Findings Of Fact Suncoast Highland Corp. (Suncoast), is the developer and registrant of Shadow Run Subdivision in Hillsborough County. Prior to 1970, Suncoast was known as Suncoast Peach Corporation. C. Thomas Petersen, Peter Lenhardt, and two other individuals formed Suncoast Peach Corporation in 1964. In 1974 Suncoast registered Unit 1 of Shadow Run with the Division of Land Sales (Division). At that time Suncoast's principals were C. Thomas Petersen, President and Director, and Peter M. Lenhardt, Vice President, Director, and in charge of marketing. As a charter stockholder and owner of 166,000 shares (26-2/3 percent of ownership), Lenhardt filed an affidavit stating he devoted 100 percent of his time five days per week to Suncoast's business affairs. Lenhardt was (and presumably still is) a registered real estate broker and was in charge of sales in Shadow Run. In 1977 Suncoast registered Unit 2 (consolidated with Unit 1) with the Division. At this time Petersen and Lenhardt alleged each owned 13.5 percent of Suncoast and Lenhardt again filed an affidavit stating he devoted 100 percent of his time to Suncoast's business affairs and was in charge of sales in Shadow Run. In the Annual Report filed November 13, 1978, Lenhardt executed an affidavit representing himself to be Suncoast's principal officer in connection with this filing. This report included financial and inventory data for Shadow Run, Units 1 and 2, as well as 16 other registered subdivisions. At this time Petitioner and Lenhardt represented they each owned 38 percent of Suncoast (Exhibit 1E). On January 30, 1979, Lenhardt filed, under oath, renewal applications for Shadow Run, Units 1 and 2. This application (Exhibit 1F) showed out of 277 lots registered in Unit 1, 227 had been deeded and 50 remained to be sold. In Unit 2 out of 89 registered lots, 76 had been deeded and only 13 remained unsold. In August 1978 the Division began receiving complaints from Shadow Run homeowners concerning assessments, placing of utilities, and lack of promised recreational facilities. After meeting with the homeowners association and representatives of Suncoast, the Division issued a Notice to Show Cause against Suncoast. For several months thereafter representatives of the Division, Suncoast, and the homeowners association attempted to resolve the complaints. On April 19, 1979, C. Thomas Petersen, President, and Thomas Coates, Secretary, of Suncoast executed a stipulation in which, inter alia, further sales would remain suspended pending submission of all promotional and advertising materials to the Division, Suncoast would enter into an agreement concerning recreational facilities to be furnished by Suncoast, and Suncoast would pay a $7,500 civil penalty to the Division (Exhibit 1G). On December 10, 1979, Suncoast executed an agreement (Exhibit 1H) whereby it agreed, among other things, to install a concrete boat ramp no longer than 20 feet extending not more than two feet into Lake Grady on Lot 14, Block 1, Shadow Run, Unit 1, and convey legal title of the boat ramp area to the association; and, in conjunction with the boat ramp, provide a parking area 96 feet wide abutting on Shadow Run Boulevard at Lot 14, Unit 1, Shadow Run Subdivision, running from Shadow Run Boulevard to the water. This agreement was not recorded. No evidence was submitted when, or if, Lenhardt disposed of his ownership interest in Suncoast and Timber Oaks and terminated his management role in those companies. Lenhardt was listed as Secretary/Treasurer of Suncoast in the annual corporate report for 1980. His name on the 1981 annual corporate report for Suncoast was lined out and Linda Burr's name was added as Secretary. Lenhardt's name does not appear on subsequent reports. Timber Oaks, Inc., was incorporated February 11, 1980, with C. Thomas Petersen as President, Peter M. Lenhardt as Vice President, and Linda Burr as Secretary (Exhibit 3). On the 1981 annual corporate report Lenhardt's name was lined out and Linda Burr's name was added as Secretary. Coppice-Boden, Inc., was incorporated August 28, 1980, with Peter Lenhardt as President, Helen K. Lenhardt as Vice President, and Delores Hamm as Secretary. Hamm's name was deleted from the 1982 annual corporate report and both Lenhardts continued to be listed through the 1984 annual corporate report. No evidence was submitted showing transfer of the property which included Lot 14, Unit 1, Shadow Run Subdivision 1, from Suncoast to Timber Oaks, Inc.; however, by warranty deed dated October 29, 1982, Timber Oaks, Inc., conveyed property which specifically included Lot 14, Unit 1, Shadow Run Subdivision 1, to Coppice-Boden Corp., for a stated consideration of $340,000 (Exhibit 5). On November 11, 1982, Coppice-Boden, Inc., mortgaged the property which included Lot 14, Block 1, Unit 1, Shadow Run Subdivision, to G. G. Moore to secure a note in the amount of $72,031.63. The Special Warranty Deed dated February 29, 1980 (Exhibit 8) whereby Community Banks of Pinellas conveyed certain property to Timber Oaks, Inc., excluded Lots 1 through 22, inclusive, of Block 1, of Shadow Run, Unit 1.
The Issue The issue for consideration in this case is whether Respondent, Toulla Xiotas, Inc., d/b/a Gulf Breeze Landscaping, was indebted to Petitioner for Florida-grown agricultural products as alleged in the Complaint filed herein.
Findings Of Fact At all times pertinent to the issues herein, Petitioner was a grower of ornamental and decorative plants in Florida for sale to, among others, landscapers and wholesalers. For some time prior to the period in issue, Respondent, Toulla Xiotas, Inc., d/b/a Gulf Breeze Landscaping, has been engaged in the landscaping business in the Sarasota County area and has made numerous purchases of plants from Petitioner. On December 24, 1996, Respondent paid $7,088.74 to Petitioner to cover the cost of purchases made between July 24 and August 30, 1996, plus interest. Thereafter, on January 20, 1997, Respondent purchased eight number ten wax myrtle trees from Petitioner at $30.00 a piece for a total of $240.00. On January 22, 1997, Respondent purchased one number thirty E.P. holly from Petitioner for $75.00, and on April 1, 1997, purchased one number thirty ligustrum for $75.00. The total of the three purchases was $390.00. Notwithstanding that Petitioner submitted invoices for those purchases on March 31, May 29, July 31, and August 29, 1997, none of the amount due has been paid. Respondent did not, in any way, contest the obligation. Even in its Answer to the Complaint, it did not deny the obligation but merely indicated its attempt to work out some accommodation with its creditors. Respondent’s Answer also reflected that its surety was Frontier Insurance Company of New York.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Agriculture enter a Final Order in this matter directing Respondent, Toulla Xiotas, Inc., d/b/a Gulf Breeze Landscaping to pay Petitioner, Angers Sun Tree Nursery, Inc., the sum of $390.00. In the event this sum is not paid by the Respondent, the Department should apply the bond posted by Frontier Insurance company of New York in the amount due and payable. DONE AND ENTERED this 11th day of December, 1997, 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 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6947 Filed with the Clerk of the Division of Administrative Hearings this 11th day of December, 1997. COPIES FURNISHED: Robert S. Angers, II Angers Sun Tree Nursery, Inc. 900 Sinclair Drive Sarasota, Florida 34240 Toulla Xiotas, Inc., d/b/a Gulf Breeze Landscaping 901 MacEwen Drive Osprey, Florida 34229 Frontier Insurance Company of New York 195 Lake Louise Marie Road Rock Hill, New York 12775-8000 Honorable Bob Crawford Commissioner of Agriculture The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0810 Richard Tritschler General Counsel Department of Agriculture and Consumer Services The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0810 Brenda Hyatt, Chief Bureau of Licensing and bond Department of Agriculture and Consumer Services Mayo Building, Suite 508 Tallahassee, Florida 32399-0800
Findings Of Fact This cause came on for consideration based upon the Petitioner's (Mrs. R. C. Horton) amended petition filed by her son, Charles H. Horton, which petition opposes the proposed permit/certification that the State of Florida, Department of Environmental Regulation, intends to issue to the Consolidated City of Jacksonville. Particularly, this concerns the Permit/ Certification No. 16-31-0756-2E, Duval County, Florida. The placard number is 01496. The Petitioner in this cause, Mrs. R. C. Horton, resides at 7357 Goodnow Road in Jacksonville, Duval County, Florida, on property which is adjacent to the project site in issue. The Respondent, State of Florida, Department of Environmental Regulation, is an agency of the State of Florida which has, among other duties, the consideration of permits which involve maintenance dredging. The authority for this activity on the part of Respondent, State of Florida, Department of Environmental Regulation, is found in Chapter 253 and/or Chapter 403, Florida Statutes. The second Respondent in this cause is the Consolidated City of Jacksonville Mosquito Control Branch. The Consolidated City of Jacksonville is a municipality in Duval County, Florida. The proposal in dispute is that request to excavate approximately 9700 cubic yards of material at the site by realignment of 600 feet of canal; widening 250 feet and cleaning and shaping 100 feet of drainage way in the location of Section 56, Township 3 South, Range 27 East, on Eagle Branch, a channelized drainage way in Duval County, Florida. The stated purpose of this work is to prevent an encroachment of the branch onto private property in the area of the 600-foot realignment. An additional purpose is to promote better drainage. The Petitioner's challenge to the Respondent, Department of Environmental Regulations intent to grant the permit was premised primarily on the testimony of Charles Horton and certain photographic slides which he presented in the course of that Hearing. It is Mr. Horton's position that if the work as applied for were completed, there would be erosion to the property of Mrs. R. C. Horton and a problem with siltation at the mouth of the Eagle Branch where it flows into Pottsburg Creek. In the mind of Charles Horton, this theory is supported by the opinion that clearing out and widening will increase the velocity of the water flowing out of the Eagle Branch, thereby promoting advanced erosion, and by the past when the Eagle Branch channelized in the early fifties and there was a problem with siltation and erosion, to the extent that maintenance dredging was necessary in the 1960's. (Moreover, Charles Horton was concerned about the cost considerations involved in the project; however, he was advised by the undersigned that the purpose of the hearing sub judice was not to question the cost, but to consider the effect of the project on water quality and biological resources as contemplated by Chapters 253 and 403, Florida Statutes, and Rule 17, Florida Administrative Code.) The petitioner did not offer engineering studies or other forms of data which would support the opinion of Mr. Horton. In defense of the project, the Respondent, Consolidated City of Jacksonville Mosquito Control Branch, offered testimony from George R. Knecht, a civil engineer. Mr. Knecht has had experience in this type project over a period of the last 7-1/2 years. He stated in testimony that the aims of the project were to take the creek bed away from private property on the north side of the city maintenance yard by process of realignment, and to clean out the Eagle Branch, thereby decreasing the velocity of the water flowing through that branch in the area of the maintenance yard. (The maintenance yard may be seen on the Respondent, Consolidated City of Jacksonville's Exhibit No. 1 admitted into Evidence.) It was to these ends that the City of Jacksonville submitted its proposals for permit, which may be found as Petitioner's Exhibit No. 1 admitted into evidence. Respondent, State of Florida, Department of Environmental Regulation, received the application and made an application appraisal, which may be found as Respondent, Department of Environmental Regulation's Exhibit No. 1 admitted into evidence. In the process of conducting the appraisal, a biological study was done and other steps were taken to discern the effect of the project on water quality in the area which includes a flood plain at the mouth of the Eagle Branch, which flows into Pottsburg Creek. Among the things that were required as conditions to the granting of the permit were the placing of turbidity curtains at the mouth of the branch during the course of the entire construction; monitoring the turbidity daily on the downstream side of the turbidity curtain during the dredging operation; containing the dredging through the swamp flood plain in the existing channel to avoid destruction of trees of the flood plain, and placing the spoil from the flood plain on the existing berm or removing it to uplands. (These conditions, and a statement of intent to grant the permit, may be found in Petitioner's Exhibit No. 2 admitted into evidence.) The Respondent, State of Florida, Department of Environmental Regulation, also received comments from the Florida Game and Fresh Water Fish Commission and those comments may be found in the Respondent, Department of Environmental Regulation's Exhibit No. 2 admitted into evidence. The intent to grant the permit incorporates the protections suggested by the Florida Game and Fresh Water Fish Commission. The testimony on the approach of the State of Florida, Department of Environmental Regulation to the request for permit was offered by Jeremy Tyler and Dave Scott, employees of the Respondent, State of Florida, Department of Environmental Regulation. Upon consideration of the testimony offered, it is concluded that water quality and biological resources will not be unreasonably affected, and that it would be in keeping with requirements of Chapters 253 and 403, Florida Statutes, and Rule 17, Florida Administrative Code, to allow the granting of Permit/Certification No. 16-31-0756-2E, Duval County, Florida.
Recommendation It is recommended that the State of Florida, Department of Environmental Regulation, issue Permit/Certification No. 16-31-0756-2E, Duval County, Florida, for the benefit of Consolidated City of Jacksonville Mosquito Control Branch. DONE and ENTERED this 1st day of September, 1978, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Charles H. Horton, Esquire 757 Goodnow Road Jacksonville, Florida 32216 Carole Joy Barice, Esquire Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301 Robert G. Brown, Esquire Assistant Counsel 1300 City Hall Jacksonville, Florida 32202
Findings Of Fact Respondents, during all times here involved, were licensed by Petitioner as alleged and operated three separate pest control offices in Jacksonville, New Smyrna Beach and Palatka. During the period between May 1976 and April 1977 no certified operator was registered with Petitioner at the Jacksonville or New Smyrna Beach offices. During this period numerous fumigation contracts were entered into by Respondents. When these contracts were carried out all fumigation was performed under the supervision of a currently registered certified operator who was attached to the Palatka office owned by Respondents. Between June 1976 and October 1977 24-hour advance written notice of fumigation was not provided by Respondents to the health authorities in Duval County on five occasions and to the health authorities of Volusia County on six occasions. However, the health inspectors of each county apparently received telephone notice because they inspected the fumigations for which the written notice was not provided a higher percentage of times than the average inspection for fumigation for which 24-hour written advance notice was provided. Several violations involved the certified operator notifying HRS by letter that he would be certified operator for a specific office commencing on a given date and thereafter failing to submit the proper forms to obtain a current pest control identification card for the office at which he worked. Proper registration of pest control salesmen and certified operators requires the issuance of a pest control identification card for a specific location. On some occasions the charges resulted from Respondent, United Pest Control, acquiring another pest control company and continuing operations under United Pest Control without having changed the pest control identification cards of these employees. Two charges involved agents of Respondent who entered into contracts with customers. One resulted from a complaint that the agent inaccurately advised the customer that there was termite infestation and one involved a complaint of improper treatment for subterranean termites. After the customers complained to governmental authorities Respondents refunded their money. When Respondent Powell attempted to inspect the premises to verify the complaint of these two customers he was denied access to the premises by the customers. The certified operator in the Palatka office was used to supervise a fumigation contract obtained in the Jacksonville office and the New Smyrna Beach office during the period here involved. He told Respondent several times that it was a violation of the regulation for him to perform the fumigation on contracts in these other offices, but only after he reported this to HRS was the practice stopped. At the time of the hearing the Jacksonville pest control operation had been sold by Respondent United Pest Control.
Findings Of Fact Urbanek owns land in and adjacent to Town Lots 93 and 94, Highland Beach, in Section 28, Township 46 South, Range 43 East, Palm Beach County, Florida. The real estate in question is located on the eastern shore of the Intra-Coastal Waterway approximately 2,000 feet south of the mouth of the C-15 Canal. Urbanek seeks a permit under Chapters 403 and 253, Florida Statutes, and water quality certification under Public Law 92-500, to dredge approximately 24,500 square feet of shoreline and shallow nearshore area, while installing approximately 240 linear feet of bulkhead and ten mooring piles, and constructing a marginal dock and piers for the use of future residents. The application also includes filling approximately 60,000 square feet of tidally connected ditches and wetlands to allow the construction of a high density residential development. On January 19, 1976, DER received a short form application for a permit from Urbanek pursuant to Subsection 17-4.28 (4)(a), Florida Administrative Code. On March 10, 1976, Urbanek received from DER a request for additional information. This occurred 51 days after Urbanek's original application for permit. Urbanek forwarded the requested additional information to DER on April 22, 1976, and April 30, 1976. On May 12, 1976, DER notified Urbanek that the project must be submitted using standard permitting procedures along with the incorporation of certain recommendations made by DER's field inspector. On June 9, 1976, Urbanek was notified by DER that his application had been forwarded to Tallahassee with a recommendation for denial on two grounds. First, that the application did not meet the criteria for short form applications and second, that the proposed project would eliminate valuable submerged and wetland habitats. On July 27, 1976, Urbanek was notified by DER's Tallahassee office that his application was received on January 1976, and that the application was incomplete. The notification requested additional information. On September 22, 1976, DER notified Urbanek that processing of his application was discontinued because required data was not sent by Urbanek to DER. Urbanek was further advised that processing of the application," would be continued upon receipt of the necessary information. On January 20, 1977, Urbanek submitted another modified permit application to DER. On February 28, 1977, DER sent Urbanek notice of receipt of the application once again requesting additional information be submitted. On March 4, 1977, Urbanek forwarded the requested information to DER. On April 1, -1977, DER forwarded to Urbanek its notice of intent to deny and the proposed order of denial of the permit application. On April 15, 1977, Urbanek petitioned DER for a hearing pursuant to the provisions of Section 120.57, Florida Statutes. The area of the project, prior to the turn of the century, was a fresh water wetland. However, salt water intrusion from the permanent opening of the Boca Inlet in south Palm Beach County in the early 1900's paved the way for colonization of mangroves in the Spanish River Basin, now the Intra-Coastal Waterway. As the human population increased in Palm Beach County, the mangroves were destroyed in order to afford living spaces. As a result, approximately 77 percent of the mangroves in Palm Beach County have been removed. One of the last remaining mangrove areas in southern Palm Beach County is located on a strip of land which borders the eastern side of the Intra-Coastal Waterway. The applicant's project site represents a portion of that strip. The project site fronts 230 feet-of the Intra-Coastal Waterway and extends approximately 670 feet eastward to State Road A1A. The property is intersected by three mosquito control ditches which run perpendicular to the Intra-Coastal Waterway but do not connect with it, and by six lateral ditches which extend from north to south and adjoin the property to the south. The project site is thus divided into eighteen parcels of land or "islands" and a fringing shoreline area. A survey conducted on October 13, 1977, and October 18, 1977, revealed the emergent areas between the ditches to be vegetated by mostly white mangroves, with canopies ranging from fifteen to forty-five feet in height. Numerous white and red mangrove seedlings plus a few scattered black mangrove seedlings indicate that the area may be changing from a predominantly white mangrove to a mixed mangrove community throughout the project site. Batis and Sesuvium were found and Australian Pines and Brazilian Pepper were observed only in areas where spoil from dredging activities was placed on the emergent area. There are approximately seven to eight thousand trees, including seedlings, in the project area. The mangrove system at the project site was characterized as a very productive system by Dr. G. Alex Marsh, an expert in Estuarine Ecology, who testified for DER. Dr. Arnold Banner of the United States Fish and Wildlife Service concurred with Dr. Marsh that the eradication of the productive system would result in the removal of a significant source of food and habitat. The evidence shows that a wetland habitat such as the project site affords approximately 535 pounds of fishing products per year with a dollar value of $8,000 per acre to the public. Petitioner argues that it would be in the public interest to bulkhead and fill the subject property because rodents would be eliminated, trash and debris would no longer collect on the property and that further erosion of the property would be prevented. However, Urbanek has failed to establish with substantial competent evidence that there actually exists a rodent problem on the subject property. The evidence does establish that trash and debris collect among the root system of the vegetation and that severe erosion has occurred on the property from wave action created by vessels moving through the Intra- Coastal Waterway. Urbanek has failed to establish with substantial competent evidence that the proposed project will not degrade water quality, cause violation of water quality standards or criteria or cause pollution. In fact, no evidence was submitted whatsoever by Urbanek which would tend to prove any of these three preconditions to the granting of the requested permit. Nonetheless, DER's failure to act on the permit application within the time limits prescribed by Subsection 120.60 (2), Florida Statutes, as amended in 1976, mandates the issuance of the requested permit.
The Issue The issue for consideration in this case is whether the Respondent's license as a certified general contractor in Florida should be disciplined because of the alleged misconduct outlined in the Administrative Complaint filed herein.
Findings Of Fact At all times pertinent to the allegations contained herein, the Petitioner, Construction Industry Licensing Board was the state agency responsible for the licensing and regulation of construction contractors in this state. Respondent, Frank W. Miller, was licensed as a certified general contractor in Florida under License No. CG C036176. On June 2, 1988, Lots of Casey Key, Inc., a group of investors and contractors, including the Respondent, purchased the land in question located in Sarasota County, Florida. On June 26, 1988, the group hired an environmentalist from a list provided by the county, who evaluated the property with a view toward development. The developers also hired a surveyor and an engineer to get the proper permits for the development. They also published all required notices and acquired at least some of the required permits for the initial stage of the development. This consisted of the construction of a fishing pier extending from the property into Sarasota Bay. This permit was taken out by the Respondent. The Respondent and his associates also contacted Robert B. Patten, an environmental consultant, with a view toward having the eight acres in question rezoned so that houses could be built on it. After examining the property, however, Mr. Patten advised Respondent there were so many protected mangroves on the property, both state and local permits would be required and he, Patten, was not interested in the job. He suggested that Respondent hire an attorney to insure the proper permits were obtained. Respondent claims that in January of 1989, he took his site drawing for the proposed development to the county natural resources office headed by Mr. McCarthy, told him what was planned at the property, and secured his approval. Mr. McCarthy was not called as a witness, and all the appropriate permits were not offered, so at most it can be found that McCarthy approved the concept of the activity in principle. At approximately this same time, the environmentalist the group hired to insure compliance with the environmental requirements purportedly also assured them that the proposal was environmentally sound and properly permitted. It is accepted that he did. As a result, the group acquired the state and county permit for the pier and, in addition, a permit to clear the uplands. They also procured a permit from the Southwest Florida Water Management District and the appropriate agency governing the construction and installation of utilities. In addition, the Respondent procured a permit allowing construction of a boardwalk and a seawall. He did not, however, procure the appropriate permit to allow him to cut, trim, or top mangroves in the numbers shown here. The group hired Southern Landscaping to do all the land work under a contract which called for all mangrove trimming to be done in accordance with the Division of Natural Resources rules This company, which was the low bidder in the procurement process, was relied on to trim the mangroves in accordance with the law and before beginning work, showed how the trees would be trimmed. It appeared to Respondent at this time that the work was being and would be done properly. On March 10, 1989, Belinda S. Perry, an employee of the county's Natural Resources Department, was out on Casey Key and observed that at the Respondent's work site clearing work was being done. She questioned the permitability of this work. She also observed that the mangroves on the north side of the property had been improperly cut, and she asked her associate, Mr. McCarthy, to check it out. He did and thereafter, on March 14, 1989, Respondent came to the office with a copy of his state-issued permit. After analyzing the permit and comparing the work done with the terms thereof, Ms. Perry and Mr. McCarthy advised Respondent it appeared his work was in excess of the limits imposed by his permit and that they would have to notify state authorities and get back to him. At that time, Respondent was cooperative and indicated he wanted to get the proper authorization. As a result, Ms. Perry contacted Ms. Toledo, of the Department of Environmental Regulation, discussed the possible violation with her, and arranged to visit the site with her on March 20, 1989. When they did, Ms. Perry again observed the cutting on the North side of the property in addition to which there was a corridor which had been cut to the east (water) side of the property heading toward the bay. At that point, they contacted Mr. McClintock, the forester, who examined the Respondent's permit. When he saw it permitted only the relocation of 20 palm trees and made no mention of or gave no approval of cutting or trimming of mangroves, he authorized the issuance of a stop work order on March 20, 1989. Ms. Perry and Ms. Toledo, pursuant to the terms of that order, served a copy on Mr. Miller and advised him he was in violation of both state and county regulations and should discontinue the work at the site. Ms. Toledo recalls that when she visited the site on March 20, 1989, she observed much the same situation as described by Ms. Perry. She also recognizes that one of Respondent's permits allowed the moving of palms, and he also had one for the construction of a fishing pier. As a part of this second permit, Respondent was allowed to cut mangroves. Nonetheless, she noted on her visit that in the area to the left of the pathway, many more mangroves had been cut than were allowed by the permit. This cutting was in the form of trimming in excess of any exemption criteria outlined in Rule 17-27.060, F.A.C., (17- 321.060), which allows trimming by a property owner without a permit, but of no more than 25 % of the lateral branches. The red mangroves on the property had been topped which is totally prohibited, and the trimming of the remaining white and black mangroves was to an extent in excess of the permitted 25%. At that time, Mr. Miller indicated to Ms. Toledo that he was the general contractor in charge of the site, and the workers doing the actual trimming were operating under his direction. This is corroborated by the testimony of Mr. Boatright, one of the trimmers, who indicates much the same. At that time, in Ms. Toledo's opinion, Mr. Miller was uncooperative and aggressive and as a result, on March 31, 1989, she drafted a warning notice which was issued on April 3, 1989. On that latter date, Ms. Toledo again went to the site and saw that additional and different mangroves had been trimmed in excess of the exemption criteria mentioned above. Thereafter, on April 7, 1989, she had a telephone conversation with the Respondent during which she advised him that the Department of Environmental Regulation intended to file criminal and civil charges against Lots of Casey Key, Inc. because of the violations described. At that time, Respondent expressed his regret that the situation had happened. As a result of the visits by Ms. Toledo and Ms. Perry, in late March or early April, 1989, Steven T. Cooley, environmental prosecutor for the 15th Judicial Circuit of Florida, was notified through the Sarasota County Sheriff's Department and Division of Natural Resources that there was significant damage to a mangrove forest at Lots of Casey Key. Mr. Cooley conducted an extensive investigation into the matter and caused a collateral criminal investigation to be conducted as well, and as a result of these inquiries, decided to file criminal charges against Mr. Miller and a co-defendant, Mr. Burke. This decision was based on the investigation which revealed that the county's tree protection ordinance, Ordinance 83-44, which included mangroves among the protected species, had been violated. It appeared that Respondent and Mr. Burke had hired subcontractors who committed a significant cutting, (trimming, topping and stumping) of more than 2000 mature trees. The Respondent and Burke were contacted by code enforcement people, (Perry and Toledo), and advised to stop. Nonetheless, additional damage was done after the notice to stop and a Stop Order was thereafter issued. Respondent had a permit to cut mangroves in a corridor area out to the fishing pier, but the actual cutting far exceeded the terms of the permit. The first cutting was a thinning out of mangroves around Casey Key, which, in itself, was a violation, and even after the Respondent was informed he was in violation, he improperly cut more trees. Not all trees were cut down to the ground, but many of those which were illegally trimmed were trimmed to a point where the tree would ultimately die. This was verified by county tree experts. Mr. Cooley filed criminal charges against the Respondent rather than the actual workers who did the cutting because, in his opinion and as a result of his investigation, the workers were merely agents working under the direction of the Respondent. Mr. Miller originally pleaded Not Guilty to the charges against him but subsequently, on June 25, 1990, changed his plea to Guilty. At a sentencing hearing held in December, 1990, adjudication of guilt was withheld, and Mr. Miller was fined a total of $15,000.00; ordered to perform 500 hours of public service, and ordered to spend 10 weekends on the road gang. In addition to the criminal charges, a civil suit was filed by the county against Lots of Casey Key, Inc., to prevent additional cutting of mangroves. By stipulation, a temporary injunction was entered. Trial on the permanent injunction had not been held at time of hearing. According to Mr. McClintock, a sampling taken on March 22, 1989, after the stop work order was approved, showed approximately 2175 mangrove trees had been severely cut on the northern side of the property and between 75 and 100 cut down to the ground in the corridor on which the pathway to the fishing pier was to be constructed. This accounted for a total of 2275 trees. When he went back to the property on March 30, 1989, after the stop work order had been issued, McClintock observed that while cutting was no longer in progress, an additional cutting had taken place, and he counted approximately 78 additional trees which had been destroyed. He later verified that additional trees were cut in the corridor area as well. Taken together, a total of approximately 2350 trees were improperly cut in violation of the state and county codes protecting mangroves. This destruction is the largest in the recollection of Norman C. Easey, the Director of the county's forestry division, and it constituted a serious impact on what was then the largest single mangrove stand in the southern part of Sarasota County. Respondent does not deny that the trees were cut. He notes, however, that after Ms. Perry first came out and advised him of the possibility he was in violation, he agreed not to cut further and in fact, tried to cooperate. He met with his associates who encouraged him to nonetheless continue the cutting even though he advised against it. Ultimately he was able to convince them. An associate, Norman Sharrit, the architect for the project, recalls that Respondent spontaneously exclaimed to him that Burke and Jaffe, the other partners, directed the additional cutting after the stop work order was issued. Nonetheless, after securing his associates' agreement to suspend any cutting, Respondent attempted to contact the trimmers, Southern Landscaping, to advise them to stop work but claims he could never find anyone on site. In this claim, he is supported by Davis Baker, an adjacent retired homeowner, who, in observing the clearing process on a daily basis, noticed that the cutters kept very irregular hours and were gone as often as not. Respondent also claims he left word for the cutters to stop on the company's answering machine but the work continued. It is this additional work, after Respondent's efforts to get the work stopped, that constituted the additional cutting charged. Respondent also claims that the additional trees near the walkway were cut as activity beyond the scope of the contract which he had entered into with the landscape company. Mr. Miller also contends that the work was not done under his license because he was not an owner of Casey Key Estates. The owners of that company, the parent company for development, were Mr. Burke and Mr. Jaffe. He was, however, the Secretary of the corporation, but claims he did not have complete control as to who did what and where. He claims he was not a stockholder in the company and had no ownership in the operation. Under the terms of his agreement with the owners, he was to get a percentage of the profits when the development was completed. As of the date of the hearing, he has received nothing in the way of remuneration. Except for the claim that the work was not done under his license, it is so found. He also claims that in the instant case he was not acting as a contractor for the project. His reasoning here is not supported by the facts. His relationship with the other developers was based on the fact that he obtained the option to purchase the land; he was to put in the utilities; and he was to build the homes and construct the walk over to the beach and the seawall. He also was the one who obtained all permits and who entered into the contract for trimming with Southern Landscaping. It is found, therefore, that he was, in fact, the general contractor for this project and ultimately responsible for all actions taken under his certificate. Mr. Miller cites in his defense that as he understands the law, mangroves can be trimmed without a permit between October and March, up to 25% of the lateral growth, and in his opinion, the trimming did not constitute more than that allowable 25%. This is clearly not so, as evaluation of the Petitioner's photographs, taken near the time in question, which Respondent agrees fairly represents the site at the time, clearly indicates that more than 25% of the lateral growth of the trees' foliage was taken off. It should be noted, however, that a photograph taken some substantial time after the cutting shows that the trimmed area is filling in again and the trees are not dead. This does not mean there was no damage, however. Mr. Easely, the Director of Forestry, whose expertise indicates a reliable opinion, opined that the mangroves are not as healthy as they should be. Once cut, they are going through a period of shock and are branching out from reserve buds developed by the tree for emergency situations such as fire and damage. The tree, once in this condition, has a much shorter life span. Though new trees may, and probably will come in, there is a loss of habitat in the a rea as a result of the trimming, of some 30 to 40 years. In any case, minimization of damage does not excuse or justify prohibited trimming.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that Respondent, Frank W. Miller's certification as a General contractor be suspended for three years, with the execution of the last two years of the suspension stayed under such terms and conditions as prescribed by the Construction Industry Licensing Board, and that he pay an administrative fine of $5,000.00. RECOMMENDED this 8th day of April, 1991, in Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of April, 1991. COPIES FURNISHED: Robert B. Jurand, Esquire Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Frank W. Miller 20 Dover Drive Englewood, Florida 34223 Jack McRay General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Daniel O'Brien Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32202
Conclusions This cause is before the Department of Community Affairs on an Order Relinquishing Jurisdiction and Closing File, a copy of which is appended hereto as Exhibit A.
Other Judicial Opinions REVIEW OF THIS FINAL ORDER PURSUANT TO SECTION 120.68, FLORIDA STATUTES, AND FLORIDA RULES OF APPELLATE PROCEDURE 9.030 (b) (1)®) AND 9.110. TO INITIATE AN APPEAL OF THIS ORDER, A NOTICE OF APPEAL MUST BE FILED WITH THE DEPARTMENT’S AGENCY CLERK, 2555 SHUMARD OAK BOULEVARD, TALLAHASSEE, FLORIDA 32399-2100, WITHIN 30 DAYS OF THE DAY THIS ORDER IS FILED WITH THE AGENCY CLERK. THE NOTICE OF APPEAL MUST BE SUBSTANTIALLY IN THE FORM PRESCRIBED BY FLORIDA RULE OF APPELLATE PROCEDURE 9.900(a). A COPY OF THE NOTICE OF APPEAL MUST BE FILED WITH THE APPROPRIATE DISTRICT COURT OF APPEAL AND MUST BE ACCOMPANIED BY THE FILING FEE SPECIFIED IN SECTION 35.22(3), FLORIDA STATUTES. YOU WAIVE YOUR RIGHT TO JUDICIAL REVIEW IF THE NOTICE OF APPEAL IS NOT TIMELY FILED WITH THE AGENCY CLERK AND THE APPROPRIATE DISTRICT COURT OF APPEAL. MEDIATION UNDER SECTION 120.573, FLA. STAT., IS NOT AVAILABLE WITH RESPECT TO THE ISSUES RESOLVED BY THIS ORDER. 4 of 6 FINAL ORDER No. DCA 11-GM-125 CERTIFICATE OF FILING AND SERVICE I HEREBY CERTIFY that the original of the foregoing has been filed with the undersigned Agency Clerk of the Department of Community Affairs, and that true and correct copies have been furnished by U.S. or Electronic Mail to each of the persons listed below on this 2. day of , 2011. Paula Ford Agency Clerk By U.S. Mail The Honorable Bram D. E. Canter Administrative Law Judge Division of Administrative Hearings The Desoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 By Electronic Mail Mark F. Lapp, Esquire County Attorney Post Office Box 2340 LaBelle, Florida 33975 mlapp@hendryfla.net Katherine R. English, Esquire Pavese Law Firm 1833 Hendry Street Fort Myers, Florida 33901 katherineenglish@paveselaw.com neysaborkert@paveselaw.com 5 of 6 FINAL ORDER No. DCA 11-GM-125 Neale Montgomery, Esquire Pavese Law Firm 1833 Hendry Street Fort Myers, Florida 33901 nealemontgomery@paveselaw.com Ralf Brooks, Esquire 1217 East Cape Coral Parkway, #107 Cape Coral, Florida 33904 ralf@ralfbrookesattorney.com Lynette Norr, Assistant General Counsel Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100 Lynette .Norr@dca.state.fl.us 6 of 6
