Findings Of Fact Respondent, Heartland Private Industry Council (Council), is a thirty- four member council established under an interlocal agreement by five area counties in Central Florida. The counties are Polk, DeSoto, Hardee, Highlands and Okeechobee. The Council's office is located at 300 Parkview Place, Lakeland, Florida. The Council has entered into a contract with petitioner, Department of Labor and Employment Security, Division of Labor, Employment and Training (Division), under which it receives federal grant monies provided by the Job Training Partnership Act (JTPA). As is pertinent here, the Council used the funds to provide summer job training for disadvantaged youths. The Division is charged with the responsibility of ensuring that all grant moneys are properly expended. Under federal regulations, the Council was required to engage the services of an independent public accounting firm to perform a financial and compliance audit on its contract expenditures made during the fiscal period July 1, 1985 through June 30, 1986. During the period in question, the Council had total expenditures of approximately $7.9 million. Under the audit program developed by the accounting firm, the firm sampled and reviewed at random various expenditures. Among those reviewed were two checks dated August 23 and October 10, 1985 in the amount of $239 each payable to one Joyce Barber, a JTPA participant from the City of Auburndale. The expenditure was questioned, but not disallowed, on the ground the first check written to Joyce Barber had apparently been stolen and cashed by another person. A second check in the same amount was then issued to Barber. The auditors questioned whether, under these circumstances, the first expenditure was appropriate. In addition, the auditors noted a $13 mathematical error and recommended that amount be disallowed. Other than these two items, which totaled $252, there were no other proposed adjustments in the audit report. The audit report was forwarded by the Council to the Division on or about June 29, 1987. The report itself is not in evidence. The Division then reviewed the audit report and preliminarily concluded that both expenditures ($239 and $13) should be disallowed. After the matter could not be resolved informally, the Division issued proposed agency action in the form of a "Final Determination" on January 4, 1988. That prompted the Council to request a hearing to contest the action. Barber was one of approximately fourteen hundred youth participants during the summer of 1985 who received job training sponsored by the Council. In addition to their training, these youths were compensated by the Council for their services. There were several hundred employers in the five county area who were involved in the project. Because of the sheer number of participants and employers, the Council mailed its checks directly to the participants, including Barber. According to the Council's in-house certified public accountant (CPA), this was a reasonable manner of disbursing the payroll. The CPA also concluded that the Council's internal controls were adequate. After the checks had been mailed, the Council received a complaint that Barber did not receive her $239 check. It then requested that the Sheriff's office investigate the matter. Based upon that investigation, the Council concluded that the check had been stolen and cashed by another person, and it sent a second check to Barber. From this factual setting, it can be reasonably inferred that the money was either stolen or was not received by Barber. The Council could have obtained insurance to cover this type of loss. However, it would not be economically prudent to do so when comparing the money lost to the cost of a policy. The Council did not deny that a $13 mathematical error was made on one expenditure. Therefore, it is found that such an error occurred, and an adjustment in favor of the Division is appropriate. There are no Division or federal regulations governing the loss of grant monies under the circumstances that occurred here. However, the Division bases its disallowance on the theory that the contractor (Council) received no benefit from the first $239 check sent to Barber. The specific regulation which supports this theory was not cited or offered in evidence. Even so, the Council did not show what benefits, if any, it received from the lost moneys.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a Final Order be entered requiring respondent to repay $252 in JTPA funds to petitioner. DONE and ENTERED this 16th day of March, 1989, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER 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 16th day of March, 1989.
Findings Of Fact Since 1972, petitioner Dennis F. Darnell has been in the tow truck business. He owns and operates one such truck. In addition to towing disabled cars to garages, petitioner has had five years' experience in locating and repossessing all types of vehicles. Typically, a financial institution would engage him to retrieve an automobile from a borrower in default, after telephoning the borrower that a tow truck was coming. In such cases, the lender furnished petitioner a "route sheet" with the name and address of the borrower and a description of the car. At one time or another, petitioner has worked in this way for every bank in Marion County. Petitioner has also been hired by private investigators to tow away vehicles the investigators had already tracked down. Occasionally, petitioner himself has used information obtained from utility companies, the courthouse and the post office to locate vehicles for repossession. In the winter of 1979, Mr. Reister, an employee of the respondent, told petitioner that petitioner needed a license in order to continue to do the work he had been doing for the banks. This was the first petitioner had heard of any such requirement. He agreed to stop working for the banks until he obtained a license and asked Mr. Reister to send him application forms. One week after he received the forms, petitioner submitted the completed forms to respondent. From the time he spoke to Mr. Reister until the time of the hearing, petitioner did not tow any repossessed cars for banks. On receiving respondent's letter of disapproval, petitioner retained counsel who requested a formal administrative hearing. Respondent referred petitioner's counsel's request for an administrative hearing to the Division of Administrative Hearings.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That respondent grant petitioner's application for private investigative agency license, DONE and ENTERED this 4th day of February, 1980, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of February, 1980. COPIES FURNISHED: Daniel L. Hightower, Esquire 116 South East Fort King Street Ocala, Florida 32670 William J. Gladwin, Jr., Esquire Department of State Room 1801, The Capitol Tallahassee, Florida 32301
Findings Of Fact Albert Spain is an applicant otherwise qualified for licensure as a private employment agency/agent except for the lack of three years continuous experience immediately preceding his application, the question which is at issue in this case. Spain was employed with a trade association as a vice president for 15 years until December 31, 1976. His experience in this position meets the requirements of equivalent experience as an employment clerk and is accepted as such by the Division. Spain was employed from February 28, 1977, until March 31, 1978, with Life of Georgia in Orlando, Florida. Thereafter, Spain was employed as manager of an employment agency which experience is accepted by the Division as equivalent experience as an employment clerk. The head of the Life of Georgia agency and Spain's immediate superior, William Richardson, testified concerning Spain's employment. Richardson needed an agent supervisor for his agency to assist him in recruiting, training and supervising agents for the company's Orlando operation. Richardson met Spain and was impressed with his background, feeling that Spain could fill this position as agent supervisor. However, in order to fill this position, the incumbent must be a licensed insurance salesman and have experience in insurance sales. Richardson offered Spain a position as a salesman with the understanding that if Spain gained experience in sales and was licensed he would have the opportunity to become the agent supervisor if his performance was otherwise satisfactory. Spain accepted the employment, obtained his insurance license and worked as an insurance salesman for approximately one year. Richardson was satisfied with Spain's progress and would have considered Spain for the supervisor's job had Spain not left the agency. Although Spain's duties primarily related to sales, he also recruited salesmen, worked in training other sales people, and did other work as was assigned by Richardson. Certain of these duties involved work which would be the equivalent of that of an employment clerk; however, Spain spent only approximately 50 percent of his time in such duties.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer would recommend that the application of Albert Spain for licensure as a private employment agent/agency be granted. DONE and ORDERED this 20th day of February, 1979, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of February, 1979. COPIES FURNISHED: Gerald Curington Division of Licensing The Capitol Tallahassee, Florida 32304 Albert L. Spain 4264C Lake Underhill Drive Orlando, Florida
The Issue Whether Respondent violated Section 493.6118(1)(n), Florida Statutes, as alleged in Counts I, II, IV and V of the Administrative Complaint by subcontracting with individuals named therein to provide private investigative services at a time when they were not licensed as a Class "A" investigative agency. Whether Respondent violated Section 493.6118(1)(n), Florida Statutes, as alleged in Count III of the Administrative Complaint, by allowing an improperly licensed person, John Polk, to direct the activities of licensees, or exercise operational control over the regulated activities of Morse Security Group, Incorporated. Whether Respondent violated Section 493.6118(1)(s), Florida Statutes, as alleged in Count VI in the Administrative Complaint, by failing to report to the Department the termination of persons listed in that count. Whether Respondent violated Section 493.6118(1)(s), Florida Statutes, as alleged in the Administrative Complaint, by directing the activities of licensees, thereby acting as a manager, subsequent to the voluntary deactivation of his Class "C" private investigator's license and Class "M" private investigative/security agency manager's license. Whether Respondent violated Section 493.6118(1)(f), Florida Statutes, as alleged in the Administrative Complaint, by misrepresenting his agency by advertising in the Martindale-Hubbell Law Directory 1993, that his agency is "Florida's largest and oldest private investigative agency", when it is not. Whether Respondent violated Section 493.6118(1)(r), Florida Statutes, as alleged in the Administrative Complaint, by failing to certify the completion or termination of the internship of William J. Smithberger when he had the duty as a sponsor to do so.
Findings Of Fact Morse Security Group holds a Class "A" Private Investigative Agency License, Number AOO-00919, effective June 30, 1993, which was originally issued in 1976, and is currently active. Harvey Morse, the principal of Respondent, holds a Class "C" private investigator license, number COO-008861, effective November 24, 1992, which was originally issued in 1975, and was placed on inactive status by the Department on January 21, 1993. Harvey Morse also was issued a Class "DI" Security Officer Instructor License, No. DI89-00348, effective January 8, 1993, a Class "G" Statewide Firearms License, No. GOO-11067, effective December 6, 1991, which was placed on inactive status with the Department on January 21, 1993, and a Class "M" Private Investigative/Security Agency Manager license No. M85-00112, effective August 7, 1992, which was placed on inactive status with the Department on January 21, 1993. Craig Hull became employed with Respondent in February of 1993, as a part-time investigator. Hull worked under the direct supervision and control of Respondent, and held himself out to the public as an employee. When Hull entered into his contractual employment agreement with Respondent, he was given a vacation/sick day policy document noting his status as a full-time employee of Respondent. Hull executed an Employment Agreement which referred to him as the "employee" and also referred to him as an "independent subcontractor" for the purpose of withholdings. At the time of Hull's employment with Respondent, he held a Class "C" private investigator license. In all aspects of Hull's employment with Respondent, he conducted himself, and was treated as an employee. Hull did business for Respondent under the Respondent's corporate name; held himself out to the public as being Respondent's employee; signed contracts on behalf of Respondent; received letters and correspondence as an employee; was directed when and were to show up for work; how to answer to the telephone; when to answer the telephone; and in all other respects was under the direct control and supervision of Respondent. During the course of employment with Morse Security Group, Hull possessed no occupational license, business cards, stationery, telephone listing, brochures or printed material that identified him as having any relationship with Respondent other than employee and filed no fictitious name with the Department of State. In dealing with clients and the general public, Hull held himself out as an employee of Respondent and his business cards indicated that he was an employee of Respondent. Of the five cases that Hull handled on behalf of Respondent, he at no time attempted to limit the Respondent's liability to any of those clients by asserting that he was an independent contractor, or had any other relationship with Respondent other than employee. Respondent never identified Hull to others an anything other than an employee. At no time did Respondent attempt to limit its general liability to the public as to Hull's employment by the use of the term subcontractor. Respondent never attempted to perpetrate a fraud on the public by the use of the term subcontractor as to Hull's employment. Respondent's liability insurance in effect from 1991 through 1994, specifically covered Hull as an employee of Respondent. John K. Polk was employed by Respondent from February 5, 1992 through March 27, 1993. At the inception of Polk's employment, he entered into an employment contract with Respondent. The agreement for employment was entitled "Employment Agreement", and consisted of twelve paragraphs. Throughout the employment agreement Polk is referred to as employee and Respondent is referred to as employer except in paragraph 10. Paragraph 10 informed Polk that as employee he would be regarded as a subcontractor or independent contractor for the purposes of taxes, workers' compensation, licenses, permits, and insurance. During the course of Polk's employment his relationship with Respondent was governed by the employment agreement. In addition to the employment agreement signed by Polk, he received a separate document entitled, "Employee Vacation/Sick Leave Policy". The vacation/sick leave document further identified and regulated Polk as an employee. During the course of Polk's employment with Respondent Polk did not maintain a separate general liability policy. At no time during the course of Polk's employment with Respondent did Respondent attempt to limit its liability to its clients by treating Polk as anything other than as an employee. Polk never attempted to use the fact that the term "subcontractor" had been used in paragraph 10 of the employment agreement in order to limit Respondent's liabilities to clients. Polk's employee fidelity bond questionnaire for State Farm Fire and Casualty Company Insurance was submitted by Respondent listing Polk as an employee, and Polk was covered under the policy for any acts of negligence of omissions. During the period of Polk's employment with Respondent he held no separate occupational license. Polk's business cards and stationery was provided by Respondent, and identified Polk as an employee of Respondent. The business telephone employed by Polk during his employment with Respondent was identified as Respondent. Polk worked under the direct supervision and control of Respondent. At all times Polk held himself out as an employee to Respondent's clients. During the course of his employment with Respondent, Polk was covered under Respondent's general liability policy for any acts of negligence or omission committed by Polk. Randy Morgan was employed with Respondent as an investigator from January 1, 1991, to approximately December, 1992. Morgan did not have a written contract for employment with the Respondent. Morgan was compensated by the case on an hourly basis by Respondent. Morgan was responsible for withholding his own Social Security and federal income taxes. Morgan considered himself as an employee of Respondent, and was under the supervision and control of Respondent. At all times during the course of his employment Morgan held himself out as an employee of Respondent, not as a subcontractor. Robert O. Sutley was employed by Respondent from November of 1992, until approximately March, 1993. During his employment with Respondent, Sutley held "DD", "B", and "G" licenses from the Department. Sutley entered into an employment agreement with Respondent which consisted of twelve paragraphs entitled "Employment Agreement". Within the employment agreement, the term "independent contractor" was a term used in relation to the workers' compensation and the withholding of taxes. Respondent did not attempt to limit its liability to the general public in regard to Sutley. Throughout the course of his employment with Respondent, Sutley held himself out as an investigator employee of Respondent. During his employment with Respondent, Sutley was under the supervision and control of Respondent. Respondent was contacted on a cold call by Martindale-Hubbell Law Directory for the purposes of advertising. After negotiations, Respondent caused to be issued an advertisement in the Martindale-Hubbell directory. Respondent initially instructed Martindale-Hubbell to advertise that Respondent was "one of the oldest and largest investigative agencies in Florida". The basis for the requested advertisement that Respondent was one of the oldest and largest was Respondent's purchase of a statewide detective agency, which had been in business in Florida since the 1950's, and that Respondent has an affiliate office in Europe and other parts of the United States. Pinkerton's of Florida has been licensed in Florida as an investigative agency since 1968. Pinkerton's has employed over 25 investigator employees on an annual basis over the last five years. Prior to its publication in Martindale-Hubbell, Respondent was not aware of the contents of the advertisement. The ad, as published, stated that the Respondent was the oldest and largest investigative agency in Florida. Respondent became aware of the contents of the advertisement upon receipt of the complaint filed against him by the State. Respondent then sent a letter to Martindale-Hubbell, inquiring why the advertisement read "Florida's oldest and largest private investigative agency", as opposed to "one of Florida's largest and oldest private investigative agencies" as previously instructed by Respondent. Martindale-Hubbell acknowledged that the final draft of the advertisement had been done without Respondent's approval and that an error had been made by Martindale-Hubbell in the advertisement, as it appeared in their publication. Respondent instructed Martindale-Hubbell to cease further advertisement. Respondent reported on his letterhead stationery to the Department the termination of the following persons: Colard, Crews, Fitzgerald, Martin, Morgan, Polk, and Stebbins within the statutory time limit. When Respondent was advised by Mr. Matlack that the computer printout from the Department showed that the above named people were still on a list indicating that they were associated with Respondent, Respondent sent another letter dated April 27, 1993 to the Department advising them of the termination of those listed individuals. As of October 15, 1993, the above named persons were still listed as in Respondent's employ. During the period from January 1, 1993 to April 1993, Harvey E. Morse voluntarily deactivated Class "C" Private Investigator's License and Private Investigative Security Agency Manager's License. Morse voluntarily deactivated licenses upon his graduation from the police academy and his association with the Florida Highway Patrol as a full time auxiliary trooper. Upon voluntary deactivation of Morse's licenses, Morse notified each of the company's employees that Morse would not be involved in any more investigations, and that the employees were to receive their direction from either Dwayne Rutledge or Maria Morse. Morse continued to engage in non-regulated functions such as marketing, sales, computer functions, bookkeeping, and payroll and teaching, training and instruction. During the periods of voluntary deactivation of his license, Morse would run a driver's license record on the computer, receive a printout, and hand it to an employee. Morse refrained, however, from being involved in an investigation based upon that printout. Morse has refrained from involvement in any regulated activities from the time that he voluntarily deactivated his license. Once Morse voluntarily deactivated his license, the primary person responsible for investigations and management of employees was Dwayne Rutledge. During the period from September 1992 to January 1993, Harvey E. Morse supervised and trained John Polk. Morse was always available by way of pager or cellular phone, and in constant contact with John Polk during that time period. Further, Respondent installed a two-way radio system so that Morse could talk with and supervise John Polk on a constant basis. Morse was never more than 60 miles from John Polk during his internship from September 1992 till January 1993, and Morse was in daily contact with John Polk in regard to pending investigations, new matters, old matters, and the general business of the Respondent's office. On several occasions during the above stated time period, Polk would communicate with Morse while he was on patrol in a Florida Highway Patrol vehicle, and ask questions of Morse concerning how investigative matters should be handled. Polk was afforded certain latitude by Morse to make administrative decisions on a day-to-day basis as his training progressed, and Morse placed more confidence in Polk's abilities in certain areas. However, Morse still oversaw those decisions. At all times, Polk's supervision of Respondent's employees was under the direct supervision and control of Morse or other licensed managers in Respondent's employ. The purpose of the Respondent's purchase of a two way radio system was twofold: One, to communicate with other investigators during the course of an investigation; and the other was to afford constant communication among Morse, the office managers, Dwayne Rutledge and Maria Morse, and the investigators, in case of a question would arise in the performance of their duties. Rutledge, as well as Maria Morse, became employed as office manager(s) shortly after 1990, and both he and Mrs. Morse were continuously available to the employees and oversaw, in conjunction with the Morse, the performance of their regulated duties.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is WHEREFORE, it is RECOMMENDED: Petitioner having failed to prove by clear and convincing evidence that Respondent violated those sections as alleged in Counts I through IX of the Administrative Complaint, it is hereby recommended that said Counts be DISMISSED. DONE and ENTERED this 31st day of January, 1994, in Tallahassee, Florida. DANIEL M. KILBRIDE 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 31st day of January, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-3890 The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on proposed findings of fact submitted by the parties. Proposed findings of fact submitted by Petitioner. Petitioner waived the filing of proposed findings of fact. Proposed findings of fact submitted by Respondent. Accepted in substance: Count I, unnumbered paragraphs 1, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18; Count II, paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 14, 15, 16, 17, 20, 22; Count IV, unnumbered paragraphs 1, 2, 3, 4, 6, 7, 8; Count V, unnumbered paragraphs 1, 2, 3, 4, 5, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18; Count VIII, unnumbered paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9; Count VI, unnumbered paragraphs 1, 2 (in part), 3, 5, 6, 7, 8, 9; Count VII, unnumbered paragraphs 1, 2, 3, 5, 6, 7, 8, 9, 10, 11, 12; Count III, unnumbered paragraphs 1, 2, 3, 5, 6, 7, 8, 10, 11, 12. Rejected as argument or conclusory: Count I, unnumbered paragraphs 2, 21; Count IV, paragraphs 9; Count V, paragraph 2(in part); Count VII, paragraphs 4; Count III paragraphs 4, 9. Rejected as redundant or surplusage, or irrelevant and immaterial: Count II, unnumbered paragraphs 13, 18, 19; Count IV, paragraph 5; Count VI, paragraph 4. COPIES FURNISHED: Henri C. Cawthon, Esquire Department of State Division of Licensing The Capitol Mail Station-4 Tallahassee, Florida 32399-0250 William J. Sheaffer, Esquire William J. Sheaffer, PA. 609 East Central Boulevard Orlando, Florida 32801 Honorable Jim Smith Secretary of State The Capitol Tallahassee, Florida 32399-0250 Phyllis Slater, Esquire General Counsel The Capitol, PL-02 Tallahassee, Florida 32399-0250
The Issue The issues are whether Petitioner's rule challenge petition should be dismissed for failure to present issues that meet the requirements of Sections 120.56(1), 120.56(3), and 120.56(4), Florida Statutes, and if so, whether Respondent is entitled to an award of costs and attorneys' fees pursuant to Sections 120.569(2)(e), 120.595(3), and 120.595(4), Florida Statutes.
Findings Of Fact Petitioner filed an application for a Class "C" private investigator license on or about May 15, 2000. By letter dated September 5, 2000, Respondent advised Petitioner that his application for a Class "C" license as a private investigator was denied. The letter stated as follows in relevant part: Failure to qualify under Section 493.6203, Florida Statutes. You have not demonstrated the necessary lawfully gained, verifiable, full-time experience or appropriate training. Your application is therefore being denied. Petitioner filed a request for an administrative hearing with Respondent on or about September 13, 2000. He filed an amended request for hearing with Respondent on or about September 15, 2000. On September 27, 2000, Respondent issued an Order Dismissing Petition with Leave to Amend. This order referenced Rule 28-106.201(2), Florida Administrative Code, and found that Petitioner's hearing request was substantially deficient because it did not contain the following: An explanation of how the petitioner's substantial interest will be affected by the agency determination; A statement of disputed issues of material fact. The Petitioner has not disputed the material facts at issue in this case; which is whether the Petitioner provided the Division with information which the Division could then verify. Verification is achieved by actually speaking with the persons provided by an applicant to obtain information as to what duties were performed and to obtain a percentage of the time worked which involved investigative work. Petitioner provided information concerning former employers in the Affidavit of Experience section of the application. After submitting the application, Petitioner submitted an affidavit from an investigator, however that investigator was not Petitioner's employer and therefore not in the position to verify Petitioner's experience. For the first time, in Petitioner's requests for a hearing, Petitioner submits information concerning a former career in executive recruiting consisting of an affidavit, notarized in Maryland, of a former co- worker. This information was never provided to the Division and is not listed anywhere on the application submitted by Petitioner nor is there any way to verify any of the information in that affidavit as the affiant's address and telephone number are not provided. In his petitions for hearing Petitioner has raised only legal issues which are not legally the forum of a formal administrative hearing. Section 120.569(1), Florida Statutes . . . . A concise statement of the ultimate facts alleged, including the specific facts the petitioner contends warrant reversal or modification of the agency's proposed action; A statement of the specific rules or statutes the petitioner contends require reversal or modification of the agency's proposed action . . . . (Emphasis added) Respondent's Order Dismissing Petition with Leave to Amend also determined that: (a) Petitioner's hearing requests improperly mixed rule validity challenge arguments for Section 120.56, Florida Statutes, proceedings with disputed material fact arguments for proceedings under Sections 120.569 and 120.57, Florida Statutes; (b) Petitioner's argument that his Juris Doctorate training and related legal work experience met the statutory requirements of Section 493.6203(4), Florida Statutes, was a statutory construction/legal argument presented in the guise of factual issues; (c) The Division of Administrative Hearings does not have jurisdiction to decide constitutional validity arguments in a Section 120.57(1), Florida Statutes, proceeding; and (d) Petitioner's argument that he is entitled to licensure by default due to the failure of the agency to meet the 90-day time requirement of Section 120.60, Florida Statutes, is a legal issue in light of the tolling provision of Section 493.6108, Florida Statutes. In a footnote to the Order Dismissing Petition with Leave to Amend, Respondent referred to two documents that Respondent attached as a courtesy to Petitioner. The first document was Respondent's Opinion Letter No. 92-50. This letter responded to a specific inquiry, determining that an attorney, who was not a member of the Florida Bar and who wanted to perform sub-contract investigative work for a licensed private investigation agency, was not exempt under Section 493.6102(6), Florida Statutes, from having to separately qualify for "C" licensure requirements. The second document was Respondent's internal memorandum, identified herein as Opinion No. 92-4. This memorandum determined that legal training and work experience of attorneys do not automatically qualify them for a Class "C" license. Instead, each application should be considered on a case-by-case basis. On October 10, 2000, Petitioner filed his Request for Formal Administrative Hearing, citing Section 120.54, Florida Statutes, as authority to challenge certain of Respondent's rules and statements defined as rules. Petitioner claims that Respondent routinely applies heightened scrutiny to applications submitted by attorneys, persons who are qualified to be attorneys, or others who have research and investigative skills but no actual police or criminal justice experience. Petitioner's hearing request first argues that Respondent's Order Dismissing Petition with Leave to Amend, together with its attachments, all of which are referenced above, set forth policies having the effect of rules. In Petitioner's "First Rule Challenge," he argues that Respondent's interpretation of the time limitations for processing license applications in Section 120.60, Florida Statutes, together with Respondent's interpretation of the tolling provisions of Section 493.6108(1), Florida Statutes, constitute a rule. Petitioner concludes that Respondent is without delegated legislative authority to extend the 90-day application processing time of Section 120.60, Florida Statutes, unless Respondent does not receive the fingerprint investigation report required by Section 493.6108(1), Florida Statutes, prior to the expiration of the 90-day processing period. Petitioner's "Second Rule Challenge" argues that Respondent's Opinion No. 92-4, a memorandum dated January 23, 1992, constitutes a rule because: (a) Respondent uses the opinion to define the "practice of law"; and (b) Respondent relies on the opinion in refusing to recognize experience gained by lawyers in the practice of their profession unless the lawyer was engaged in "full-time investigative work." However, Respondent concludes by acknowledging that the opinion recommends a case-by-case analysis of each attorney's application to determine whether the attorney has the experience and training required by Section 493.6203(4), Florida Statutes. Petitioner's "Third Rule Challenge" also argues that Respondent's Opinion No. 92-4 constitutes a rule. According to Petitioner, Respondent relies on the opinion to find that an attorney, even if a member of the Florida Bar, lacks creditable "college coursework related to criminal justice, criminology, or law enforcement administration." See Section 493.6203(4)(b), Florida Statutes. Petitioner concludes that Respondent does not have authority to interpret the meaning of the statutory term, "related to," so narrowly. Petitioner's hearing request did not include a "Fourth Rule Challenge." Petitioner's "Fifth Rule Challenge" states that Respondent's Opinion Letter No. 92-50, dated October 20, 1992, is an unpromulgated rule. Petitioner claims that Respondent relies on this opinion to set broad policy concerning the agency's treatment of the experience and educational qualification of unlicensed attorneys. Petitioner states that the opinion infringes on the regulatory jurisdiction of the Florida Bar. Petitioner asserts that he is substantially affected because he is an unlicensed attorney. Petitioner's "Sixth Rule Challenge" states that Respondent's Order Dismissing Petition with Leave to Amend is an unpromulgated rule. Specifically, Petitioner claims Respondent created a rule by refusing to credit applicants with work experience that is not "verifiable by actually speaking with the persons provided by an applicant to obtain information as to what duties were performed and to obtain a percentage of the time worked which involved investigative work." According to Petitioner, Respondent has no authority to establish such an agency specific meaning of the common term, "verifiable experience." Petitioner's "Seventh Rule Challenge" argues that Respondent has adopted a special meaning for the term "private investigation" which contravenes the statute. Petitioner takes issue with Respondent's interpretation of "private investigation" as defined in Section 493.6101(17), Florida Statutes. Petitioner also challenges Respondent's interpretation of the experience requirement of Section 493.6203(4), Florida Statutes. Petitioner has withdrawn his "Eighth Rule challenge" regarding the validity of Rule 1C-3.100(3)(a), Florida Administrative.
Findings Of Fact The only issue raised as to whether the Petitioner's application for a private investigative agency license should be granted, is whether or not he has the experience required by law. The Petitioner has received an Associate of Arts degree from Palm Beach Community College. His primary area of study was law enforcement, including courses in search and seizure and investigations. In 1974 the Petitioner received a Bachelor's degree in Criminology from the Florida State University. At Florida State he took courses in criminal investigations, constitutional law, government, psychology, and sociology. While the Petitioner's course work does not constitute experience in the area of private investigations, it is relevant to his qualifications to serve in that capacity. Prior to his attending college, and during the time that he attended college, the Petitioner worked as a security officer for several department stores. He worked approximately four months for Fountain's Department Store in Palm Beach County, and approximately twelve months at Gayfer's Department Store in Tallahassee, Florida, At Gayfer's his employment was part-time, however, he worked thirty to forty hours per week. After graduation from college the Petitioner worked approximately five months at a Sears Department Store in Palm Beach County on a full-time basis. Four months of that experience was as a security officer. As a security officer at the department stores, the Petitioner was present at the stores and observed customers. He apprehended shoplifters, took statements from them, and testified against them in court. He also investigated cash register shortages and other indications of employee dishonesty. An investigator for the Division of Licensing testified that in his opinion the department store experience would not constitute experience in the area of investigations, but rather should be considered security work. The agent did testify, however, that a policeman who worked on a "beat" would be considered to have investigative experience. The work that the Petitioner performed at the department stores is directly analogous to the work that a policeman would perform, and his experience is directly related to the field of private investigations, and should be included in his experience. From March, 1976 through February, 1977 the Petitioner was employed by the Wackenhut Corporation. Since March, 1977 the Petitioner has been employed by Damron Investigative Agency. The work that the Petitioner has performed with these two employers is directly related to the field of investigations. At the time of the hearing the Petitioner had a total of 26 months of experience working for these two employers.
The Issue Whether the Petitioner's application for a private employment agency license should be denied on the grounds stated by the Department in its letter dated August 7, 1978. The Department of State presented evidence that the applicant had been guilty of a crime against laws of the State of Florida; to wit, procuring for prostitution and conspiracy to commit prostitution. The applicant presented evidence that he had not operated an employment agency without benefit of a state license. The issue presented is whether conviction of conspiracy to commit prostitution and procuring for prostitution constitutes a crime of moral turpitude such that the license applied for should be denied.
Findings Of Fact The Petitioner-Applicant, Robert T. Sharkey, testified in his own behalf and identified his application for licensure, Exhibit 1, and a notice of violation issued by Robert P. Murphy, Exhibit 3. Sharkey explained that he had been arrested and convicted for the crimes of procuring for prostitution and conspiracy to commit prostitution, a crime which he characterized as a misdemeanor of the the second degree for which the court sentenced him to a two-year probation. Sharkey has successfully completed all the terms of that probation period. Sharkey testified that before January, 1978, his exwife had operated a licensed modeling agency under a license issued to his former wife; that he had been a photographer who worked with his wife in this modeling agency but who took no active part in management of the modeling agency. Sharkey further testified that after 1978, that he had operated a service business in which he was employed by persons seeking part-time help and he in turn employed individuals to provide the services to the individual who had employed him. Under these arrangements, he was paid by his principle and he in turn paid his employee taking out his profit, social security and federal withholding tax for the employee. Sharkey testified that his business was inspected by Robert P. Murphey on April 7, 1978 and he was issued a notice of violation of Section 449.021, Florida Statutes, which was received as Exhibit 3. The nature of Sharkey's business is to provide services to his principles through his employees. He provides secretarial, modeling, and other services. In addition, he operates a commercial photography business, which provides still and motion picture photography to various businesses in South Florida. Sharkey held a real estate broker's license and at the time of his conviction mentioned above was a real estate broker. As a result of his conviction, his license as a real estate broker was suspended for a period of one year and should be reissued on or about October 12, 1978.
Recommendation Based upon the foregoing findings of fact and conclusions of law, the Hearing Officer recommends that the application of Robert T. Sharkey for a private employment agency license (theatrical) be DENIED. DONE and ORDERED this 17th day of October, 1978, Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of October, 1978. COPIES FURNISHED: John A. Friedman, Esquire 727 Northeast 3rd Avenue Fort Lauderdale, Florida 33304 Gerald Curington, Esquire Secretary of State's Office The Capitol Tallahassee, Florida 32304
The Issue The ultimate issue for determination at final hearing was whether Respondents committed the offenses set forth in the administrative complaints, and if so, what disciplinary action should be taken against Respondents' licenses.
Findings Of Fact Frank Wallberg was going through a divorce and wanted a background investigation on his wife's attorney. On June 19, 1992, he went to the office of South Florida Detective Bureau, Inc. (Respondent Bureau) and specifically requested the services of William Polero (Respondent W. Polero) who he had met a few years prior to this. Respondent Bureau's secretary contacted Respondent W. Polero by telephone, and Wallberg explained to him what he wanted. Respondent W. Polero agreed to perform the background investigation on the attorney, requiring Wallberg to first pay a $1,500 retainer which he was to bring to Respondent W. Polero's home, approximately two blocks from Respondent Bureau's office. As agreed, Wallberg met Respondent W. Polero at his home and gave him a check for $1,500 as a retainer, made payable to Respondent Bureau. For the $1,500 Respondent W. Polero indicated that a complete written report on the attorney could be performed. Wallberg provided Respondent W. Polero with the attorney's complete name, address and telephone number. Respondent W. Polero made several telephone calls while Wallberg was at his home, attempting to obtain information on the attorney but all were unsuccessful. Approximately two days later, Wallberg contacted Respondent W. Polero inquiring about the progress of the investigation. Respondent W. Polero indicated that he was waiting for responses from inquiries and to contact him again that following Friday. Wallberg called back as directed. Respondent W. Polero indicated that after searching public records and court records and contacting The Florida Bar and other attorneys, the attorney had nothing irregular in his background. Feeling that he had not gotten his money worth, Wallberg questioned the cost of the investigation. Respondent W. Polero responded that there was nothing else to report, so there was nothing to report in writing and that the cost of the investigation was $1,500. By that time, the $1,500 check had been cashed. Being very disappointed, on or about July 11, 1992, Wallberg contacted another investigative agency, the Wackenhut Corporation, and obtained their services. He provided Wackenhut's investigator, John Rose, with the same information that he had provided Respondent W. Polero, i.e., the attorney's name, address and telephone number. On July 13, 1992, Rose began his investigation. By July 15, 1992, Rose had completed his investigation and prepared an 18 page written report with numerous exhibits attached. His report reflected the numerous sources he utilized, which included researching public records at the Dade County Courthouse, records maintained by the State of Florida, Department of Highway Safety and Motor Vehicles, including vehicle and driver license information, criminal records maintained by Dade County Corrections and Rehabilitation Department and public records of The Florida Bar. Through these sources, Rose was able to obtain a plethora of information on the attorney, including a history of federal and state tax liens having been filed against the attorney's property, criminal arrests and convictions, and disciplinary action against the attorney by The Florida Bar, with the specifics thereon. With his written report, Rose submitted an itemized invoice dated July 15, 1992, for his services, totaling $650.30. The invoice reflected that he had expended 10 hours on the investigation (generally outlining what was done), at a charge of $60 an hour, equalling $600 for the time, and that there were $50.30 in additional costs ($27 document copies, $2 for parking and $21.30 for mileage). By letter dated September 23, 1992, which was mailed and faxed, Wallberg informed Respondents that he had obtained the services of Wackenhut Corporation and requested that they provide Wackenhut with all the information in their file when requested by Wackenhut. By fax transmission on that same date, Jamie Polero (Respondent J. Polero), President of Respondent Bureau and the son of Respondent W. Polero, responded indicating, among other things, that there was no new or different information from what Respondent W. Polero had provided him and that since Wallberg had not contacted them for almost three months, he had assumed that Wallberg did not wish to continue the investigation. This was the first time that Wallberg had had any contact with Respondent J. Polero. By letter dated September 24, 1992, which was mailed and faxed, Wallberg informed Respondent J. Polero of his dissatisfaction with the investigation performed by Respondent Bureau and requested a $1,350 refund of the $1,500 within 24 hours. Wallberg never received any refund. Several communications between Wallberg and Respondent J. Polero failed to resolve the dispute. Finally, Wallberg contacted State of Florida, Department of State, Division of Licensing (Petitioner) and filed a complaint. Respondent Bureau's investigative file for Wallberg consisted of nine pages, most of which were communications back and forth with Wallberg. Approximately eight hours were expended on Wallberg's case. Even though little investigative work was done, Respondent J. Polero admitted that most of it was performed by Respondent W. Polero, and not by himself. The investigative work performed by Respondents failed to meet industry standards in that the minimum investigation was not conducted, public records were not properly researched and false information was provided to Wallberg, their client. At all times material hereto, Respondent W. Polero was unlicensed. At all times material hereto, Respondent J. Polero was a licensed private investigator (Class "C" license) and a licensed recovery agent (repossessor) (Class "E" license). Also, at all times material hereto, Respondent Bureau was a licensed private investigative agency (Class "A" license) and a licensed recovery (repossession) agency (Class "R" license). No prior disciplinary action has been taken against Respondent J. Polero. Both Respondent Bureau and Respondent W. Polero have prior disciplinary history. In 1989, Petitioner filed administrative complaints against both Respondents for, among other things, unlicensed activity which resulted in the parties stipulating to a penalty of an administrative fine totalling $1,800, 2/ which was paid on or about August 30, 1989. 3/ Additionally, in 1989, Petitioner filed an administrative complaint against Respondent Bureau and in 1990 against Respondent W. Polero for unlicensed activity which resulted in the parties stipulating to an administrative fine of $2,000 4/ which was paid by Respondent Bureau on or about May 25, 1990. 5/ As a related issue to the 1990 complaint, on April 27, 1990, Petitioner issued a Notice to Cease and Desist to Respondent W. Polero's unlicensed activity-- performing private investigative work without a license and managing a private investigative agency without a license--and served him on May 8, 1990.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of State, Division of Licensing enter a Final Order: Suspending South Florida Detective Bureau, Inc.'s Class "A" private investigative agency license and Class "R" recovery (repossession) agency license for one year and imposing an administrative fine of $2,000. Suspending Jamie J. Polero's Class "C" private investigator license and Class "E" recovery agent (repossessor) license for one year 6/ and imposing an administrative fine of $2,000. Imposing an administrative fine of $2,000 against William Polero. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 21st day of March 1994. ERROL H. POWELL 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 21st day of March 1994.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: State Road Number 688, also known as Ulmerton Road, is a major east- west arterial road in Pinellas County. The Paradyne Corporation owns property south of Ulmerton Road and the intervenors, the Millers and the Benjamins, own property located immediately adjacent and to the west of the Paradyne property. Located on the Paradyne property are six or eight commercial buildings, parking lots and a road which runs between Ulmerton Road and 126th Avenue, a county road. At the present time Paradyne employs approximately 1,700 persons who park approximately 1,400 cars per day in the parking lots located on Paradyne's property. On a form entitled "State of Florida Department of Transportation Driveway Permit," Paradyne requested "permission for the construction of a driveway(s) on Department of Transportation right-of-way" at State Road No. 688, Section No. 15120, Mile Post No. 6.350 in Pinellas County. The request was approved by the Department of Transportation on June 6, 1981. Attached to the approved permit were various conditions and stipulations and a sketch or drawing of the proposed construction. Paradyne constructed the connection with the Ulmerton Road light- controlled intersection, as well as a private road leading to it, in a manner whereby only vehicles utilizing the Paradyne property would have access to the intersection. The actual location or configuration of the connection on the State's right-of-way deviated somewhat from the location or configuration shown on the sketch or drawing attached to the permit. The permit issued to Paradyne in 1981 did not include any provisions regarding or sketches illustrating an access road on private property. The property owners adjacent to Paradyne, the intervenors herein, also desired a means of access to the light- controlled intersection on Ulmerton Road. Paradyne refused to allow intervenors to use the private road on its property. The intervenors' request to DOT for a separate connection to Ulmerton Road was denied for safety reasons. The DOT also denied the intervenors' request that a cease and desist order be issued that would require Paradyne to allow the intervenors the use of Paradyne's road. DOT's reason for refusing such a request was that it was beyond the jurisdiction of the DOT to order a 250- foot access road over the parties' private property. Apparently, the construction of a 250-foot joint use road was the subject of preliminary discussions between Paradyne and persons who had previously held an option to purchase the intervenors' land. However, as noted above, the permit was issued only to Paradyne and there is no mention therein of a 250-foot joint use drive on the private property of either Paradyne or the intervenors. Having failed in their attempts with Paradyne and the DOT to gain access to the Ulmerton Road light-controlled intersection, the intervenors filed an action in the Pinellas County Circuit Court seeking a declaratory judgment and a mandatory injunction requiring Paradyne to participate with them in the construction of a 250-foot joint use drive. The Circuit Court ordered Paradyne to so participate in accordance with the driveway permit and the DOT drawing. On appeal to the District Court of Appeal, Second District, it was concluded that there was substantial evidence to support the Circuit Court's finding that DOT intended that the owners of both parcels would have access to the light- controlled intersection. However, the appellate court found "that the circuit court violated due process of law because it did not have authority to order appellant to participate with appellees in the construction of the 250-foot-connector road. The permit, as issued, did not require a 250-foot connector road. The circuit court is only authorized to enforce the DOT permit under section 120.69. The authority to regulate connectors to state roads has been delegated to DOT pursuant to section 335.18, Florida Statutes (1981). Therefore, we reverse and remand to the circuit court to enforce the DOT permit pursuant to section 120.69, so both parcels will have access to the light-controlled intersection. Upon remand, DOT may intervene as a matter of right pursuant to section 120.69(1)(d), or be joined as an indispensable party based on its duties under section 335.18: It is possible that DOT will find that the intersection, as designed, does not meet the standards in section 335.18, Florida Statutes (1981). In this event, DOT should be allowed to re- design the connector road to meet the standards of section 335.18, and to have minimal impact on the property rights of appellant and appellees. In the event it becomes impossible to provide the parties access to the intersection as contemplated by DOT's permit, DOT has authority under section 335.18(4) to deny access and revoke the permit. Affirmed in part and reversed in part and remanded with instructions." Paradyne Corporation v. Miller, 455 So.2d 432, at 434 (Fla. 2nd DCA, 1984). On remand, the DOT intervened in the proceeding. By Order filed on December 23, 1985, the Circuit Court of Pinellas County noted that the intervenors herein and the DOT sought to present a redesign of the intersection and connector road and that Paradyne objected. The Court denied the proceedings sought by the intervenors herein and the DOT, concluding that "this hearing is premature in view of the fact that a new permit must be issued for a material change of the intersection, and that Defendant (Paradyne), in the issuance of a new permit has all the rights of objection and administrative process that it had under the first permit..." Irvin E. Miller, et al v. Paradyne Corporation, et al, Case No. 82-3441-8 (Circuit Court for Pinellas County, December 23, 1985). The instant "Alleged Violation of the Florida Statutes and Notice to Show Cause" is dated March 31, 1986. That document charges that the highway connection constructed by Paradyne is in violation of Section 335.18(3) and 335.18(1) for the reasons that: it was not constructed in accordance with the permit design plan to provide joint access to Paradyne and the intervenors' adjoining properties, and (b) a material redesign of the existing connection in accordance with an attached drawing is required due to disruption of traffic and safety hazards caused by the greatly increased numbers of vehicles using the road connection. Paradyne was ordered to comply or show cause why its connection permit should not be revoked and access denied to the connection. On the south side of Ulmerton Road, the DOT's right-of-way extends 38 feet from the berm of Ulmerton Road. There is no dispute over the fact, and petitioner so admits, that the connection Paradyne constructed on the State's right-of-way was not in accordance with the drawing attached to its 1991 permit. However, the DOT presented no evidence that it now desires Paradyne to alter the connection so as to be in compliance with the 1981 permit drawing. In late 1984, after the remand from the District Court of Appeal, Second District, the intervenors retained the DSA Group, formerly Diaz-Seckinger & Associates, Inc., to prepare a report on the joint use of improvements at the intersection of Ulmerton Road and the Paradyne entrance. The DSA Group conducted traffic studies and prepared a "Report on Existing Conditions and Joint Use Access Proposal at Ulmerton Road and Entrance to Paradyne." The report recommended a redesign and contained drawings for a major revision of the intersection actually on Ulmerton Road, the connection on the right-of-way and a 250-foot long joint access road on the private property of Paradyne and the intervenors. While DOT employees were consulted regarding this report and its recommendations and had some input during its preparation, there was no showing that Paradyne participated in the report or the recommended redesign of Ulmerton Road, the connection or the joint use drive. Indeed, according to the engineer responsible for the DSA report, the report and redesign were developed and submitted to the intervenors and the DOT "for their use in meeting and negotiating with the Paradyne. At the time we took the contract we were under the opinion that they were hopefully resolving things with the property owners and they wanted something to go to Paradyne as an offering of one alternative, frankly, with the expectation that there may be something coming back saying "Well, we need to modify this and this." As it turns out, this plan as of a year ago or over a year ago, it's the one that stands right now." (Transcript, pages 98 and 99). Apparently, the intervenors, prior to commissioning the DSA report, requested the DOT to perform a survey or study. DOT declined to do so on the ground that "this had to do with private drives, private property and it was DOT's position that we did not fund evaluations for access into private development." (Transcript, page 136). The redesign of the Ulmerton Road intersection and entrance to the Paradyne/Intervenors property, along with the 250-foot joint use road, recommended by the DSA Group is identical to the redesign required under specification (b) of the Notice of Violation and to Show Cause issued by the DOT. The drawing attached to the Notice to Show Cause is the drawing prepared by the DSA Group. Traffic has increased at the intersection of Ulmerton Road and the entrance to the Paradyne property. The traffic signal in the center of Ulmerton Road allows Paradyne employees traveling westward on Ulmerton to turn south into Paradyne's parking lots, allows exiting employees to turn westward or eastward and also allows traffic exiting from a development known as Tall Pines Estates on the north side of Ulmerton to turn east or west. During two peak traffic flow hours in 1981, 780 vehicles traversed the intersection straight through from east to west, and 235 westbound vehicles turned left or southward into the Paradyne parking lot from Ulmerton Road. In 1985, the through vehicles numbered 1,224 and the left-turning vehicles numbered 379 during the peak traffic hours. It was not established by the testimony and evidence that the increase in through traffic from east to west is the result of any increased activity on the part of either Tall Pines Estates on the north side of Ulmerton or Paradyne on the south side. The increased number of westbound, left-turning vehicles into the Paradyne parking lots causes some backup from the existing stacking lane during the morning and afternoon peak hours, thus causing some congestion on the north or westbound half of Ulmerton Road. The single, existing stacking lane for westbound, left-turning vehicles is approximately 120 to 150 feet long. A survey conducted in late 1984 demonstrated that for the morning peak period, the level of service was an "E", indicating forced flow with traffic backing up. In the afternoon peak period, the level of service was a "D", meaning that drivers had to wait two or three cycles to get through the intersection. The desirable or comfortable level of service is a "C", meaning that the motorist has to stop for only one change of lights. The DOT's minimum accepted design standard in an urban area is a level "D" service. In 1985, the actual accident rate in ratio to the critical accident rate slightly exceeded 1 in the area of the subject intersection. The recommendations of the DSA Group, and the redesign required by the DOT in its Notice to Show Cause, calls for the construction of a dual or double stacking area, 350 feet in length, for the westbound approach on Ulmerton Road and a widened receiving approach on the property to the south to accommodate the dual left-turning traffic. The plan also calls for two westbound turning lanes out of Paradyne property. The median barrier for westbound traffic on Ulmerton Road would need modification. In addition to the widened entrance on the private property to the south, the DSA design calls for the private access road to be extended to a point 250 feet south, with a fence or curb barrier to control the flow of traffic from Paradyne's parking lots at designated points into the access road. The access road would require approximately 22,700 square feet for a joint use area, with 13,980 square feet located on Paradyne's property and 8,750 square feet located on the intervenors' property. The joint use road could either be maintained as a private road pursuant to an agreement between the property owners or it could, perhaps, be dedicated to public use. There was no evidence as to whether Pinellas County would be agreeable to accepting the dedication and thereby becoming responsible for the road's maintenance. It is anticipated that this redesign, primarily because of the dual left turn lanes on Ulmerton Road, would improve the level of service in the morning peak hours to a level "D", and in the afternoon peak period to a level "C". The cost for construction on Ulmerton Road is estimated to be $310,000.00 and the cost for the private 250-foot long drive is estimated to be $50,000.000. In the opinion of the designer of the DSA plan, there is no practical method of design that would allow two separate accesses for Paradyne's and the intervenors' use. The provision of separate accesses would create a five-lead intersection which would cause "even more difficulties in traffic operations." (Transcript, page 86). The DOT's traffic engineer would not approve the traffic signal operation which would be required if there were separate access roads ingressing and egressing the two properties south of the subject intersection. All the proposed modifications at the approach to the property south of Ulmerton Road could be located on Paradyne's property. This would cause a slight offset of the intersection and would cause Paradyne to lose some property now used as a parking lot.
Recommendation Based upon the findings of fact and conclusions of law recited herein, IT IS RECOMMENDED THAT the "Alleged Violation of the Florida Statutes and Notice to Show Cause" be dismissed. IT IS FURTHER RECOMMENDED THAT said dismissal be without prejudice to the Department of Transportation to issue to Paradyne Corporation a new permit specifying the location and design it considers appropriate for Paradyne's connection to Ulmerton Road, said design containing specifications for construction on Ulmerton Road and its right-of-way, as well as any requirements at Paradyne's entrance beyond the DOT's right-of-way deemed necessary to accommodate proper traffic flow and eliminate safety hazards. Should a new permit be issued, Paradyne should be afforded thirty (30) days within which to indicate its intent to either comply with the new permit terms and conditions or forfeit its access rights to Ulmerton Road. Respectfully submitted and entered this 4th day of February, 1987, in Tallahassee, Florida. DIANE D. TREMOR Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of February, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-1709 The proposed findings of fact submitted by each of the parties have been fully considered and have been accepted and/or incorporated in this Recommended Order, except as noted below: Petitioner, Department of Transportation Rejected as irrelevant and immaterial to the issues in dispute. Respondent, Paradyne Corporation NOTE: The respondent's proposed "findings of fact" contain many statements which constitute legal argument or restate the legal positions of counsel for the parties. To that extent, those statements are not proper "findings of fact" and are rejected as factual findings. All but the last sentence is rejected. The documents referenced were not the subject of a proper request for official notice and, therefore, cannot be considered evidence in this proceeding. 4 and 5. Rejected. Under proper circumstances, as discussed in the conclusions of law, the term "connection" may include more than the DOT right-of-way. First sentence rejected as contrary to the evidence. Rejected as irrelevant and immaterial. Accepted only insofar as it correctly states that the responsibility for cost of construction on Ulmerton Road was not made an issue in this proceeding. Intervenors, Miller and Benjamin NOTE: The intervenors have filed a proposed recommended order which is not separated into "findings of fact" and "conclusions of law." To the extent that proposed factual findings are suggested in said filing, they are accepted with the exception of: Page 1, last sentence: Rejected; the document does not cite Paradyne for refusing the redesign. It simply states that a redesign is required. Page 4, next to last paragraph: Rejected as contrary to the evidence and contrary to the law. Page 5, 3rd paragraph: Rejected as erroneous legal conclusion insofar as "joint access" is intended to encompass a "joint use road" on private property. COPIES FURNISHED: Vernon L. Whittier, Esquire Haydon Burns Building M.S. 58 Tallahassee, Florida 32301-8064 John R. Bush, Esquire Bush, Ross, Gardner, Warren & Rudy 220 South Franklin Street Tampa, Florida 33602 Bruce Marger, Esquire Gardner, Reams, Marger, Davis, Piper & Bartlett, P.A. 1700 66th Street North - 501 Post Office Drawer 41600 St. Petersburg, Florida 33743 Kaye Henderson, Secretary Department of Transportation Haydon Burns Building Tallahassee, Florida 32301 =================================================================
