The Issue This case concerns the request by the Petitioner, Richard A. Havlock, that he be granted a special exception to construct a storage warehouse on a lot located at 1169 Gould Street. See Sections 131.016(f) and (g), City of Clearwater Building and Zoning Regulations. This area is located in CG-General Business zoning, within the meaning of Sections 131.140 through 131.146, City of Clearwater Building and Zoning Regulations.
Findings Of Fact This case is here presented for decision following a public hearing of January 15, 1981, leading to the denial of the Petitioner's request for special exception as set forth in the Issue Statement of this order. The tape transcript to that meeting may be found as City's Exhibit No. 4, admitted into evidence. The denial of the special exception was by decision of the Board of Adjustment and Appeal on Zoning, City of Clearwater, Florida. On March 25, 1981, a hearing was conducted before the Division of Administrative Hearings to consider the subject of this special exception and this order results from that hearing. On December 22, 1980, the Petitioner applied for a special exception to zoning for purposes of constructing the aforementioned warehouse at 1169 Gould Street, Clearwater, Florida, which is at Lot 5, RH Padgetts Subdivision, Section 15, Township 295, Range 15E. The present zoning for the area in question is CG- Business Purposes, as found in Sections 131.140 through 131.146, City of Clearwater Building and Zoning Regulations. The details of that application may be found in the City's Composite Exhibit No. 3, admitted into evidence, which is a copy of the application and other materials related to the application. A sketch of the lot and proposed building structure may be found as City Exhibit No. 2, admitted into evidence. Some of the prominent features of that plan depict the lot as being 50 feet wide and 150 feet long with the warehouse being 30 feet wide by 120 feet long. The front of the warehouse is 20 feet from the street, the side yard setbacks are shown as 10 feet and the distance to the rear of the lot from the back edge of the proposed warehouse is shown to be 8 feet. The Petitioner proposes to erect a corrugated metal building to serve the warehouse function. There are no plans to construct privacy barriers on the side yards. West of the property in question may be found a single family dwelling, east of the property is a vacant lot, and there is another vacant lot across the street. There is very little vegetation on the lot, to provide buffering. Gould Street, at this point, is 20 feet in width, which is very narrow. The street right-of-way is 30 feet as opposed to the standard 60 foot right-of-way. The area is described as a distressed area and the construction of the warehouse would have little impact on this area as it exists today, but it is intended that the area become high density housing and professional use center in the future pursuant to the Land Use Plan for the City of Clearwater. The warehouse is not compatible with those future plans. The design as presented in its off-street parking features is such that vehicles would be required to back into the public street to obtain egress, a violation of Section 131.218(1), City of Clearwater Building and Zoning Regulations. In addition, there is a problem with parking space No. 2 as depicted, in that the door opens into that parking space and is not in keeping with traffic engineering department standards within the meaning of Section 131.218(2), City of Clearwater Building and Zoning Regulations. (The Petitioner has offered to modify his site plans to comply with the off-street parking.) An associated problem concerns the possibility of loading and unloading of semi-tractor trailers, in that to do so they would block travel on the street. Although the Petitioner indicates that only light and medium duty trucks will be utilized normally, he does concede the possibility of the utilization of the semi-tractor trailer type of vehicle. City's Exhibit No. 1 is a photograph of the lot and the Petitioner's Exhibits Nos. 1 through 21, are photographs of the area in question and the surrounding business area.
The Issue The issues in this case are whether Respondents, David H. Fort and Claudia A. Fort, violated certain statutes and rules of Petitioners, Department of Environmental Protection ("Department") and Board of Trustees of the Internal Improvement Trust Fund ("Trustees"), related to the construction of a dock and boathouse and the use of sovereignty submerged lands, as alleged in the Amended Notice of Violation and Orders for Corrective Action ("Amended NOV") and, if so, whether the administrative fines, investigative costs, and corrective actions sought by Petitioners should be imposed against Respondents.
Findings Of Fact The Department is the state agency charged with the power and duty to administer and enforce the provisions of Chapter 403, Florida Statutes, and the rules promulgated in Florida Administrative Code Title 62. The Trustees are responsible for state-owned sovereignty submerged lands and ensuring that such lands are managed for the benefit of the citizens of Florida pursuant to Chapter 253, Florida Statutes, and the rules promulgated in Florida Administrative Code Title 18. The Department performs all staff duties and functions for the Trustees related to the administration of state lands. See § 253.002, Fla. Stat. David and Claudia Fort own property located at 7875 A1A South, St. Augustine, St. Johns County, Florida. The property is located adjacent to the Matanzas River, a part of the Intracoastal Waterway. The Trustees own the lands lying below the mean high water line of the Matanzas River. The Permit and Lease Harbor Engineering (“Harbor”), a marine engineering firm, acted as Respondents' agent in preparing plans and applying for the permit and lease to construct a dock and boathouse at the property. Harbor prepared and submitted to the Department five sketches or drawings showing various layouts, cross sections, and elevations of the proposed dock and boathouse. These drawings were made a part of the permit and became conditions of the permit. The permit drawings show one large covered slip, two smaller covered slips for mooring of jet skis, and a two-level boathouse. Although some of the elevations do not show walls, it is apparent that this was for the purpose of showing interior areas, such as the slips. Although difficult to see, one drawing indicates a doorway on the lower level. The elevations show window openings or "cutouts" in the walls of the boathouse, but do not indicate framed window panes. The drawings do not create a necessary conclusion that the cutouts are intended to be finished with framed window panes. On January 13, 2004, the Department issued Environmental Resource Permit and Sovereign Submerged Lands Authorization No. 55-216127-002-ES ("permit"), which authorized Respondents to construct a dock and boathouse in the Mantanzas River adjacent to Respondents' property. General Condition (a) of the permit states: All activities shall be implemented as set forth in the plans, specifications and performance criteria as approved by this permit. Any deviation from the permitted activity and the conditions for undertaking that activity shall constitute a violation of the permit. On February 24, 2004, the Trustees issued Sovereignty Submerged Lands Lease No. 550034552 ("lease") to Respondents, authorizing the use of sovereignty submerged lands for a 3-slip docking facility and boathouse "as shown and conditioned" in the Department permit, which was incorporated into and made a part of the lease.2/ Paragraph 1 of the lease states that the dock and boathouse are "exclusively to be used for mooring of recreational vessels in conjunction with an upland single-family residence." Paragraph 7 of the lease states in pertinent part: This lease is given to the Lessee to use or occupy the leased premises only for those activities specified herein and as conditioned by the Department of Environmental Protection, Environmental Resource Permit. The Lessee shall not change or add to the approved use of the leased premises as defined herein . . ., shall not change activities in any manner that may have an environmental impact that was not considered in the original authorization . . . without first obtaining . . . the Lessor's written authorization in the form of a modified lease. Paragraph 26 of the lease states that the lessee shall ensure that no "structures whose use is not water-dependant shall be erected or conducted over sovereignty submerged lands without prior written consent from the Lessor." The term "water dependent activity" is defined in Florida Administrative Code Rule 18-21.003(71): "Water dependent activity" means an activity which can only be conducted on, in, over, or adjacent to water area because the activity requires direct access to the water body or sovereign submerged lands for transportation, recreation, energy production or transmission, or source of water, and where the use of the water or sovereign submerged lands is an integral part of the activity. The lease was issued for a term of five years. It expired on January 12, 2009. Enforcement History Respondents began construction of the dock and boathouse in February 2004. A Department employee, Michael Savage, inspected the dock and boathouse on June 8, 2004, while construction was in progress. Savage said he was responding to an anonymous complaint about Respondents' dock and boathouse, but Savage did not explain the nature of the complaint. Savage had the permit drawings with him during the inspection. The dock pilings were in place as well as the "shell" of the boathouse. The structure had some cutouts for windows, but no windows with panes were installed. Savage measured the structure. Savage did not see anything during his June 8, 2004, inspection that caused him to believe the structure was not being constructed in compliance with the permit, except that a copy of the permit had not been posted at the site as required by the permit. Savage said he called Respondents, left a voice message, and talked to the builder. The Department's on-line enforcement record for the June 8, 2004, inspection indicates that a call was made and a message was left: "Need to have permit posted/erosion control in place." Savage and another Department employee inspected the dock and boathouse again on July 9, 2004. Savage had the permit drawings with him during this second inspection. Three outside walls were in place and the second level of the boathouse was under construction. No window framing or glass had been installed. An overhang, extending over the northwest corner of the structure, was in place. Savage had some concern about whether the locations of the window cutouts were in compliance with the permit. In all other respects, he thought that the construction was in compliance. The structure shown in the photographs taken on July 9, 2004, looks like a small house. It does not look like a structure intended only to provide shelter to a boat slip. The Department did not communicate with Respondents about the July 9, 2004, inspection. The Department's on-line enforcement record for the July 9, 2004, inspection includes the entry "In compliance." General Condition (j) of the permit requires that within 30 days after completion of construction of the permitted system, the permittee must submit a written statement of completion using an As Built Certification Form ("as-built"). On the as-built, the permittee is required to note and explain any “substantial deviations." Instead of submitting a single as-built following the completion of the dock and boathouse, Respondents submitted three as-builts. David Fort said his purpose was to keep the Department informed about the progress of the project. On September 8, 2004, the Department received the first of Respondent's as-builts. On the as-built form, David Fort indicated that the work was substantially completed. Although Fort did not intend to mislead the Department, the construction was not substantially completed at that time. A substantial amount of work remained to be done. Savage and another Department employee inspected the dock and boathouse on September 14, 2004. Savage had the permit drawings with him for this inspection. The boathouse was not changed much from its appearance in July 2004. It had no windows or doors. Savage believed that the project was in compliance with the permit and later made a note to that effect on a sheet containing three photographs that were taken during the inspection. The Department's on-line enforcement record for the September 14, 2004, inspection indicates that Savage met with the builder and includes the entries "In Compliance" and "Built as Permitted." Matthew Kershner, Compliance Enforcement Manager for the Department, accompanied Savage on one of the inspections of the dock and boathouse. Kershner placed a telephone call to David Fort and said his purpose in calling was to respond to a complaint from a neighbor "about a large dock being constructed." Kershner told Fort that Fort could not "climatize" the boathouse. Kershner did not explain at the final hearing what he meant by the term "climatize," nor did he give any other details about his conversation with Fort. It is reasonable to infer from the evidence, however, that Kershner meant that Fort was not permitted to provide artificial heating and air- conditioning in the boathouse. Fort called Kershner later and asked if he could install fans and Kershner told Fort that fans would be acceptable. It is reasonable to infer from the photographic evidence, alone, that Kershner knew in September 2004 that the apparent plan of construction was to at least partially enclose the boathouse. However, Kershner told Fort that turning the dock into a residence or "enclosing it" was not permitted. The only reasonable meaning to ascribe to a statement that a structure cannot be enclosed is that there must be some permanent, unobstructed way to pass in and out of the structure. A room surrounded by walls, with a door, is an enclosed structure. In November 2004, the first windows were installed in the boathouse. The windows were specially made to withstand severe weather. Respondents paid $120,000.00 for the windows. On January 7, 2005, the Department received the second as-built from Respondents. Hand-written on the form is “windows installed 1-6-05.” Another Department employee, Tracy Schilling, inspected the dock and boathouse in January 2005. Schilling said the inspection was in response to a complaint from a neighbor that the dock was "extremely large" and that it was blocking the neighbor's view. Schilling reviewed the permit drawings before her inspection. The construction was still incomplete. There was framing work underway on the first floor interior of the boathouse. Schilling said it was apparent from the framing that the boathouse would have "separate rooms." Schilling believed that the dock and boathouse were in compliance with the permit. On April 13, 2005, the Department received the third as-built from Respondents. On June 28, 2005, Schilling and another Department employee inspected the dock and boathouse again. Photographs taken during the inspection show windows were installed. Framing was completed in the upstairs portion of the structure, creating two rooms, and interior walls on the first floor were finished. The rooms were at least partially furnished with chairs, tables, and a lamp. During the June 2005 inspection, Schilling observed a fiberglass shower stall, still in its box, on the dock. Schilling believed that the installation of a shower stall would violate the prohibitions in the permit and lease against structures that were not water-dependent. The Department's notes for the June 2005 inspection indicate “Minor Out-of- compliance.” Schilling said she did not consider the windows to be out of compliance because window openings were shown on the permit drawings. On the first sheet of photographs taken during the June 2005 inspection (Respondents' Exhibit 3B), someone has written, "This is sliding over into non-water dependent category - Let's talk." However, the record does not include any explanation of this handwritten comment. Schilling sent a letter to Respondents on August 29, 2005, informing Respondents that an “item” was found to be non- compliant with Condition 26 of Respondents’ permit that prohibits structures whose use is not water-dependent and that such structures must be removed within 30 days. The letter did not identify the structure that was not water-dependent. On September 7, 2005, David Fort called Schilling about the August 28 letter. Schilling told Fort that the “item” referred to in the letter was the shower stall. She told Fort that plumbing and running water were not allowed. Fort told Schilling that he was not going to install the shower. In February or March, 2006, Schilling called David Fort to request permission for Schilling and some Department employees from the Division of State Lands in Tallahassee to inspect the dock and boathouse. Schilling said State Lands employees occasionally make site visits to inspect unusual docks and marinas "that may have issues." She suggested the inspection of Respondents' boathouse because it was the "Taj Mahal of docks." The inspection was conducted by Schilling and three other Department employees. Schilling had a copy of the lease with her. The exterior construction of the boathouse was complete and the interior work was substantially complete. Schilling believed the structure was built in compliance with the permit. Respondents did not submit an as-built to reflect the final construction of the dock and boathouse. The Department's enforcement action arose as a result of Savage's September 3, 2009, inspection of the dock and boathouse. It was during this inspection when Savage first became aware of the enclosed rooms of the boathouse. He observed a children's playroom with carpeting, lighting, an air conditioning unit, cable for television, and shelves. These structures and uses are not water-dependent. Savage observed another room in the boathouse that contained an air conditioner or dehumidifier, refrigerator, kitchen-style cabinetry, glass-paned windows, kitchen-style sink connected to a water supply, television, and a microwave oven. These structures and uses are not water-dependent. Savage observed another room with a water heater and a shower stall. The room also was being used to store cleaning materials and personal property. These structures and uses are not water-dependent. Savaged observed electrical wiring throughout the boathouse. The Department allows electrical wiring only for water-dependent uses, such as an electric boatlift or for emergency lighting. On the dock adjacent to the large mooring slip, Savage observed a sink connected to a water supply, a glass-paned window, and a door that enclosed a lower level room. Savage did not think the sink was "representative of a fish cleaning station." His objection to the sink was that it had more than one basin and did not have a sign identifying it as a fish cleaning station. Also on the dock in the area of the slips, Savage observed music speakers installed on the wall, doors enclosing rooms, and a closet which was being used to store fishing reels and gear. There is a pump stored next to the boat lift in the boat storage area that pumps water out of the Matanzas River into a tank for keeping live bait. Respondents admitted that they had installed structures at the dock and boathouse that were not authorized by the permit. These unauthorized structures are a stairway and ramp to the beach, a floating platform on pilings with a metal gangway, and an "overhang" (that portion of the upper level deck on the north side of the boathouse that extends 1.5 feet beyond the outer wall of the lower level). The Department incurred $1,874.00 in investigative costs for investigation and enforcement activities associated with Respondents' dock and boathouse. Respondents did not dispute these costs. They are reasonable costs. Detrimental Reliance Respondents claim that they relied on the Department's representations following the Department's inspections of the construction and would not have installed the doors, windows, or other features in the structure if the Department had told Respondents that these structures were not authorized by the permit. The permit drawings indicate a boathouse with areas that would be semi-enclosed. However, the permit and lease limit this boathouse to a structure for the mooring and protection for boats. The boathouse is not supposed to serve as a residence or a clubhouse. It was unreasonable for Respondents to believe that the permit authorized enclosed rooms and amenities typical of an upland residence with many features that are not water-dependent. Respondents presented no evidence to show that similar boathouses have been authorized by Department permit. David Fort's actions showed that he had a complete disregard for the warnings and instructions that he received from the Department. He was told that he could not "climatize" the boathouse. He was told that he could not enclose the boathouse. He was told that he could not install the shower stall. He was told that he could not install plumbing or running water. He was told that he could not use the dock and boathouse for activities that were not water-dependent. Yet he did all of these things anyway. He built certain structures, such as the floating dock and gangway, which he knew were not authorized by the permit. It is in this context of Fort's apparent intent to do whatever he wanted with the boathouse, no matter what the Department said, that Fort's claims of detrimental reliance must be considered. The more persuasive evidence does not show that Respondents relied to their detriment on any representation by a Department employee, except for the installation of fans. David Fort asked a direct question about whether he could install fans, before the fans were installed, and was told by the Department that he could install fans. All of the other structures that are the subject of this case were installed without a prior discussion with the Department or are contrary to instructions given by the Department. Respondents point out several times that certain structures were in place before a Department inspection, facts which Respondents believe support their arguments about the structures being in compliance with the permit, because the Department saw the structures but did not object to them. Although these facts are relevant to the determination of whether the structures were, in fact and in law, in compliance with the permit, they undermine Respondents' claim of reliance. Respondents' claim of reliance is not based on any affirmative acts of the Department, but on the Department's silence. The Department's silence caused Respondents to believe that the Department would not take enforcement action, but the evidence does not show that Respondents relied on the Department's silence to construct or install any of the disputed structures.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioners issue Final Orders that impose the administrative fines and order the corrective actions set forth in the Amended Notice of Violation and Orders for Corrective Action, dated June 1, 2010, with the modifications stated above. DONE AND ENTERED this 29th day of September, 2010, in Tallahassee, Leon County, Florida. S BRAM D. E. CANTER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of September, 2010.
The Issue Did Respondent, Universal City Development Partners (Universal), discharge Petitioner, Kevin D. Fischer, because of his age? Did Respondent, Universal City Development Partners (Universal), discharge Petitioner, Kevin D. Fischer, because of a handicap or a perception that he had a handicap?
Findings Of Fact Universal operates a theme park in Orlando, Florida. Universal employed Mr. Fischer as an Industrial Automation Technician (Electrical) for approximately 20 years. From May 27, 2011, until June 15, 2011, Mr. Fischer was on approved medical leave. After that, he returned to work with no activity restrictions. Mr. Fischer's date of birth is July 2, 1960. Universal discharged Mr. Fischer on July 11, 2011. Universal discharged Mr. Fischer for failure to properly clean a bilge pump on June 26, 2011, and for falsely certifying that he had cleaned the pump. Cleaning the pump was a preventative maintenance procedure that Mr. Fischer had performed for most of his career with Universal. The pumps are in the bilge or bottom of the boats used in Universal's Jaws ride. Each boat carries approximately 48 passengers around an artificial island in a man-made lagoon. The ride simulates the experience passengers might have boating in the waters depicted in the movies "Jaws" while the shark swam the waters. The boats ride on rails and are moved about by hydraulic arms. The bilge pumps are important protection for the $8,500.00, engines in the boats. If the pumps fail, water accumulates in the bilge and can cause very costly damage to the engines. On June 26, 2011, Mr. Fischer worked from 6:00 a.m. until 2:30 p.m. His duties that day included cleaning and servicing three bilge pumps. Mr. Fischer completed Universal's standard preventive maintenance form confirming he had cleaned and serviced the pumps. Mr. Christopher Cole, a former supervisor, examined the pumps after Mr. Fischer's shift ended. They had not been properly cleaned. The float switches were caked with sludge. If properly cleaned, they would not have been. The float switch is critical to operation of the pump. It turns the pump on when water reaches an unacceptable level in the bilge. Ricky Stienker, Mr. Fischer's supervisor at the time, terminated Mr. Fischer on July 11, 2011, for failure to properly clean the pumps and falsely representing that he had cleaned them. In 2008 and 2009, Mr. Fischer's annual reviews rated him as less effective. Then in 2010, the review rated Mr. Fischer as highly valued. But during his career, Mr. Fischer had received eight different counselings for poor performance. Mr. Fischer used Universal's appeal process to contest his discharge. David Winslow, senior vice president of the Technical Services Division, denied his appeal. There is no credible evidence of offenses committed by other employees of any age or physical condition that were similar to Mr. Fischer's failure to properly clean the pumps and his misrepresentation that he had cleaned them. Universal's employee handbook includes a clear policy requiring employees to be honest and trustworthy in all of their business activities and relationships. It also, clearly states that acts of dishonesty are grounds for immediate discharge. Mr. Fischer received the employee handbook when he began employment with Universal. Mr. Fischer has diabetes. His previous supervisor, Mr. Cole, knew this because he had observed Mr. Fischer taking medication that Mr. Cole also took. Mr. Cole also has diabetes and has had it for approximately 25 years. Mr. Cole did not perceive having diabetes as a handicap. There is no evidence that Mr. Stienker, who made the decision to discharge Mr. Fischer, knew Mr. Fischer had diabetes. There is no persuasive, credible evidence that Mr. Fischer had a handicap or that his supervisors or any management employee of Universal perceived Mr. Fischer as having a handicap. Consequently, there is no persuasive, credible evidence that a handicap or perception of handicap was a factor in Universal's discharge of Mr. Fischer. There is no evidence establishing who filled Mr. Fischer's position or the age of that person. There is no persuasive, credible evidence that Mr. Fischer's age was a factor in Universal's decision to discharge him.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations deny Mr. Fischer's Petition for Relief. DONE AND ENTERED this 17th day of August, 2012, in Tallahassee, Leon County, Florida. S JOHN D. C. NEWTON, II Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of August, 2012.
The Issue The issues in this case concern the question of the entitlement of the Petitioner to certification as a Minority Business Enterprise within the meaning of Chapter 288, Florida Statutes and Rule 13-8.005, Florida Administrative Code. In particular, the issue to be resolved is whether Merrie J. Lee, the majority person within this corporation and owner of more than 51 percent of the stock, controls the management and daily operations of the corporation.
Findings Of Fact On July 28, 1988, the Respondent received an application from Merrie J. Lee Construction Company, Petitioner, requesting certification as a Minority Business Enterprise under the authority of Chapter 288, Florida Statutes and Rule 13-8.005, Florida Administrative Code. Merrie J. Lee is the sole director of that corporation and is the minority person within the corporation, by virtue of the fact that she is a female. She is also the president of the corporation. Lee M. Brown, a non-minority person, is the vice-president. William V. Lee, the brother to Merrie J. Lee is the secretary/treasurer to the corporation. He is a non-minority person. The business of Merrie J. Lee Construction Company is underground utilities. When the corporation was formed Merrie J. Lee contributed $140, Lee M. Brown $100 and William V. Lee $100, as capitalization. Of the 10,000 stock shares, 1,000 have been issued. At the inception of the corporation Merrie J. Lee held 52 percent of the stock. She now holds 68 percent of the stock in that her father Wayne E. Lee bade a gift to his daughter of his 16 percent of the stock shares that had been issued. This arrangement was made following the request for certification. As a result, Merrie J. Lee owns 68 percent of the issued stock shares, her brother owns 16 percent and Lee Brown owns 16 percent. Petitioner is a small business corporation with less than 25 full-time employees. It operates the business at an address of 1136 Nestling Court, Gulf Breeze, Florida 32561. This is the residence address of Ms. Lee and has been provided to her rent-free from her father Wayne E. Lee who owns the property. Merrie J. Lee Construction Company is a Florida corporation having been incorporated on May 3, 1988. Thus far, the work that the company has performed has been in the public right-of-way. The work that has been done by the Petitioner has been conducted in Santa Rosa, Escambia and Okaloosa Counties in Florida. Under the terms of the Articles of Incorporation, Article Nine, the power to adopt, alter or amend or repeal By-Laws is vested in the shareholders. Merrie J. Lee holds the majority position among the shareholders. Article III, Section 1, of the By-Laws points out that the function of the corporation as an entity shall be exercised by or under the authority of and the business affairs of the corporation shall be managed under the direction of the Board of Directors. In this instance, that means Merrie J. Lee, the sole director. Article IV, Section 2, of the By-Laws provides in part that the officers of the corporation shall have the following duties: THE PRESIDENT shall be the chief executive officer of the corporation, shall have general and active management of the business and affairs of the corporation subject to the directions of the Board of Directors, and shall preside at all meetings of the shareholders and Board of Directors. THE SECRETARY shall have custody of, and maintain, all of the corporate records except the financial records; shall record the minutes of all meetings of the shareholders and the Board of Directors, send all notices of meetings out, and perform such other duties as may be prescribed by the Board of Directors or the President. THE TREASURER shall have custody of the corporate funds and financial records, shall keel full and accurate accounts of receipts and disbursements and render accounts thereof at the annual meetings of the shareholders and whenever else required by the Board of Directors or the President, and shall perform such other duties as may be prescribed by the Board of Directors or the President. Article III, Section 10, of the By-Laws provides that a majority of the number of directors fixed by the By-Laws shall constitute a quorum for the transaction of business. The act of the majority of the directors present at the meeting which constitutes the quorum shall be the act of the Board of Directors. This means that in this corporation in which there is only one director by the terms of the legal documentation, Merrie J. Lee controls the corporation. In actuality given the limited experience which Merrie J. Lee has had in the conduct of an underground utilities business; the similarity of this business to that of her father, a company known as Utility Service Company, which specializes in underground utility construction; the familial relationship between Merrie J. Lee and her brother and father, the latter two persons having substantial influence in the business affairs of the Petitioner; the reliance upon her father for financial support; the necessity to trade upon his reputation in the business community to attract jobs and the close relationship between her father's corporation and the Petitioner corporation concerning employees and equipment, meaningful control of Merrie J. Lee Construction Company on the part of Merrie J. Lee, the minority person, cannot be found. Examples of this close affiliation concerns the fact that, at present, Merrie J. Lee is a full-time, salaried employee of the Utility Service Company, which is owned by Wayne Lee and William Lee. Her duties with that company include answering the phone, bookkeeping, paying bills, and handling radio traffic. She has no function as a corporate officer with Utility Service Company or any other company excepting Merrie J. Lee Construction Company. In her position with Utility Service Company she is not called upon to sign checks. Her work with Utility Service Company commenced in 1985. At this time she is training a replacement with the expectation of taking a full-time position with Merrie J. Lee Construction Company. Prior to her affiliation with Utility Service Company Merrie J. Lee had worked for Gulf Isles Utility Company, a water and sewer company, owned and operated by her father. Her duties with Gulf Isles Utility Company included answering the phone, attending customer complaints, reading meters and turning service on and off. Before her time of employment with Gulf Isles Utility Company Ms. Lee had worked part-time with Gulf Island National Seashore on Pensacola Beach, Florida and her duties included registering campers and assisting those campers during their stay at the park. She also collected toll fees from the campers. Ms. Lee has worked in a bait and tackle shop in the past and as a part-time daycare worker. Merrie J. Lee has a high school diploma and attended both Pensacola Junior College and Stephens College in Columbia, Missouri. She did not obtain degrees following her high school education. Having grown up in a family in which the father was actively involved in the underground utility business, Merrie J. Lee had the occasion to make trips to job sites with her father, as a child, and has had that sort of acquaintenanceship with the underground utilities work in her adult life. Ms. Lee has obtained occupational contractor's licenses from Escambia and Santa Rosa Counties or caused that to be done. Ms. Lee is not intimately familiar with the field work aspects of the underground utilities business. She is more familiar with the attempt to gain business, negotiation of contracts, preparation and submission of bids, purchasing of goods, equipment and services, hiring and firing of employees and keeping financial and business records of the corporation and participating in decisions about the progress of work. Her strongest understanding of the underground utilities business relates to the financial and business record aspects. In the bid preparation by Merrie J. Lee Construction Company, this is joint effort involving Ms. Lee, Wayne Lee and Lee Brown. Lee Brown is also employed as an estimator at Utility Service Company in addition to his association with Merrie J. Lee Construction Company. Bid preparation at Utility Service Company is also a joint effort. In that circumstance at Utility Service Company, Ms. Lee checks suppliers by phone, and checks mathematical extensions of prices. Her participation in the bid process at Merrie J. Lee Construction Company, in its short history, having examined her explanation of that arrangement, does not appear to be significantly different than her role at Utility Service Company, with the exception that she is more interested in that process and continues to gain experience in this process with the passage of time. In any event, one could not say that Ms. Lee is a mainstay in the bid process within Merrie J. Lee Construction Company and she has conceded this point. Without the assistance of others Merrie J. Lee does not seem capable of making critical choices about the bidding at this time. In conjunction with the job foreman, Ms. Lee is involved in scheduling the sequence of construction work. Merrie J. Lee does not go to the job sites on a daily basis. She does visit on occasion. Her daily contacts are by phone in discussion with the foreman concerning progress of work and the need for further materials. She and the field supervisor are both involved in arranging delivery of materials to the job site. Wayne Lee is also involved in the ordering of supplies and materials for job sites. Ms. Lee in her testimony made some explanations about the type of equipment necessary to install underground utilities and gave some description of what function an underdrain pipe fulfills. In relying upon her father as a source of guidance, she has as a resource a man who is licensed by the State of Florida, Department of Professional Regulation as a certified plumbing contractor within the meaning of Subsection 48.105(3)(m) and 489.115, Florida Statutes. Mr. Lee also has a degree in civil engineering and is a registered professional engineer, a registered land surveyor in Florida, a certified Class C water treatment operator in Florida and a certified Class C wastewater treatment operator in Florida. All total he has 35 years of experience in underground utility construction. Her brother William Lee has been in the construction business since the time he was a young man and has considerable experience in the underground utility business. He has learned his business with extensive on-the-job training, training which Ms. Merrie J. Lee has not undergone. William Lee is a licensed plumbing contractor with the Florida Construction Industry Licensing Board. William V. Lee is being groomed to take over Utility Service Company from his father, Wayne E. Lee. At the time of the hearing, eight persons were employed by Merrie J. Lee Construction Company, in the sense of those who were on the payroll. These employees had been hired by Merrie J. Lee and her father. Among those persons was Greg Thorsen, the foreman of one of the jobs that the company was involved with. Calvin Talbert a pipe layer on that job and his helper, Clarence Davis. Another person in that crew referred to as a hooker, is Jeffrey Underwood. A further person in that crew, is Willie Smith, who works a compacting machine. Donnie Silcox is a foreman on the same job that Thorsen is associated with. His helper is Louis Schwent. Another helper on the job is Darren Watson. Kevin Dixon worked on this job, but was fired and replaced by Watson. In the firing Silcox had checked with Ms. Lee concerning the fact that Dixon was not performing adequately and Ms. Lee told Silcox that persons who would not work should not be left on the payroll and that Silcox should dismiss Dixon from his employment, which was done. Ms. Lee had hired Willie Smith, Jeffrey Underwood, Kevin Dixon, Gregg Thorsen, and Donnie Silcox among others. Greg Thorsen, Calvin Talbert, Clarence Davis, Willie Smith, Donnie Silcox and Louis Schwent had worked for Utility Service Company in the past. Given that the company has just begun, it does own a great deal of equipment. It has rented most equipment in order to fulfill its obligations under contract. One piece of equipment that is being purchased is a pickup truck, which it bought from Utility Service Company, based upon the agreement to pay the balance of a note owed on this truck which was in the amount of $4,000. This was a favorable arrangement for Petitioner. A considerable amount of the equipment that is being used has been rented at favorable rates from Utility Service Company. This would include a hydraulic excavator, a bulldozer, a rubber-tired backhoe and a front-end loader, whose operators were employees of Utility Service Company. Utility Service Company allows the Petitioner the free use of telephones and radios. Wayne E. Lee has loaned the corporation $1200, which is not an interest bearing loan. In addition the house in which Ms. Lee lives, belonging to Wayne E. Lee, stands as security for a $20,000 loan which Ms. Lee negotiated on behalf of Merrie J. Lee Construction Company. Wayne E. Lee cosigned the note. Ms. Lee is personally accountable for debts outstanding in the corporation and for her company's performance under jobs under contract. At the time this application for recognition as a minority business was made four persons had the ability to sign checks written by the corporation. They included Merrie J. Lee, William V. Lee, Wayne E. Lee and Lee Brown. Because of concerns expressed by the Respondent's employee in the review of this application, all individuals, other than Merrie J. Lee, have been removed as persons who have the authority to write checks on the business account of Merrie J. Lee Construction Company. During the pendency of the time in which persons other than Merrie J. Lee could have written checks, they did not. Merrie J. Lee Construction Company is not registered with the Construction Industry Licensing Board. The time devoted to Merrie J. Lee Construction Company by her brother and father is in the interest of assisting that company without the expectation of compensation. Wayne E. Lee interceded with the Chadbourne Company owner, to arrange for Merrie J. Lee Construction Company to act as a subcontractor in a job in which Merrie J. Lee Construction Company expects to be paid $495,000 under the terms of the contract. This arrangement between the Chadbourne Company and Merrie J. Lee Construction Company as brought about by the efforts of Wayne E. Lee, meant that Merrie J. Lee Construction Company would not have to provide a bond. This was vital to the interest of Merrie J. Lee Construction Company because it was not in a position to bond it in that amount. In addition to the $495,000 contract as a subcontractor to Edward M. Chadbourne, in work at the Pensacola, Florida, airport, Merrie J. Lee Construction Company has had three other jobs at the time of the hearing in this cause. The first job was for approximately $1,200 with Lost Bay Trading Company in which, after consultation with her father, Merrie J. Lee arranged for this work by consultation with the principals in the Lost Bay Trading Company. The second contract was for $24,000 of work at the University of West Florida. The third contract was for $54,800 with Panhandle Paving Company. Bonds were not required in these three contracts either. The application here was reviewed by Raymond Lawrence Bryant, an employee of the Department of General Services in the Minority Business Assistance Office. He concluded that Merrie J. Lee as the minority person within the corporation, did not control the management and daily operations of Merrie J. Lee Construction Company as envisioned by Section 288.703(2), Florida Statutes. He also expressed the opinion that the business was not currently performing a useful business function as defined by Section 287.0943(1), Florida Statutes. That position was modified with the advent of the four contracts which have been discussed. In essence, the idea of denying certification based upon the belief that the-company does not perform a useful business function has been withdrawn. In connection with the idea of lack of control, Bryant identified a number of criteria within Rule 13-8.005(3)(a)-(g), Florida Administrative Code as reasons for denial. This speaks to provisions that were in effect at the time of the submission of the application. A copy of the Bryant report related to this project may be found as Joint Exhibit number 2, admitted into evidence. His summarizing remarks were submitted on October 14, 1988. His suggestion of denial was followed up by correspondence of Carolyn Wilson-Newton, Minority Business Assistance Coordinator for the Department of General Services. This correspondence date is November 2, 1988 and describes the intent to deny the certification. Subsequently, the provisions at Rule 13-8.005(3)(a)-(g), Florida Administrative Code, were amended on November 17, 1988. On November 23, 1988 the Petitioner filed its petition requesting a formal hearing under Section 120.57(1), Florida Statutes to contest the denial of the application for Minority Business Enterprise certification. The case was then sent to the Division of Administrative Hearings and a hearing was conducted on the date set out before. The amendments to Rule 13-8.005(3)(a)-(g), Florida Administrative Code are refinements to the previous rules and are in keeping with incipient agency policy that had been developing before the advent of the changes to the rule.
Recommendation Based upon a consideration of the facts found and the conclusions of law reached, it is, RECOMMENDED: that a final order be entered which denies Petitioner's request for certification as a Minority Business Enterprise. DONE and ENTERED this 5th day of May, 1989, in Tallahassee, Leon County, Florida. CHARLES C. ADAMS 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 5th day of Mat, 1989. APPENDIX The following discussion is made of the proposed facts of the parties. Petitioner's Facts Paragraphs through 5 and the first two sentences to paragraph 6 are subordinate to facts found. The last sentence in paragraph 6 is contrary to facts found. Paragraph 7 is rejected to the extent that it creates the impression that Merrie J. Lee has sufficient understanding of the bidding and technical side of the business to be effectively in control of the management and daily operations of the corporation. Paragraphs 8 through 12 are subordinate to facts found. Paragraph 13 is subordinate to facts found with the exception of the second sentence which is contrary to facts found. Paragraph 14 is subordinate to facts found. Respondent's Facts Paragraphs 1 through 6 are subordinate to facts found as are all sentences in paragraph 7, excepting the last. The last sentence in paragraph 7 is unnecessary to the resolution of the dispute. Paragraphs 8 through 16 are subordinate to facts found. Paragraph 17 is unnecessary to the resolution of the dispute. Paragraphs 18 through 20 are subordinate to facts found. Paragraphs 21 through 23 are not necessary to the resolution of the dispute. COPIES FURNISHED: John C. Pelham, Esquire Pennington, Wilkinson, Dunlap and Camp 30375-A Capital Circle, N.E. Post Office Box 13527 Tallahassee, Florida 32317-3527 Stephen S. Mathues, Esquire Office of General Counsel Department of General Services Room 452, Larson Building Tallahassee, Florida 32399-0955 Ronald W. Thomas, Executive Director Department of General Services 133 Larson Building Tallahassee, Florida 32399-0955
The Issue Whether the sign on the side of the Respondent's trailer, which has been placed on the east side of I-4, .01 mile south of Buffalo Avenue in Hillsborough County, is a nuisance which should be removed, pursuant to Chapter 479, Florida Statutes.
Findings Of Fact In early February 1990, the Department's Outdoor Advertising Administrator with District 7 observed the following: a 13' x 40' metal trailer with a large advertisement for Contractor's Exams on its side in a stationary location. The trailer was approximately twenty feet from the I-4 right-of-way fence, on the east side of the highway, one-tenth of a mile south of Buffalo Avenue in an unincorporated area of Hillsborough County. The advertising message was clearly visible from the main travel way of the interstate highway. During a sixty-day period, the administrator regularly observed this trailer to see if it had been relocated in anyway. When he determined from the observations that the trailer had not been moved, he visited the property where the trailer was located on April 2, 1990. The business enterprise at this location is South Florida Engineering Company. As part of its business, this company has trailers, tractors and other equipment parked on site. When the administrator and an outdoor advertising inspector entered the property, they went to the office and inquired about the one trailer. The administrator was directed to another manager who has his office in the dock area. No one met with him at this location, and he was unable to get any more assistance from the man with whom he had spoken earlier. Having observed the trailer on the premises, and having observed its distance away from other equipment, along with its position in relation to the highway and the type of message printed on its side, the administrator issued a Notice of Violation. The administrator determined that the printed message on the trailer's side advertising Contractor's Exams was a unpermitted sign, in violation of Section 479.07(1) Florida Statutes. Another copy of the notice was mailed to Carl Mathews Construction School. The reason the notice was mailed to this enterprise was because the school's services were being advertised by the sign. The mailing address was ascertained by calling the phone number on the advertisement and requesting the address. The inspector accompanying the administrator physically attached the Notice of Violation on the trailer and took a picture of it on this same date. Subsequent to April 2, 1990, the inspector took pictures of a different trailer on the same site with the same advertising message. In these later pictures, the trailer was farther away from the right-of-way fence, but the message could still be seen from the interstate highway. The trailer remained isolated from other trailers on site. These additional pictures were taken on June 15 and 26, and July 18, 1990. In addition to the trailer in I-4 and Buffalo Avenue, the inspector became aware of another trailer with the same message at State Road 60 and Adamo Drive. This trailer's message could also be seen from the road. It remained at this location in the same stationary position from the middle of June through mid July. This trailer was parked in a trailer yard. Mr. Carl Mathews is the owner of Carl Mathews Construction School, the business advertised on the side of these two trailers. In addition to this enterprise, Mr. Mathews is actively involved in the business of leasing trailers, like the two previously mentioned. Ordinarily, these are leased to Contractors for the storage of on-site supplies or to truckers for over the road hauling. Through his various interests in a number of corporations, Mr. Mathews has an interest in one hundred and thirty trailers as well as the trailer yard at State Road 60 and Adamo Drive. Only two of these trailers display an advertisement for Carl Mathews Construction School. The trailer originally at the I-4 and Buffalo Avenue site from February through April 2, 1990, was there for two reasons. First of all, the strip of property where both trailers were ultimately located had been leased by one of the corporations in which Mr. Mathews is a principle. The purpose of the lease was to store empty trailers during the time periods they were not being leased. Storage of this type of trailer is difficult in Hillsborough County because ordinances only allow them on property zoned for industrial use. Secondly, the trailer in question needed its brakes redone. During this time period, this repair was going to be performed by South Eastern Mechanical, who runs a repair business at this site. Later, this trailer was moved to the State Road 60 - Adamo Drive storage yard in which Mr. Mathews has an ownership interest. This yard had recently acquired its own mechanic who will repair the brakes. The second trailer was also placed at the I-4 - Buffalo Avenue location for storage purposes. The Carl Mathews Construction School is located at 7207 North Nebraska Avenue in Tampa. There are no school functions at the I-4 - Buffalo Avenue location. The purpose of the written message on each trailer was to inform members of the public interested in Contractor's Exams that Carl Mathews Construction School was offering new courses. A sign permit has not been issued by the Department for either trailer during their stays at the I-4 - Buffalo Avenue location.
Recommendation Based on the foregoing, it is recommended: That the Notice of Violation issued against the first trailer at the I- 4 - Buffalo Avenue location be found be have been properly issued by the Department. That Contractor be found to have fully complied with the Notice of Violation issued April 2, 1990. RECOMMENDED this 25th day of September, 1990, in Tallahassee, Leon County, Florida. VERONICA E. DONNELLY 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 25th day of September, 1990. APPENDIX TO RECOMMENDED ORDER, CASE NO. 90-2427T The Department's proposed findings of fact are addressed as follows: Accepted. See HO number 1, number 2 and number 5. Accepted. See HO number 10, number 11, number 14 and number 16. Accept first sentence. See HO number 10. The rest is rejected as irrelevant to the dispute of material fact. Contractor's proposed findings of fact are addressed as follows: Accepted. Although the Department did comply with all necessary legal requirements when the violation was posted on the first trailer. Accept all but last two sentences. See HO number 8. The last two sentences are contrary to fact. See HO number 15. There was no showing that the second trailer had been moved from the I-4 - Buffalo Avenue location. There was insufficient reliable evidence presented at hearing for the Hearing Officer to accept this presumption. More reasonable, contrary evidence was accepted by the Hearing Officer which revealed that the second trailer remained at this location. See HO number 9. Rejected. Contrary to fact that the first trailer was able to operate on the road. See HO number 14. Otherwise, accept that trailers were the type of trailers pulled by truck tractors. Accepted. But factual dispute was reconciled. See HO number 1 and number 8. Rejected. Contrary to fact. See HO number 18. Accept all except last sentence. See HO number 10, number 12, number 13, number 14 and number 15. Last sentence is improper conclusion and contrary to reasonable inference. See HO number 9. Rejected. Improper comparison without proper foundation. Rejected. Improper legal argument. Accept the first sentence. See HO number 10. Reject the last sentence as self serving. COPIES FURNISHED: Vernon L. Whittier, Jr., Esquire Assistant General Counsel Department of Transportation 605 Suwannee Street, M.S. 58 Tallahassee, Florida 32399-0458 Joseph R. Fritz, Esquire 4204 North Nebraska Avenue Tampa, Florida 33603 Ben G. Watts, Secretary Department of Transportation 605 Suwannee Street Tallahassee, Florida 32399-0458 Thornton J. Williams, Esquire General Counsel Department of Transportation 562 Haydon Burns Building Tallahassee, Florida 32399-0458
The Issue Whether Respondent is in violation of various provisions of Chapter 403, Florida Statutes, as alleged in the Notice of Violation and Orders for Corrective Action dated October 30, 1991.
Findings Of Fact BEI's composting facility is a potential source of water and air pollution and to operate the facility, BEI requires a permit issued by DER. The original permit issued to DER for this facility expired on June 1, 1991 and has not been renewed. Although its permit had expired, BEI was allowed to continue to operate while informal proceedings were ongoing between BEI and DER. When these informal proceedings were terminated by DER on May 20, 1992, further operation of this composting facility was in violation of Chapter 403.707(1), Florida Statutes, and Rule 17-709.400(1), Florida Administrative Code. On at least two occasions while this composting facility was in operation, the air around the facility was polluted by foul odors. During the period following the expiration of BEI's license, BEI failed to submit monthly operating reports and did not conduct quarterly samplings and testing of the compost and submit the testing to DER as required.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Secretary of the DER enter a Final Order finding that BEI has violated Section 403.161(1)(b), Florida Statutes, on each of five counts; and that BEI should immediately cease operation of its solid waste facility, volume reduction plant, until and unless it obtains an appropriate and valid permit from DER and in that regard, BEI shall: Immediately cease acceptance of all materials on the property. In the event that Respondent does not receive a permit from the Department to resume operations at the facility, within 90 days of the effective date of the Final Order, Respondent shall remove all solid waste from the property to an approved solid waste management facility and provide the Department written documentation of its disposal within 30 days of removal. In the event that Respondent does receive a permit from the Department to resume operation at the facility, Respondent shall remain in strict compliance with all terms and conditions of such permit. Within 30 days of the effective date of the Final Order, Respondent shall, if it has not already done so, provide the following to the Department: All records of testing and monitoring conducted on the compost material since January 1, 1990, including daily reports on the temperature and moisture content of compost material, and any testing of compost material conducted prior to distribution. All records documenting application rates of stillage, manure, and leachate to the compost withdrows since January 1, 1990. All records, documenting distribution of composted or mulch material, including amount of compost or mulch material delivered, date of delivery, specific destination of compost or mulch, and intended use of compost or mulch material delivered, since January 1, 1990. All records documenting amount of yard trash received at the facility since January 1, 1990. Within 30 days of execution of the Final Order, Respondent shall make payment to the Department for costs and expenses in the amount of $500.00. Payment shall be made by, cashier's check or money order to the "State of Florida Department of Environmental Regulation". Payment, specifying Office of General Counsel Case No. 91-2006, shall be sent by certified mail to Administrator, Division of Waste Management, Department of Environmental Regulation, 3804 Coconut Palm Drive, Tampa, Florida 33619. DONE AND ENTERED this 16th day of June, 1993, in Tallahassee, Florida. K. N. AYERS 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 June, 1993. COPIES FURNISHED: Tracey S. Hartman, Esquire Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Howard C. Batt, Esquire 611 Druid Road East Suite 712 Clearwater, Florida 34616 Virginia B. Wetherell, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Ken Plante, Esquire General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400
Findings Of Fact On or about August 5, 1980, the Department issued permits numbered AB991-10, AB992-10 and AB993-10 to the Respondent, Food `N' Fun, Inc., authorizing the erection of a stacked back-to-back sign on the south side of I- 10, .8 mile east of U.S. 231 in Jackson County, Florida. Permit number AE481-10 was issued on or about May 21, 1981, for the fourth face of this sign. Prior to the issuance of these permits the site was field inspected and approved by Department personnel. Subsequently, the site was inspected by the Department's Right-of-Way Administrator who determined that the permits had been issued in error because there was no visible commercial activity within 800 feet of the sign. In October of 1984, the Department issued Notices of Violation advising the Respondent that the subject permits were being revoked because the sign was not erected in a zoned or unzoned commercial area. The Respondent's representative who submitted the permit applications designated on these applications that the sign location was in an unzoned area within 800 feet of a business. This representative also certified on the applications that the sign to be erected would meet all of the requirements of Chapter 479, Florida Statutes. Prior to conducting his field inspection, the Department's inspector had been informed that a commercial activity (Southern Dairy Supply Company) was being conducted in a building within 800 feet of the sign location. When he made his inspection he found that the building where Southern Dairy Supply Company was located was a metal building situated behind a house in an agricultural area. However, there was nothing visible from I-10 to tell him that a business was located there. The inspector's supervisor also visited the site of the proposed sign. He saw a building that was similar to other farm buildings at this location, but there was nothing that could be seen from the interstate to indicate to traffic that there was any commercial activity being conducted in the area. Since 1981, Southern Dairy Supply Company has relocated, and is no longer in business there. The area where the subject sign is located is agricultural and rural in nature. No other commercial activity was located in the area. Although the metal building in which the dairy supply business was being conducted could be seen from the interstate, as viewed from the main-traveled way of I-10, there was nothing to indicate that any commercial activity was being conducted at this location.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that permit numbers AB991-10, AB992-10, AB993- 10, and AE481-10 held by the Respondent, Food `N' Fun, Inc., authorizing a stacked, back-to-back, sign located on the south side of I-10, .8 mile east of U.S. 231 in Jackson County, Florida, be revoked, and the subject sign removed. THIS RECOMMENDED ORDER entered this 9th day of August, 1985, in Tallahassee, Leon County, Florida. WILLIAM B. THOMAS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of August, 1985.
Findings Of Fact Appellant, Jessie Brandon, as Administrator of the Estate of Charles B. Brandon, owns property located at 2715 Daniel Street, Ackers Subdivision, Block 2, Lots 19, 20, 21, and 22 in Clearwater, Florida. This property is zoned RS-50 and is currently vacant. Appellant TRECO Communities, Inc., seeks to use Lots 19, 20, 21, and 22 for off-street noncommercial parking in connection with a proposed two story office building to be constructed adjacent to Lots 19, 20, 21, and 22. A total of 88 parking spaces are proposed. The four lots for which the special exception is sought front on Daniel Street which is an unpaved road. The adjacent property on which the office building is proposed for construction fronts on State Road 580. All ingress and egress to the parking area would be from State Road 580 which is a heavily traveled, commercial roadway. The proposed construction of parking on Lots 19, 20, 21, and 22 will have no impact on Daniel Street traffic. Properties adjacent to, and in the immediate vicinity are presently being used to operate a nursery school, drug store, restaurant and fast food market. A high school is located across State Road 580 from the subject property. A buffer of trees and shrubs will be provided around the border of the proposed parking area including along Daniel Street and between the proposed parking area, and nursery school. Appellant TRECO Communities, has also agreed to construct an appropriate chain link fence, block wall, steel railing or other like safeguard, as determined by Respondent, between the subject property and the property occupied by the day nursery.
Findings Of Fact David Gangelhoff operates a boat sales and service facility on property he owns at 405 North Fort Harrison Avenue. This property is divided into two parcels by Hart Street, which dead end at the back of a building facing North Fort Harrison. For the past few years the Appellant has been buying lots in two parcels separated by Hart Street and intends to acquire all the lots in the entire two blocks. After acquiring all of the lots he proposes to request the City to vacate Hart Street. Appellant currently owns the property abutting both sides of Hart Street and the setback requirements for Hart Street will disappear if the City abandons its right- of-way over Hart Street. Building and zoning regulations require a 17' 3" side setback on a building siding on Hart Street, a 3' buffer zone between parking and the property line, landscaping in the 3' buffer zone between the parking area and the north property line, and a 3' setback in the fence parallel to the south property line along Hart Street. Variances (1) and (4) involve the property line abutting Hart Street and variances (2) and (3) involve the north property line of the property where parking is to be provided. Appellant apparently stores some of his boats in an open area toward the back of the property. He proposes to erect a one-story building on a portion of the property north of Hart Street and to construct the south side of this building one foot from the property line abutting Hart Street. This will provide more inside storage. A proposed canopy area along the main building on the north side of the property is to be used for additional storage and to provide better security in the high crime area in which this business is located. The property is zoned CG. The variance in setback in buffer zones for landscaping which are requested by Appellant are such that practically no setback would remain nor would there be a buffer zone if the variances are granted. Allowing Appellant use of his property to the boundary lines would be beneficial to Appellant's business as it would provide a better facility with more enclosed space to provide security for the boats and equipment. No evidence was presented that other property owners in the vicinity have been granted variances similar to those denied to Appellant or that the special conditions and circumstances exist which make this property unique so that denial of the variance would create an undue hardship on the Appellant.
The Issue The issue for consideration in this case is whether Petitioner was discriminated against in employment by Respondent because of his race.
Findings Of Fact At all times pertinent to the issues herein, Respondent, Tredit Tire & Wheel Co., Inc., operated a specialty tire and wheel assembly facility in Plant City, Florida. Petitioner was employed by Tredit at that facility. On October 10, 1995, Ronald Pike, Tredit’s vice- president for operations, paid a routine visit to Tredit’s Plant City facility. Somewhat concerned over the apparent inadequate level of production and higher costs being experienced there, Mr. Pike called a meeting of the entire 15-member staff. During the course of the meeting, in an attempt to determine, if possible, the reason for the deficiency, Mr. Pike asked questions of each member of the staff. Mr. Lee, who recalls he had nothing to say at the time, claims Pike’s insistence on his participation in the discussion constituted "picking on him." Mr. Pike denies picking on Petitioner. He contends he was trying to get some input from the hourly employees, and insists he questioned all of them even-handedly. He asked each for input, indicating their jobs would not be jeopardized by their answers. During the meeting Pike advised the associates that both their attitudes and their production must improve. Though Petitioner denies it, Mr. Pike indicated that Petitioner claimed at that time there was not enough work to give him a 40-hour week, and he was stretching out his jobs in order to make them take long enough to ensure he could work a 40-hour work week. Mr. Bauer, also a Tredit executive, is of the opinion this manipulation is neither necessary nor possible, considering the facility’s work practices. Tredit creates wheel assemblies for specialty vehicles, utilizing tires and wheels manufactured by others. Though its Florida business is high volume, due to the nature of the product and the intense competition, the profit margin is low, and the company has to react to order cycles which require immediate response. However, Mr. Bauer opined there was always enough to do to make sure the hourly employees were always productively employed. No independent evidence was presented in support of the position taken by either party on this point, however. Once the meeting was completed, Mr. Pike and Mr. Bauer left. The facility was being managed at the time by Carol Suggs. At the end of the day after Mr. Pike held his meeting with the staff, Ms. Suggs called for Petitioner to meet with her. The request was communicated through Mr. Longo. According to Ms. Suggs, Petitioner was admonished about his working habits and warned regarding his attitude on the job. She claims he then became disrespectful and quit. A short while later, a payroll accounting document was prepared reflecting Petitioner had been discharged on the day of the conference with Ms. Suggs. Petitioner categorically denies having quit the job as Ms. Suggs indicates in her sworn affidavit of August 22, 1996. He claims to have taken pride in his work and to have been so upset by his termination that he actually cried as a result. Ms. Suggs, on the other hand, contends that Petitioner did not put forth appropriate effort on the job. She claims that not only were the hourly employees getting a full 40-hour week, but also performing overtime, and yet the required amount of material was not being produced. Petitioner rebuts this contention, claiming adequate inventory was prepared. Nonetheless, as a result of what she perceived as Petitioner’s attitude and performance shortcomings, on October 11, 1995, at her meeting with Petitioner the day after Mr. Pike’s visit, Ms. Suggs gave him a written employee warning notice. Petitioner admits to having signed this notice as indication he received it, but denies he agreed with its contents. No other notice of dismissal action was executed by Ms. Suggs except the payroll change notice reflecting Petitioner’s dismissal on October 13, 1995, two days following the meeting she had with Petitioner. Because this earlier action, the warning, does not reflect Petitioner was terminated, but within two days thereof he was taken off the payroll, and because Ms. Suggs’ testimony was credible, it is found that Petitioner’s reaction to the warning was as described by her and was the basis for his dismissal. Tredit had 15 employees at the Plant City facility when Petitioner was employed there. Of this number, four were female and eleven were male. Two of the males were black. After Petitioner was terminated, the employee census was the same except for one fewer black employee. At the time of the hearing, Tredit employed four individuals in the Plant City facility’s office, all of whom were white; and nine warehouse employees, of whom four were white, one black, and two Hispanic. No evidence was presented to establish that Petitioner’s termination from employment with Respondent was the result of his race.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Florida Commission on Human Relations enter a Final Order dismissing Raymond T. Lee’s Petition for Relief filed against Tredit Tire & Wheel Co., Inc. DONE AND ENTERED this 6th day of January, 1999, in Tallahassee, Leon County, Florida. ARNOLD H. POLLOCK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6947 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 6th day of January, 1999. COPIES FURNISHED: Ramon T. Lee, pro se 832 Augusta Street Lakeland, Florida 33805 Antonio Faga, Esquire 375 Twelfth Avenue South Naples, Florida 34102 Sharon Moultry, Clerk Commission on Human Relations 325 John Knox Road Building F, Suite 249 Tallahassee, Florida 32303-4149 Dana Baird, General Counsel Commission on Human Relations 325 John Knox Road Building F, Suite 249 Tallahassee, Florida 32303-4149
