The Issue The issued involved is whether the Florida Highway Patrol had good cause for the suspension of Trooper Byrne. The factual grounds stated in the Statement of Particulars for the action taken was as follows: Byrne was negligent in delaying approximately four (4) hours administering a blood alcohol test to the driver of the vehicle involved in a fatal accident. The blood alcohol test, when administered, was not administered in the presence and under the supervision or control of a trooper inasmuch as the driver had been turned over to his father at the jail. Byrne did not notify or request the Florida Highway Patrol dispatcher to notify the medical examiner that a blood alcohol test was needed. Byrne failed to notify the Department that the Court had granted him and the Department fifteen (15) days to file with the Court a Motion to Repress or expunge from the Grand Jury's proposed report that portion of the report critical of the manner the investigation was handled. Trooper Byrne failed to obtain the names and addresses of all witnesses to the accident. The diagram prepared by Trooper Byrne in his initial accident report does not properly reflect painted median in the roadway or a left turn lane for eastbound traffic. Further, the diagram does not show the north edge of the roadway widens to accommodate room for a left turn lane and no passing zone is not properly drawn in relationship to the location of the speed sign shown in the diagram.
Findings Of Fact J. T. Byrne is a Florida Highway Patrol trooper and has permanent career service status in his position. Byrne was suspended for sixteen (16) hours by a letter to him from Colonel J. E. Beach dated January 17, 1977. Byrne filed a timely appeal of his suspension to the Career Service Commission which forwarded this matter to the Division of Administrative Hearings to conduct a formal hearing. On June 5, 1976, at approximately 1:15 A.M., Trooper J. T. Byrne was dispatched to an accident scene on FTU Boulevard approximately one tenth of a mile west of its intersection with State Road 520. Upon his arrival at the scene there were Florida Technological University police, sheriff's deputies, and emergency vehicles already present. One of the enforcement officers present advised Byrne that there had been a fatality. Byrne checked the victim then called his dispatcher to advise the dispatcher that a medical examiner and a Florida Highway Patrol homicide investigator would be needed. Immediately thereafter, the driver of the car involved, Edward Romfh Kirkland, Jr., was introduced to Byrne by one of the enforcement officers at the scene who gave Kirkland, Jr.'s driver license to Byrne. Byrne spoke with Kirkland, Jr., and noted his appearance. Kirkland, Jr. was unsteady on his feet, emotionally upset and was crying. Byrne smelled alcoholic beverage on Kirkland, Jr.'s breath. Byrne placed Kirkland in his patrol car and commenced his accident investigation. The accident investigation included interviews with the victim's brother, an eyewitness observer, and Kirkland, Jr. Byrne also prepared a sketch and a verbal description of the scene. Byrne administered a field sobriety to Kirkland, Jr. after conducting his accident investigation. Kirkland, Jr. performed these tests in a manner which would indicate that his faculties were not impaired. Byrne, with the assistance of other officers, obtained the name of only one eyewitness although inquiries were made of many observers at the scene. At approximately 1:45 A.M. Trooper Fuller Baker, Homicide investigator, arrived at the scene and began his investigation which was separate and distinct from the accident investigation conducted by Byrne. Baker also administered a field sobriety test to Kirkland, Jr. and reached the conclusion that Kirkland, Jr.'s faculties were not impaired. The homicide investigation is a very detailed investigation of the facts surrounding a death involving operation of a motor vehicle. As opposed to an accident investigation which is from one to three pages in length, the homicide investigation may be thirty-five to forty pages long. The homicide report is a long term detailed investigation for the purpose of gathering information upon which to evaluate and base any criminal prosecution. The accident report, which is privileged by law (see Conclusions of Law), is primarily used for statistical evaluation of motor vehicle accidents. Having completed his investigation, Byrne placed Kirkland, Jr. under arrest at the scene and took him to the sheriff's Department to conduct a breathalyzer examination. In route to the Sheriff's Department, Kirkland, Jr. told Byrne that he had been assaulted and knocked unconscious by victim's brother following the accident and prior to Byrne's arrival at the scene. Arriving at the Sheriff's Department, Byrne was met by Edward Rohmf Kirkland, Sr., an attorney at law, who was present representing his son. When Kirkland, Sr. learned that his son was going to be given a breathalyzer examination, he indicated that he wanted to have a blood analysis done on his son. Byrne indicated to Kirkland, Sr. that such a test would be desirable, and he would permit such a test to be performed. At this time, Trooper Baker arrived at the Sheriff's Department and spoke with Byrne outside the hearing of the Kirklands. Baker asked Byrne with what offense he had charged Kirkland, Jr. Byrne stated that he had arrested him for driving while under the influence. They discussed the condition of Kirkland, Jr., and both agreed that he did not appear to have his faculties impaired. Byrne was of the opinion, however, that a test should be run as a precaution and Kirkland, Jr. charged if the test was positive. As the accident investigator, Byrne did not feel he should give the test because for him to do so could have created problems concerning the admissibility of the evidence at a subsequent criminal prosecution. Baker concurred in Byrne's analysis, but Baker did not feel that the condition of Kirkland, Jr. was such to form probable cause for administration of a breathalyzer examination. Baker suggested that Byrne charge Kirkland, Jr. with a charge which could be proven, driving too fast for conditions, and release him to his father, an attorney, who had indicated he was going to have a voluntary blood analysis performed. Subsequent to their conversation, Byrne charged Kirkland with the civil charge of driving too fast for conditions and released Kirkland, Jr. At that time Byrne left the Sheriff's Department, leaving Kirkland, Jr. and his father in the presence of Trooper Baker. Byrne thought that Baker would follow through and accompany the Kirklands to the blood analysis as a part of the homicide investigation. Baker did not follow through with the examination. Subsequently, the victim's father was the source of derogatory comments regarding the handling of the investigation of his daughter's death. Because of this, the matter was presented to the Orange County Grand Jury, whose report indicated insufficient evidence existed to prosecute Edward Romfh Kirkland, Jr., but which report was critical of the handling of the homicide investigation. Both Troopers Byrne and Baker received copies of the report and attached Court Order. Byrne and his immediate supervisor, Sergeant W. E. Sunberg, Jr., discussed the Grand Jury's report and the criticisms therein. Subsequently both Baker and Byrne received suspensions by the Florida Highway Patrol. With regard to the allegation that Trooper Byrne failed to advise the Department that the Court had granted him and the Department fifteen (15) days to file with the Court a Motion to Repress or expunge the Grand Jury's criticism, the Hearing Officer finds that substantial and competent evidence indicates that Trooper Byrne's immediate supervisor was advised of the criticisms of the Grand Jury. In addition, the Court's directions concerning a Motion to Repress or expunge the report of the Grand Jury does not create any right in the Department to repress or expunge any portion of the report. Further, there was no criticism levied against Trooper Byrne in the Grand Jury report. Regarding the allegation that Trooper Byrne failed to notify the dispatcher to advise a medical examiner of the necessity of blood alcohol testing, the memorandum upon which this requirement is based was not introduced into evidence. Testimony regarding the requirements created by the memorandum was received. The requirements of such a notification would only be applicable in a factual situation in which a victim or suspect would be unable to take a breathalyzer examination. The facts indicate that there was nothing about the victim's condition which would warrant a test for blood alcohol content, and Kirkland, Jr. was able to take the breathalyzer. Therefore, the factual situation did not necessitate Trooper Byrne advising the medical examiner of the possibility of blood analysis testing. The uncontroverted testimony of Byrne was that he and other officers in attendance at the scene did interview many observers at the scene and could only discover the one witness to the accident. The basis for the allegation that Byrne failed to obtain the names of all of the witnesses was based upon the fact that the victim's father hired a private investigator who later discovered two additional witnesses. The evidence, however, indicates that it took several minutes for Byrne to arrive at the accident scene and there is no evidence that the witnesses later discovered by the private investigator were at the accident scene when Byrne arrived. A comparison of Exhibit 4, the first diagram prepared by Byrne the night of the accident, with Exhibit 5, the diagram prepared by Byrne several months later, indicates several differences. Clearly, the shape of the road, the left turn lane at the intersection, and the position of the speed sign were immaterial to the accident. Both diagrams depict essentially the same salient facts, to wit: the location of the initial impact, the path of the vehicle, the final location of the victim, and the fact the vehicle completed its passing after entering the no passing zone. The initial diagram was supplemented by a written description and measurements which are a part of the accident investigation report. The initial diagram was sufficiently accurate for the purposes of that report when considered with Byrne's written report and measurements. There is no requirement that the diagram of an accident investigation report be a scaled drawing. In the absence of such a requirement, the diagram must be considered sufficient if it contains that data necessary to give the reader an accurate depiction of the events before, during, and after the accident. Byrne's original diagram, together with the written narrative which is part of the diagram, presented this information. While Byrne's second diagram is more detailed, his first diagram is not sufficiently inaccurate to mislead or misstate the actual operative facts. Regarding the allegations that Byrne was negligent in the blood alcohol testing of Kirkland, Jr., it should be noted that Byrne arrived on the scene at 1:15 A.M. and began his actual accident investigation at approximately 1:45 A.M. He was at the Sheriff's Department with Kirkland at approximately 2:45 to 3:00 A.M. based upon the testimony that Trooper Byrne left the Sheriff's Department at 3:17 A.M. One and one half hours to investigate an accident and transport Kirkland, Jr. to the Sheriff's Department does not appear to be an excessive delay. Regarding the allegation that Byrne failed to follow through and supervise and control the blood alcohol testing of Kirkland, Jr., although Byrne had arrested Kirkland, Jr. at the scene for driving while under the influence of alcoholic beverages, it was both Byrne's and Baker's opinion that they had no probable cause for administration of chemical blood tests. Baker was of the opinion that Kirkland, Jr. had not been driving under the influence of alcoholic beverages, while Byrne, having initially based his opinion that Kirkland was driving under the influence upon the smell of alcoholic beverages on Kirkland's breath and Kirkland's unsteadiness on his feet, changed that opinion based upon the additional information obtained from Kirkland, Jr. while transporting him to the Sheriff's Department that Kirkland, Jr. had been knocked unconscious by the victim's brother. Both officers had administered field sobriety tests to Kirkland, Jr., whose performance on the tests indicated that his faculties were not impaired. Further, the testimony of both troopers and two state's attorneys indicated that although Byrne was the arresting officer and the officer who transported Kirkland to the Sheriff's Department, Byrne was not the preferred officer to administer chemical blood tests to Kirkland, Jr. The administration of such tests by the officer in charge of the accident investigation creates admissibility problems regarding any evidence derived from the testing period (See Conclusions of Law below.) Trooper Baker, as the homicide investigator present, would have been the preferred officer to give and supervise the test. Regarding the allegation that Trooper Byrne released Kirkland, Jr. into the custody of his father, this was not demonstrated. Kirkland, Jr. is over 21 years of age and therefore was not released into anyone's custody but was released on his own recognizance in accordance with the prevailing procedures in Orange County. Although his father was present at the Sheriff's Department, it is clear that he was present in his capacity as his son's attorney.
Recommendation Based on the foregoing findings of fact and conclusions of law, the Hearing Officer recommends that the Career Service Commission not sustain the disciplinary action taken by the agency. DONE and ORDERED this 27th day of April, 1977, in Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of April, 1977. COPIES FURNISHED: Ed Strickland, Esquire Kirkman Building Tallahassee, Florida 32304 William R. Sharpe, Esquire 29 East Pine Street Orlando, Florida 32801 Mrs. Dorothy Roberts Appeals Coordinator Department of Administration Room 530, Carlton Building Tallahassee, Florida 32304 =================================================================
The Issue Whether Petitioner should be awarded attorney's fees and costs pursuant to the Florida Equal Access to Justice Act (the Act), Section 57.111, Florida Statutes. Specifically, the parties dispute whether Respondent was substantially justified in bringing the Administrative Complaint against Petitioner and/or whether special circumstances exist which would make the award of attorney's fees and costs unjust.
Findings Of Fact The Department is a licensing and regulatory agency of the State of Florida charged with the responsibility and duty to prosecute administrative complaints pursuant to Section 20.43 and Chapters 455, 456, and 466, Florida Statutes. At all times pertinent to this proceeding, Dr. Fish has been a dentist licensed by the State of Florida, where he has maintained a practice. At all times pertinent to this proceeding, Dr. Fish was represented by Max Price, Esquire. By letter dated April 30, 1997, Allen Horowitz, D.D.S., filed a complaint against Dr. Fish. By letter dated October 22, 1997, Laura Eggnatz Tepperberg, an Investigation Specialist II employed by the Department, notified Dr. Fish that there was a pending investigation and enclosed documents that supported the investigation. By letter dated November 20, 1997, Mr. Price notified Ms. Tepperberg that he represented Dr. Fish and requested a copy of the complete investigation file as soon as the investigation was completed. This letter also suggested that Dr. Horowitz was retaliating against Dr. Fish because Dr. Fish had served as an expert witness for the plaintiff in a civil action brought against Dr. Horowitz. On December 15, 1997, Ms. Tepperberg completed her Investigative Report. By letter dated March 9, 1998, Mr. Price acknowledged receipt of a copy of the Department's investigative file. The letter requested a copy of a videotape that was referred to by the investigative material but was not enclosed in the package of materials that had been provided. By letter dated March 10, 1998, counsel for the Department advised Mr. Price that he had overlooked the videotapes when preparing the package of material and was in the process of having a copy made for him. By letter dated April 24, 1998, the Department mailed a copy of the videotape to Mr. Price. By letter dated April 30, 1998, Mr. Price advised the Department that the videotape had been damaged in transit and requested a second copy of the videotape. By letter dated June 12, 1998, the Department mailed Mr. Price a second copy of the videotape. By letter dated June 26, 1998, Mr. Price advised the Department that the second copy of the videotape had been damaged in transit and requested a third copy of the videotape. On July 9, 1998, the Department caused a third copy of the videotape to be hand-delivered to Mr. Price. In his correspondence pertaining to the videotape, Mr. Price repeatedly asserted that he would need to review the entire investigative file, including the videotape, before he could file a response to be considered by the Probable Cause panel. By letter dated July 24, 1998, Mr. Price filed his response to the investigative file. The Department received the letter and attachments in Tallahassee on July 28, 1998. Dr. Fish's response to the investigative file disputed, but did not disprove, the evidence supporting the allegations against him. By letter dated July 28, 1998, Mr. Price filed a supplemental response to the investigative file. The Department received the supplemental response in Tallahassee on August 7, 1998. This supplemental response also disputed, but did not disprove, the evidence supporting the allegations against him. On July 31, 1998, the Probable Cause Panel met in Fort Myers and found that probable cause existed to file an administrative complaint against Dr. Fish. The Probable Cause Panel had before it at its meeting on July 31, 1998, an investigative report and supporting documentation. That packet of information substantially justified the Department's decision to initiate the Administrative Complaint that underpinned DOAH Case No. 99-3742. In its Proposed Recommended [sic] Order, the Department stipulated that Dr. Fish's response dated July 24, 1998, and his supplemental response dated July 28, 1998, were not reviewed by the Probable Cause Panel at or before its meeting of July 31, 1998. The parties stipulated that Dr. Fish was entitled to file his response within 20 days after he received the entire investigative file on July 9, 1998. Dr. Fish's response filed July 24, 1998, was timely. The parties stipulated that Dr. Fish was entitled as a matter of law to have his timely response considered by the Probable Cause Panel prior to its consideration and vote of probable cause on July 31, 1998.3 The failure to do so constituted a due process violation. On June 1, 2000, the undersigned granted the Department's Amended Motion to Relinquish Jurisdiction and closed DOAH Case No. 99-3742. Dr. Fish thereafter timely filed his petition for attorney's fees and costs4 pursuant to the Act. The parties stipulated that the proceeding below was initiated by the Department5, that Dr. Fish qualified as a prevailing small business6, and that he incurred attorney's fees and costs in excess of $15,000.00, which Section 57.111(4)(d)2, Florida Statutes, sets as the maximum that can be awarded. Consequently, if Dr. Fish is to be awarded attorney's fees and costs, the amount of the award should be $15,000.00. Section 57.111(4), Florida Statutes, mandates an award of attorney's fees and costs to a prevailing small business party as follows: (4)(a) Unless otherwise provided by law, an award of attorney's fees and costs shall be made to a prevailing small business party in any adjudicatory proceeding or administrative proceeding pursuant to chapter 120 initiated by a state agency, unless the actions of the agency were substantially justified or special circumstances exist which would make the award unjust. Section 57.111(3)(e), Florida Statutes, defines the term "substantially justified" as follows: (3)(e) A proceeding is "substantially justified" if it had a reasonable basis in law and fact at the time it was initiated by the state agency. The Act does not specify what acts constitute special circumstances which would make an award of attorney's fees and costs unjust within the meaning of Section 57.111(4)(a), Florida Statutes. The Department failed to establish the existence of special circumstances which would make an award of attorney's fees and costs unjust. The Department established that it had information that substantially justified the filing of the Administrative Complaint in DOAH Case No. 99-3742. Dr. Fish did not prove that the Probable Cause Panel's failure to consider his responses to the investigative file vitiated that substantial justification.
Findings Of Fact At all times pertinent to the allegations contained in the Administrative Complaint, the Petitioner, Criminal Justice Standards and Training Commission, (Commission), was and is the state agency responsible for the certification of law enforcement officers in this state. The Respondent, Douglas E. Szczepanik, was and is certified in Florida as a law enforcement officer. Late on the evening of August 22, 1988, Respondent was employed as a police officer with the Delray Beach, Florida, Police Department, (Department). While at the hospital with Officer Eberhart collecting a blood specimen from a third person for use in another police matter, he heard a police radio call relating to the hot pursuit of a felony suspect. He and Eberhart went to the scene of the expected apprehension and found that the suspect had been apprehended after a high speed chase by several police cars including one driven by Officer Thomas A. Whatley. It was subsequently determined that the suspect had lost control of his vehicle, a stolen car, and had ended up abandoning it on the city's municipal golf course adjacent to West Atlantic Avenue. He then ran off on foot across the course with Officer Whatley in pursuit in his police cruiser. The suspect ran up a hill and down the other side. Whatley, surmising that the hill was no more than that, and that the other side of the hill was a down slope, drove up the hill after the suspect at a speed of approximately 45 to 50 mph. As he reached the crest, he found that he was on the lip of a sand trap and since he could not stop, his car became airborne, coming to rest some 25 - 30 feet further along, in the sand trap. Though it did not bear significant outward signs of damage, the vehicle was, in fact rendered inoperable as a result of the impact. Fortunately, the suspect was apprehended by other officers on the scene. As a result of the serious nature of the suspect's alleged crimes, suspected murder of an officer and car theft, many Delray Beach officers were involved in the chase and were, therefore, on the scene at the time of the apprehension and Whatley's vehicular mishap, including his Lieutenant, Woods, and his patrol sergeant, then Sergeant Musco. Lt. Woods directed Sgt. Musco to block traffic on Atlantic Avenue and another officer to get the damaged vehicles towed away. He directed Respondent, then at the scene, to write the traffic accident report relating to Whatley's car. There is some indication that initially Woods did not think a report was necessary, but he ultimately became convinced it was and gave the job to Respondent. Since both Respondent and Eberhart were traffic investigators, Eberhart indicated he would do it and Respondent acquiesced. Respondent and Eberhart both discussed the accident and both developed their own theory as to how it happened. Neither, however, bothered to question Whatley who remained at the scene for some time before being directed to resume patrol, using Respondent's cruiser. Even when that was being set up, Respondent did not question Whatley as to what had happened, speaking to him only to caution him not to lose his keys when he turned them over to him. Based on their examination of the scene on Atlantic Avenue, and without even looking at Whatley's vehicle and where it ended up, Eberhart concluded that the accident occurred when the suspect lost control of his vehicle and ran into Whatley's forcing him to lose control and run up the side of and into the sand trap. Had Eberhart bothered to look at the vehicle, he would have seen no body damage consistent with collision. Eberhart was subsequently convinced by Respondent, who did look at Whatley's vehicle, that an alternative theory, indicating that the suspect lost control of his vehicle and prompted Whatley to lose control of his in an effort to avoid a collision, was what happened. In any event, Respondent claims that later that evening, back at Police Headquarters, he saw Whatley attempting to write out his report. Whatley allegedly asked Respondent for help in writing it since he was relatively new to the force and this was his first accident. Respondent also claims that he merely told Whatley the format for the report and the type of information to put in it. He admits that, as an example of what to say, he told Whatley his theory of the accident. When Whatley indicated that was not how it happened, Respondent allegedly told him, then, to write in what did happen as he, Whatley, recalled it, and he denies suggesting that Whatley use his scenario if it was not correct. Whatley, on the other hand, claims that while they were still at the scene of the accident he talked with Respondent and told him what had happened. Respondent supposedly walked around the wreck and then told Whatley to put in his supplement to the accident report that he had been taking evasive action. When Whatley told him that was not the way it happened, Respondent is alleged to have said that the people "upstairs" wanted police accident reports to reflect no fault on the part of the officers. Whatley claims that Sgt. Musco was present at the time but Musco does not profess to have heard that and Respondent categorically denies that Whatley told him at the scene how the accident occurred or that he went to the sand trap to look at the vehicle. In a statement made to Captain Schrader in November, 1988 as a part of the Internal Affairs investigation, Respondent again denied he spoke with Whatley at the accident scene. No evidence was presented by the Petitioner as to what benefit Respondent would gain or what detriment he would avoid by telling Whatley to falsify his supplement. Musco claims that when he first saw Whatley, he appeared depressed about the incident and Musco told him to write it up as it had happened and not to worry about it because he, Musco, was not worried about the car. When Respondent, who Musco had assigned to write up the report, said he was going to show it had happened when Whatley attempted to avoid an accident, Musco told him to write the report honestly as he had been trained to do, and as Whatley had reported it. Musco did not follow up to see if the report or Whatley's supplement thereto was prepared properly. Since he had assigned the duty to a trained traffic/homicide investigator, (Respondent), he presumed it was done correctly. He knows of no policy to falsify reports of police accidents and in fact has had an accident himself, in which he was at fault, and which was written up accurately. Respondent claims that after he spoke with Whatley at Police headquarters and told him to write the report honestly, he left and met Lt. Woods outside. He told Woods that Eberhart was going to write the accident report and that Whatley was going to write his supplement honestly. Woods reportedly responded that was no good because he had already told everyone it had happened because of Whatley's attempt to evade the suspect's car. Because of that, even though Woods did not give him any instructions to do so, Respondent claims he went back inside and told Whatley to write his supplement the way he remembered it. Respondent claims that at no time did he ever tell Whatley to write a false report. He also claims that he never made the statement attributed to him regarding the people "upstairs." He would have nothing to gain or to lose by convincing Whatley to falsify his supplement. After getting advice from Respondent and from Sgt. Musco, Officer Whatley, for some reason, wrote his supplement indicating he had the accident in an attempt to evade the suspect's out of control vehicle. Whatley cites two meetings with Respondent that evening, as does Respondent, but their stories of what transpired differs radically. Whatley claims that Respondent told him to make sure his supplement conformed to what was in Eberhart's report. He did, and when he gave it to Lt. Woods to read, Woods rejected it because it was false and Woods knew it to be false. Woods then told him to hold off on the supplement and about a week later, Whatley was told by Captain Cole to write another supplement which was accurate. Respondent, on the other hand, claims he had little contact with Whatley at the scene of the mishap and denies any direct conversation with him about the accident. All he said, he claims, was, "it doesn't look too bad." Respondent asserts that at no time did Whatley tell him how the accident occurred. Later that evening, when, at the station he saw Whatley writing his report, Whatley asked him for advice as to how to construct and what to put into his supplemental report. Respondent claims he told Whatley to go back and tell the story as it happened. He admits to telling Whatley how he felt the accident occurred but when Whatley said that was not how it was, Respondent again told him to write it as it happened. This whole conversation took no more than a minute or a minute and a half. The only direction he gave Whatley was as to the format of the supplement, not the substance, other than that it be the truth. When, a few minutes later, Respondent saw Woods and told him that Whatley was having trouble, Woods told Respondent how he felt the accident had occurred. At that time, Woods gave Respondent no directions, but Respondent went back into the station and again told Whatley to write up his supplement the way he, Whatley, recalled the accident happening. The following day, according to Respondent, Woods pulled him aside and told him he had just spoken to Major Lincoln who said the report was to be written as Respondent had originally said the accident had occurred, incorrectly. At no time did Respondent speak directly with Lincoln about the accident.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that a Final Order be entered in this case by the Commission dismissing the Administrative Complaint filed against the Respondent. RECOMMENDED in Tallahassee, Florida this 17th day of January, 1992. ARNOLD H. POLLOCK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of January, 1992. APPENDIX TO RECOMMENDED ORDER The following constitute my specific rulings pursuant to Section 120.59(2), Florida Statutes, regarding the Proposed Findings of Fact submitted by the Petitioner in this proceeding. FOR THE PETITIONER: & 2. Accepted and incorporated herein. 3. - 5. Accepted and incorporated herein. 6. - 9. Accepted and incorporated herein. - 14. Not phrased as Findings of Fact but more as restatements of testimony. However, the substance of the restatements is correctly stated and has been accepted and incorporated herein. Accepted and incorporated herein. - 18. Accepted and incorporated herein. 19. - 21. Accepted and incorporated herein. 22. & 23. Accepted and incorporated herein as an accurate recitation of Whatley's story. 24. & 25. Again, not phrased as Findings of Fact. Here, however, the substance of Whatley's statement is rejected as not proven. 26. & 27. Rejected as not supported by evidence of record. - 30. Accepted and incorporated herein. Accepted. Rejected as not supported by the evidence. Whatley and Respondent did meet at the station that evening, but the allegation that Respondent told Whatley to falsify his report is not supported by credible evidence. & 34. These are restatements of testimony but are accepted. 35. - 37. An accurate restatement of the testimony, but the testimony is rejected as unsupported. Even Lincoln denied making the statement. 38. - 40. Accepted and incorporated herein. 41. - 43. Accepted and incorporated herein. 44. & 45. Accepted as accurate recitations of the testimony. COPIES FURNISHED: Rodney Gaddy, Esquire Michael R. Ramage, Esquire Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Charles Salerno, Esquire 242 Plaza Office P.O. Box 1349 Tallahassee, Florida 32302 James T. Moore Commissioner Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Jeffrey Long Director CJSTC Post Office Box 1489 Tallahassee, Florida 32302
The Issue By this action Petitioner seeks to recover costs, expenses and damages associated with state response to an oil spill incident occurring February 26, 1987, within three miles of the Florida shoreline. Respondent's vessel was responsible for that spill. In particular the costs, expenses and damages claimed are related to salaries, per diem allowances, Federal Express charges, beach sand replacement, equipment, use of a cellular phone, and consulting work at the shore and off site. Petitioner also seeks damages for bird mortality resulting from the spill. See Chapter 376, Florida Statutes, and Chapter 16N- 16, Florida Administrative Code.
Findings Of Fact On the evening of February 26, 1987, the motor vessel Fernpassat struck the south jetty at the entrance to the St. Johns River at a location within three miles of the Florida shoreline. In doing so it ruptured the hull and spilled a substantial amount of heavy fuel oil. The type of the oil was No. 5 or 6 Bunker C. A preliminary estimate placed the amount of oil in excess of 100,000 gallons. While the true amount may have been somewhat less, it was a significant spill in that it substantially threatened the public's welfare and the environment and generated wide public interest. Petitioner's exhibit 3 is a map which depicts the basic location where the vessel collided with the jetty with an "X" mark. The area impacted by the discharge ran from roughly Atlantic Beach, Florida, to Guana State Park in St. Augustine, Florida. This is approximately 25 miles of beach front. Beach property over which Petitioner has regulatory and proprietary responsibility had oil deposited upon it. The oil spill killed or injured a number of birds. The event was responded to by the "Federal Region IV Regional Response Team" (RRT). The federal on-scene coordinator (OSC) was Captain Matthew Woods, U.S. Coast Guard. The RRT, through management and control provided by the OSC, took necessary steps to combat the effects of the spill. Respondent immediately accepted responsibility for the cleanup through the use of a consultant and cleanup contractor. Under this arrangement the OSC monitored the contractor's cleanup efforts to make certain that the job was done satisfactorily. Florida officials were part of the RRT. Rule 16N-16.009(21), Florida Administrative Code, calls for personnel from Petitioner; the State of Florida, Department of Environmental Regulation (DER); and the State of Florida, Department of Community Affairs (DCA) to represent state interests as members of the RRT. Each of these agencies participated as members of the RRT. This furthered the legislative intent expressed at Section 376.021(6), Florida Statutes, to support the RRT through implementation of the "Federal Water Pollution Control Act," which is also known as the "Clean Water Act," 33 U.S.C. ss. 1251-1376. By its efforts the RRT promoted the removal of the oil in accordance with a national contingency plan. Pursuant to Section 376.021(6), Florida Statutes, the state is expected to complement applicable provisions within the "Federal Water Pollution Control Act" as well as render the support previously described. Both the support and complementary functions of the state are part of Florida's "Pollutant Spill and Prevention Control Act," Sections 376.011-376.17, 376.19-376.21, Florida Statutes. Chapters 16N-16, Florida Administrative Code, more completely identifies the role played by the state agencies in this instance. This chapter was adopted pursuant to authority set out in Section 376.07, Florida Statutes, which, among other things, empowered Petitioner to make rules which developed and implemented criteria and plans to respond to spills such as the one at issue. In its complementary role the state has established a "State Response Team" (SRT). This organization in defined at Rule 16N-16.009(13), Florida Administrative Code. It is constituted of predesignated state agencies available continually to respond to a major spill. This incident was a major spill or discharge as defined in Rule 16N-16.009(18), Florida Administrative Code. The predesignated state agencies, pursuant to the rule defining the SRT and Section 376.07(2)(e), Florida Statutes, act independently of the federal authorities, although they are expected to cooperate with the federal authorities in the efforts at cleanup. What that meant here is that notwithstanding the concerns which Captain Woods had and the state participation in the RRT through Petitioner, DER and DCA, there was a parallel function by the SRT which had its own mandate. This allowed the SRT to pursue an independent agenda in the spirit of cooperation with the OSC in an attempt to protect the resources over which the state has jurisdiction, including the beach front and birds. Both Captain Woods and the consultant to the spiller, James L. O'Brien, who is a man of considerable credentials in giving advice about oil spill problems, expressed their understanding of the interests which the state might have in carrying out its functions and did not find that reality a hindrance in performing their duties. As a result, even though state employees and equipment and consultants to the state had limited utility for the OSC and the consultant to the spiller in carrying out their duties, it does not follow that claims by the state for reimbursement in categories set out in the statement of issues must fail unless found to support the OSC or spiller's choice in attempts at cleanup. The question is whether the costs, expenses and damages are reasonably related to support for the RRT or complementary of that function through the SRT and owed or expended from the Florida Coastal Protection Trust Fund (Fund) for recoverable items. See Section 376.11, Florida Statutes. Petitioner's exhibit 15 is a copy of the state contingency plan. See Section 376.07(2)(e), Florida Statutes. It identifies the membership of Petitioner, DER and DCA. Other claimants for costs, expenses, and damages who were involved in the response to this incident as predesignated agencies are the Florida Game and Fresh Water Fish Commission (Commission), the State of Florida, Department of Transportation (DOT), and the Attorney General. The state contingency plan explains the operational responsibilities of state agencies when responding to the incident. This is a more specific reference to those responsibilities as envisioned by the general guidelines announced in the "Pollution Spill Prevention and Control Act." Having considered the testimony and exhibits in the context of the state support and complementary role in responding to the spill contemplated by the aforementioned laws, regulations and contingency plans, the costs, expenses and damages sought by the Petitioner are reasonably related to those purposes. Those costs, expenses and damages are detailed in Petitioner's exhibit 16 and summarized in Petitioner's exhibits 8 and 9. With the exception of $15,654.37 in costs and expenses for Petitioner's Executive Office and Division of Law Enforcement and $3,336.16 for salaries for the Commission, DOT and DCA, all claims for expenses and costs have been paid from the Fund. Petitioner wishes to impose the costs, expenses and damages in the state response whether or not claims were disbursed from the Fund. The damage claim associated with future beach re-nourishment by replacement of sand that had been befouled by oil and needed to be removed is a reasonable claim in the amount of $10,222.50. It has been paid from the Fund and is held in the Erosion Control Trust Fund until needed. The on-scene consulting fee of $3,525.00 and the oil spill assessment study fee of $9,880.00 commissioned by Petitioner through Jacksonville University are reasonably related to the Department's role in response to the spill. As Petitioner's exhibit 8 depicts, $30,312.53 has been disbursed from the Fund in costs, expenses and damages reasonably related to the response to the spill. There remains unpaid from the Fund the aforementioned costs and expenses in the amount of $18,990.53 which are reasonably related to the response to the spill. Those latter amounts, although presented for payment from the Fund by the agencies in question, were not paid, based upon some fiscal anomaly. By inference, it does not appear from this record that the Fund owes the agencies for these claims. According to Section 376.13, Florida Statutes, on February 27, 1987, Governor Martinez declared a state of emergency in response to the oil spill. That proclamation was withdrawn on March 25, 1987. The activities for which claims for costs and expenses are advanced transpired in the time frame of the state of emergency declaration. The amount which Respondent has expended in the cleanup effort is $700,000 plus or minus $200,000. None of this money has been paid to satisfy claims for costs, expenses and damages previously described. While it has been found that costs, expenses, and damages are reasonably related to the state's purposes in responding to the spill, not all items are recoverable. They are only recoverable if recognized for recovery by Chapter 376, Florida Statutes, and Chapter 16N-16, Florida Administrative Code, and owed or expended from the Fund. Petitioner's claims in its exhibit 8 in the amount of $12,901.30 and DOT claims for $675.19 in that exhibit qualify for recovery as well as the on-scene consulting fee of $3,525.00. Other claims do not qualify with the exception of a limited recovery for bird mortality. Reasons for this fact finding are set forth in the conclusions of law. Petitioner has disbursed $176,058.00 to the Commission for damages related to alleged bird mortality. This money was disbursed from the Fund. Petitioner now concedes that the amount should be reduced by half. This recognizes that the cost estimate for damages dealt with pairs of birds not single birds. Petitioner now asks for $88,075.00. Two hundred fourteen (214) birds are said to have died as a result of the spill, according to Petitioner. Petitioner seeks damages for each of these birds. The number proven to have been killed by the event and the theory upon which the damage claim is predicated leads to a result which diminishes the claim for reasons to be explained. As with other claims, Section 376.021.(4)(c), Florida Statutes, anticipates the payment of damages from the Fund. Section 376.11(1), Florida Statutes, is in aid of recovery of damages, as is Section 376.11(4)(d), Florida Statutes. However, these claims must be susceptible to proof that readily identifies and explains valuation methods of the birds and recognizes the predicate of establishing the actual number lost in this episode. For the most part, Petitioner has failed in the endeavor. Mark Damian Duda is a wildlife biologist with the Commission. He earned a bachelor of science degree from West Virginia University and received his master's degree in natural resource policy and planning from Yale University, both with honors. He was assigned the task of trying to arrive at an acceptable method for valuing birds that had been killed. His assessment is generally set forth in a report, a copy of which is Respondent's exhibit 3. Having considered a number of options, he reached the decision to employ what he describes as the replacement value method. Quoting from his report concerning this method, he has this to say: Replacement Value Method We believe the replacement value method is the most useful and logical method to determine the value of wildlife lost in the February 27 Jacksonville oil spill. A replacement cost approach can avoid many of the problems involved in attempting to estimate the use of value of biological resources. Under the replacement cost approach, the resource is valued at what it would cost to replace it. If the resource is replaced, the problems of identifying all its uses, the monetary value of these uses, and the users affected by the resource loss are eliminated, except for the period between the initial loss and the replacement. Four Florida institutions were asked to estimate the cost of obtaining specimens of the birds killed in the Jacksonville oil spill, or the price at which they would be willing to sell members of each species. Their estimates are shown in Table 4. One problem with most of these estimates is that they are not true replacements costs; but rather the cost of collecting already existing specimens from the wild and redistributing them to the Jacksonville Area. This does not represent true replacement, since true replacement requires a complete recovery of the species population. This can be most clearly assured by using only captive breeding programs for replacement. However, many of the species in this list probably cannot be bred in captivity. Therefore, true replacement of these species through captive breeding is probably impossible. It is absurd to value them at zero since they cannot be replaced. Therefore, this section presents some calculations on the assumption that they could be redistributed or replaced. Table 1 presents the replacement costs for the birds. The numbers were derived by multiplying the number of dead birds times the average replacement costs given in Table 4. Using this approach, the total replacement costs for the birds estimated to have been killed in the Jacksonville oil spill is $176,058.00. It should be noted that we use a deliberately conservative approach, using body counts only, and thereby underestimating the total mortality. There is an increasing amount of scientific literature indicating that actual body counts appear to significantly underestimate the total mortality resulting from a spill. For example, there have been a variety of experiments that show only 5 percent to 25 percent of the birds that die at sea, wash in or beach themselves on shore. The percent of loons found is probably even lower because of their low buoyancy and wide-ranging distribution. An alternative approach to estimating replacement costs is to estimate the cost of creating new habitat or enhancing existing habitat to support enough nesting pairs of each species to replenish the population. Again, to represent true replacement costs, this should be new or enhances habitat, not just the cost of acquiring already existing habitat. Tables 1 and 4 within Respondent's exhibit 3 are replicated here for convenience as Appendix 2 and Appendix 3, respectively. The numbers of birds shown in Duda's table are not numbers about which he has direct knowledge. They are numbers purportedly obtained from Tim O'Meara and Peter Southall, biologists who work for the Commission who got their information from the Central Region and Northeast Region, respectively. In particular, they allegedly received their information from rehabilitators working in the two regions. Neither biologist testified at hearing, and the exhibits do not satisfactorily establish what involvement the biologists had in a direct inventory of birds, if any, or the other sources of their information which was then given to Duda in preparing his report. The rehabilitators in the Central Region did not testify nor were any exhibits presented which spoke to records kept by those individuals that set out bird deaths in that area. The only person who presented any reliable information concerning bird mortality was Cindy Mosling, rehabilitator in the Northeast Region. Any records which she maintained were not produced at hearing. Nonetheless, she did remember some details concerning bird mortality, and from this testimony 56 common loons, 3 gannets, 1 black skimmer and 2 hooded mergansers are found to have died as a result of the oil spill. The replacement value method by Duda speaks to the fact that his method does not constitute a complete recovery of the species population. Instead, what is shown in Respondent's exhibit 3 is averaging of estimates from Table 4 on costs for collecting existing specimens from the wild and releasing them back to the Jacksonville area after a period as opposed to a captive breeding program. That explanation is not correct, either, because there is no intention to release birds to the wild after raising them or rehabilitating them in captivity in one of the Florida institutions mentioned in Table 4. Moreover, only one of those programs has been relied upon by Petitioner in arriving at a cost estimate. That program is Sea World. As a consequence, the cost analysis in Table 1 related to hooded mergansers is incorrect in that it reflects an average of $150 and not the $200 quoted by Sea world. Again, the prices reflect pairs and not single birds. Robin Friday is the curator from Sea World who supplied cost estimates for pairs in Table 4 to Respondent's exhibit 3. He arrived at his price estimates in a 15 to 20 minute telephone conversation with Duda. To the extent he had no actual experience with price lists reflecting cost of a specie, he assumed that theoretical permits would be issued to collect live birds or eggs in the wild and that he would keep them in a captive environment, hoping they would breed while in captivity. In the latter category, the costs to promote the outcome of breeding in captivity formed his estimate. It can be seen that this departs from Duda's method for valuation. Notwithstanding this fact, Duda relied upon the price quotation by Friday. The main species of birds which Friday has had experience with are waterfowl. Of the species which have been verified as lost in this incident, he had had experience with common loons and hooded mergansers. The hooded merganser is a waterfowl with which he has close experience in breeding, acquisition and disposition. The common loon is a shore bird. In his career he has worked to rehabilitate two or three of those birds. He has had no experience with gannets and black skimmers, which are shore birds. As Friday identified, waterfowl may be sold, shore birds may not. Sale of the shore birds is prohibited by law. His price quotes for the hooded mergansers are from actual experience in sales. His quotations on the other species are matters of conjecture in collecting, housing, feeding and establishing a breeding program for them based upon limited experience in rehabilitating common loons and no experience with gannets and the black skimmer. The price estimate on the hooded merganser of $100 per bird is accepted. The price estimates for common loons, gannets and black skimmers are not. They are too speculative. Jean Benchinol is a curator in Gulf Breeze, Florida, who works for Animal Park, Inc. She testified at hearing. She was presented as a witness who could corroborate the Friday opinion on bird valuation. Her cost estimates may be found as Petitioner's exhibit 14, quotes for single birds. She has had direct involvement with hooded mergansers. She has sold those birds and quoted the price at hearing as being $100. This coincides with the price per bird quoted by Friday. For other birds in her price estimates that cannot be bought and sold and that remain at issue here, that is, common loons, gannets and the black skimmer, she categorized them as capable of surviving in captivity or not. The black skimmers can live in captivity and the common loon and gannet cannot, according to the witness. She had had a common loon in captivity before and noted that it did not do well, being more receptive to northern climes. At hearing her opinion about birds that could not survive in the Florida environment was rejected. In this final analysis, that refers to the common loons and gannets. Likewise, having considered her explanation concerning her valuation for the black skimmer, that opinion is rejected. In rejecting this method, the cross examination at hearing concerning valuation for the royal tern was significant in that it pointed out the inexact and unreliable nature of the method. This method contemplated receiving a live bird in her facility and the costs for medication, housing, feeding and staff time for approximately 60 days. In summary, on the subject of bird mortality, there is no inherent prohibition against valuation; birds do have a value that can be measured in monetary terms. Here the effort to arrive at that understanding fails in the inventory of casualties and method of valuation, with a limited exception. It is also observed that the Respondent had paid the rehabilitators to house, feed and nurse birds back to health that were injured, a similar activity to the theoretical exercise envisioned by Duda, Friday and Benchinol.
Recommendation Based upon the consideration of the facts and the conclusions of law reached, it is, RECOMMENDED: That a Final Order be entered which requires the Respondent to reimburse the Fund in the amount of $17,301.58 and dismisses all other charges against Respondent. DONE and ENTERED this 26th day of July, 1990, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of July, 1990. APPENDIX 1 The following discussion is given concerning the proposed facts of the parties. Petitioner's Facts Paragraphs 1 and 2 are subordinate to facts found. Paragraph 3 is not necessary to the resolution of the dispute. Paragraphs 4 and 5 are subordinate to facts found. The first two sentences of Paragraph 6 are subordinate to facts found. The last two sentences are not necessary to the resolution of the dispute. Paragraph 7 is not necessary to the resolution of the dispute. Paragraph 8 is subordinate to facts found. The first two sentences of Paragraph 9 are subordinate to facts found. While it is agreed that the correspondence from Petitioner to Respondent did not indicate that claims for costs and expenses were only subject to collection if paid from the Florida Coastal Protection Trust Fund, in the administrative forum recoupment of costs, expenses and damages may only be permitted for monies owed or expended from the fund. Paragraphs 10-13 are subordinate to facts found. It is acknowledged as set forth in Paragraph 14 that money was transferred from Coastal Protection Trust Fund to the Erosion Control Trust Fund for future beach renourishment. The more relevant fact is whether the claim for damages of value under the renourishment is legitimate and that determination has been made favoring the Petitioner. The concept of using the funds that are being held for purposes of future renourishment is in keeping with a reasonable disposition of the damage claim. Paragraphs 15-24 are subordinate to facts found. The first sentence to Paragraph 25 is contrary to facts found. The second sentence is subordinate to facts found. The third sentence is an accurate statement of what Table 1 contributes but the findings in that table are rejected in part. The first sentence to Paragraph 26 is subordinate to facts found. The second sentence is accepted in the sense of recognizing that a list was maintained; however, that list was not produced at hearing as an aide in determining the number of birds that were killed. The third sentence is rejected. The fourth and fifth sentences are knowledged and those underlying facts were taken into account in accepting the representations by the witness Mosling concerning the number of birds that died as a result of the oil spill which she could recall. Paragraph 27 is subordinate to facts found. Paragraph 28 is subordinate to facts found. Paragraph 29 is not necessary to the resolution of the dispute. The first sentence to Paragraph 30 is subordinate to facts found. The second sentence is not necessary to the resolution of the dispute. The first sentence to Paragraph 31 is subordinate to facts found. The second sentence is accepted with the exception that certain categories of water fowl are bought and sold in the free market. Concerning the third sentence, while it is acknowledged that curators are the better persons to attempt valuation, they must have sufficient understanding of the varieties on which they are commenting to have their opinions accepted and their methods of analysis of costs must stand scrutiny. This was not achieved in this instance. The last sentence in Paragraph 31 is not accepted in that the replacement value method was not adequately explained and does not allow a ranking of whether it is inexpensive, or cheaper or some where in the middle. Paragraph 32 is subordinate to facts found. The first sentence to Paragraph 33 is subordinate to facts found. The second sentence is subordinate to facts found as it references hooded mergansers. The other references are to species which have not been found to have been lost to the spill. The last sentence is accepted in the sense that the remaining species have limitations placed upon their use by state and federal law which prohibits the buying and selling. Paragraph 34 in its reference to the cost of hooded mergansers is accepted. The balance of the information was not utilized in that the Petitioner failed to demonstrate that other species had been lost to the spill. In Paragraph 35 of the species that testimony was presented about, only the common loon, gannets and black skimmer pertain. While it is acknowledged that the method that the witness Friday used to estimate the value of those species is an accurate portrayal of his efforts, those efforts were rejected as were those of Ms. Benchinol described in Paragraph 36. In Paragraph 36 the explanation of her methods is correct. The methods were not accepted either in support of the testimony by Friday or in her own right. There is no significance to the discussion concerning the brown pelican and inadequate proof was made that the brown pelicans were lost. Respondent's Facts The first sentence to Paragraphs 1 is subordinate to facts found. The last two sentences are not necessary to the resolution of the dispute. As to Paragraph 2, it is acknowledged that Mr. Healey served as the liaison to the RRT and OSC. In the second sentence to that paragraph it is accepted that the state supports the RRT. It also has the function to compliment the RRT and to act independent of the federal response. The first sentence to Paragraph 3 is subordinate to facts found. The second and third sentences are not necessary to the resolution of the dispute. The fourth and fifth sentences are subordinate to facts found. While Paragraph 4 accurately describes the circumstance, this did not deter the state from pursuing its independent function in responding to the spill event. Paragraph 5 accurately portrays the OCS's idea of who was necessary to support the federal response. It does not preclude the activities of other state employees in carrying out their functions. Paragraph 6 is contrary to facts found. Paragraph 7 is a correct statement but does not preclude the state's efforts in its own right at responding to the spill. Paragraph 8 is subordinate to facts found. Paragraph 9 while an accurate portrayal does not preclude the state in its efforts. The same pertains to Paragraph 10. Paragraph 11 is contrary to facts found. Paragraph 12 is subordinate to facts found. Paragraph 13 is contrary to facts found as is Paragraph 14. Paragraph 15 is subordinate to facts found. Paragraph 16 is not relevant. Paragraph 17 is an accurate portrayal of the federal use of the state helicopter but does not preclude request for reimbursement for uses which the state had of that helicopter. Paragraph 18 is subordinate to facts found. The first two sentences within Paragraph 19 are subordinate to facts found. The third and fourth sentences are not relevant to the issue of whether the state was entitled to seek the assistance or Jacksonville University for its own purposes distinct from those of the federal response. The latter sentence is a correct portrayal of the outcome but for reasons different than contemplated by the Respondent. Paragraph 20 is subordinate to facts found. Paragraph 21 is subordinate to facts found. Paragraph 22 is subordinate to facts found in its first two sentences. The third sentence is not accepted beyond the fact that the Department of Interior using a nonconsumptive use technique, whether other federal agencies use that method was not subject to determination from the record. The first three sentences to Paragraph 23 are not necessary to the resolution of the dispute. The fourth sentence is not accepted. The fifth and sixth sentences are subordinate to facts found. As to the seventh sentence, it is not clear that there was the intention of redistributing to the Jacksonville area. The eighth sentence is subordinate to facts found. Paragraph 24 is subordinate to facts found as are Paragraphs 25 and 26. The suggestion of the price for hooded mergansers as set out in Paragraph 27 is not accepted. The lesser scaup was not found to have been lost to the spill. The state price of $100.00 per bird for hooded mergansers is accepted. Paragraphs 28-31 are subordinate to facts found as it pertains to the species that were proven to have been lost. Paragraph 32 is not necessary to the resolution of the dispute. Paragraphs 33 and 34 are subordinate to facts found, with the exception that it has been determined that the number of dead birds which Ms. Mosling can recall involvement with is accepted. Paragraphs 35 through 37 are subordinate to facts found in the species determined to have been lost, with the exception that the actual price for hooded mergansers was $100. COPIES FURNISHED: Tom Gardner, Executive Director Department of Natural Resources 3900 Commonwealth Boulevard Tallahassee, FL 32399 Kenneth J. Plante, General Counsel Lynn M. Finnegan, Assistant General Counsel Department of Natural Resources 3900 Commonwealth Boulevard Tallahassee, FL 32399 Robert B. Parrish, Esquire James F. Moody, Jr., Esquire Taylor, Moseley & Joyner 501 West Bay Street Jacksonville, FL 32202
Findings Of Fact At the times pertinent to this proceeding, the Dade County School Board (School Board) was a duly constituted school board charged with the duty to operate, control, and supervise all free public schools within the school district of Dade County, Florida. By Memorandum dated August 27, 1976, the attorney for the School Board recommended that it approve a list of individuals to serve as "hearing examiners" in certain hearings pertaining to personnel matters as required by different collective bargaining contracts and as to student expulsion cases. The Memorandum thereafter listed the individuals who were recommended by the School Board attorney to serve as hearing examiners. On September 8, 1976, the School Board adopted the recommendation of its attorney. The minutes of the September 8, 1976, meeting of the School Board, reflect, in pertinent part, the following pertaining to this action: A memorandum was received from the Legal Department, advising that the collective bargaining agreements between the School Board and the unions provide that in various circumstances, including suspension, dismissal and reduction in grade, the employee has the right to a review of the action. Also, the Florida Administrative Procedure Act was amended to provide for informal hearings con- ducted by impartial hearing examiners in student expulsion cases. With a view toward obtaining unbiased hearing examiners who can expedite cases at a minimal cost to the Board, the Office of the School Board Attorney and the Division of Employee Relations have solicited the services of various members of the Florida Bar and persons with experience in labor arbitration. It is believed that the following list of examiners will meet the needs of the Board in this area. These individuals have agreed to serve at the rate of $40.00 per hour. The minutes of the September 8, 1976, meeting of the School Board reflect the names of seventeen individuals who were recommended to serve as impartial hearing examiners. The minutes of the September 8, 1976, meeting of the School Board reflect that the following motion was adopted: That the school Board approve the list of persons named above to act as impartial hearing examiners in appropriate proceedings involving personnel and pupils, the hearing examiners to be reimbursed at the rate of $40.00 per hour for their time and to be designated as needed by the Superintendent or his designee. That the Superintendent or his designee be authorized to strike from the list the name of any hearing examiner who does not submit his or her recommended order within the time prescribed. The list of individuals to serve as impartial hearing examiners (who were sometimes referred to as hearing officers) was revised by the School Board on June 27, 1990, and on September 20, 1995. Petitioner's daughter is a student at one of the schools under the authority of the School Board who receives services as a gifted student under the School Board's Exceptional Education Program. Local hearing officers do not conduct proceedings pertaining to students in the Exceptional Education Program. Petitioner has never requested a hearing before a hearing examiner (or hearing officer) appointed by the School Board pursuant to the School Board's action of September 8, 1976, or as subsequently revised, and he is not involved in any pending or threatened administrative proceeding that would require the appointment of a local hearing officer by the School Board. Petitioner's daughter has never requested a hearing before a hearing examiner (or hearing officer) appointed by the School Board pursuant to the School Board's action of September 8, 1976, or as subsequently revised, and she is not involved in any pending or threatened administrative proceeding that would require the appointment of a local hearing officer by the School Board. Petitioner has never applied for appointment as a local hearing officer. He is not a member of the Florida Bar and there was no evidence that he is experienced in labor arbitration. Petitioner is not employed by the School Board. Petitioner is not affected by who has or has not been approved by the School Board to serve as a local hearing officer.
