The Issue This is a license discipline case in which the Petitioner seeks to take disciplinary action against the Respondent on the basis of allegations of misconduct set forth in a four-count Administrative Complaint. The Administrative Complaint charges the Respondent with violation of the following statutory provisions: Sections 489.129(1)(g), 489.129(1)(h)2, 489.129(1)(k), and 489.129(1)(n), Florida Statutes (1996 Supp.).
Findings Of Fact The Respondent, Allen Fader, is, and has been at all times material, a licensed Certified General Contractor, having been issued license number CG C007504 by the State of Florida. At all times material, the Respondent was licensed to contract as an individual. The Respondent, by virtue of his license, advertised construction services for Gold Coast Construction Services, Inc., during 1997. The Respondent presented a business card, with the name of Gold Coast Construction Services, Inc., to Ruby M. Shepherd, a customer, in April of 1997. On April 14, 1997, the Respondent, doing business as Gold Coast Construction Services, Inc., contracted with Ruby M. Shepherd to enclose a patio and to install hurricane shutters at Ms. Shepherd's residence located at 12325 Northwest 19th Avenue, Miami, Florida. The contract was conditioned on Ms. Shepherd being able to obtain financing to pay for the construction described in the contract. The exact amount Ms. Shepherd was required to pay under the original April 14, 1997, contract cannot be determined from the evidence in this case.4 The Respondent assisted Ms. Shepherd in obtaining a loan for the financing of the construction work described in the contract. It took several months to obtain a loan. Ultimately, through the efforts of the Respondent, and of a person engaged by the Respondent to help obtain a loan, Ms. Shepherd received a loan through Town and Country Title Guaranty and Escrow. The check from Town and Country Title Guaranty and Escrow was in the amount of twelve thousand nine hundred seventy-nine dollars and fifteen cents ($12,979.15). The check was made payable to Ms. Shepherd and to Gold Coast Construction Services, Inc. At the request of the man who helped obtain the loan, Ms. Shepherd endorsed the loan check and agreed for the check to be delivered to the Respondent. The Respondent, doing business as Gold Coast Construction Services, Inc., negotiated the loan check and received all of the proceeds in the amount of twelve thousand nine hundred seventy-nine dollars and fifteen cents ($12,979.15). The Respondent received the proceeds of the loan on or about September 12, 1997. The Respondent did not take any action on Ms. Shepherd's construction project until November 14, 1997. On that day, the Respondent placed an order for the material for the hurricane shutters on Ms. Shepherd's project. Nothing more was done on Ms. Shepherd's project for quite some time. Towards the end of February of 1998, the Respondent had some health problems, which caused him to be unable to work for several weeks. Eventually, the Respondent attempted to pick up the shutter materials he had ordered for Ms. Shepherd's project. As a result of the delay, those materials had been returned to stock and had been sold to someone else. The Respondent ordered the materials again. Eventually, in June of 1998, the Respondent had the shutter materials delivered to Ms. Shepherd's residence, and began the process of installing the hurricane shutters. In the meantime, from September of 1997 until January of 1998, the Respondent did not contact Ms. Shepherd. During this period of time, Ms. Shepherd called the Respondent's office numerous times and left numerous messages asking the Respondent to return her calls. From September of 1997 until January of 1998, the Respondent did not return any of Ms. Shepherd's calls. In January of 1998, Ms. Shepherd was finally able to speak with the Respondent. From January of 1998 until the installation work began in June of 1998, Ms. Shepherd spoke to the Respondent on numerous occasions in an effort to find out when the Respondent was going to begin work or return the money he had been paid. During this period of time, the Respondent repeatedly made false assurances to Ms. Shepherd that the work would be performed within two weeks. On or about June 12, 1998, the Respondent obtained a building permit for Ms. Shepherd's project from the Miami-Dade Department of Planning, Development, and Regulation. Installation of the hurricane shutters began that same week. The installation process was delayed because some of the materials did not fit and had to be returned to the manufacturer for modifications. Following the modifications, the installation process resumed. After a few more days, the Respondent told Ms. Shepherd the hurricane shutter work was finished and that he was not going to do the patio construction work, because the loan Ms. Shepherd had received was not enough money to pay for both projects. After the Respondent told Ms. Shepherd that the installation of the hurricane shutters was complete, the Respondent never did any further work on Ms. Shepherd's construction project. The hurricane shutters installed at Ms. Shepherd's property by the Respondent were not installed correctly. Several of the hurricane shutters will not open and close properly. Several of the hurricane shutters are insufficiently fastened. A necessary shutter over the storage room door was never installed. The problems with the subject hurricane shutters can be corrected. The cost of the corrections necessary to make the shutters operate properly and to fasten them securely is approximately one thousand dollars ($1,000). The Respondent never called for an inspection of the installation of the hurricane shutters at Ms. Shepherd's residence. In their present condition, those hurricane shutters will not pass inspection, because they were installed improperly. If corrections are made, those hurricane shutters will pass inspection. By reason of the facts stated in paragraphs 12 and 13 above, the Respondent failed to properly and fully complete the hurricane shutter portion of the contracted work. The Respondent never did any work on the patio portion of the contracted work. At some point in time between September of 1997 and June of 1998, Ms. Shepherd and the Respondent agreed to a modification of their original contract due to the fact that the proceeds of the loan obtained by Ms. Shepherd were insufficient to pay for both the hurricane shutters and the enclosure of the patio. The essence of their modified agreement (which was never reduced to writing) was that the Respondent would not do the patio enclosure portion of the contracted work; the Respondent would do the hurricane shutter portion of the contracted work; the Respondent would be paid for the hurricane shutter portion of the contracted work; and any remaining balance of the loan proceeds that had been paid to the Respondent would be paid back to Ms. Shepherd. Implicit, but apparently unstated, in this modified agreement, was the notion that the Respondent would charge a fair price for the hurricane shutter portion of the contracted work. A fair price for the hurricane shutter portion of the contracted work at Ms. Shepherd's residence, including all materials, labor, overhead, and profit, would be approximately four thousand dollars ($4,000).5 The price of four thousand dollars presupposes properly installed hurricane shutters that will pass inspection. As previously mentioned, it will cost approximately one thousand dollars ($1,000) to make the corrections to the subject hurricane shutters which are necessary for the shutters to function properly and pass inspection. Accordingly, the fair value of the work performed by the Respondent at Ms. Shepherd's residence is three thousand dollars ($3,000). Ms. Shepherd has paid $12,979.15 to the Respondent, doing business as Gold Coast Construction Services, Inc. The fair value of the work performed by the Respondent at Ms. Shepherd's residence is $3,000. Therefore, the Respondent has been paid $9,979.15 more than he is entitled to keep. As of the date of the final hearing, the Respondent has not paid back any money to Ms. Shepherd.
Recommendation On the basis of the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be issued in this case concluding that the Respondent is guilty of the violations charged in each of the four counts of the Administrative Complaint, and imposing the following penalties: For the violation of Section 489.129(1)(g), Florida Statutes (1996 Supp.), an administrative fine in the amount of $100.00. For the violation of Section 489.129(1)(k), Florida Statutes (1996 Supp.), an administrative fine in the amount of $2,000.00. For the violation of Section 489.129(1)(n), Florida Statutes (1996 Supp.), an administrative fine in the amount of $1,000.00. For the violation of Section 489.129(1)(h), Florida Statutes (1996 Supp.), an administrative fine in the amount of $1,500.00, and placement of the Respondent on probation for a period of one year. It is further RECOMMENDED that the final order require the Respondent to pay restitution to Ms. Shepherd in the amount of $9,979.15, and to pay costs of investigation and prosecution in the amount of $266.55. DONE AND ENTERED this 9th day of September, 1999, in Tallahassee, Leon County, Florida. MICHAEL M. 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 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 9th day of September, 1999.
The Issue The issues in this case are whether Franklin County (County) violated the law by placing unauthorized construction debris and material within a permitted revetment seaward of the coastal construction control line (CCCL); and whether the County should be required to take corrective action to remediate this violation.
Findings Of Fact Count I Since an undisclosed date in the late 1970s, the County has owned and maintained that portion of County Road 370, also known as Alligator Drive, located at Alligator Point in the southeastern tip of the County. Before then, the road was classified as a secondary road owned and maintained by the Department of Transportation (DOT). Sometime during the late 1970s, the Legislature transferred the ownership and control of some secondary roads, including County Road 370, from the State to local governments. A revetment is a man-made sloping structure, typically using rock boulders, designed in this case to protect County Road 370 from coastal erosion by absorbing the energy of incoming water from the Gulf of Mexico. It is the only structure protecting that roadway from the open winds and waters of the Gulf of Mexico. In regulatory parlance, a revetment is "armoring," also known as a "rigid coastal armoring structure" within the meaning of Florida Administrative Code Rule 62B- 33.002(5) and chapter 161. The Department has established a CCCL for the County. A permit is required before any person may conduct construction activities seaward of that line. However, if public infrastructure is threatened or damaged by erosion related to a storm event, as an emergency measure, a local government may construct a temporary armoring structure without first obtaining a permit from the Department. See § 161.085(3), Fla. Stat. Once the temporary structure is installed, the local government has 60 days in which to remove it or file an application for permanent authorization of the structure. See § 161.085(6), Fla. Stat.; Fla. Admin. Code R. 62-33.0051(5)(g). Construction debris may not be used for emergency protection. See § 161.085(6), Fla. Stat.; Fla. Admin. Code R. 62B-33.0051(5)(f). Construction debris is defined as "material resulting from the demolition of a structure" and does not "include such material which has been sorted, cleaned, and otherwise processed such that it meets the suitability criteria for armoring materials set forth in this rule chapter." Fla. Admin. Code R. 62B-33.002(15). On October 5, 1971, the Department of Natural Resources (DNR), which was later merged into the Department, issued to DOT Permit No. BBS 71-33 for the construction of a rock revetment on the south side of County Road 370 in the area that is the subject of the Amended NOV. See Department Ex. 2, ¶9. A Final Order issued by DNR on May 29, 1986, states in part that while the project was never constructed, "[s]ince 1971, DOT did place loose rock and rubble debris on several occasions in noncompliance to any engineering design and without construction." Id. However, a Department inspection in 1996 revealed that no debris was located within the area where the current revetment is built. See Finding of Fact 6, infra. On May 29, 1986, DNR issued to the County CCCL Permit No. FR-204 for the construction of a 1,500-foot rock revetment seaward of the established CCCL and adjacent to portions of County Road 370 abutting the Gulf of Mexico. See Department Ex. 2. The revetment was located approximately 350 feet east of DNR's [now Department] reference monument R-211 to approximately 150 feet west of DNR's reference monument R-213. Id. at ¶ 1. On November 7, 1994, the Department issued to the County CCCL Permit No. FR-446 for the re-construction of the original revetment authorized in 1986 and extension of the eastern limits of the structure. The revetment is located approximately 540 feet west of Department reference monument R-212 to approximately 140 feet east of Department reference monument R-213. See Department Ex. 3. The permit did not authorize placement of any construction debris within the revetment. On February 5, 1996, the County certified that the revetment was constructed in compliance with the permit. See Department Ex. 4. A final site inspection performed by the Department revealed that no unauthorized construction debris or other material had been placed in the permitted revetment. See Department Ex. 5. In July 2005, Hurricane Dennis made landfall in the Florida Panhandle causing damage to the shoreline along County Road 370. As an emergency measure after the storm event, the County replaced rock boulders that had been displaced back into the rock revetment seaward of the CCCL. It also placed unauthorized concrete debris and other debris material within the footprint of the rock revetment seaward of the CCCL. The unauthorized debris material has never been removed. Such debris poses a potential safety hazard to the public. On September 11, 2006, the County submitted to the Department an application for a joint coastal permit, which would authorize a 2.9-mile beach and dune restoration project along a segment of the Alligator Point shoreline. In 2007, a Department site inspection (attended by County officials and its consultant) revealed the presence of concrete debris and other debris material stacked on top of and intermixed with the previously permitted rock revetment. The purpose of the site inspection was to have the County's consultant formulate a debris removal plan, which would be incorporated as a condition in the joint coastal permit and sovereign submerged lands authorization. An enforcement action was not initiated because the debris removal plan, if completed, would resolve the violation. On May 11, 2011, the County's application for a joint coastal permit was approved and Permit Number 0269516-001-JC was issued. See Department Ex. 6. Special Condition 5 of the permit gave the County specific instructions on how to remove the construction debris within the previously-permitted rock revetment and included a requirement that it be placed in an upland disposal site. Id. at p. 6 of 23. An attachment to the permit identified the debris and derelict structures to be removed. However, the County has never undertaken the beach re- nourishment project or completed any of the work relating to the debris removal plan. This is because the voters of the County rejected the funding mechanism for the project several years before the permit was issued. On January 9, 2012, the Department conducted an inspection of the site to document how much debris was in the revetment and where it was located. The inspection revealed the presence of a significant amount of concrete debris and other debris material scattered throughout the revetment and continuing eastward. See Department Ex. 7. A NOV was issued after the inspection. On March 8, 2012, a follow-up inspection was conducted by the Department and County representatives. The conditions observed at that time were essentially the same as those present during the January inspection. During the March inspection, a County representative pointed out several pieces of concrete debris that he believed were the remains of an old swimming pool from an upland property that had been placed on top of the revetment after a storm event. Prior to that time, the County had taken no steps to remove this debris, and it had never notified the Department that concrete pool debris had been placed in the revetment, apparently by an unknown third party. An Amended NOV was issued on August 31, 2012, which added a Count II, relating to the area east of the permitted revetment, and identified the corrective action to be taken by the County for both Counts. The corrective action for Count I requires the County, within 60 days of the effective date of a final order in this proceeding, to remove all construction debris and other debris material, seaward of the CCCL, from and adjacent to the footprint of the previously permitted rock revetment. It further requires the County to promptly dispose of all debris at an appropriate disposal facility landward of the CCCL. If compliance with these conditions requires the County to remove the debris during the Atlantic hurricane season, the time frame to complete the removal activity shall be within 60 days after the end of that season. Except for a contention that it is not responsible for removing all of the debris in the revetment, the County does not dispute the charges in Count I. See Stip., ¶ 7.a. In an effort to limit its liability, the County points to language in a 1986 DNR Final Order, which states in part that "loose rock and rubble debris" was placed in the revetment footprint by DOT "on several occasions" in the 1970s. Department Ex. 2, ¶ 9. However, a Department inspection of the site in 1996 just after the structure was rebuilt determined that there was no unauthorized debris in the footprint of the permitted revetment. The results of that inspection were not credibly disputed. The County also contends that other debris may have been placed in or on top of the revetment by unknown third parties after various storm events in later years. But even if this is true, it is the responsibility of the property owner, in this case the County, to remove the debris. The County also seeks "equitable relief" on the ground it lacks the necessary finances to perform the corrective action. The County Director of Administrative Services stated that due to the recession, the property tax base has been cut in half (from $4.1 billion to $1.9 billion) between 2006 and 2011, essentially cutting ad valorem property taxes by 50 percent. The County further points out that the Federal Emergency Management Agency (FEMA) is not a source of funding to correct the violations. Several years ago, FEMA funding was available to the County on a one-time basis to either construct a bypass road for portions of Alligator Drive adjacent to the previously permitted rock revetment or to maintain the rock revetment. Based upon FEMA's recommendation, the County opted to build a bypass road, which is approximately 75 percent completed, with the remainder temporarily delayed due to pending condemnation litigation with an affected property owner. However, the County described the bypass road as being far less safe than County Road 370 because the bypass road has sharp turns, poor driving visibility, and a much smaller right-of-way (52 feet versus 80 to 100 feet for County Road 370). In any event, FEMA funding for performing revetment-related work adjacent to County Road 370 is no longer available. Finally, the County estimates that there are "a hundred [truck] loads of material to be removed from this area," and if the debris is removed, it will "reduce the volume of protection that [the road] currently [has]" and increase the risk of the road failing. The County suggests that even if the debris is removed, it has no money to then restore the structural integrity of the revetment. If that part of County Road 370 becomes unsafe or unusable, approximately 400 homes west of the revetment will lose the only paved hurricane evacuation route from the coastline, and emergency services may not be able to quickly access the area. As discussed in the Conclusions of Law, despite these unfortunate circumstances, the financial condition of the violator is not a consideration in formulating a corrective action plan. Count II Beginning in September 2000, and continuing until at least through July 2005, the County placed material, including granite rock boulders, rock, and debris material, in a location east of the previously permitted rock revetment, seaward of the CCCL. The granite rock boulders are permitted material taken from the rock revetment. A permit for a permanent rigid coastal armoring structure has never been obtained for the placement of the authorized material, and the debris material has never been removed. The construction activity is located to the east of the previously permitted rock revetment seaward of the CCCL approximately 140 feet east of Department reference monument R-213 to approximately 80 feet east of Department reference monument R-214. To address the violations in Count II, the County has agreed that within 60 days of the effective date of a final order in this case, it will submit to the Department a complete application for a rigid coastal armoring structure located between Department reference monuments R-213 and R-214 that complies with all Department requirements. All work shall be completed prior to the expiration of the permit. If a complete application is not timely submitted, or the structure is not completed prior to the expiration of the permit, the County will remove all material placed seaward of the CCCL pursuant to a Department approved debris removal plan.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter a final order determining that the County is liable for the violations in Count I. As corrective action, within 60 days of the effective date of a final order in this proceeding, the County shall remove the existing construction debris and other material seaward of the CCCL from within the footprint of the previously permitted rock revetment and dispose of the material at an appropriate disposal facility landward of the CCCL. If compliance with the time period requires the County to complete activities during the Atlantic hurricane season, the time frame for completing the debris removal activities is 60 days after the end of the hurricane season. It is further RECOMMENDED that, based upon the parties' agreement at final hearing, the Department also determine that the County is liable for the violations in Count II. As corrective action, within 60 days of the effective date of this Order, the County shall submit to the Department a complete application for a rigid coastal armoring structure located between Department reference monuments R-213 and R-214 that complies with all Department permitting rules and statutes. The County shall complete the permitted construction prior to the expiration of the permit. If the County does not submit a complete application within 60 days of entry of a final order, or does not construct the structure authorized by the permit prior to the expiration of the permit, the County shall remove all material placed seaward of the CCCL pursuant to a Department approved debris removal plan. DONE AND ENTERED this 29th day of January, 2013, in Tallahassee, Leon County, Florida. S D. R. ALEXANDER 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 January, 2013.
Findings Of Fact Respondents Murphy's and Lyons' are both engaged in the business of removing wrecked, disabled, stolen or abandoned motor vehicles on Florida highways. Pursuant to Section 321.051, Florida Statutes, Petitioners are eligible for, and participate in, the system established by the DHSMV for utilizing qualified, reputable wrecker operators for removal of wrecked or disabled vehicles from accident scenes or the removal of abandoned vehicles when the owner or operator is incapacitated, unavailable, or leaves the procurement of wrecker service to the officer at the scene (hereafter referred to as "FHP wrecker rotation system"). Respondents are each charged in an Administrative Complaint indicating that FHP intends to remove Respondents from each respective zone's wrecker rotation system list for Respondents' respective alleged failure, among other offenses, to comply with the "place of business" requirement of Rule 15B- 9.003(2), Florida Administrative Code, and the unpromulgated non-rule "policy" interpreting the term, "place of business" as used in that rule. Petitioners received such notice by hand-delivery of the respective Administrative Complaints dated July 22, 1987. The FHP wrecker rotation system includes designated zones and qualified wrecker operators within those zones. When a wrecker is needed to respond to an accident or to a motorist, FHP calls the wrecker at the top of the list and then rotates this wrecker down to the bottom of the list. By rotating each wrecker on the rotation list following dispatch by FHP, each participating wrecker service is afforded an equal opportunity to service a call. See Rule 15B- 9.003(3), Florida Administrative Code. In Palm Beach County, FHP designated six zones; twenty-two wrecker businesses have qualified to participate as rotation wreckers. These wrecker companies vary according to their size and operation; qualified wrecker operators include companies with as few as one or two wreckers to as many as thirty trucks. Murphy's Towing, Lyons' Auto Body, and Kauff's Towing are among those currently operating in Palm Beach County in one or more zones of the FHP wrecker rotation system. Petitioner Murphy's Towing has participated in the wrecker FHP rotation system for eight years. Murphy's Towing maintains approximately thirty trucks and operates in four zones in Palm Beach County. It maintains storage areas in each zone. As a result of its fleet of wreckers, Murphy's is able to use a roving patrol operation. When a call is received by Murphy's Towing from FHP, a central dispatcher operating 24 hours per day assigns a Murphy's truck which is patrolling in an assigned zone to respond to the call. In individual instances, this system may actually cut or increase response time within zones from what it might be if a truck were dispatched each time from a stationary place of business within the zone. Presently, wrecker services in Palm Beach County will dispatch the closest vehicle, regardless of the address of the wrecker truck or the location of the wrecker, even across zone lines. Murphy's operates in Zones 2, 3, 4 and 5, and has obtained an occupational license in each of those zones without difficulty concerning whether it maintains a place of business at these locations. The Administrative Complaint seeks to remove Murphy's from rotation lists for Zones 2, 4, and 5. Murphy's location in Zone 2 is part of an auto paint and body shop owned by another individual. The body shop has a phone, office space and personnel on duty from 9:00 a.m. to 4:00 p.m. These personnel are not on Murphy's payroll, but Murphy's has an understanding with the body shop owner that the body shop will answer for Murphy's and assist the public as necessary. Murphy's locations in Zones 4 and 5 are run in the same manner as his Zone 2 location. Murphy's does not own these locations but has an arrangement with the owner to use space at these locations. In Zones 2, 4 and 5, Murphy's informal arrangements do not include employment of personnel on the premises and do not regulate those persons' work hours or work performed. Although a telephone is on the premises, that business telephone number is not necessarily made available to the public. Murphy's maintains no offices, telephone service, wreckers, or personnel at any of these locations. Murphy's maintains trucks within each of the zones and requires the truck drivers to live in the zone they service so that the trucks remain in the zone. Murphy's uses a central dispatch system to receive incoming calls from FHP and the public. The central dispatch is manned 24 hours a day and contacts the trucks which are roving within their designated zone via radio to dispatch them to the accident scene. Murphy's tows vehicles to the storage location in the zone in which the vehicle is picked up unless the owner requests otherwise. The owner is given a card by the driver which has four phone numbers, including the central dispatch number on it, in order to assist the owner in retrieving the vehicle. When owners call Murphy's to pick up their vehicles, their call is received by central dispatch. Arrangements are made for a truck within the zone to meet the owner to release the vehicle. Alternatively, an employee of the property owner will assist the public with release of the vehicle. Murphy's has received no public complaints of untimely response to requests for release. Petitioner Lyons' Auto Body, Inc., has participated in the FHP wrecker rotation system for twenty years. Lyons' Auto Body, Inc. maintains seventeen trucks and operates in three zones in Palm Beach County. Lyons' Auto Body, Inc. also uses a central dispatch operation similar to that employed by Murphy's Towing. Lyons' operates in three zones and has obtained an occupational license in each of those zones. The Administrative Complaint seeks to remove Lyons' from the rotation lists for Zones 1 and 3. In Zone 1, Lyons' maintains a fenced storage yard, and in Zone 3, Lyons' maintains a fenced storage yard with an office and phone. Lyons' trucks are located in the respective zones and remain in the respective zones, unless they have a request to go outside to deliver a car. After hours, the trucks are taken to the respective driver's home and the drivers are required to live in their respective zones. When Lyons' tows for FHP, owners are given a card when the vehicle is picked up. If the owner is not present, the card is given to the FHP Trooper. There is a zone number on the card so the owner may make arrangements to release the vehicle. Lyons' has received no public complaints about release time response. Until FHP promulgated rules which took effect January 22, 1986, including the challenged Rule 15B-9.003(2), Florida Administrative Code, the general operation of the wrecker rotation system was governed by written guidelines and policies established by the local troop commanders, but these written guidelines apparently never embraced the term "place of business" nor defined it. (TR 67-69, 102). Since that date, however, there has been such a duly promulgated rule, Rule 15B-9.003(2), Florida Administrative Code, which provides: To be eligible for approval to tow in a particular zone, the wrecker operator's place of business must be located in that zone, except that if there are no qualified operators in a particular zone, the Division Director or his designee may designate qualified out of zone wrecker operators to be called in that zone. This rule was determined to be a valid exercise of legislatively delegated authority in the rule challenge case originally consolidated herewith. At the time of the promulgation of Rule 15-9.003(2), Florida Administrative Code, in January, 1986, "place of business," as the term is used in that rule, was not defined under Chapter 321, Florida Statutes or Chapter 15- 9, Florida Administrative Code. Because Lt. Col. Carmody believed "place of business" was already defined by common sense and thirty-two years of common FHP interpretation so as to already include a sign, office space, personnel on location in the zone, wreckers on location in the zone, and zone addresses and phone numbers painted on each wrecker, Lt. Col. Carmody did not feel that it was necessary to promulgate an additional rule defining "place of business." Instead, Lt. Col. Carmody gave his "common sense" definition orally when occasional inquiries were made. By letter dated January 19, 1987, Howard Kauff, Chairman of the Board of Palm Beach Services, Inc., d/b/a, Kauff's Towing in three FHP zones in Palm Beach County requested of FHP the definition of "place of business." His letter set out six criteria stating what he understood to be the definition of "place of business." Lt. Col. Carmody responded to Howard Kauff by memorandum dated February 5, 1987. Carmody sent a copy of that memorandum to Inspector William Clark, Bureau Chief in charge of Troop L and to Major William R. Driggers, Troop Commander, Troop L, for the purpose of enforcing Rule 15B-9.003(2) and correcting alleged violations, but he intended for the six criteria identified in his memorandum to have statewide effect. The six non-rule policy criteria incidental to Rule 15B-9.003(2), which were identified by Lt. Col. Carmody in his memorandum to Howard Kauff, and circulated to all of Troop L, were as follows: There must be a sign on the building that identifies it to the general public as a wrecker establishment; There must be office space; They must have personnel on duty at least from 9:00 a.m. to 4:00 p.m., Monday- Friday. There must be a phone at the place of business; Tow trucks must be stationed at the place of business; The tow trucks must have the zone address and phone numbers on them. The non-rule policy in Carmody's memorandum, which for the first time interpreted, in writing, the term "place of business," virtually adopts the criteria suggested in Mr. Kauff's letter, with only two exceptions. Lt. Col. Carmody did not disseminate a similar memorandum to all troop commanders throughout the State of Florida until January 8, 1988. (See Finding of Fact 28). Upon receiving Lt. Col. Carmody's response of February 5, 1987, Howard Kauff wrote Captain Hardin of Troop L, asking for removal of several wrecker operators, among them, Murphy's and Lyons', which operators Kauff had identified as allegedly failing to comply with the six "place of business" criteria specified by Lt. Col. Carmody. Lt. Wessels subsequently conducted an investigation to determine if any of the wrecker services identified by Howard Kauff were in fact in violation of Rule 15B-9.003(2), as interpreted by Lt. Col. Carmody's memorandum of February 5, 1987. For varied reasons, including not being able to locate some satellite business addresses, Lt. Wessels concluded that eight companies did not comply with the policy criteria and recommended their removal from the appropriate rotation list. Lt. Wessels inspected the locations of Murphy's Towing in Zone 2 (Juno Beach and Riviera Beach), Zone 4 (Lake Worth) and Zone 5 (Hypoluxo) on April 7, 1987. The inspections revealed a vacant lot at the Juno Beach location with a sign indicating "Dad Auto Broker, Inc." and a business identified as "Elite Paint and Body Shop" at the Riviera Beach location. Members of the Highway Patrol could not locate the Lake Worth and Hypoluxo addresses, but admittedly, no one phoned ahead for directions. No wreckers were present at the addresses found. Lt. Wessels also inspected the locations of Lyons' Auto Body in Zone 1 (Jupiter) and Zone 3 (West Palm). The inspections revealed a small fenced lot at the Jupiter location with a sign, "Lyons Auto Body, Inc." and the address and phone number, and a fenced lot with an unoccupied building which maintained a sign indicating the name, address, and phone number at Palm Beach. No wreckers were present at Jupiter. At least three wreckers were present at the Zone 3 (West Palm Beach) location, but no personnel were observed. Petitioners Murphy's Towing and Lyons' Auto Body, Inc. were included in the eight wrecker services identified by Lt. Wessels. Following Lt. Wessels' investigation, FHP issued to the eight wrecker companies Orders to Show Cause why they should not be removed from the appropriate rotation list. Three of the wrecker services complied with the "place of business" requirement. Wessels recommended that the remaining five, which included both Petitioners Murphy's and Lyons' be removed. Pursuant to Wessels' recommendations, the Department issued Administrative Complaints against the five wrecker operators. Three wrecker operators were removed from this respective list--two voluntarily and one by Order of the DHSMV. Murphy's has participated in the wrecker rotation system for eight years without any complaint, citation, or criticism for untimely response. Its main place of business and wreckers have been inspected each of the years immediately prior to service of the Order to Show Cause without any FHP comment on its failure to comply with the "place of business" rule or non-rule policy, despite Lt. Wessels' being aware of Murphy's multi-zone operation as early as May 16, 1986. The July 22, 1987, Administrative Complaints against the Petitioners enunciate only the non-rule policy as it had evolved up to February 5, 1987, and as set out in Finding of Fact 22 supra., not as it had evolved as of the January 8, 1988, statewide memorandum described in Finding of Fact 28 infra. Lyons' has participated in the wrecker rotation system for twenty years without any FHP concerns over untimely response. Its history of successful yearly inspections and no FHP comment concerning the "place of business" rule and non-rule policy has been identical to Murphy's for the last three years immediately preceding the Order to Show Cause. Murphy's and Lyons' are two of Kauff's largest competitors. Of the ten multi-zone wrecker operators in Palm Beach County, only Mr. Kauff's and one other met the criteria suggested by Kauff's letter and enforced by non-rule policy prior to the Orders to Show Cause. See Finding of Fact 25. Lt. Col. Carmody did not disseminate a memorandum covering the non- rule policy to all troop commanders throughout the State of Florida until January 8, 1988. He did circulate such a memorandum on that date, but only after his deposition had been taken in the instant and companion rule challenge case. At the time Lt. Col. Carmody corresponded with Howard Kauff on February 5, 1987, Palm Beach County was the only area, to his knowledge, which had experienced problems with the "place of business" interpretation because of the use of multiple zone wreckers. Lt. Col. Carmody had no knowledge of similar problems in any other area of the state at that time. Testimony of Carmody and Wessels at formal hearing confirmed this to also currently be the case. Specifically, there is affirmative evidence that FHP has experienced no similar use of wreckers in multiple zones in the Fort Myers area and no requests for interpretation of the rule from that area of the state or any other. Carmody's January 8, 1988, memorandum was intended to insure uniform application of the six "place of business" criteria which Carmody had previously assumed where generally known and applied throughout FHP. The January 8, 1988 statewide memorandum contained some further refinements and embellishments of the language contained in the earlier memorandum to Kauff and Troop L in Palm Beach County, but the only substantive changes were that for the fifth criterion, the wrecker operator was required to "maintain at least one tow truck at the place of business" and for the sixth criterion, the zone address and phone numbers must be "clearly visible to the public." The 1988 memorandum also contained the further directive that: I recommend that you correspond with each wrecker operator to give the wrecker service notice that the above criteria must be met for the wrecker to comply with the requirements of Rule 15B-9.003(2). Subsequent inspections by FHP personnel of wrecker service shall require compliance noted and the wrecker service given an opportunity to correct any deficiency. If the wrecker operator fails to correct any violation after notice by FHP personnel, Order to Show Cause should be issued to the wrecker service advising that noncompliance will result in the removal of the wrecker service from the rotation list. Following the issuance of the Order to Show Cause, the Office of General Counsel should be advised to take action to remove the wrecker service from the rotation list if the wrecker service has failed to comply with the place of business criteria. [Emphasis supplied, Exhibit P-4.] The non-rule policy appears then to have evolved at least by that point in time to clearly include written warnings prior to enforcing the criteria at a subsequent inspection. The parties have, however, stipulated that as to the six enumerated criteria, the language employed in February 1987, not January 1988, is the non-rule policy FHP is enforcing and intends to enforce. Other evidence suggests that it was always the Patrol's practice that warnings precede an Order to Show Cause. In January, 1988, FHP learned that Kauff's Towing did not maintain office personnel at its business location in Lake Worth, Zone 4 from 9:00 a.m. to 4:00 p.m., Monday through Friday. Kauff was verbally advised by FHP of the noncompliance. This notice was followed by written confirmation on January 20, 1988 and February 10, 1988. In response to this notice by FHP, Howard Kauff directed his terminal manager to provide personnel at the location during the required time period. Kauff was advised that noncompliance with the criteria would result of removal of Kauff's from the rotation list in Zone 4, Palm Beach County. At formal hearing, Lt. Col. Carmody stated that his memoranda did not address whether outside or inside storage must be available in a zone. In his opinion, FHP could not regulate that aspect due to prior Attorney General Opinion 85-60. He opined that a wrecker operator's using a central dispatch may be sufficient although the criteria he seeks to enforce requires a phone at each place of business. Lt. Wessels essentially concurred. Lt. Wessels was unsure how response time would be adversely affected if a truck were maintained in the assigned zone but there was not a building located in the assigned zone or if a tow truck were not physically located at the building location designated as a place of business in the zone but was either patrolling in the zone or parked elsewhere in the zone. Lt. Wessels was unable to testify whether ownership or rental of a building by an operator had significance with regard to the "place of business" rule or the six non-rule policy criteria. Lt. Wessels would accept, within the six criteria, an operator's use of a storage lot maintained by the lot's owner who was not an employee of the wrecker operator. However, it was not demonstrated that Lt. Wessels is in a policy making position for the agency, and his testimony as to the foregoing matters at best demonstrates some further confusion as to how the six interpretative non-rule policy criteria are to be applied on a case by case basis. It does not demonstrate that those six criteria have been applied to Petitioners in any unequal fashion, merely that application of the six criteria is best made on a case by case basis. In the course of discovery, Respondent agency denied the following Request for Admission, "2. Admit that the interpretation of the place of business requirement has not been equally applied to all wrecker operators in the State of Florida." The evidence as a whole does not demonstrate such unequal application of the promulgated rule or the non-rule policy to Respondents in this cause. Nor is the proof sufficient to establish such arbitrary application to Respondents so as to permit them to avoid the necessity for compliance. Apparently, as of the date of formal hearing, both rule and non-rule policy are being applied evenhandedly in Palm Beach County where violations have been documented. The testimony of Lt. Col. Carmody and Lt. Wessels demonstrates that no reports of violation have been made from other counties. Respondents did nothing to refute this testimony nor did they provide any evidence of multiple zone operators in other counties or zones outside of Palm Beach County who were systematically permitted to evade the rule and/or non-rule policy. The non-rule policy has been sufficiently explicated in the course of this proceeding so that it may be applied with reasonable precision. The agency's primary purpose behind the place of business non-rule policy, as is its purpose for Rule 15B-9.003(2) itself, is to insure prompt response time, which Lt. Col. Carmody and Lt. Wessels view as impacting on overall traffic safety. Specifically, the concerns of FHP are that without a sign on the place of business, the wrecker operator is difficult to locate. Lt. Wessels personal experience in being unable to locate certain operators during his subsequent investigation in preparation for the Administrative Complaints demonstrates this concern is valid. A sign assists the public in locating the wrecker service for retrieval of towed vehicles or personal property. It assists in accident investigation and reconstruction by providing quick access to the towed vehicle by insurance investigators/appraisers and by FHP. The office space requirement, the requirement of a telephone on the premises, and the requirement of the presence of office personnel during reasonably specified business hours encourages wrecker services to serve the public by receiving phone calls, permitting payment of towing bills or securing the release of vehicles or personal property, and assists in dispatching wreckers in timely response to FHP rotation call made by telephone. It was established that in Palm Beach County, at least, FHP rotation calls are, in fact, made by telephone. It is noted that these foregoing criteria relating to telephone contact are also consistent with unchallenged Rule 15B-9.003(8) and (9) and that the hours of 9:00 a.m. to 4:00 p.m. are considerably less for office personnel than the 24 hours per day "on call" status specified in Subparagraph (9). These foregoing requirements help to insure a reasonable response time, as does the requirement that the wrecker be stationed at the place of business within the zone. The requirement that the wrecker be stationed at the place of business within the zone also facilitates timely inspections of each vehicle by the FHP. Painting the name, address, and telephone number on each truck fosters accountability of the wrecker operators, insures the reasonable response time due to their presence within the zone, and it may be inferred from all other evidence that it discourages vehicle equipment from being moved from truck to truck. It is further noted that the truck sign requirement is also consistent with Section 715.07(2)(a)7, Florida Statutes, regulating the towing of vehicles from private property.
Recommendation Upon the foregoing findings of fact and conclusions of law it is recommended that the Department of Highway Safety and Motor Vehicles enter a final order providing: That unless Murphy's Towing establishes, in each respective zone, a place of business as defined by rule and non-rule policy, within 30 days from date of the final order, Murphy's shall be summarily removed from the FHP wrecker rotation lists for Zones 2, 4, and 5 in Palm Beach County. That unless Lyons' Auto Body establishes, in Zone 1, a place of business as defined by rule and non-rule policy, within 30 days from date of the final order, Lyons' shall be summarily removed from the FHP wrecker rotation list in Zone 1 in Palm Beach County. DONE and ORDERED this 22nd day of July, 1988, at Tallahassee, Florida. ELLA JANE P. DAVIS 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 22nd day of July, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NOS. 87-3962, 87-4011 The following constitute rulings upon the parties' respective proposed findings of fact (PFOF). Petitioner DHSMV Accepted in FOF 3. Accepted in FOF 4. 3-4. Accepted in FOF 24. 5-6. Accepted in FOF 18-22. 7-8. Subordinate and unnecessary. 9-10. Accepted in FOF 21, except as unnecessary. 11-12. Accepted as modified to conform to the competent substantial evidence as a whole 21-23, 32. Accepted in FOF 28. Accepted in FOF 23. 15-17. Accepted as modified to conform to the record in FOF 8, 11, 24. 18-19. Accepted in FOF 25. Accepted in FOF 26-27. Accepted in FOF 8, 12. Respondents Murphy and Lyons 1. Accepted in FOF 6. 2-3. Accepted in FOF 7. Accepted in FOF 9. Accepted in FOF 10. Accepted in FOF 11. Accepted in FOF 12. 8-15. Accepted in FOF 24, 26. 16-18. Accepted in FOF 24. 19-23. Accepted in FOF 13-17. 24-27. Accepted in FOF 26. 28-29. Accepted in FOF 18-20. 30-31. Accepted in FOF 21-22, 28. Accepted in FOF 18-22, 28. Accepted as to studies. Rejected as to the rest upon the greater weight of the evidence as a whole in FOF 18-22, 28. Accepted in FOF 32. 35-37 Subordinate and unnecessary. 38-39. Accepted in FOF 30. Accepted in FOF 28. Accepted in FOF 23. Accepted in FOF 27. Accepted as modified to conform to the record in FOF 27. Accepted in FOF 24. Accepted in FOF 29. 46-49. Accepted in FOF 30. 50. Rejected as set forth in the full FOF and Conclusions of Law. COPIES FURNISHED: Leonard R. Mellon, Executive Director Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, Florida 32399-0504 W. Evans, Esquire Judson Chapman, Esquire Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, Florida 32399-0504 Mark T. Luttier, Esquire Michael S. Tammaro, Esquire Odette Marie Bendeck, Esquire 777 South Flagler Drive Suite 500 West Palm Beach, Florida 33014-6194 =================================================================
Findings Of Fact The Petitioner is an agency of the State of Florida, which, through its Division of Florida Highway Patrol, maintains a "zone rotation wrecker system" for the State of Florida. The "rotation list" is used to determine which wrecker service is called to remove wrecked, abandoned or stolen vehicles from public thoroughfares in connection with investigations or operations of the Florida Highway Patrol. The rotation list is made up of names of wrecker operators who have been placed on that list following an investigation into their background and inspection of equipment they employ in order to insure compliance with the Petitioner's rules, particularly related to the safe operation of the wrecker service equipment and the safe and appropriate handling of towed and stored vehicles. When a wrecker is called to respond to an accident or to the need for a motorist to have a vehicle towed, the Florida Highway Patrol calls the wrecker service at the top of the list to obtain wrecker services. This wrecker service is then rotated to the bottom of the rotation list in the context of which wrecker service will be called for succeeding wrecker service needs. The admission and retention of reputable wrecker service operators on the rotation list who can be trusted to care for the public's vehicles in an appropriate manner, both as to towing and storage, are primary concerns of the Petitioner. Respondent, Jarkow's Wrecker Service ("Jarkow") participates in the Florida Highway Patrol rotation wrecker system in Bay County, Florida. The Respondent's business establishment is located at 5715 Titus Road, Panama City, Florida. Stuart Jarkow and his wife live on the premises of the business. The Respondent had been on the Florida Highway Patrol rotation wrecker service list for approximately three years as of the time of hearing. On January 9, 1989, Trooper Vernon D. Welch, Florida Highway Patrol, investigated an accident on State Road 2301 in Bay County. The accident involved a 1986 Toyota pickup truck owned by Jerry Davis, who was driving it at the time. The accident occurred at approximately 2:15 a.m.., when Mr. Davis swerved to avoid a dog. The truck rolled over and came to rest on its top. Mr. Davis was uninjured, but the vehicle was not in a condition to be driven under its own power and required towing. Pursuant to a call by Trooper Welch from the rotation list, the Respondent and his wrecker responded to the scene of the accident. He towed the Davis truck to his storage lot in Bay County at his place of business where it remained until January 16, 1989. During the time it rested at Mr. Jarkow's storage lot and place of business, Mr. Davis, the owner, did not go to inspect the truck because he believed that Mr. Jarkow would charge him a $25.00 fee for such inspection. Mr. Davis had purchased the truck in 1988 and replaced two of the tires at the time of purchase. Later, on August 5, 1988, he bought two other tires. At the time of the accident, the truck was equipped with four 14-inch steel- belted radials and a Sears Diehard battery, which Mr. Davis had purchased three months after buying the truck. At the time of the accident, the tires and rims were all in very good condition. Mr. Davis also kept a spare 14-inch wheel in the bed of the truck. After the vehicle rolled over during the accident, the wheel was retrieved and returned to the vehicle and was in the vehicle when Mr. Jarkow towed it to his place of business. All four tires were inflated when the vehicle was towed to Jarkow's lot. Garry's Auto Salvage ("Garry's") is a firm which deals primarily in late-model vehicles for salvage. Pursuant to contracts with insurance companies, Garry's transports and stores damaged vehicles at its place of business, pending appraisal of the value of the vehicle or the damage cost by the insurance company responsible for the risk of an accident. At such time as insurance companies make financial settlements with the owners of the vehicles, Garry's typically purchases the damaged vehicle in order to sell the parts which can be salvaged. Pursuant to a contract with Superior Insurance Company, Carry's acquired Mr. Davis' truck on January 16, 1989. The vehicle was to remain at Garry's until the insurance company made final settlement with the owner. Greg Johnson, a car hauler for Garry's, was asked to pick up the 1986 Toyota truck from Jarkow's place of business. Upon arrival at Jarkow's, Mr. Johnson presented a "pickup order" to Stuart Jarkow, the Respondent. Mr. Jarkow did not immediately release the vehicle; but after approximately 30 minutes, during which undisclosed negotiations apparently occurred, Mr. Jarkow agreed to release it to Mr. Johnson. Mr. Johnson completed an inventory report describing the condition of the vehicle. He described the rims as "good" because they were not bent or otherwise damaged. Due to the poor condition of the tire tread which he observed on the tires, he described them as being in poor condition. Mr. Jarkow refused to sign the inventory report initially but later signed it after writing "no" in spaces reserved for "spare (tire) spoilers, and shades." He also wrote "tire only in bed" on the inventory form. Mr. Johnson paid Jarkow for the towing and storage charges, put the Toyota truck onto his transporter truck and went straight to Garry's. He unloaded the truck at Garry's in an area in the storage lot designated for cars on which insurance settlements had not yet been completed. Mr. Johnson did not remove anything from the vehicle after he had picked it up from Jarkow. The Toyota was in the same condition when it arrived at Garry's as it was when Mr. Johnson picked it up from Jarkow. Russ Breeland, Manager of Garry's, met Mr. Johnson when the Toyota was brought in to that place of business. Mr. Breeland looked at the vehicle to make sure that nothing was missing. He immediately noticed that the tires and wheels were not original. He observed only one Toyota wheel on the vehicle. The right-side tires were deflated, and the tires had very poor tread condition. The battery did not match as being original to the vehicle. In particular, due `to the battery's weathered condition, it appeared to have been sitting out in the weather for a substantial period of time and later installed in the wrecked truck. The original battery posts were in a weathered state indicating that they had not been recently connected to any battery terminals. A short time after the vehicle was brought to Garry's, the owner, Jerry Davis, arrived there to inspect the truck. He met with Donald Lizotte, an employee of Garry's. Mr. Lizotte and Mr. Davis inspected the vehicle, and Mr. Davis became upset when he discovered that the wheels and the battery appeared to have been replaced with unrelated, inferior parts. Mr. Lizotte wrote down the serial numbers and makes of the tires on the back of the inventory report, a description of the rims, and the make of the battery. The tires on the truck were a mix of recapped radial tires and bias-ply tires. Such a mix of radial and non-radial tires is very atypical and not normally done because a match of such tires on a vehicle can cause the vehicle to sway and to track with the ruts of a road, creating erratic steering and a road hazard. The Sears Diehard battery, which had been purchased by Mr. Davis and installed in his truck before the accident, was not in the truck. The battery found in the truck was a Delco battery. The 14-inch wheel, which had been kept in the bed of the truck by Mr. Davis, was missing. Rather, a 15-inch spare tire was found in the truck, without a wheel. Upon leaving Garry's, Mr. Davis called the Florida Highway Patrol on January 16, 1989. He made a verbal complaint to Lt. Charles Helms against the Respondent. Mr. Davis had seen photographs of the truck taken by Mr. Lizotte when the truck arrived at Garry's and concluded that Jarkow had swapped the parts or that someone, while it was in Jarkow's custody, had swapped the parts on the vehicle. Lt. Helms informed Mr. Davis that he should file a written complaint with the Florida Highway Patrol. On January 26, 1989, Lt. Helms, accompanied by Trooper Welch, went to Garry's to look at the truck. He obtained Mr. Lizotte's photographs and took additional photographs of the vehicle. Trooper Welch observed from the appearance of the lug nuts and the rims that the wheel rims had recently been changed. Mr. Davis delayed filing a written complaint with the Florida Highway Patrol until April 4, 1989. Lt. Helms initiated a criminal investigation to determine if the truck parts had been stolen and submitted the results to the State Attorney's office on July 18, 1989. Lt. Helms later learned that no criminal charges would be filed by the State Attorney's office. He pursued an administrative investigation against the Respondent, in any event. During his investigation, Lt. Helms was advised by Mr. Breeland of a prior incident involving the removal of wheels and tires from a vehicle which had been towed by and stored at Jarkow. Lt. Helms investigated that incident which involved the replacement of wheels and tires from a 1986 Mustang owned by Leo Shealy. That incident occurred in July of 1988. The Mustang was owned by Mr. Shealy but driven by his son. The vehicle was involved in an accident on July 20, 1988 in Panama City. The accident was investigated by Officer Mitchell Pitts of the Panama City Police Department. The Mustang was equipped with expensive aluminum wheels and radial tires at the time of the accident. Mr. Shealy's son had spent approximately $1,000.00 on the new wheels and tires one week prior to the accident. The Respondent was called to tow the Mustang to his place of business. Prior to removal of the vehicle from the accident scene, Officer Pitts observed that the wheels and tires were in good condition and that the rims were a "mag type" wheel and, in other words, were the wheels purchased by Mr. Shealy's son and installed on the vehicle prior to the accident. Mr. Shealy's son was driving the mustang when the accident occurred and was taken to the hospital. Following his release from the hospital, Mr. Shealy and his son went to Jarkow to check on the condition of the vehicle and retrieve some of their personal effects from the interior of the vehicle. On that visit, the tires and rims were unchanged. Mr. Shealy inquired about the stereo equipment in the vehicle, and Mr. Jarkow told him that the vehicle would be kept locked up where no one could tamper with it. He assured Mr. Shealy that there would be no problem about anything being removed from the vehicle. Mr. Shealy received a call from an insurance adjuster, Ronald LaMaster, several days later. Mr. LaMaster requested that he sign a release form at Jarkow so that the Mustang could be picked up by Garry's and taken to Garry's for adjustment and settlement. Mr. Shealy met with Mrs. Jarkow at 8:00 a.m. on that Saturday morning and signed a release form. While he was at Jarkow, Mr. Shealy told Mrs. Jarkow that he hoped that the vehicle could be "totaled", that is, that the full appraisal value would be paid for the vehicle, instead of repairing the damage, because he did not want to endure a lengthy period of time while repairs were being effected. Mrs. Jarkow replied that if Mr. Shealy desired it, the vehicle could be totaled, that is, that Jarkow could take steps to insure that the vehicle in its damaged condition would not have sufficient value over the cost of the necessary repairs, so that the insurance company would declare it a total loss and pay the appraised value for the vehicle to Mr. Shealy. Mr. Shealy assumed, from her comments, that Mrs. Jarkow was assuring him that the Respondent could render the appearance of the Mustang such that it would be appraised as not worthy of repair. Following his conversation with Mrs. Jarkow, Mr. Shealy did not feel secure about the arrangements made about his vehicle. He drove back to Jarkow at 11:00 a.m. that same morning. He did not immediately recognize the Mustang at the storage lot at Jarkow, although it was sitting in the same place as he last saw it. The wheels and tires had already been replaced since he had spoken with Mrs. Jarkow that morning with inferior black-painted wheels and old rotten tires. Mr. Shealy then called Mr. LaMaster and told him to advise Garry's not to pick up the Mustang as arranged. Mr. Shealy later called Jarkow. A dispatch service answered the telephone, and Mr. and Mrs. Jarkow did not respond to the telephone call. Mr. Shealy told that dispatch service to have Mr. Jarkow return his call. When his call was not returned, Mr. Shealy called again some time later that same day and spoke with the dispatch service once again. Mr. Shealy was told then that Mr. Jarkow intended to call him but that he must have been busy. Mr. Shealy then told the dispatch service to relay a message to Mr. Jarkow to the effect that he could either put the original equipment back on the Mustang or answer for failure to do so to the Bay County Sheriff's Department. Mr. Shealy told the dispatch service that he would return at 2:00 p.m. to inspect the vehicle. Mr. Shealy returned to Jarkow at 2:00 p.m. that same day. He knocked on the door and no one responded. He observed the vehicle, however, and saw that his son's wheels and tires had been installed on the vehicle once again. He took photographs of it and then called Mr. LaMaster requesting that the Mustang be taken from Jarkow as soon as possible. Mr. Shealy never made a report to the sheriff's department, however. He merely stated that he, in effect, did not wish to encounter any further problems in dealing with-the vehicle and the accident. Based upon these incidents with the Toyota truck and the Mustang, Lt. Helms concluded, in his opinion, that the Respondent had engaged in a pattern of conduct demonstrating a lack of reputability as a wrecker service. Lt. Helms presented his findings to Major Jimmy C. Wright, the Troop Commander. Major Wright reviewed the investigation and recommended removal of the Respondent from the rotation list because equipment had been removed from the vehicles while they were in the Respondent's custody. Major Wright concluded in recommending this agency initial action that the incidents involving the two vehicles, in his opinion, demonstrated a lack of reputability within the meaning of Rule 15B-9.007(7), Florida Administrative Code. He felt that the Florida Highway Patrol could no longer rely on the Respondent to perform a caretaking function in an appropriate manner with vehicles entrusted to its custody for towing and storage. Major Wright interpreted Rule 15B-9.007(7), Florida Administrative Code, to mean that the Respondent was responsible for acts of third persons under his control or for their acts with regard to vehicles which were under his control. He concluded that the rule at issue concerned the responsibilities of the wrecker service business and did not merely relate to a singular individual who owned or operated the business regardless of what sort of business entity under which it operates. Thus, Major Wright concluded, under the above-cited rule as he construed it, that Jarkow was responsible for the acts occurring at his business location. Accordingly, based upon his 30 years' experience with the Florida Highway Patrol and working with the standard wrecker rotation system set up by the statute and rule cited herein, both as a trooper arid in a supervisory capacity, and in consideration of his interpretation of Rule 15B- 9.007(7), Florida Administrative Code, to which he testified, Major Wright recommended that the Respondent be removed from the wrecker service rotation list for a lack of reputability, pursuant to Rule 15B-9.007(7), Florida Administrative Code.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is therefore, RECOMMENDED that the Respondent, Jarkow's Wrecker Service, be removed as a rotation wrecker operator for Bay County, for Troop A of the Florida Highway Patrol.. DONE AND ORDERED this 31st day of July, 1990, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31st day of July, 1990. APPENDIX TO RECOMMENDED QRDER IN CASE NQ. 90-0072 Petitioner's Proposed Findings of Fact 1. Accepted. 2-37. Accepted. Respondent's Proposed Findings of Fat 1-9. Accepted. 10-26. Accepted. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter. Accepted. Accepted. Accepted, to the extent that it depicts what Major Wright's opinion was, rather than as a bin&[ing conclusion of law. Accepted. Accepted. Accepted, but not dispositive of aniy disputed material issues. Accepted, but not dispositive in itself of any material issues. The maintenance of appropriate insurance coverage does not obviate the requirement for demonstrated reputability. COPIES FURNISHED: Leonard R. Mellon Executive Director Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, FL 32399-0500 Enoch Jon Whitney, Esq. General Counsel Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, FL 32399-0500 R.W. Evans, Esq. I. Ed Pantaleon, Esq. Department of Highway Safety and Motor Vehicles Neil Kirkman Building Suite A-432 Tallahassee, FL 32399-0500 Brian D. Hess, Esq. 9108 West Highway 98 Panama City Beach, FL 32408 =================================================================
The Issue The issues in this case are whether Respondent committed the allegations contained in the Administrative Complaint, and if so, the penalty that should be imposed.
Findings Of Fact The Parties Petitioner, the Department of Business and Professional Regulation, Construction Industry Licensing Board, is the agency charged with the responsibility for, among other things, the licensure of individuals who wish to engage in contracting in the State of Florida, as well as the investigation and prosecution of complaints against individuals who have been so licensed. Since 1992 and at all times material to this proceeding, Respondent has been licensed in the State of Florida as a certified general contractor, having been issued license number CGC 55103. In November 2003, Respondent chose not to contest an allegation that he assisted an unlicensed person in the prohibited uncertified and unregistered practice of contracting, in violation of section 489.129(1)(d), Florida Statutes. As a penalty, Respondent was assessed an administrative fine in the amount of $585.29. Petitioner has presented no other evidence of disciplinary history against Respondent's general contractor's license. Instant Allegations In an information filed on or about April 8, 2008, the State Attorney for the Eleventh Judicial Circuit of Florida charged Respondent with fourteen criminal offenses, all but two of which were later dismissed. Counts Three and Four of the charging document, to which Respondent ultimately pleaded guilty, alleged that Respondent had violated section 838.016(1), Florida Statutes, a second degree felony, by accepting unlawful compensation or reward for official behavior. Specifically, the information alleged, in pertinent part: Count 3 ANDRES VILLARREAL, beginning on or about JANUARY 1, 2003[,] and continuing through DECEMBER 31, 2005, in the County and State aforesaid, being a public servant, to wit: CHIEF BUILDING CODE COMPLIANCE OFFICER FOR THE CITY OF MIAMI BEACH, did unlawfully, feloniously, and corruptly request, solicit, accept, or agree to accept from Michael Stern any pecuniary or other benefit not authorized by law, to wit: CHECKS and/or CASH, GOOD AND LAWFUL CURRENCY OF THE UNITED STATES OF AMERICA FOR PURCHASE OF A WAREHOUSE, for the past, present, or future performance, non-performance, or violation of any act or omission which said public servant represented as being within the official discretion of a public servant, in violation of a public duty and/or in performance of a public duty, to wit: EXPEDITING THE APPROVAL OF PLANS BY THE CITY OF MIAMI BEACH BUILDING DEPARTMENT, in violation of s. 838.016(1), Florida Statutes, contrary to the form of the Statute in such cases made and provided, and against the peace and dignity of the State of Florida. . . . * * * Count 4 ANDRES VILLARREAL, on or about SEPTEMBER 20, 2003, in the County and State aforesaid, being a public servant, to wit: CHIEF BUILDING CODE COMPLIANCE OFFICER FOR THE CITY OF MIAMI BEACH, did unlawfully, feloniously, and corruptly request, solicit, accept, or agree to accept from Michael Stern any pecuniary or other benefit not authorized by law, to wit: CHECK NO. 08919 PAYABLE TO TRITON INVESTMENT IN THE SUM OF THIRTY THOUSAND DOLLARS ($30,000.00), for the past, present, or future performance, non-performance, or violation of any act or omission which said public servant represented as being within the official discretion of a public servant, in violation of a public duty and/or in performance of a public duty, to wit: EXPEDITING THE APPROVAL OF PLANS BY THE CITY OF MIAMI BEACH BUILDING DEPARMENT, in violation of s. 838.016(1) Florida Statutes, contrary to the form of the Statute in such cases made and provided, and against the peace and dignity of the State of Florida. . . . Although Respondent pleaded guilty to the foregoing charges on February 11, 2010,1/ the court deferred sentencing to a later date and permitted Respondent to remain at liberty.2/ Subsequently, on March 17, 2010, Respondent was adjudicated guilty on both charges and sentenced to concurrent, three-year terms of probation. In addition, as special conditions of probation, Respondent was ordered to serve nine months in the Dade County Jail——which commenced on the date of sentencing——in connection with Count Three, followed by a consecutive term of nine months incarceration for Count Four. Finally, Respondent was directed to pay $583 in court costs, $1,000 for the cost of prosecution, and $5,000 to the Florida Department of Law Enforcement for the cost of investigation. At the time of his plea to the criminal charges, Respondent held——in addition to his general contractor's license, which is the subject of this proceeding——a license as a building inspector issued by the Department of Business and Professional Regulation, Florida Building Code Administrators and Inspectors Board ("Inspectors Board"). Although the Inspectors Board and several employees of the Department of Business and Professional Regulation——i.e., Ms. Elizabeth Henderson and Ms. Karen Shivers, who served, respectively, as an attorney and an administrative assistant with the Inspectors Board——were aware of the criminal case and timely learned of Respondent's plea to the charges, it is undisputed that Respondent did not notify the Construction Industry Licensing Board in writing within 30 days of the plea. Significantly, while the Inspectors Board and Construction Industry Licensing Board are both part of the Department of Business and Professional Regulation, each constitutes a separate and distinct entity. In June 2011, following an early release from the incarcerative portion of his sentence, Respondent began to report on a monthly basis to Mr. Jak Wadley, a probation officer with the Florida Department of Corrections. To date, Respondent has fully complied with all general and special conditions of his probation.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Construction Industry Licensing Board: Finding that Respondent violated section 489.129(1)(b), Florida Statutes, as charged in Count One of the Complaint; suspending Respondent's general contractor's license for a period of 12 months, followed by a two-year term of probation with any conditions deemed appropriate by the Board; and imposing a fine of $4,000. Dismissing Count Two of the Complaint. Finding that Respondent violated section 455.227(1)(t), Florida Statutes, as charged in Count Three of the Complaint; issuing a reprimand; and imposing a fine of $1,000. DONE AND ENTERED this 19th day of December, 2011, in Tallahassee, Leon County, Florida. S EDWARD T. BAUER 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 19th day of December, 2011.
The Issue This is a license discipline proceeding in which the Petitioner seeks to take disciplinary action against the Respondent on the basis of alleged violations of Chapter 489, Florida Statutes, (1992 Supp.). Specifically, the Respondent has been charged in a four-count Administrative Complaint with violations of paragraphs (k), (m), (n) and (p) of Section 489.129(1), Florida Statutes (1992 Supp.).
Findings Of Fact Respondent is, and has been at all times material hereto, a licensed Certified General Contractor, having been issued license number CG C007303, by the State of Florida. At all times material hereto, the Respondent was licensed to contract as an individual. On September 18, 1992, the Respondent, doing business as an individual, contracted with Charles and Elba Williams (hereinafter referred to as "Customers") to reroof their dwelling and shed at 15205 SW 78 Place, Miami, Florida, for the price of Fifteen Thousand, One Hundred Seventeen dollars ($15,117.00). On October 1, 1992, the aforementioned contract was amended to provide for the payment of half of the second draw before the second stage of the project was completed, and to provide for the payment of an additional Three Hundred and Fifty One dollars ($351.00) in materials. On November 5, 1992, the aforementioned contract was amended to provide the Customers with a credit on the contract of One Thousand, Six Hundred Thirty Six dollars and Sixty Four cents ($1,636.64) for their purchase of roof shingles. The revised contract price was Sixteen Thousand and Fifty Eight dollars ($16,058.00). The Customers paid the Respondent Twelve Thousand, Two Hundred Seventy Seven dollars and Ninety cents ($12,277.90) toward the contract. After receiving a credit on the balance due on the contract, the Customers owed Two Thousand, One Hundred Forty Two dollars and Thirty Two cents ($2,142.32) to the Respondent. On September 23, 1992, the Respondent obtained roofing permit number 92-110050 for the Customers' project from the Dade County Building and Zoning Department. The Respondent worked on the Customers' roof from September 23, 1992, through November 15, 1992, when the installation of the shingles was completed. On November 19, 1992, the Respondent failed a final inspection performed on the Customers' roof by the Dade County Building and Zoning Department because the Respondent failed to supply Dade County with product approval information and manufacturer installation specifications for the ridge vent he had installed. On November 24, 1992, the Respondent again failed a final inspection performed on the Customers' roof by the Dade County Building and Zoning Department for the same reason as on November 19, 1992. The Respondent never obtained a passing final inspection on the Customers' roof from the Dade County Building and Zoning Department. On November 24, 1992, the Customers sent the Respondent a Certified letter, Return Receipt requested, informing the Respondent that the roof could not pass final inspection until Dade County was provided with the product approval information and manufacturer installation specifications for the ridge vent he had installed. On December 4, 1992, the Respondent was issued a Notice of Violation from the Dade County Building and Zoning Department for failure to provide product approval information and manufacturer installation specifications for the ridge vent that had been installed on the Customers' roof. On December 4, 1992, the Respondent was issued a Notice of Violation from the Dade County Building and Zoning Department for failure to remove construction debris from the Customers' property. The Respondent did not comply with either Dade County Notice of Violation and did not supply the Dade County Building and Zoning Department with the product approval information and manufacturer installation specifications for the ridge vent that had been installed on the Customers' roof. The Customers were left with a roof that did not comply with Dade County Code. On March 26, 1993, the Customers paid a Forty Five dollar ($45.00) renewal fee to the Dade County Building and Zoning Department and had the roofing permit renewed and reissued in their own names. On March 4, 1993, the Customers paid another contractor, Mark Mitchell, Two Hundred dollars ($200.00) to remove the ridge vent and close the hole in the roof left by the removal of the ridge vent. On March 27, 1993, after the ridge vent had been removed, the Customers paid a Special Investigator, Ken Nash, Fifty dollars ($50.00) to perform a final inspection of the roof. On March 31, 1993, Ken Nash performed a final inspection of the roof and the roof passed inspection. The Customers paid Steve Wooten Thirty dollars ($30.00) to remove construction debris left on their property by the Respondent and to bring their property in compliance with the Notice of Violation issued on December 4, 1992.
Recommendation On the basis of all of the foregoing, it is RECOMMENDED that the Construction Industry Licensing Board issue a Final Order in this case to the following effect: Dismissing the charges alleged in Counts I, II, and IV of the Administrative Complaint; Concluding that the Respondent is guilty of the violation charged in Count III of the Administrative Complaint; and Imposing a penalty consisting of a fine in the amount of Two Hundred Fifty dollars ($250.00) for the violation charged in Count III of the Administrative Complaint. DONE AND ENTERED this 3rd day of May, 1995 in Tallahassee, Leon County, Florida. MICHAEL M. PARRISH 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 3rd day of May, 1995. COPIES FURNISHED: Diane Snell Perera, Esquire Department of Business and Professional Regulation 7300 North Kendall Drive, Suite 780 Miami, Florida 33156 Mr. Al C. Hufeld Post Office Box 681064 Orlando, Florida 32868-1064 Richard Hickok, Executive Director Construction Industry Licensing Board 7960 Arlington Expressway, Suite 300 Jacksonville, Florida 32211-7467 Lynda Goodgame, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
