issued in 1994 by individuals employed by the Florida Game and Fresh Water Fish Commission (Closing the Gaps). The Habitat Preservation Plan notes that the U.S. Fish and Wildlife Service designated the Florida panther as a federal endangered species 30 years ago. Fourteen years later, the U.S. Fish and Wildlife Service approved a recovery plan for the Florida panther. The Service revised the plan six years later in 1987. The purpose of the 1987 recovery plan is to develop three viable, self-sustaining populations within the historic range of the Florida panther. This range extended through the entire southeast, not just Florida. Recovery efforts focus on three elements: stabilizing the south Florida population, preserving and managing genetic resources, and reestablishing at least two more populations elsewhere. The Habitat Preservation Plan warns that these “three elements must proceed simultaneously if recovery of the Florida panther is to be successful.” Habitat Preservation Plan at page 1. Focusing on the first element, the Habitat Preservation Plan identifies “actions that will assure the long-term preservation of habitats considered essential for maintaining a self-sustaining population of panthers in south Florida” (emphasis deleted). Id. at page 2. The Habitat Preservation Plan reports that a self- sustaining population requires at least 50 adult panthers. Id. The Habitat Preservation Plan estimates that the south Florida panther population appears stable at 30-50 adult animals. Id. at page 1. However, the plan, at page 2, cautions: Important panther habitat is being lost daily. Urban Development and agricultural expansion in occupied panther range without consideration for habitat needs of the panther are expected to accelerate as Florida’s [human] population increases. Development activities could reduce the available habitat to a level below the minimum threshold essential for a self-sustaining panther population. The Habitat Preservation Plan states that Collier is one of only four counties with a documented reproducing panther population—the other counties are Lee, Dade, and Hendry. Adult males require 200 square miles with little overlap with other males. Adult females require 75 square miles with some overlap with other panthers. Florida panther prefer white-tailed deer and feral hogs, but will also eat raccoons, armadillos, rabbits, birds, and alligators. According to the Habitat Preservation Plan, an adult panther annually eats the equivalent of 30-50 deer. The Habitat Preservation Plan states that “[l]and management plays an important role in panther habitat preservation.” Id. at page 5. According to the plan, prescribed burning, which facilitates the use of livestock range, also benefits the white-tailed deer. The plan warns that panther habitat is threatened by the invasion of nuisance exotics, such as melaleuca, Brazilian pepper, and Australian pine. The Habitat Preservation Plan asserts that the preferred panther habitats are hardwood hammocks and pine flatwoods, which are upland habitats in south Florida. Private lands in Collier County typically feature improved and native rangeland, wet and dry prairies interspersed with cabbage palm, and pine and oak forests—habitat that the panther share with other endangered or threatened species, such as the Florida sandhill crane, Audubon’s crested caracara, Florida grasshopper sparrow, and the burrowing owl. The Habitat Preservation Plan suggests that South Florida may be near carrying capacity for panthers, so that further habitat loss means the loss of panthers. Nor are the existing publicly owned lands in south Florida sufficient; they can probably support only 9-22 of the estimated 30-50 panthers in the region. Id. at page 9. The threat to panther habitat posed by agricultural uses depends entirely on the type of agricultural use for which development is proposed. The Habitat Preservation Plan acknowledges that native range and sustained yield forestry retain native habitat and “can be compatible with panther use.” Id. at page 16. Other uses, such as citrus groves, vegetable farms, and improved pasture, eliminate native habitat. However, the plan describes an ongoing evaluation of the possibility that fertilization of livestock range may boost the nutrition of deer, which would also assist the panther. Also, the plan acknowledges the importance of the configuration and scale of agricultural development. Panthers may persist in a mosaic of native and nonnative habitats where the size and configuration of an improved pasture, vegetable field or citrus grove and the composition of adjoining landscapes determine whether or not the mosaic provides suitable panther habitat. Agricultural lands interspersed with native habitats may benefit the panther’s primary prey, deer and feral hogs. Id. at page 16. The Habitat Preservation Plan warns that citrus development in particular may displace panther habitat in southwest Florida at a fast rate as grove owners, using new technologies, expand citrus into the pine flatwoods of southwest Florida. But the plan suggests that small citrus groves dispersed carefully among preserved panther habitat might provide corridors and cover for the panther. The Habitat Preservation Plan suggests that south Florida livestock range is divided equally between native range and improved pasture. Suggesting that even improved, overseeded pasture may assist the panther by providing additional food for the white-tailed deer, the plan focuses on the “size and configuration of the pasture and the interspersion and connectivity of native cover adjacent to the pasture.” Id. at page 20. Among methods of habitat preservation, the Habitat Preservation Plan lists numerous approaches that do not require acquisition of the fee simple. These approaches include incentives in landowner agreements and conservation easements to encourage the perpetuation of native range and sustained-yield forestry as opposed to other, more habitat-disruptive agricultural uses. The Habitat Preservation Plan describes a number of laws that assist in the preservation of panther habitat. Although not mentioning the state laws governing development in areas of critical state concern, such as Big Cypress, the plan discusses Chapter 163, Part II, Florida Statutes, and the role of the comprehensive plans of local governments, such as Collier County, whose jurisdictions encompass prime panther habitat. Using available data, the Habitat Preservation Plan identifies habitats suitable for preservation as priority one or priority two. Priority one habitats, which include much of the still-forested area affected by the proposed plan amendments, comprise the “lands most frequently used by the panther and/or lands of high quality native habitat suitable for the panther . . ..” Id. at page 34. The first of several recommendations contained in the Habitat Preservation Plan is to: Develop site-specific habitat preservation strategies for [priority one] lands considered essential to maintaining the Florida panther population south of the Caloosahatchee River at its present level. Strategies should emphasize preservation of suitable panther habitat on private lands by methods that retain private ownership of those lands to the extent possible, and implement management practices on public lands that, based on existing data, would be expected to result in improved habitat conditions for the panther. Id. at page 37. Quantitatively, priority one lands south of the Caloosahatchee River that are not designated for federal or state acquisition constitute 203,500 acres. Id. If implemented, the first recommendation would preserve the land where 43 panthers were found 98 percent of the time during the period of study. Id. Again ignoring the laws governing development in areas of critical state concern, the ninth recommendation is for DCA, the regional planning councils, and local governments to review their efforts in protecting panther habitat in the context of the provisions of the Habitat Preservation Plan. Closing the Gaps addresses the habitat needs of a variety of species, not only the Florida panther. The findings and conclusions of Closing the Gaps agree with those of the Habitat Preservation Plan as to the panther. Closing the Gaps finds that nearly all of the Big Cypress not publicly owned is good habitat for the Florida panther, as well as the Florida black bear and American swallow- tailed kite. Closing the Gaps reports that nearly all of the Big Cypress already hosts a stable black bear population. Closing the Gaps rates much of the privately owned portion of the Big Cypress as outstanding potential bear habitat, in terms of proximity to conservation areas, extent of roadless areas, diversity of cover types, and the presence of specific cover types. Closing the Gaps also finds that isolated County locales, including some in the affected area, present good potential habitat for the Florida sandhill crane, although much more extensive potential habitat is found north and east of Collier County. Closing the Gaps includes Collier County in the Southwest Florida Region, which does not include any of Monroe or Dade counties. Closing the Gaps calls this region, which extends north to Sarasota County, “the most important region in Florida” in terms of “maintaining several wide-ranging species that make up an important component of wildlife diversity in Florida . . ..” Id. at page 173. As to the area northwest of the Big Cypress National Preserve, Closing the Gaps asserts that the “mixture of cypress swamp, hardwood swamp, dry prairie, and pineland represents one of the most important wildlife areas remaining in Florida.” Id. at page 174. Closing the Gaps cautions: “The threats facing Florida panthers require quick and aggressive action if panthers are to be saved from extinction. . . . [B]ut the situation is far from hopeless if quick actions are taken.” Closing the Gaps, page 68. Repeating the warning of the Habitat Preservation Plan, Closing the Gaps cautions that “[o]ne of the greatest threats to the continued existence of panther habitat in south Florida is conversion of large areas of rangeland and native land cover to agriculture.” Id. In particular, citrus development threatens to subdivide existing, contiguous panther habitat, including that land covered by the proposed plan amendments. Closing the Gaps concludes with suggestions for how to protect valuable natural resources. Acknowledging that acquisition is the most effective and least controversial of methods, Closing the Gaps suggests the purchase of lesser rights, such as conservation easements or development rights. Omitting mention of the state program designating areas of critical state concern, Closing the Gaps advises that local governments protect valuable habitat through their comprehensive plans. The Plan currently prohibits various agricultural activities in the Big Cypress. The prohibited activities are the alteration of more than 10 percent of the site; installation of structures that would alter surface water flow; and implementation of drainage systems that fail to approximate the natural local surface flow regime, maintain sufficient groundwater levels to protect wetland vegetation, or retain, divert, or impede the naturally occurring flows in a slough or strand. The proposed amendments would permit these activities, if done for agricultural purposes. The data and analysis do not support the blanket reinstatement of the proposed agricultural exemptions. The data and analysis support the present Plan provisions. The data and analysis might support a more sophisticated approach to agricultural activities, with due regard to the extent and configuration of various types of agriculture in terms of the impact on endangered species and their habitat. However, the County has not attempted such an approach with the proposed plan amendments, and it is premature to consider further what such an approach might involve. To the exclusion of fair debate, the proposed amendments are unsupported by the data and analysis. Internal Consistency Conservation Objective 1.1 required the County, by August 1, 1994, to adopt and implement a “comprehensive environmental management and conservation program” to “ensure that the natural resources, including species of special status,” are “properly, appropriately, and effectively identified, managed, and protected.” The covered species are those listed as endangered and those listed by the Florida Game and Fresh Water Fish Commission as endangered and potentially endangered. Conservation Objective 1.1 promised future action. By mid-1994, the County was required to adopt a program to “properly, appropriately, and effectively . . . protect. . .” listed species. Absent a Plan requirement that such protection be expressed in the Plan, the County arguably could have discharged this requirement by adopting land development regulations. And perhaps that was the intent of the 1993 changes to the land development regulations and Plan. The words of flexibility—“properly,” “appropriately,” and “effectively”—reveal the promissory nature of this objective. According to the Plan, these words were designed to leave the County flexibility until it later completed the necessary work so “specific statements could be developed for inclusion” in the Plan. By the language of Conservation Objective 1.1, the promise came due in 1994. Perhaps part of the County’s response was the elimination of the agricultural exemptions that it is now trying to reinstate. In any event, the Plan does not now allow the County to repudiate its undertaking to “protect” the Florida panther “properly, appropriately, and effectively.” Regardless of the flexibility accorded these three adverbs, Conservation Objective 1.1 does not permit the County to amend the Plan so as to facilitate further loss of panther habitat, which the data and analysis disclose would be the inevitable result of the reinstatement of the agricultural exemptions. To the exclusion of fair debate, the proposed plan amendments are inconsistent with Conservation Objective 1.1. Consistency with the State Comprehensive Plan As set forth in Section 187.201(8)(a), Florida Statutes, Goal 8 of the State Comprehensive Plan states that Florida shall assure the availability of an adequate supply of water for all competing uses deemed reasonable and beneficial and shall maintain the functions of natural systems and the overall present level of surface and ground water quality. Florida shall improve and restore the quality of waters not presently meeting water quality standards. As set forth in Section 187.201(b)10, Policy 8.10 of the State Comprehensive Plan is to “[p]rotect surface and groundwater quality and quantity in this state.” Notwithstanding DEP’s comments, as reflected in the ORC, the record is not sufficiently developed as to water-quality issues to permit a finding that, to the exclusion of fair debate, the proposed amendments would conflict with these water-quality provisions of the State Comprehensive Plan. As set forth in Section 187.201(8)(a), Goal 10 of the State Comprehensive Plan states that Florida shall protect and acquire unique habitats and ecological systems, such as wetlands, tropical hardwood hammocks, palm hammocks, and virgin longleaf pine forests, and restore degraded natural systems to a functional condition. As set forth in Section 187.201(b)10, Policies 10.1, 10.3, 10.5, and 10.7 of the State Comprehensive Plan are to Conserve forests, wetlands, fish, marine life, and wildlife to maintain their environmental, economic, aesthetic, and recreational value. * * * 3. Prohibit the destruction of endangered species and protect their habitats. * * * 5. Promote the use of agricultural practices which are compatible with the protection of wildlife and natural systems. * * * 7. Protect and restore the ecological functions of wetlands systems to ensure their long-term environmental, economic, and recreational value. To the exclusion of fair debate, the proposed plan amendments are inconsistent with the provisions of the State Comprehensive Plan providing for the conservation of forests and the wildlife using the forests from intense agricultural uses, such as for citrus groves, vegetable farming, and improved pasture; the protection of the endangered Florida panther and other species through the protection of their critical and essential habitats; and the promotion of agricultural practices that are compatible with the protection wildlife and natural systems. Notwithstanding general depictions of wetlands in various sources of data and analysis, the record is not sufficiently developed as to the treatment by the proposed amendments of wetlands in the Big Cypress to permit a finding that, to the exclusion of fair debate, the proposed amendments conflict with these wetland provisions of the State Comprehensive Plan.
Recommendation It is RECOMMENDED that the Department of Community Affairs submit this recommended order to the Administration Commission for entry of a final order determining that that proposed plan amendments are not in compliance. DONE AND ENTERED this 26th day of September, 1997, in Tallahassee, Leon County, Florida. ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 26th day of September, 1997. COPIES FURNISHED: Attorney Thomas W. Reese 2951 61st Avenue South St. Petersburg, Florida 33712 Shaw P. Stiller Assistant General Counsel Department of Community Affairs 2555 Shumard Oak Boulevard, Suite 325-A Tallahassee, Florida 32399-2100 Ramiro Manalich Chief Assistant County Attorney Marjorie M. Student Assistant County Attorney Collier County Attorney Office 8th Floor, Administration Building 3301 Tamiami Trail East Naples, Florida 34112-4902 C. Laurence Keesey Young, van Assenderp & Varnadoe, P.A. SunTrust Building 801 Laurel Oak Drive, Suite 300 Naples, Florida 34018 Stephanie Gehres Kruer General Counsel 2555 Shummard Oak Boulevard, Suite 325-A Tallahassee, Florida 32399-2100 James F. Murley, Secretary 2555 Shummard Oak Boulevard, Suite 100 Tallahassee, Florida 32399-2100
The Issue Whether Respondents discriminated and retaliated against Petitioner because of her disability, in violation of the Florida Fair Housing Act; and, if so, the relief to which Petitioner is entitled. More specifically, the issues raised in this case are (1) whether Petitioner’s dog was a “service animal” pursuant to section 413.08, Florida Statutes (2018)1/; (2) whether Respondents took adverse action against Petitioner because of her disability; and (3) whether Respondents retaliated against Petitioner by not renewing her lease after she filed a housing discrimination complaint.
Findings Of Fact The parties stipulated at the final hearing that Petitioner suffers from anxiety and neck issues; and she qualifies as a person who is disabled for the purposes of the Florida FHA. Parties and Property Respondent Pelican Bay is a residential community owned and operated by Sun Homes. Respondent Cheryl Merrifield is the manager of Pelican Bay and an employee of Sun Homes. On June 24, 2016, Petitioner entered into a Manufactured Home Option to Purchase Agreement with Sun Homes (Agreement). The Agreement gave Petitioner a two-year period to lease the manufactured home located on Lot 56 of the Pelican Bay residential community. The Agreement allows the purchase of the home, but not the Lot in Pelican Bay. The Agreement contained a “rent to own” component which also allowed Petitioner to be credited 50% of her first year’s lease payments, and 25% of her second year’s lease payments towards the purchase of the manufactured home. Under the terms of the Agreement, after the first two years, the Petitioner would not accrue any credits toward the purchase of the home. The Agreement clearly anticipated that if Petitioner was to exercise the option to purchase, she would do so within two years. The Agreement refers to separate “Home Lease” and “Site Lease” agreements, but neither was admitted into evidence. Petitioner moved into the property in July 2016 with her five-pound Chihuahua, Buttons. At the time she moved into Pelican Bay, Petitioner informed Respondents she suffered from anxiety and needed Buttons for psychological and emotional support. As a result Pelican Bay waived the pet deposit and fees for Button. Petitioner claims she was discriminated against because she had a service dog and cites the following incidents: (1) in July 2016, she was prohibited from bringing Buttons into the Pelican Bay Clubhouse (Clubhouse) during a Fourth of July neighborhood party; (2) in November 2016, she was told that Buttons could not be in the kitchen or on the furniture in the Clubhouse and must be on a leash and controlled at all times during a Thanksgiving event; and (3) she was harassed by her neighbors and Pelican Bay staff for having the dog in the pool area. Petitioner also alleges she was retaliated against for filing a housing discrimination complaint when Pelican Bay did not renew her lease in July 2018. Respondents dispute Petitioner’s version of the facts and deny that their actions were discriminatory. Buttons As an initial matter, there is a factual dispute as to whether Buttons is a “service animal” for the purposes of the Florida FHA. Although it is unclear when Buttons became her service animal, Petitioner had Buttons as a pet prior to being prescribed a service animal for her anxiety by her psychologist, Dr. Donna Marks. Dr. Marks is certified in addiction therapy, psychoanalysis, and Gestalt psychology. She has no training in orthopedics or treating back and neck injuries. Dr. Marks has been treating Petitioner for anxiety intermittently since 2009. In 2014, Petitioner began regular twice a week therapy sessions with Dr. Marks. Thereafter, Dr. Marks prescribed a “psychological service animal” for Petitioner’s anxiety disorder. In a letter dated January 21, 2016, to allow Buttons to ride on an airplane, Dr. Marks wrote: Ms. Taylor has been seen by me and I am familiar with her history and with function limitations and needs imposed by an anxiety order. In order to help alleviate these difficulties and to enhance her ability to function independently, I have prescribed Ms. Taylor to obtain a psychological service animal. The presence of this animal is necessary for her emotional health because it will mitigate the symptoms she experiences and a preferable alterative to medication. (emphasis added). Later, after Petitioner moved into Pelican Bay, Dr. Marks changed her prescription for Petitioner from a “psychological service animal” to a “service animal.” Although no written prescription of this change was admitted into evidence, Dr. Marks claimed she made this change due to Petitioner’s neck and back surgeries. On cross-examination, however, Dr. Marks admitted she altered the prescription for Petitioner’s convenience. Petitioner had reported to her that she was having difficulty at Pelican Bay and was not allowed to take Buttons to neighborhood events. Dr. Marks felt a “service animal” would have more access than an “emotional support animal.” When asked what service Buttons provides or tasks Buttons performs for Petitioner, both Petitioner and Dr. Marks testified Buttons calms Petitioner and keeps her from becoming anxious. In addition, Petitioner testified she has difficulty turning her neck and needs Buttons to warn Petitioner when people are approaching and warn people not to come to close to her. Buttons does this by barking. Buttons did not go through any professional training to learn to keep Petitioner calm or how to bark. Dr. Marks was not involved in training Buttons, made no recommendations on how Buttons should be trained, and did not know of a training protocol for teaching animals anxiety-reducing techniques or conduct. Petitioner claimed she trained Buttons by giving it treats when it behaved the way she wanted, but admits she did not follow any specialized training program. Buttons is registered with the United States Animal Registry (USAR) as an “Emotional Support Dog” and a “Service Dog.” Based on her USAR identification and letters from Dr. Marks, Buttons has been allowed to accompany Petitioner at restaurants, the hospital, and on airplanes. Petitioner, however, provided no evidence of the requirements for registering Buttons with the USAR registry. For example, there was no evidence of an USAR application or questionnaire; nor was there evidence Buttons had been evaluated or tested by USAR as part of the registration process.3/ As explained below, the undersigned finds Buttons is not a “service dog” for purposes of the Florida FHA. Fourth of July In early July 2016, a Fourth of July potluck celebration was held in the Clubhouse. When Petitioner arrived at the Clubhouse with her potluck contribution she was told by Reni Thompson that she could not bring Buttons into the area where the food was being served. Upon hearing this, Petitioner immediately left the Clubhouse and did not participate in the event. The uncontroverted evidence established the celebration was not sponsored by Pelican Bay, nor was staff in attendance. Instead it was arranged by the Pelican Bay Home Owner’s Association (HOA). Although Petitioner testified Ms. Thompson told her she was an HOA board member, Ms. Merrifield testified Ms. Thompson was not on the HOA board, nor was Ms. Thompson a Pelican Bay employee. Other than Petitioner’s hearsay there is no evidence that Ms. Thompson was a board member. Moreover, the HOA was not affiliated with or managed by Pelican Bay, nor were its board members employees of Pelican Bay. As such, any conduct by Ms. Thompson cannot be imputed onto Pelican Bay. Regardless, when Ms. Merrifield received Petitioner’s complaint about what had occurred at the Fourth of July incident, she immediately arranged a meeting with Petitioner. Ms. Merrifield also met separately with Ms. Thompson to inform Ms. Thompson that Petitioner should be allowed in the Clubhouse with Buttons. The undersigned finds Respondents are not liable for Ms. Thompson’s conduct, and took corrective measures once it learned of the incident. Thanksgiving Restrictions on Buttons On November 1, 2017, Ms. Merrifield sent an email titled “Thanksgiving Dinner Nov. 23” to the residents of Pelican Bay. That email stated as follows: Attached to this email is what Sandy Weidner is posting in the Clubhouse today. If anyone is interested please go and sign up. She also has a list of what will be needed if anyone wants to help with the side dishes. The email then listed the side dishes that were needed and contact information for Sandy Weidner for any questions. The evidence established the event was not sponsored by Pelican Bay (although it was contributing the turkey) and Ms. Weidner was not a Pelican Bay employee. Instead of contacting Ms. Weidner, Petitioner emailed Ms. Merrifield and asked, Cheryl, Is this an Event that Buttons, “My Service Dog” and I will be welcomed to without anyone rejecting us or harassment?” Ms. Merrifield replied, In response to your request we understand your dog is an emotional support animal. It may be with you in the clubhouse. It may not go in the kitchen, it may not be put on furniture. It must be on a leash and controlled at all times. It is unclear whether this response deterred Petitioner from attending the Thanksgiving event. Nonetheless, the undersigned finds Ms. Merrifield’s actions did not constitute a violation of the Florida FHA. Pool Incidents In July 2017, Pelican Bay staff received a complaint from residents that Buttons was in the community pool, in violation of the community pool rules. Later, Ms. Merrifield spoke to Petitioner who admitted she had taken Buttons in the pool. Ms. Merrifield told Petitioner Buttons was not allowed inside the pool and should not be left in the pool area unrestrained. Petitioner later researched the issue and agreed she would not take Buttons in the pool in the future. In August 2017, Josephine Hillier, a Sun Homes employee, received another complaint from residents that Buttons was in the pool. When Ms. Hillier investigated the complaint she did not see the dog in the pool, but did find Petitioner with Buttons in the pool area. At the time, Petitioner denied Buttons was in the pool and claimed Ms. Hillier’s questioning was harassment in violation of housing discrimination laws. At the hearing, Petitioner testified that after researching and learning Buttons could not be in the pool, she continued to sit in the pool with Buttons on her shoulder. Petitioner did not consider this to be a violation of the pool rules as long as Buttons was not in the water. She also allowed Buttons to sit on the pool furniture unrestrained while she was in the pool, because her veterinarian told her Buttons was too small for a leash. Regardless, Pelican Bay took no further action against Petitioner regarding Buttons being in the pool. Petitioner complains Respondents repeatedly questioned her about Buttons being in the pool. Ms. Merrifield testified she was aware of two complaints of Petitioner letting Buttons in the pool; Ms. Hillier testified she was aware of two complaints about Buttons being in the pool, one of which she investigated. The undersigned finds that although Petitioner may have been approached by residents with complaints about Buttons, Respondents only spoke with her about Buttons being in the pool twice. The undersigned finds Pelican Bay’s conduct in questioning Petitioner about Buttons being in the pool, and warning her Buttons must be restrained did not constitute harassment. As explained below, this was justified under the circumstances. Non-Renewal of Purchase Agreement On March 20, 2018, Sun Homes sent an unsigned form letter to Petitioner stating her lease would not be renewed and that she would be required to vacate the property on or before June 30, 2018. Petitioner believes she received this letter because she filed a complaint of housing discrimination. The Agreement allowing the option to purchase the home anticipates a lease period of two years, although a longer period is not prohibited. Respondents asked Petitioner after the first year if she was planning to exercise her option to buy the home. At that time, June 2017, she declined because she felt it was too expensive and did not make financial sense. Petitioner did not take any steps toward exercising her option to purchase the home at the end of the second year because she was recovering from neck and back surgeries, her son was living with her, and she was not financially able to purchase it. Ms. Merrifield testified that it was common business practice to not allow renters to remain in Pelican Bay for more than two years. Sun Homes’ business model was to sell the manufactured homes; it was not interested in long-term rental relationships. The evidence established Petitioner was not the only resident that received the form non-renewal letter. The renters in the homes on Lot 48 and Lot 30 also received similar letters. Ms. Merrifield was unaware of whether these other residents had disabilities, but neither had made any kind of housing complaints. Based on the evidence and testimony presented at the final hearing, Petitioner did not demonstrate, by a preponderance of the evidence, that Respondents discriminated against her based on her disability or retaliated in violation of the FHA.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order finding that Respondents, Pelican Bay Communities, LLC, and Cheryl Merrifield, did not commit a discriminatory housing practice against Petitioner, Paula C. Taylor, and dismiss her Petition for Relief. DONE AND ENTERED this 14th day of November, 2018, in Tallahassee, Leon County, Florida. S HETAL DESAI 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 14th day of November, 2018.
