Findings Of Fact Based upon the evidence adduced at the evidentiary hearing on the Department's Motion, and the record as a whole, the following Findings of Fact are made: In October of 1995, Petitioners, who desired to construct a single-family, concrete dock in the Hillsboro Canal (in Broward County, Florida) for their 171-foot yacht and to perform dredging adjacent to the dock (Project), filed with the Department a Joint Application for Environmental Resource Permit/Authorization to Use State Owned Submerged Lands/Federal Dredge and Fill Permit (Application). In the Application, Petitioners indicated that their mailing address was: c/o Flynn Enterprises 676 N. Michigan Ave., Suite 4000 Chicago, IL 60611 Flynn Enterprises, Inc., is a business owned by Petitioner Donald Flynn. The Application listed "Jeff Adair, Project Manager" of "Keith and Schnars, P.A., 6500 N. Andrews Avenue, Ft. Lauderdale, FL 33309," as the "agent authorized to secure permit" for Petitioners. The application form that Petitioners used to submit their Application contained the following signature page: By signing this application form, I am applying, or I am applying on behalf of the applicant, for the permit and any proprietary authorizations identified above, according to the supporting data and other incidental information filed with this application. I am familiar with the information contained in this application and represent that such information is true, complete and accurate. I understand this is an application and not a permit, and that work prior to approval is a violation. I understand that this application and any permit issued or proprietary authorization issued pursuant thereto, does not relieve me of any obligation for obtaining any other required federal, state, water management district or local permit prior to commencement of construction. I agree, or I agree on behalf of my corporation, to operate and maintain the permitted system unless the permitting agency authorizes transfer of the permit to a responsible operation entity. I understand that knowingly making any false statement or representation in this application is a violation of Section 373.430, F.S. and 18 U.S.C. Section 1001. Typed/Printed Name of Applicant (if no Agent is used) or Agent (if one is so authorized below) Signature of Applicant/Agent Date (Corporate Title if applicable) AN AGENT MAY SIGN ABOVE ONLY IF THE APPLICANT COMPLETES THE FOLLOWING: I hereby designate and authorize the agent listed above to act on my behalf, or on behalf of my corporation, as the agent in the processing of this application for the permit and/or proprietary authorization indicated above; and to furnish, on request, supple- mental information in support of the appli- cation. In addition, I authorize the above- listed agent to bind me, or my corporation, to perform any requirement which may be necessary to procure the permit or authorization indicated above. I understand that knowingly making any false statement or representation in this application is a violation of Section 373.430. F.S. and 18 U.S.C. Section 1001. Typed/Printed Name of Applicant Signature of Applicant Date (Corporate Title if applicable) Please note: The applicant's original signature (not a copy) is required above. PERSON AUTHORIZING ACCESS TO THE PROPERTY MUST COMPLETE THE FOLLOWING: I either own the property described in this application or I have legal authority to allow access to the property, and I consent, after receiving prior notification, to any site visit on the property by agents or personnel from the Department of Environ- mental Protection, the Water Management District and the U.S. Army Corps of Engineers necessary for the review and inspection of the proposed project specified in this application. I authorize these agents or personnel to enter the property as many times as may be necessary to make such review and inspection. Further , I agree to provide entry to the project site for such agents or personnel to monitor permitted work if a permit is granted. Typed/Printed Name Signature Date (Corporate Title if applicable) The name "Jeff Adair" appears on the "Name of Applicant (if no Agent is used) or Agent (if one is so authorized below)" line under the first paragraph on the signature page of Petitioners' Application; however, neither Adair's signature, nor any other signature, appears on the signature line under this paragraph. Petitioner Donald Flynn's signature appears on the signature lines under the second (agent designation and authorization) and third (access to property) paragraphs on the page. By letter dated November 17, 1995, the Department informed Petitioners of the following: Preliminary evaluation of your project leads staff to the conclusion that the project as proposed cannot be recommended for approval. While this is not final agency action or notice of intent, it does represent the staff review of your application based on consider- able experience in permitting matters. We are sending you this letter at this stage of the processing to allow you to assess fully the further commitment of financial resources for design dependent on permit issuance. . . . In summary, please revise plans to: (1) reduce the amount of dredging; (2) reduce impacts to natural resources; (3) reduce the size of the dock; (4) reduce encroachment on navigational channel; (5) reduce encroachment on adjacent properties; and (6) after minimization, offer mitigation plans that would address the loss of seagrass in the vicinity (watershed or basin) of the project site. Your application is currently "incomplete" and Final Agency Action will not occur until a reasonable amount of time is allowed for the submittal of a revised plan. A completeness summary has been sent under separate cover, addressing the items that are still outstanding. Staff will continue to process your application in the normal manner; however, I suggest you contact Tim Rach of this office . . . to discuss these possible alternatives regarding your project. The Department's November 17, 1995, letter was addressed to Petitioners "c/o Jeff Adair, Project Manager, Keith and Schnars, P.A., 6500 North Andrews Avenue, Fort Lauderdale, FL 33309-2132," as were subsequent requests for additional information made by the Department and other correspondence from the Department concerning the Project. Adair responded to the Department's requests for additional information and otherwise corresponded and communicated with the Department on behalf of Petitioners. In July of 1996, Adair participated in a telephone conference call during which the Department advised him that, if the Application was not withdrawn, it would be denied. On August 13, 1996, Adair sent the following letter to the Department concerning the Project: Pursuant to our recent discussions pertaining to the proposed mitigation plan and final review and processing of the Flynn Dock application, we have been advised via Mr. Flynn's attorney not to withdraw the application. Therefore, we await the Department's final decision relative to the permittability of this project. As you have indicated, we are anticipating the Depart- ment's response toward the end of this month. In making your decision, we strongly urge you to consider the merits or our innovative and "no risk" mitigation plan. We believe our mitigation plan more than compensates for proposed impacts and provides substantial net benefits to the environment and the research community. In particular, information obtained from our proposed research effort would not only benefit our project, but would also facilitate scientific analysis and review of similar applications and issues. As always, please do not hesitate to call should you have any questions or concerns. On August 19, 1996, the Department sent the following letter to Petitioners "c/o Flynn Enterprises, 676 N. Michigan Ave., Suite 4000, Chicago, IL 60611," the address that Petitioners had indicated in the Application was their mailing address: We have reviewed the information received on May 31, 1996 for an Environmental Resource Permit and authorization to use sovereign submerged lands. The Department has deemed the application complete as of this date. Final action on your application for an Environmental Resource Permit and sovereign[] submerged lands authorization will be taken within 90 days of receipt of your last item of information unless you choose to waive this timeclock. If you have any questions, please contact me at . . . . A copy of this August 19, 1996, letter was sent by the Department to Adair. On August 27, 1996, the Department issued a Consolidated Notice of Denial (Notice) in which it announced its preliminary decision to deny Petitioners' Application. The Notice contained the following advisement: A person whose substantial interests are affected by the Department's action may petition for an administrative proceeding (Hearing) in accordance with Section 120.57, Florida Statutes. Petitions filed by the permittee and the parties listed below must be filed within 14 days of receipt of this letter. Third party Petitioners shall mail a copy of the petition to the permittee at the address indicated above at the time of filing. Failure to file a petition within this time period shall constitute a waiver of any right such person may have to request an administrative determination (hearing) under Section 120.57, F.S. The Petition must contain the information set forth below and must be filed (received) in the Office of General Counsel of the Department at 3900 Commonwealth Boulevard, Mail Station 35, Tallahassee, Florida 32399-3000: The name, address, and telephone number of each petitioner, the permittee's name and address, the Department Permit File Number and county in which the project is proposed; A statement of how and when each petitioner received notice of the Depart- ment's action or proposed action; A statement of how each petitioner's substantial interests are affected by the Department's action or proposed action; A statement of the material facts disputed by petitioner, if any; A statement of facts which petitioner contends warrant reversal or modification of the Department's action or proposed action; A statement of which rules or statutes petitioner contends warrant reversal or modification of the Department's action or proposed action; and A statement of the relief sought by petitioner, stating precisely the action petitioner wants the Department to take with respect to the Department's action or proposed action. If a petition is filed, the administrative hearing process will constitute a renewed determination of the Department's decision on the application. Accordingly, the Department's final action may be different from the position taken by it in this letter. Persons whose substantial interests will be affected by any decision of the Department with regard to the permit have the right to petition to become a party to the proceeding. The petition must conform to the requirements specified above and be filed (received) within 14 days of receipt of this notice in the Office of General Counsel at the above address of the Department. Failure to petition within the allowed time frame constitutes a waiver of any right such person has to request a hearing under Section 120.57, F.S., and to participate as a party to this proceeding. Any subsequent intervention will only be at the approval of the presiding officer upon motion filed pursuant to Rule 28-5.207, and 60Q-2.010, F.A.C. This Notice constitutes final agency action unless a petition is filed in accordance with the above paragraphs or unless a request for extension of time in which to file a petition is filed within the time specified for filing a petition and conforms to Rule 62-103.070, F.A.C. Upon timely filing of a petition or a request for an extension of time this Notice will not be effective until further Order of the Department. . . . The Notice was mailed (by certified mail, return receipt requested) to Petitioners "c/o Flynn Enterprises, 676 N. Michigan Ave., Suite 4000, Chicago, IL 60611." Although the Notice's certificate of service reflected that a copy of the Notice had been mailed to Adair "before the close of business on AUG 27 1996," in fact, as a result of inadvertence on the part of Department staff, a copy of the Notice had not been mailed to Adair. On September 3, 1996, the Notice sent to Petitioners was received by a Flynn Enterprises, Inc., employee at the address to which it was mailed. The employee executed a return receipt upon receiving the Notice. The Notice was referred to Victor Casini, Esquire, the general counsel of Flynn Enterprises, Inc., on September 4, 1996. Casini set the document aside for filing. He did not believe that there was any immediate action that he or anyone else in the Flynn Enterprises, Inc., office in Chicago needed to take in response to the Notice. Casini noted that Adair's name was listed in the Notice as among those who purportedly had been furnished copies of the Notice. He knew that Adair was handling all matters relating to the permitting of the Project for Petitioners. He therefore assumed that any action that needed to be taken in response to the Notice would be taken by Adair on behalf of Petitioners. Inasmuch as it appeared (from his review of the Notice) that the Department had already furnished Adair with a copy of the Notice, he saw no reason to contact Adair to apprise him of the issuance of the Notice. In taking no action in response to the Notice other than setting it aside for filing, Casini acted reasonably under the circumstances. Adair first learned of the issuance of the Notice during a telephone conversation he had on September 9, 1996, with an employee of Broward County, who mentioned to him, in passing, that the Department had denied Petitioners' Application. 2/ Adair thereupon immediately telephoned the Department to confirm that the Application had been denied. The Department representative to whom he spoke confirmed that the Notice had issued, apologized for the Department's failure to have sent him a copy of the Notice, and promised to rectify the error by sending him a copy of the Notice as soon as possible. Keith Skibicki, the vice president of Flynn Enterprises, Inc., in charge of its day-to-day operations, served as the liaison between Adair and Petitioners. On September 12, 1996, Adair telephoned Skibicki to inquire (for the first time) if Petitioners had received a copy of the Notice. Skibicki, who previously had neither seen nor heard about the Notice, asked around the office and learned that the Notice had been received and was in Casini's files. Skibicki related this information to Adair. Later that same day, September 12, 1996, Adair received the copy of the Notice that the Department had sent him. He then faxed a copy of the Notice to Harry Stewart, Esquire, the Florida attorney who had been retained by Petitioners to assist them in their efforts to obtain favorable action on their Application. Shortly thereafter Adair telephoned Stewart to discuss what they should do in response to the Notice. During their conversation, Stewart expressed the opinion that the 14-day period for filing a petition for an administrative proceeding began to run only upon Adair's receipt of the Notice and that therefore Petitioners had until September 26, 1996, to file their petition. During the two-week period that followed their telephone conversation, Adair and Stewart worked together to prepare such a petition. The petition was filed with the Department on September 26, 1996 (which was 23 days after the Notice had been delivered to the Chicago office of Flynn Enterprises, Inc., but only 14 days after Adair, Petitioners' designated agent in their dealings with the Department, had received a copy of the Notice). The actions taken on behalf of Petitioners in response to the Notice were intended to preserve Petitioners' right to challenge the proposed denial of their Application. At no time was there any knowing and intentional relinquishment of that right.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department enter an order finding that Petitioners' petition challenging the proposed denial of their Application is not time-barred and remanding the matter to the Division of Administrative Hearings for a Section 120.57(1) hearing on the merits of Petitioners' challenge. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 6th day of February, 1997. STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 6th day of February, 1997.
The Issue Whether the Respondent, a licensed general contractor, committed the offenses alleged in the three administrative complaints and the penalties, if any, that should be imposed.
Findings Of Fact Petitioner is the state agency charged with regulating the practice of contracting pursuant to Section 20.165, Florida Statutes, and Chapters 455 and 489, Florida Statutes. At all times pertinent to this proceeding, Respondent has been licensed as a general contractor by the Petitioner. Respondent was issued license number CG C010162 in 1975 and has held that licensure ever since. The first complaint against Respondent’s licensure, like the three complaints at issue in this proceeding, arose from a post-Hurricane Andrew contract. That complaint was resolved by stipulation of the parties. Respondent did not admit to wrongdoing in his stipulation. Respondent was financially unable to comply with the terms of the settlement. Consequently, his license was suspended at the time of the formal hearing. There was no explanation as to why this complaint, which occurred at approximately the same time as the three contracts at issue in this proceeding, was prosecuted separately. At all times pertinent to this proceeding, Respondent was the qualifier for Allstate Construction Management, Inc. (Allstate), a Florida corporation. THE RODRIGUEZ CONTRACT (DOAH CASE 96-4580) On March 17, 1993, Allstate entered into a contract with Anthony Rodriguez to build a garage at 15525 SW 209th Avenue, Miami, Florida. The contract price was $16,250.00, which included “plans, permit and cleanup.” Allstate was paid the sum of $4,062.50 on March 17, 1993. Allstate obtained the Dade County building permit for the project on March 26, 1993. Allstate was paid the sum of $5,593.75 on April 5, 1993, after the concrete blocks were installed. On April 8, 1993, Allstate requested a tie beam/reinforcing inspection from the Dade County building department. In response to that request, Antonio Varona inspected the project on April 12, 1993. The inspector noted that the project was not ready for inspection because no truss plans were available. Respondent testified, credibly, that he had to construct the roof conventionally because of the difficulty in obtaining pre-fabricated trusses; however, that testimony does not explain why there were no truss plans available for inspection. Appropriately engineered truss plans are required for a roof to pass inspection. Despite the failure of the project to pass inspection, Mr. Rodriguez accepted the roof and paid Allstate $4,968.75 on May 21, 1993. As of May 21, 1993, there remained a final payment of $1,625 on the contract. After May 21, 1993, Respondent and Allstate left the Rodriguez job. There was a dispute in the evidence as to whether Mr. Rodriguez fired Allstate or whether Allstate abandoned the project. This dispute is resolved by finding that the evidence was insufficient to establish by clear and convincing evidence that Allstate abandoned the Rodriguez project. When Allstate left the Rodriguez job, there were sufficient funds remaining unpaid to complete the project. Because he had obtained the initial building permit, it was incumbent upon Respondent to either obtain a final inspection of the project or notify the building department that his company had been terminated by the owner. Respondent did neither. THE ELLIS CONTRACT (DOAH CASE 96-4581) At the times pertinent to this proceeding, William R. Ellis owned the Arleen House, which is an apartment building located at 2191 N.E. 168th Street, North Miami Beach, Florida. This building suffered damages from Hurricane Andrew. On September 11, 1992, Respondent and Mr. Ellis inspected the building and Respondent prepared an estimate as to the items that had been damaged by the hurricane and other non-hurricane related repairs that should be made. The mansard roof for this building had been damaged by Hurricane Andrew to the extent that it contained gaping holes. Shortly after that inspection, Mr. Ellis met with his insurance adjuster who gave him a check in the amount of $13,000 to repair the roof. It was necessary to dry in the roof and repair the mansard as soon as possible to avoid additional damage to the building from rains. While there was a dispute as to the extent of the services Allstate was to provide Mr. Ellis, the record is clear that Respondent, on behalf of Allstate, agreed to undertake the roof repair for the sum of $13,000. Respondent told Mr. Ellis that his company had a roofing crew ready to begin work on the roof repairs as soon as Mr. Ellis paid the sum of $13,000. Between September 11 and September 15, 1992, Mr. Ellis gave Allstate a check in the amount of $13,000 with the understanding that the check he had received from the insurance company had to clear before his bank would honor the check he was giving to Allstate. Immediately thereafter1 Allstate sent a roofing crew to the project for the purpose of temporarily covering exposed areas. Despite having been told by Mr. Ellis that the check he was giving Allstate would not be good until after the check for the insurance proceeds had cleared, Allstate did not wait to deposit Mr. Ellis’ check. Respondent was promptly notified that the check Mr. Ellis had given him would not be honored by Mr. Ellis’ bank. Respondent immediately thereafter withdrew the roofing crew from the project. The roofing crew had made only minor repairs at the time they were withdrawn from the project. Respondent knew, or should have known, that the building was vulnerable to further damage from rain. On September 15, 1992, Mr. Ellis gave Respondent a second check in the amount of $13,000. This check cleared the banking process on September 18, 1992. Mr. Ellis made repeated efforts to have Allstate send a crew to repair the roof. After it withdrew the crew that had been sent to the property when Allstate received the first check, Allstate did not take action to protect the property by repairing the exposed areas of the roof. Towards the end of September 1992, a heavy rainstorm caused additional damages to Mr. Ellis’ building. Allstate did not send a crew to the project again until October 6, 1992. Mr. Ellis hired this crew away from Allstate. He testified he did so because the crew complained about Allstate not paying for the materials they were using to repair the roof and because the workmen were threatening to file liens against the property. Mr. Ellis paid this crew the sum of $3,400 to temporarily repair the roof. He then entered into a contract with another contractor to complete the roofing repairs for the sum of $17,500. Mr. Ellis demanded the return of the $13,000 he paid to Allstate, but, as of the time of the formal hearing, he had not been repaid. THE KUCHENBACKER CONTRACT (DOAH CASE 96-4582) On November 6, 1992, Allstate entered into a contract with Carl F. Kuchenbacker to repair his residence at 18500 SW 88th Road, Miami, Florida. Mr. Kuchenbacker’s residence had been damaged by Hurricane Andrew. The initial contract price was $33,375.00. Respondent secured the building permit and Allstate began work on the project. During the course of the work, additional work was added to the contract, which raised the total contract price to $38,015.00. In late February or early March, 1993, Allstate abandoned the project without just cause and without notice to the owner. At the time it abandoned the project, Allstate had been paid the sum of $26,620.00. Allstate failed to pay all of the subcontractors and materialmen who had performed work or provided material for the Kuchenbacker job. As a result of that failure, valid liens were recorded against Mr. Kuchenbacker’s property. The following liens were recorded: Rite-Way Plumbing and Plastery, Inc. in the amount of $3,520.00; Commercial Lighting and Maintenance, Inc., in the amount of $1,835.00; and Scott Bornstein Plumbing, Inc., in the amount of $798.00. Allstate had received sufficient funds from the owner to pay these liens, but neither Respondent nor Allstate paid these liens. Mr. Kuchenbacker and Petitioner’s expert witness testified that the value of the work performed by Allstate before it abandoned the job was $21,000.00. Mr. Kuchenbacker also testified as to the items that remained undone and as to the percentage of the work that had been completed. From that testimony and from the testimony as to the estimated costs of completing the job, it is found that the sum of $11,395.00, which was the difference between the total contract price and the total amount that was paid to Allstate, was sufficient to complete the project and pay off the liens on the property. Respondent did not call for a final inspection of the property and he did not advise the Dade County Building Department that he was abandoning the project. Allstate abandoned the Kuchenbacker project because it went out of business.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that that Petitioner enter a final order that adopts the findings of fact and conclusions of law contained herein. It is further recommended that Petitioner impose fines totaling $5,000 against Respondent’s licensure as follows: For the violation established by Count I of DOAH Case 96-4580, an administrative fine in the amount of $500. For the violation established by Count II of DOAH Case 96-4580, an administrative fine in the amount of $500. For the violation established by Count IV of DOAH Case 96-4580, an administrative fine in the amount of $250. For the violation established by DOAH Case 96-4581, an administrative fine in the amount of $500. For the violation established by Count I of DOAH Case 96-4582, an administrative fine in the amount of $750. For the violation established by Count II of DOAH Case 96-4582, an administrative fine in the amount of $2,000. For the violation established by Count III of DOAH Case 96-4582, an administrative fine in the amount of $500. IT IS FURTHER RECOMMENDED THAT in addition to the fines recommended for the violations found in DOAH Case 96-4581, Respondent’s licensure be suspended for two years. IT IS FURTHER RECOMMENDED THAT in addition to the fines recommended for the violations found DOAH Case 96-4582, Respondent’s licensure be suspended for two years, to run concurrently with the suspension recommended for DOAH Case 96- 4581. DONE AND ENTERED this 23rd day of May, 1997, in Tallahassee, Leon County, Florida. Hearings Hearings CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative this 23rd day of May, 1997
Findings Of Fact Upon consideration of the oral argument adduced at the hearing, the following relevant facts: In November of 1983, the Captiva Erosion Prevention District (CEPD) submitted an application from the DER to construct an experimental "on-site stabilization system along 650 feet of Captiva Erosion Prevention District. The application listed Petitioner Arthur Learned, president, Learned Engineering and Development, Inc. as authorized agent. Drawings attached to the application show a location plan, a site plan and a plat. Each drawing is on Learned Engineering and Development, Inc. letterhead and is signed by Arthur Learned. The application noted that the project was "ex* NOTE: The continuation of words on this paragraph line are unreadable as viewed in the original document on file in the Clerk's Office and therefore not available in this ACCESS document. judged harmful, can be undone." 3. A Joint U. S. Army Corps of Engineers Permit Application Appraisal was performed* NOTE: The continuation of this paragraph along with pages 3 and 4 of the original document on file in the Clerk's Office are not available therefore not included in this ACCESS document. limitations of authority of resident project representative." Petitioner notes in a letter to the CEPD that said duties are in addition to those normally provided by the Engineer as Owner's representative during construction. Among the listing of the duties of a Resident Project Representative (RPR) is a provision which states that through more extensive on-site observations of the Work in progress and field checks of materials and equipment by the RPR and assistants, ENGINEER shall endeavor to provide further protection for OWNER against defects and deficiencies in the Work; but the furnishing of such services will not make ENGINEER responsible for or give ENGINEER control over construction means, methods, techniques, sequences or procedures or for safety precautions or programs, or responsibility for CONTRACT0R's failure to perform the Work in accordance with the Contract Documents. At some point in February of 1986, the DER discovered that concrete had been used in a portion of the stabilizers. Petitioner met with the DER staff concerning this permit violation, and explained that concrete, rather than sand, was placed in the bags due to changed conditions. Petitioner was told that any change in design needed approval from the DER. By letter dated February 28, 1986, Petitioner requested a modification of the permit to include the substitution of concrete intersection as stabilizer tie-in and filler. The after-the-fact permit modification was granted by letter dated May 26, 1986, addressed to the petitioner. The modification allowed the use of concrete-filled bags to construct the most landward portion of the six permitted groins to a maximum length of 13 feet from the landward connection. It did not permit concrete bags beyond the 13 foot distance. On or about March 6, 1986, petitioner completed a Certificate of Substantial Completion for the Sand Core Filter Beach Stabilizers, indicating the date of substantial completion to be February 16, 1986. Prior to the modification authorized on May 26, 1986, the petitioner received a letter from DER dated March 24, 1986. This letter notified Mr. Learned that the permit did not authorize placement of concrete within the permitted sand bags, and that, in order to correct the outstanding violations, the concrete material must be removed from the sand bags. Petitioner was request to remove all sand bags that contained cement within fourteen days. Based upon DER's prior correspondence with petitioner Learned during the permitting process, as well as its investigation, on-site inspections, meetings, telephone conversations and a sworn affidavit from the Chairman of the CEPD regarding the CEPD's lack of knowledge of noncompliance with the conditions of a similar Department of Natural Resources' permit, DER staff believed that petitioner Learned (along with the contractor) was the responsible party in the decision to use concrete in the sand bags and that the CEPD relied upon the petitioner and the contractor to adhere to permit conditions. The DER did not review the contract documents regarding petitioner's services to the CEPD prior to instituting proceedings against the petitioner. On August 5, 1986, the DER issued a Notice of Violation and Orders for Corrective Action against Erosion Control Systems, Inc. and Learned Engineering and Development, Inc. The Findings of Fact contained therein recite that Learned Engineering and Development, Inc. and Erosion Control Systems, Inc. are the agent and contractor respectively for the CEPD. Violations of Chapter 403 were found and specific corrective actions were proposed. The corrective action to be taken was the removal of all concrete bags waterward of the 13 foot mark, the refilling of said bags with sand, the removal of any bags containing asphalt and the return of all disturbed areas to pre-removal conditions. Learned Engineering and Erosion Control Systems were also to make payment to the DER in the amount of $392.60 for expenses incurred in investigating the matter. On March 16, 1987, DER issued an Amended Notice of Violation and Orders for Corrective Action. This document named the Captiva Erosion Prevention District, Erosion Control Systems, Inc. and Learned Engineering and Development, Inc. as respondents, and noted that CEPD was the permittee, that petitioner Learned was the authorized agent on the project for CEPD and that Erosion Control Systems was the project contractor employed by CEPD. The Amended Notice is substantially similar to the initial Notice, but adds a further violation regarding the use of turbidity curtains during construction. It also adds a Count charging that Respondents Learned and Erosion Control conducted dredging and filling activities without a valid DER permit. The Orders for Corrective Action are identical to the initial Notice. DER subsequently resolved its dispute with the CEPD and, on March 11, 1988, filed a Notice of Voluntary Dismissal as to Erosion Control Systems and petitioner Learned Engineering. At the time of the initial Notice Of Violation and Orders for Corrective Action, petitioner was a for-profit corporation under the laws of Florida with its principal place of business in Venice, Florida. Due to financial difficulties caused, at least in part, by the DER's actions in the enforcement proceeding described above, Arthur Learned, President of Learned Engineering, closed the Florida office, semi-retired and moved to Georgia. Learned Engineering relocated to Georgia on January 1, 1987, and now has its principal place of business in Blairsville, Georgia. It does still maintain contacts in Florida and has recently performed other work in Florida. At all relevant times, Petitioner has had less than 25 employees and a net worth of less than $2,000,000.00. Petitioner incurred attorney's fees and costs in the amount of $5,127.07 in defense of the administrative proceedings described above.
The Issue The issue for determination is whether Petitioner is liable for the costs and expenses incurred by Respondent in responding to a pollutant discharge, occurring on November 6, 1992, at the waters off John Lloyd State Park, Dania, Florida, and for damages to natural resources resulting from the pollutant discharge.
Findings Of Fact On November 6, 1992, a DC-7 airplane crashed off the Atlantic Coast of Florida, more particularly, 100 yards from John Lloyd State Park, and one quarter of a mile north of Dania Pier in Dania, Florida. The DC-7 was a chartered cargo airplane and had departed from Miami International Airport. The DC-7 was chartered from Claudio Castillo by Miguel Delpino, United States General Manager of Aerochago Airlines, to carry cargo for Aerochago Airlines. Even though Aerochago Airlines owned aircraft, its aircraft was unavailable due to maintenance work being performed. During the flight from Miami International Airport, the DC-7 developed engine trouble, i.e., two of its engines failed. The aircraft began to lose altitude. In an attempt to regain altitude, the captain of the aircraft dumped 3,000 gallons of aviation fuel. However, the DC-7 failed to regain altitude and crashed. Remaining on the crashed aircraft were 3,000 gallons of aviation fuel and 150 gallons of motor oil. When the DC-7 crashed, only the crew and two passengers were on board. One of the passengers was Mr. Castillo. On the same day of the crash, the Florida Marine Patrol (FMP) of the Department of Natural Resources, now the Department of Environmental Protection (DEP), arrived at the crash scene at 3:20 a.m. and investigated the crash. The DEP had four employees investigating the crash: three FMP officers and one employee from the Office of Coastal Protection. The remaining aviation fuel and motor oil in the crashed DC-7 was discharging into the coastal waters. The DEP employees attempted to abate the discharge. The equipment necessary for the employees' investigation of the crash and abatement of the discharge and the cost for the equipment were the following: (a) a DEP vehicle at a cost of $7.00; (b) a twin engine vessel at a cost of $120.00; (c) an underwater sealant kit at a cost of $16.66; (d) scuba tanks at a cost of $9.00; and (e) photographs at a cost of $24.00. The total hours expended by DEP's four employees were 36 hours, at a cost of $685.84. Due to the DC-7 leaking aviation fuel and motor oil into Florida's coastal waters, removal of the aircraft from the Atlantic Ocean was necessary. DEP contracted with Resolve Towing and Salvage (RTS) to remove the DC-7. RTS is a discharge cleanup organization approved by DEP. RTS' contractual responsibilities included removal of the entire DC-7 aircraft and all debris within 100 yards of the center of the aircraft; disposal of the aircraft; plugging the engines to help stop the leakage; and removal and delivery of the engines which failed to the National Transportation Safety Board (NTSB) and the Federal Aviation Authority (FAA). Because the submerged DC-7 was located in an environmentally sensitive coral and sea-plant area, RTS was required to use extreme care in removing the aircraft. The contractual cost was fixed at $34,000.00 A DEP employee, Kent Reetz, was at the scene of the crash during RTS' cleanup. His responsibility was to monitor the removal of the DC-7 by RTS and to ensure that the aircraft's removal was in compliance with DEP's standards. During the removal of the DC-7 from the water, the fuselage ruptured, scattering debris which was dangerous to the public and to the coral and sea-plants. DEP determined that RTS was not responsible for the fuselage rupturing, but that the rupture was caused by several storms, prior to the aircraft's removal, and by the aircraft being submerged for an extended period in salt water. DEP contracted with RTS to remove the dangerous debris emitted when the fuselage ruptured. The contractual cost was fixed at $9,050.00 The total contractual cost between DEP and RTS was $43,050.00. DEP paid RTS from the Coastal Protection Trust Fund. In responding to the pollutant discharge, DEP incurred a total cost of $43,912.50. DEP assessed damages to the natural resources based upon the amount of pollutants discharged which were 3,000 gallons of aviation fuel and 150 gallons of motor oil. Using the statutory formula, DEP assessed damages to the natural resources in the amount of $57,898.72. Based upon the costs incurred by DEP in responding to the pollutant discharge in the amount of $43,912.50 and the damages to the natural resources in the amount of $57,898.72, DEP sought reimbursement and compensation from Mr. Castillo in the total amount of $101,811.22. DEP invoiced Mr. Castillo for reimbursement of the costs and for compensation for the damages. DEP provided Mr. Castillo with detailed and itemized expense documents for the costs that it had incurred in responding to the pollutant discharge. The documents showed the expenses incurred, what each expense represented, and the formula for computing each expense. Further, DEP provided Mr. Castillo with a document showing the amount of the damages to the natural resources, the formula for computing the damages, and how the damages were computed. The charter of November 6, 1992, was not the first time that Mr. Delpino had chartered the same DC-7 from Mr. Castillo. Prior to and, again, at the previous charter, Mr. Castillo represented to Mr. Delpino that he, Mr. Castillo, was the owner of the DC-7. The owner of a chartered aircraft is responsible for obtaining the aircraft's crew and insurance and for maintaining the aircraft. For the previous charter, Mr. Castillo was responsible for obtaining the DC-7's crew and the insurance and for maintaining the aircraft. Mr. Delpino had no reason to expect the charter for November 6, 1992, to be any different. Furthermore, Mr. Castillo did not inform Mr. Delpino that the responsibilities would be different. For the present charter, as before, Mr. Castillo handled all matters relating to the crew, insurance, and maintenance. Regarding the insurance, Mr. Castillo presented to Mr. Delpino an insurance certificate which, after the crash, was discovered to be false. Also, regarding maintenance, prior to the crash, the two engines which failed were to be removed and repaired, but, although they were removed, they were returned without being repaired. Mr. Castillo was the owner of the DC-7. Also, the crash of the DC-7 was investigated by several federal governmental agencies, including the FAA, the U.S. Coast Guard, and the NTSB. Both the Coast Guard and the NTSB issued reports on the crash, which identified Mr. Castillo as the owner of the DC-7. Mr. Castillo was responsible for the discharge of the 3,000 gallons of aviation fuel and 150 gallons of motor oil from the DC-7 into Florida's coastal waters.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection (DEP) enter a final order assessing Claudio Castillo $43,912.50 for costs related to DEP responding to the pollutant discharge on November 6, 1992, at Florida's coastal waters off John Lloyd State Park, Dania, Florida, and $57,898.72 for damages to natural resources resulting from the pollutant discharge--all totaling $101,811.22. DONE AND ENTERED this 26th day of August, 1997, in Tallahassee, Leon County, Florida. ERROL H. POWELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 26th day of August, 1997.
The Issue The primary issue in this disciplinary proceeding is whether Respondent, which operates a convenience store and sells alcoholic beverages on the premises under a license issued by Petitioner, permitted a sale of drug paraphernalia to occur in the store, in violation of the statutes governing holders of beverage licenses. If Petitioner proves the alleged violation, then it will be necessary to consider whether penalties should be imposed on Respondent.
Findings Of Fact At all relevant times, Respondent Moti's, Inc., d/b/a Continental Market ("Continental"), has held a license to sell alcoholic beverages at retail. Consequently, Continental is subject to the regulatory and disciplinary jurisdiction of Petitioner Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco (the "Division"). On December 12, 2006, two undercover agents of the Division, together with a detective from the Broward County Sheriff's Office, conducted a "sting" operation at the convenience store that Continental owns. The sting was arranged in response to complaints that the Sheriff's Office had received regarding sales of drug paraphernalia (specifically "crack pipes" used for smoking crack cocaine), which were allegedly taking place at this store. The purpose of the sting was to purchase a "crack pipe" and arrest anyone involved in the sale. Pursuant to the plan, Special Agent Ralius Thompson entered the store in an undercover capacity. He was wearing a "wire" (concealed microphone) and a hidden camera. These devices, which were monitored by the other agent and the detective (both of whom remained outside the store), allowed the ensuing transaction to be recorded on a videotape. Once inside, Thompson headed first to the cooler, where he took a six-pack of beer from the shelf. He then proceeded to the counter, to purchase the beer. As the clerk, Aziar Baig, was ringing up the sale, Thompson whispered, "Got any pipes? Got any pipes?"i Baig reached down behind the counter and pulled up a "love rose." (A love rose is a trinket, a tiny fake flower encased in a thin glass tube, which latter is about 4 inches long. Though the tube containing a love rose can be used as a pipe, love roses are not necessarily drug paraphernalia; they can be legally sold, purchased, and possessed.) "You're talking about here?" Baig asked, displaying a love rose. "Yeah, smoke my crack in, man, smoke my crack in," replied Thompson. "A pipe——got a stem?" "Huh?" said Baig. "A stem," repeated Thompson. (According to the evidence, the term "stem" is street talk for filter. Filter material is inserted in one end of the pipe to prevent the user from inhaling the burning cocaine "rock.") "This one?" Baig inquired, holding up a Chore Boy® copper scrubber. (Chore Boy® scrubbers are clearly legal merchandise having an obvious, non-nefarious purpose. According to the evidence, however, the metal in these pot scrubbers can be used illicitly as a crack pipe filter.) "Yeah," said Thompson, who then paid $6.75 for the items. Shortly after making this sale, Baig was arrested on the charge of delivering drug paraphernalia, which is a third- degree felony under Section 893.147(2), Florida Statutes. The evidence presented in this case is sufficient, for present purposes, to support the inference——which the undersigned draws——that Baig either knew or reasonably should have known that his customer (Thompson) intended to use the love rose and copper scrubber to fashion a makeshift crack pipe.ii Thus, it is determined, as a matter of ultimate fact, that Baig committed the crime of delivering drug paraphernalia. There is, on the other hand, no persuasive evidence (or any evidence of any quality, for that matter) establishing that the corporate licensee (as opposed to its employee Baig) committed any misconduct, e.g. negligent failure to train or supervise employees; failure to exercise due diligence in attempting to prevent unlawful sales; or fostering or condoning such sales, for which the Division could impose discipline against Continental pursuant to Section 561.29(1), Florida Statutes. It is determined, therefore, as a matter of ultimate fact, that Continental is not guilty of the pending charge, namely permitting the sale of drug paraphernalia on the licensed premises.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Division enter a final order finding Continental not guilty of the instant charge. DONE AND ENTERED this 17th day of October, 2007, in Tallahassee, Leon County, Florida. JOHN G. VAN LANINGHAM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.stae.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of October, 2007.
The Issue Whether Petitioner, Miami Yacht Divers, Inc., is entitled to reimbursement for cleanup costs.
Findings Of Fact The Respondent is the state agency charged with the responsibility of administering claims against the Florida Coastal Protection Trust Fund. Petitioner is a company located in Dade County, Florida, which performs commercial diving operations. Such operations include oil pollution containment and clean-up. At all times material to the allegations of this case, Dan Delmonico was the principal officer or owner for the Petitioner who supervised the operations of the company. In April of 1993, Mr. Delmonico discovered a fuel discharge next door to the premises of Defender Yacht, Inc., a company located on the Miami River in Dade County, Florida. The source of the discharge was an abandoned sunken vessel. This derelict vessel had no markings from which its ownership could be determined. Upon discovering the vessel, Mr. Delmonico did not contact local, state, or federal authorities to advise them of the discharge. Instead, Mr. Delmonico contacted several colleagues whose help he enlisted to assist him to clean up the discharge. In this regard, Mr. Delmonico procured the services of a diver and a crane company to remove the vessel from the water. Additionally, Mr. Delmonico utilized a boom and oil absorbent clean-up pads to remove the discharged fuel from the water. In total, Mr. Delmonico maintains it took four work days to complete the removal of the discharge and the salvage of the derelict vessel. At no time during this period did Mr. Delmonico contact local, state, or federal authorities to advise them of the foregoing activities. No official from any governmental entity supervised or approved the clean-up operation or salvage activity which is in dispute. After the fact Petitioner filed a reimbursement claim with the United States Coast Guard. Such claim was denied. Upon receipt of such denial, Petitioner filed the claim which is at issue in the instant case. In connection with this claim with Respondent, Petitioner submitted all forms previously tendered to the Coast Guard including the standard claim form, labor receipts, rental receipts, supply receipts, trailer and storage receipts, cash expenses, a job summary, and photographs. On or about September 20, 1996, Respondent issued a letter denying Petitioner's claim for reimbursement for expenses associated with the above-described salvage and clean-up activities. The grounds for the denial were the Petitioner's failure to obtain prior approval for the activities and the absence of "good cause" for the waiver of prior approval. Additionally, the Respondent maintained that Petitioner had failed to provide evidence that a pollutant discharge existed and that the removal of the vessel was necessary to abate and remove the discharge. It is undisputed by Petitioner that prior approval for the clean-up activities was not obtained. Petitioner timely disputed the denial and was afforded a point of entry to challenge such decision.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection enter a Final Order denying Petitioner's claim for reimbursement. DONE AND ENTERED this 31st day of December, 1997, in Tallahassee, Leon County, Florida. J. D. Parrish Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 31st day of December, 1997. COPIES FURNISHED: Kathy Carter, Agency Clerk Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 F. Perry Odom, General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 Kathelyn M. Jacques Assistant General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 N. Paul San Filippo, Esquire Seidensticker & San Filippo Parkway Financial Center 2150 Goodlette Road, Suite 305 Naples, Florida 34102
