The Issue The issues for determination are: (1)whether Respondent violated Section 112.313(7)(a), Florida Statutes; (2) whether Respondent violated Article II, Section 8, Florida Constitution; and (3) if so, what penalty should be imposed.
Findings Of Fact At all times pertinent to this proceeding, and since November 1994, Kenneth Sattler (Respondent), served as a Commissioner on the St. Lucie County Board of Commissioners (Board of Commissioners). The Board of Commissioners also acts as the St. Lucie County Port and Airport Authority (St. Lucie Airport Authority). Accordingly, at all times relevant to this proceeding, Respondent was also a member of the St. Lucie Airport Authority. As a St. Lucie County Commissioner and a member of the St. Lucie Airport Authority, Respondent was subject to the requirements of Part III, Chapter 112, Florida Statutes, the Code of Ethics for Public Officers and Employees. Respondent first met Maurice Warren at an Elks Club function in early 1995. At this initial meeting, Mr. Warren mentioned to Respondent that he had a business proposition, but did not specify the nature of the business or any details related thereto. In or about June 1995, Mr. Warren met with Respondent and disclosed to him information about his proposed business venture. Mr. Warren told Respondent about Civil Aviation Academy, Inc. (CAA), a company that he had formed, and about his plans to establish a flight school. Moreover, Mr. Warren discussed the possibility of locating the school at the St. Lucie Airport. Later in the summer of 1995, Respondent met with Mr. Warren and Thomas B. Furse, a colleague of Mr. Warren, to discuss their plans to locate the proposed flight school at the St. Lucie County Airport. Respondent was particularly impressed with Mr. Furse's presentation of CAA's proposal for a flight school and believed that such a project would be good for the economy of St. Lucie County. In the summer of 1995, when the meetings between Respondent and Mr. Warren took place, CAA had developed a business plan. However, at that time, CAA was not a legal entity and appeared to have no substantial assets. CAA was incorporated by the Secretary of State on October 5, 1995. Prior to building and operating a flight school at the St. Lucie County Airport, CAA had to comply with the requirements of the St. Lucie Airport Authority. The conceptual lease was a preliminary requirement for obtaining a lease to operate at the St. Lucie County Airport. Recognizing this, in or about August 1995, CAA took steps to secure a conceptual lease by applying to the St. Lucie Airport Authority. On August 22, 1995, the Board of Commissioners granted approval for CAA to be given a conceptual lease. The conceptual lease, valid for a year, was set to expire on August 22, 1996. Respondent was not present at the August 22, 1995 meeting and did not participate in the vote. According to the conceptual lease, CAA was to "establish a full service fixed base operation on airport property." Moreover, under the terms and conditions of the conceptual lease, CAA was required to: (1) make a nonrefundable deposit of five percent of the monthly lease payment to the St. Lucie Airport Authority; (2) survey the property which was the subject of the conceptual lease; (3) develop a site plan for the property; and (4) submit the site plan to the St. Lucie County Planning and Zoning Board. Once these conditions were met, the St. Lucie Airport Authority was obligated to issue a lease to CAA. An integral part of CAA's plan to establish and operate a flight school at the St. Lucie County Airport involved purchasing an already existing flight school. At some point, CAA sought to purchase Pro-Flite, an accredited and established flight school, located in Vero Beach, Florida. Mr. Warren believed that by purchasing an accredited and established school, CAA could begin operating its flight school much sooner. At the time CAA was attempting to purchase Pro-Flite, CAA was aware that Pro-Flite had existing leases at the Vero Beach Airport, some of which extended to 2017. Moreover, CAA anticipated that the flight school initially would continue to operate from the Vero Beach location. However, if successful in its negotiations to purchase Pro-Flite, CAA fully expected that it would move Pro-Flite's operations to the St. Lucie County Airport as soon as was practical Respondent became involved with CAA on September 21, 1995, when he gave Mr. Warren $5,000 cash as seed money for CAA. Respondent believed that at least part of the funds would be used to cover the travel expenses of a person from whom CAA was seeking financial backing. Also, part of Respondent's $5,000 was used to pay all or part of the $3,267 deposit that CAA was required to pay the St. Lucie Airport Authority under the terms of the conceptual lease. In exchange for the $5,000 that Respondent gave to Mr. Warren, Mr. Warren gave Respondent a promissory note with a face amount of $5,000. The promissory note, given to Respondent by Mr. Warren on September 21 or 22, 1995, listed the borrower as CAA and was signed by Maurice Warren. Under the terms of the promissory note, Respondent would be repaid the $5,000, at an interest rate of nine percent, on September 22, 2000. Although the face amount of the promissory note was $5,000, the value of the note between September and December of 1995, is unknown. However, as of April 1996, it was determined that the promissory note had no value. In addition to the promissory note that Mr. Warren gave Respondent, Mr. Warren offered and wanted to give Respondent 500 shares of CAA stock. In response to the offer of stock in CAA, Respondent told Mr. Warren that he did not want shares of CAA stock and further indicated that this might create a conflict of interest. On September 25, 1995, Respondent obtained a power of attorney from Margaret Mansfield, the mother of his late first wife. The durable general power of attorney authorized Respondent to act for Ms. Mansfield and in her "name, place, and stead." On the date that the power of attorney was executed, Ms. Mansfield was eighty-three years old and resided in Respondent's home. Ms. Mansfield had lived with Respondent since 1977. At some point, Respondent asked Margaret Mansfield if she wanted shares of the CAA stock. According to Respondent, Ms. Mansfield told Respondent to "do what he wanted." Subsequently, Respondent asked Mr. Warren to issue the 500 shares of stock in his ex-mother-in-law's name. Mr. Warren complied with the Respondent's request. Pursuant to the aforementioned power of attorney, Respondent signed Ms. Mansfield's name on the November 16, 1995, CAA "Stockholders Agreement" and on the December 22, 1995, CAA "Stock Subscription Agreement." Ms. Mansfield was never personally involved in either of these transactions or any other business of CAA. On December 12, 1995, at the end of a meeting of the Board of Commissioners, Respondent announced that a gentleman by the name of Maurice Warren had been in attendance at the meeting, but had left after a couple of hours. Respondent mentioned that Mr. Warren was associated with the flight school being planned for the St. Lucie County Airport and then urged other commissioners to be supportive of the project. The particular issue being addressed at that time involved a request Mr. Warren recently had made to individual commissioners concerning the proposed flight school. Mr. Warren apparently had invited commissioners to come to the St. Lucie County Airport on December 18, 1995, for his public announcement regarding the flight school. At no time during the December 12, 1995, meeting of the Board of Commissioners did Respondent indicate that he was involved with Mr. Warren, CAA, and/or the proposed flight school. In or about March 1996, Respondent learned that CAA had been unable to obtain the financial support that it needed to establish its proposed flight school. At about this time, Mr. Warren contacted Respondent and asked him to assist CAA in purchasing Pro-Flite, a flight school located in Vero Beach, Florida. Respondent agreed to assist CAA in its effort to purchase Pro-Flite. In or about March 1996, when Respondent agreed to provide such assistance, he believed that CAA would be operating its proposed flight school in Vero Beach, Florida. Because Vero Beach is located in Indian River County, Respondent did not view his involvement with CAA as a "problem." On March 22, 1996, at a meeting of the CAA Board of Directors, Respondent was appointed to the CAA Board of Directors and also elected to serve as secretary of the CAA Board. Respondent was present at this meeting. When Respondent became a director and the secretary of CAA, CAA's conceptual lease remained in effect and the company was moving forward with its attempt to obtain a lease. Moreover, during the time Respondent was a director and the secretary of CAA, CAA was taking steps to purchase Pro-Flite and to eventually move the flight school to St. Lucie County Airport. After being elected to the CAA Board of Directors, Respondent followed through on his promise to assist CAA in its efforts to acquire Pro-Flite. In this regard, Respondent accompanied Mr. Warren on visits to the Pro-Flite facility in Vero Beach, Florida, and to financial institutions that might provide funds for the acquisition. On at least one occasion, Mr. Warren, Respondent and two other CAA investors went to Sun Bank to seek financing for the purchase of Pro-Flite. During this meeting, Respondent learned that only two people in attendance, Respondent and one of the other CAA investors, had sufficient assets to collateralize a loan in the amount necessary to purchase Pro-Flite. In or about April 1996, Respondent withdrew his support of CAA's proposed acquisition of Pro-Flite. The basis of Respondent's decision, as articulated in his April 19, 1996, letter to Mr. Warren, was because of Respondent's concerns about Mr. Warren's ability to provide leadership to CAA and his business practices. After withdrawing his support from CAA and its proposed acquisition of Pro-Flite, Respondent and another CAA investor formed another company. The newly formed company obtained a loan from a Vero Beach bank to keep Pro-Flite operating while the principals attempted to negotiate the purchase of the flight school. However, Respondent's new company never purchased Pro- Flite. After Mr. Warren received Respondent's April 19, 1996, letter and learned of Respondent's forming a new company and attempting to purchase Pro-Flite, the relationship between the two men became acrimonious. Although Respondent left CAA and withdrew his support of the Pro-Flite purchase, CAA's conceptual lease remained in effect. In or about May 1996, CAA apparently determined that it needed additional time in which to meet the conditions set out in the conceptual lease and, thus, requested that its conceptual lease be extended to December 1, 1996. At its May 14, 1996 meeting, the St. Lucie Airport Authority considered and approved CAA's request for an extension. Respondent abstained from voting on CAA's extension request, and stated that the reason for his abstaining was that he had previously been associated with CAA. On June 10, 1996, Respondent filed a Memorandum of Voting Conflict regarding the CAA extension request. While the conceptual lease was in effect, Curtis King, Director of the St. Lucie County Airport, went to Respondent and told him that CAA was "running behind" in complying with the conditions set forth in the conceptual lease and asked Respondent if CAA "could speed this up." After indicating that there was a possibility that CAA would be unable to meet the deadlines, Respondent asked Mr. King whether CAA might receive a refund of its "nonrefundable" deposit of $3,267 paid pursuant to the terms of the conceptual lease. Respondent then indicated to Mr. King that he had money invested in CAA.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that a Final Order and Public Report be entered finding that the Respondent, Kenneth Sattler, violated Section 112.313(7)(a), Florida Statutes; imposing a civil penalty of $4,100; and issuing a public censure and reprimand. DONE AND ENTERED this 27th day of July, 1998, in Tallahassee, Leon County, Florida. CAROLYN S. HOLIFIELD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 27th day of July, 1998. COPIES FURNISHED: Eric S. Scott Assistant Attorney General Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 Robert Watson, Esquire 3601 Southeast Ocean Boulevard Sewalls Point Stuart, Florida 34996 Bonnie Williams, Executive Director Commission on Ethics 2822 Remington Green Circle Suite 101 Post Office Drawer 15709 Tallahassee, Florida 32317-5709 Kerrie Stillman Commission on Ethics 2822 Remington Green Circle Suite 101 Post Office Drawer 15709 Tallahassee, Florida 32317-5709
Findings Of Fact The Guana River Marsh Aquatic Preserve (the Preserve) is state-owned property. Title is held by the Board of Trustees of the Internal Improvement Trust Fund. It includes some 13 miles of Atlantic Ocean beach within St. Johns County. Within the boundaries of the Preserve is included the Guana River State Park (the Park). It, too, is state-owned. It is managed and operated by the Division of Recreation and Parks (the DRP) of the Department of Environmental Protection (the DEP). Some of the Preserve's Atlantic Ocean beaches are included within the boundaries of the Park. The "wet sand," or "hard sand," area of the Atlantic Ocean beaches in the Preserve is the area of the beach between mean high water and mean low water. The mean high water line is essentially the landward extent of the ocean at mean high tide; the mean low water line is essentially the landward extent of the ocean at mean low tide. When the tide is low, this entire area of the beach is exposed. It remains wet and, generally, relatively hard-packed during the time it is exposed. However, there are beds of "red shell" in this part of the beach that are softer. In the summer, this part of the beach averages approximately 50 feet in width. In the winter, when the waves and tides generally are higher, it is narrower. In the Preserve, the mean high water line usually is indicated both by debris washed up during the highest tides and left on the beach and by a "shelf." This "shelf," made by the erosive action of the ocean waves during the highest tides and during storms, rises at an angle of approximately 45 degrees and can be from one to four or five feet high. Landward of this shelf is the "dry sand" or "soft sand" beach, also sometimes referred to as the "upper beach." It extends landward from the mean high water line to the vegetation line, where the dunes start. Usually, some pioneer vegetation is found in the uppermost reaches of this part of the beach, forming what is called the "foredune" area of the beach. The tides along the Atlantic Ocean beaches in the Preserve are semi- diurnal, i.e., there usually are two high tides and two low tides a day. These high and low tides last approximately one hour, and each day they occur approximately an hour later than they did the day before. There are five beach access points with motor vehicle parking areas located along U.S. Highway A1A within the Preserve. Three are within the Park. There is parking for approximately 120, 68, 79, 42 and 25 vehicles in these five parking areas. There also is a current proposal for the addition of three more access points in the Park, with parking for a total of 340 vehicles, five beach bathhouses, and five pedestrian overpasses. There are many other places where pedestrians can walk from A1A to the beaches, including 30 County-controlled access points. But there are no lawful parking areas adjacent to any of these other access points at this time, and parking on the right-of-way of A1A is prohibited. Currently, the only lawful motor vehicle access to the Atlantic Ocean beaches in the Preserve is to the south of the Preserve. Prior to the agency action challenged in these proceedings, motor vehicles lawfully could be driven onto the beach at this access point and be driven north into the Preserve, so long as they remained below the mean high water line. A former access near the north end of the Preserve has been cordoned off. To leave the Preserve, motor vehicles would have to be turned around and driven back south to the same motor vehicle access point. Due to the restricted access to the Atlantic Ocean beaches in the Preserve, not much use is made of those beaches. In comparison, beaches to the south are used much more heavily. Of the relatively few who use the motor vehicle access to the south and drive on the beach north through the Preserve, some ultimately use the beaches to picnic, swim, surf, beach-comb and similar activities; some probably just drive on the beach. There was no evidence quantifying the uses currently being made of the beaches in the Preserve. In the past, homemade motor vehicles called "skeeters" were built with a light-weight chassis and over-sized wheels. They were used for driving on both the hard and soft areas of the beaches, as well as illegally in the dunes. This practice has been curtailed due to better enforcement of the prohibitions against driving in the dunes, a generally heightened environmental consciousness among the public, and prohibitions against driving the "skeeters" on public highways. Generally, there has been less driving on the beaches of the Preserve in recent years, although the practice persists at a reduced level. At all times of the year, it sometimes is impossible to drive along the entire length of the beaches in the Preserve without driving on the soft sand area. This is especially true during the winter months when the waves and tides are higher and storms are more frequent. But even in the summer months, there are times when "red shell beds" in the "wet sand" part of the beach must be circumvented to avoid getting stuck. Especially when the tide is not at its lowest, the only way to avoid some of these "red shell" beds is to drive over the "shelf" and onto the "soft sand." Depending on the tides, this may also be necessary in order to turn a vehicle around on the beach. In many places, the "soft sand" area is not very wide, and it would be necessary under those circumstances to drive in the "foredune" area. The times of the daily high and low tides can be obtained relatively easily by members of the public. But there is no assurance that all persons who would drive on the beaches would know the times of the tides. Nor is there any assurance that persons who drive the "wet sand" or "hard sand" part of the beaches at low tide also would plan to both start their beach drive and their return trip during low enough tides to be able to avoid driving on the "soft sand" part of the beach. For these and other reasons, it would be difficult, if not practically impossible, to effectively monitor beach driving throughout the Preserve and consistently enforce a restriction to driving only on the "wet sand" or "hard sand" areas of the beach. In the summer months, sea turtles lay eggs in nests dug in the sand of the foredune and dune areas of the Atlantic Ocean beaches in the Preserve. After a period of incubation in the nests, the turtle hatchlings dig themselves out of the nests and crawl to the ocean to begin their lives in the sea. Driving motor vehicles over nests on those parts of the beaches in the summer months could crush eggs in their nests or pack the sand hard enough to reduce the number of hatchlings that emerge from the nest alive. In addition, driving motor vehicles in these area, even in other parts of the year, can leave ruts in the beach that disorient hatchlings that leave the nests in summer so that fewer reach the ocean alive. Sea turtles crawl out of the ocean to their nest sites at night. Artificial lighting can disturb their nesting and egg-laying activities. However, it seems that moving lights, or lights that turn on and off (in the manner of car lights), create more of a disturbance than stationary lights, such as those more often found at residences along the beaches in the Preserve. The Management Plan does not prohibit artificial lighting along the beaches in the Preserve, but it recommends that further attention be given to this problem and that ways to address the problem be explored and pursued in cooperation with the County. Various shore birds, including the threatened least tern, make their nests in the foredune area of the beaches in the Preserve. Driving on the foredunes destroys and disturbs nesting habitat and disturbs the nesting activities of these birds. In addition, both these ground nesting shore birds and a variety of migratory birds make use of different areas of the beaches to rest and feed. Driving on the beaches disturbs these activities, as well. The only known nesting colony of least terns in St. Johns County is located in the Park, where beach driving is prohibited. The Division of Parks and Recreation (DPR) of the Department of Environmental Protection (DEP) has utilized F.A.C. Rule 16D-2.002(4)-(5) to prohibit driving or parking motor vehicles on the beaches of the Park by not designating the beaches as driving or parking areas within the Park. At least parts of the beaches in the Park have been posted as areas where driving motor vehicles is prohibited. In order to develop a management plan for the Preserve, the manager of the Preserve personally researched the geology, climate and natural resources of the Preserve, as well as the records of the County, and also collected data pertaining to the Preserve from several state agencies. Over the course of a year, the manager's input was taken into consideration, and a management plan, called the Guana River Marsh Aquatic Preserve Management Plan (the Management Plan), was developed for the Preserve. It was adopted by the Board of Trustees of the Internal Improvement Trust Fund on December 17, 1991. The Management Plan recites in pertinent part: At the present time, motorized vehicular traffic is permitted, by county ordinance, below the natural vegetation line on the beaches adjacent to the Atlantic Ocean in St. Johns County. Vehicles are not allowed on the 4.2 miles of beach within Guana River State Park. The coarse coquina sand and steep profiles of the beaches in the preserve make driving on the wet sand area difficult. Drivers are forced to cross the dry sand area, damaging the foredunes, pioneer dune vegetation and sea turtle nesting habitat. Due to the negative environmental impacts resulting from this activity, motorized vehicular traffic shall not be considered an authorized activity on sovereign submerged lands within [Prime Resource Protection Area] PRPA beach management areas of the preserve, and therefore will be prohibited. Under the Management Plan, all of the Atlantic Ocean beaches in the Preserve are Prime Resource Protection Area, and the driving of motorized vehicles on them is prohibited. On June 11, 1993, the DEP's DRP sent St. Johns County a letter advising that, based on the Management Plan, DEP no longer would permit the driving of motor vehicles on the Atlantic Ocean beaches in the Preserve. The proposed amendment to F.A.C. Rule 18-20.004(7), incorporating the Management Plan, was noticed in the Florida Administrative Weekly on August 6, 1993. On or about August 18, 1993, the DEP agreed not to enforce the beach driving prohibition in the Preserve until these cases are resolved.
The Issue Whether disciplinary action should be taken against Respondent's license to practice contracting, license number CG C033931, based on the violations of Section 489.129(1), Florida Statutes, as charged in the Administrative Complaint filed against Respondent in this proceeding.
Findings Of Fact Based on the evidence and testimony of the witnesses presented and the entire record in this proceeding, the following facts are found: Reeves is a Florida State certified general contractor, having been issued license number CG C033931 by the Florida Construction Industry Licensing Board (CILB). Licensure status is "Active Issued." Reeves is registered or certified with the CILB as an individual. The Scope of the Project Sometime prior to October 1998, Beach retired, came to Florida, and needed a place to live, so she decided to ultimately reside in a trailer. Beach has health problems, which require special living accommodations and changes to the trailer she purchased, including ramps and a bathroom to facilitate the needs of a handicapped person. Beach was unfamiliar with trailer life and wanted to ensure that her trailer was "fastened securely to the ground." Based on suggestions made by three (3) different contractors, Beach decided to design a "roof over coming out eight feet on either side of the existing trailer and tying it to the ground securely so that the trailer was then encased in the roofing over." Beach developed the plans for the project, which were approved by the local planning and zoning department. After discussing the matter with Reeves, Beach also decided to have porches on both sides of the trailer, "taking advantage of the overhang that the roofing-over afforded." Beach and Reeves discussed other details, such as the need for a walk- in closet off of the bedroom, a whirlpool tub, replacement of the upper kitchen cupboards, improvement of the duct work in the kitchen and living areas, screening of the front porch and windows on the back porch (a sun room), enlargement of the bathroom and made "handicap-accessible," and replacement of the doors and ramps. The Written Proposal and "Extras" On or about November 2, 1998, Reeves entered into a written contractual agreement, i.e., the "Proposal" dated October 26, 1998, with Beach, to construct addition(s) and other items to her trailer-home located at 2170 Maryland Street, Lanark Village, Florida. The written Proposal states in material part: We will supply all labor and materials to complete the following at your residence: Build a new freestanding roof over existing trailer and extend roofline to cover front and back porches. Build a new front porch with approximately an 8' x 24' screen section and ramp on opposite end. Rebuild back porch to 8' x 24' and install windows. Enlarge bathroom and make a walk-in closet. Inspect and improve existing duct work for better air flow. Enclose gable ends of new roof and tie in to existing trailer. Install new upper cabinets in kitchen (allowance $500.00). WE WILL PERFORM THIS WORK FOR THE SUM OF $20,900.00) (TWENTY THOUSAND NINE HUNDRED DOLLARS). Beach agreed to make payments "as work progresses." The original contract price for the additions to the trailer was $20,900.00. The Proposal contained no language of access to the Construction Industry Licensing Fund. At the time of executing the Proposal, Reeves told Beach that a subcontractor was not necessary for the electrical and plumbing work. Reeves and Beach also discussed several "extras" which were added to the Proposal. Beach and Reeves made a verbal agreement for additions or extras to the original Proposal that included siding ($2,700.00), a fireplace, and an extension of one of the ramps, in exchange for not replacing the cabinets. These changes increased the total contract price to $24,200.00, which was paid by Beach. See Finding of Fact 33. Also in November 1998, and before she signed the Proposal, Beach prepared a list, in her handwriting, of plumbing and kitchen items she saw at Home Depot, which she needed for the job and she gave the list to Reeves. According to Beach, Reeves "followed through and got everything [on the list] except for the shower door." Reeves applied with the Franklin County Building and Zoning Department for permits to perform the work on the Beach trailer and the permits were issued. The Franklin County Building Code requires inspections, but does not state when they are to be performed. It is not unusual to perform more than one inspection at a time, especially where, like Franklin County, there is only one inspector for the entire County. Reeves did not ask for an inspection of the work done on the trailer. Work begins on the trailer and problems arise After the Proposal was signed and the verbal additional items agreed to, on November 4, 1998, Reeves commenced work on the project. At this time, Beach was living in a motor home. The roof line built by Reeves covered the back and front porches. Reeves built a new front porch with an approximately an eight foot by twenty-four foot screen porch and a ramp on the opposite end as required by the Proposal. He also added three other ramps, which are not mentioned in the Proposal. By letter dated April 15, 1999, Beach responded to an invoice submitted to her by Reeves. The record does not contain a copy of the invoice, which seems to have been dated March 31, 1999. However, Beach's letter indicates that Reeves submitted a bill for an additional $4,240.00 (which did not include $2,700.00 for siding), above the original Proposal price of $20,900.00. Beach says that only $975.00 are valid charges for "verbally agreed upon additions to the contract." (Beach says that she paid Reeves $600.00 for the extras which was included in her check of December 16, 1998, for $5,000.00.) Reeves' invoice was the first bill for any extras discussed by Beach and Reeves. According to Beach, they discussed the necessity of having additional ramps, and Reeves did not say there would be an additional charge, and it was discussed "as if it was part of the ongoing project." According to Beach, work progressed through November and slowed during Thanksgiving week. Into December, Beach says that Reeves came to the work site "less and less" and the workmen did not have either the necessary materials or equipment and also came "less and less." She tried to contact Reeves. According to Pendleton, who worked for Reeves on the Beach project, for the first three weeks to a month after commencing the project, Reeves was on-site every day. According to Pendleton, the job took longer than expected because of the many changes requested by Beach. For example, after the trailer was "roofed," Beach "wanted her outside ceiling closed into her trailer." They added "a furnace on the back porch," "put marble sills in her window of her trailer," and "furred out her whole wall to put paneling on the trailer." The original plans called for one ramp, but three were added. As work progressed, Beach expressed objections to Reeves regarding the workmanship on the screened-in porch and floorboards and the need to eliminate bugs from entry. They also discussed the build-up of heat in the roof because the roof was "trapping hot air in." Reeves treated the roof area, an extra, which Beach acknowledges. Beach reported other problems to Reeves, including but not limited to, a leak in the shower and an unsealed drain in the shower, which caused a flood in the bathroom, and "a two-foot hole cut in the floor around the plumbing that was left open to the outside." This was on the punch list she gave to Reeves. She pled with Reeves to finish the job, but he said that "[t]his w[ould] be the last day [he would] be coming" and that "he had other things he had to do." According to Beach, "things deteriorated," and she saw very little of Reeves into January and did not see much of him at all by the end of January. Beach was frightened and did not know what to do but "struggled along with [Reeves'] workmen," i.e., Richard Norman (Norman) and Pendleton, the main workmen, who did the plumbing for the shower. When Reeves was no longer on-site daily or all day, Norman and Pendleton were on-site. Another worker, Bob Lanceford quit because of the changes requested by Beach and her "flip- flopping." At some point in time after the trailer roof-over was completed and other work performed, including work on the back porch, Reeves and Beach discussed the punch lists written by both and that he had given the list to his workmen. Beach recalls the conversation and that Reeves said it was going to be his last day there. Beach recalls Norman staying to finish the skirting and Jody Fechera putting the siding on the inside of the sun porch, but that "the guys really didn't work on [the punch list] that much." Beach felt that she had to supervise Pendleton regarding hooking up the shower during this two-week period. Pendleton says that he and the others were working off of the list Reeves gave him during the last couple of weeks he was on the Beach job. Pendleton could not get the work done on the list because Beach "stood over [them] telling [them] to do other things and [they] never could get to that list." The list included adding hurricane clips and exterior work. None of these tasks were completed. Pendleton recalls Reeves telling him that he and "Rich" would have to leave the Beach site in a couple of days and to make Beach happy because they could not return until Edwards returned. Pendleton understood that they were to return to the Beach site and finish the job after Edwards finished the plumbing and electrical work. There is a dispute whether, during a two-week period after the punch lists were written, Beach was supervising Reeves' workmen including Pendleton. In or around the end of February 1999, Reeves advised Beach of problems he was having with the bathtub and needed Edwards "to do it." Reeves also needed Edwards, licensed to do plumbing and electrical work, to move the electrical panel box, which was accomplished. According to Beach, this was the first time Reeves advised Beach that he could not do plumbing or electrical work. Beach says that Reeves told her on the day they signed the Proposal that he would not have to subcontract for any of the plumbing and electrical work. Reeves admitted to doing plumbing and electrical work on this and other projects, although both of these types of work require specific licenses. Reeves recommended to Beach that Edwards perform these tasks. According to Pendleton, Edwards was "to come over and do all of the plumbing and wiring." It took Edwards quite a while to get to the Beach project. Edwards "pulled the permit for the electrical unit." He "made the old panel hot." He installed the breaker box and connected it to Beach's trailer. Edwards fixed the shower head and the drain plug, which was a major leak. He also fixed the plumbing. Edwards fixed some other problems he noticed, but he did not know whether these problems pre-dated Reeves' tenure on the project. In October 1998 and prior to Reeves' commencing work on the Proposal, Beach had a man drilling a well on her property. In February or March of 1999, Beach "got the idea of moving the tank back . . .." Edwards came to the Beach trailer on March 10, 1999, and installed the electrical panel and moved the tank at the same time. It took Edwards a few weeks to accomplish these tasks from the time Reeves and Beach discussed these items. Beach paid Edwards to move the electrical panel to the end of the house and move the water tank and installing it under the carport and some electrical and plumbing repairs. Beach paid Edwards $1,580.00, of which $700.00 of the bill, according to Beach, was for correcting plumbing and electrical errors made by Reeves or his workmen. In early March 1999, Ron Jackson (Jackson) advised Beach that Reeves had "run up a $9,435[.00] bill" at Ace Hardware in her name which remained unpaid and that a lien would be filed on her house. At this time, Beach filed a complaint with the local building department and hired an attorney to assist her with the lien. Apparently the lien was not timely filed and not successfully pursued. Beach also filed a complaint with the Department. Beach was unaware of any amount still owed on her job to others, which Reeves performed and did not pay. By letter dated March 30, 1999, Reeves apologized to Beach for not paying Jackson timely and told Beach he intended to pay Jackson, whether Beach paid him or not. On March 17, and April 21, 1999, a hearing was held before the Franklin County Construction Industry Licensing Board. This Board issued a verbal warning to Reeves "for operating outside his scope of work in the field of electrical and plumbing." Reeves advised the Board that he would not "do any electrical or plumbing until he is licensed to do the work or he will hire license[d] people." On April 7, 1999, Beach, having been living in a motor home during this time, decided to live in the trailer and discovered the flooding problems in the bathroom; everything in the kitchen leaked; and the commode was unsteady and leaked. Reeves returned to "stabilize it," but apparently Beach had to pay Edwards to repair the leaks in the bathroom. At some time after March, Reeves ceased performing on the project altogether. The project was not complete. Beach pays Reeves By check, Beach paid Reeves $4,000.00 on November 11, 1998, to get started; $10,000.00 on November 12, 1998; $2,500.00 on November 20, 1998; $5,000.00 (which included an estimated cost of $600.00 for extras according to Beach) on December 16, 1998; and $2,700.00 (for siding which was an agreed-upon extra) on January 28, 1999, for a total of $24,200.00. Beach had to estimate how much the extra work performed would cost based on the verbal price given by Reeves. The January check was the price for constructing a new one-sided exterior portion, along with the insulation, of the trailer. Beach paid out-of-pocket expenses on repairs and estimates for work which arguably should have been done pursuant to the Proposal and agreed-upon extras. These total approximately $2,560.29. See (Pet. Exh. 5- $990.29; Pet. Exh. 7- $120.00; Pet. Exh. 8- $750.00; and, Pet. Exh. 13- $700.00). Beach also paid for other estimates and repairs as noted herein which were not proven to be directly connected to work performed or not performed by Reeves. See, e.g., Findings of Fact 37-38. Problems identified with the condition of the trailer During the final hearing, Beach identified several photographs, she took over a period of time-April through June, 1999-of her trailer from the inside and outside and identified various problems with the workmanship performed or not performed by Reeves. According to Beach, the photographs show the trailer "after Mr. Reeves finished the project, or Mr. Reeves worked on the house." These problems included an outside electrical switch installed with wires exposed; exposed receptacle outlet; unfinished bathroom trim, which was minor according to Beach; fan cover left hanging on the kitchen ceiling; exposed hole around light fixture in the closet, which Norman could not repair; a fan hanging down in the bathroom, with hole cut too large; water running out from the shower because of an improper drain installation; unsealed shower drain; shower door leak-not caulked; no cutoff valve on the toilet; unsteady commode; no insulation and unprotected plumbing coming up through a hole where the bath tub is located; marble skirt to whirlpool tub destroyed by Edwards' men who had to cut through the marble in order to access the tub; panel to tub which is open and allows air and bugs to enter; tub motor not plugged into a ground fault receptacle; drywall in the bedroom closet, which was new construction, which had to be torn out to repair; wet carpeting which had to be removed; leak in the shower caused by brass plug in plastic line; support posts under the roof not nailed and without hurricane clips (photographs taken in August 1999 after Summerhill and some of the neighbors told her there were no nails on that side of the house holding the roof down); and exposed rafters which allowed squirrels to run down the chimney. Beach asked Greg Mathis, a licensed (City of Tallahassee) plumber, to determine the extent of repairs which were required on her trailer. On or about November 18, 1999, Mathis examined the plumbing in the Beach trailer and gave Beach an estimate for the repairs and charged $135.00 for the estimate, which included his travel time to the Beach trailer in Carrabelle. Mathis charged Beach $670.00 for the repairs including $445.00 for labor and $225.00 for materials. The repairs included applying putty and installing a Delta repair kit on a new faucet in the kitchen; repair of a "fairly new drain" which was leaking in the lavatory; resetting of the toilet which was wobbling and application of caulk; replacement of the whirlpool stopper; repairing the "whole tub waste"; and connection of a drain to a bar sink, which had hot and cold water to it. Mathis also gave Beach an estimate of $185.29 to repair the shower drain and valve. Mathis was unaware who did the plumbing he saw. Brian Will has a State certified building license. Beach asked him to inspect her trailer and give her an estimate of the costs for repair. Will performed a site visit to Beach's trailer on November 22, 1999, and charged Beach $175.00, after a $175.00 Christmas discount, for the inspection and written report dated December 16, 1999. After inspecting the trailer, Will identified problems with the trailer, including a recommendation that Beach secure an engineering report on the foundation, roof framing and uplift connections; installation of a "properly ducted and vented (range termination kit) range hood" in the kitchen; insulate ceiling; improvement to the fireplace clearance; increase vent attic space; and other items. The fireplace issue and "wind loading connection" could be life safety issues. The estimated cost was $9,375.00, although Will stated he is "seldom the low bid guy." Will did not review the Proposal nor the plans and specifications. Will did not know what Reeves and his workmen did or did not do on the Beach trailer. He made no assumptions as to who did any of the work on the trailer. Beach told him that someone added some additional hurricane clips and installed a gable vent or fan. She did not comment to him whether Reeves finished the job. Will identified portions of the trailer that did not appear to him to be finished and that did not meet the building code. Robert J. Pietras, while not a licensed contractor, is a self-employed laborer and has experience in construction, "everything from footers on up to trim carpentry." In or around September 1999, Beach asked him to inspect the trailer and determine what was necessary to make the trailer stronger for hurricane resistance. He found eleven (11) hurricane clips missing and a support post holding up a carrying beam that was not nailed. Some hurricane clips had been placed and set right on the rafters, but the job was incomplete. There were no uplift straps on any of the exterior beams. However, he felt he needed to remove the paneling on the back porch to add the clips from the inside. Pietras could not say whether there were hurricane clips on the outside soffitt. He made the changes. Pietras was also told, by John Summerhill, there was insufficient ventilation in the attic or roof-over, so he added a commercial louver and also framed up to add a fan to draw excess heat. Pietras agreed that if the new enclosed roof-over, constructed by Reeves, had not been enclosed, there would not have been any ventilation problem. He was paid $30.00 for adding the hurricane clips and the tie-down straps. He was not paid approximately $90.00 for work done. Any additional work he recommended was put on hold. Summerhill has air conditioning and electrical licenses and has been in business in Franklin County since 1991. Beach asked him to inspect her trailer and identify electrical problems in or around September 1999. Summerhill did not see the Beach/Reeves Proposal and was unaware of the scope of Reeves' work, including what Reeves did or did not do regarding any electrical problems perceived by Summerhill. However, Beach told him that Reeves did all of the electrical and plumbing. He noticed the absence of hurricane clips on the outside and that a four-by-four post on the south corner did not have nails in the top. He charged Beach $150.00 to install an exhaust in the attic for ventilation which Beach paid. Summerhill also noticed other problems with, for example, waterproof covers needed for the receptacle and switch on the porch, need for ground fault receptacles, and other items. He quoted $600.00 for labor and materials to make these repairs and replace needed items. Summary of work left undone and repairs needed The Department proved by clear and convincing evidence that Beach and Reeves agreed to the terms of the Proposal and several extras; that Beach paid Reeves $24,200.00, which exceeded the amount originally quoted in the Proposal, i.e., $20,900.00, and included payment for extras, including $2,700.00 for siding and $600.00/$5,000.00 for other extras; that the workmanship performed by Reeves, and others on his behalf, was incomplete and in some cases poorly done which required repairs by others; that Beach paid for repairs; that Reeves left the project with work outstanding; that Reeves, and or his workmen, performed electrical and plumbing services while not being licensed; and that Reeves did not refer to the Construction Industry Recovery Fund in the written Proposal. The Department also proved by clear and convincing evidence that the Beach trailer is in need of substantial repairs and further inspections. See, e.g., Findings of Fact 37-38. However, and in particular, Will, who performed a major inspection of the trailer, did not review the Proposal or the plans and specifications and did not know what Reeves and his workmen did nor did not do on the Beach trailer. Therefore, the Department did not prove by clear and convincing evidence that Reeves was responsible for the repairs suggested by Will. Mitigation Reeves has built several State Housing Initiative Partnership (SHIP) homes for the SHIP program in Franklin County to the satisfaction of the County's SHIP administrator, Ms. Shirley Walker. Ms. Walker was not aware of any complaints with Reeves' work over the past four (4) years. Probable Cause is found by the CILB On September 27, 2000, a two-member panel of the CILB found probable cause against Reeves. There was no finding of "no probable cause" by the CILB regarding the Reeves and Beach matter which is the subject of this proceeding. Reeves' prior disciplinary history Reeves has a prior disciplinary history with the CILB and the Department regarding his license. On October 8, 1992, in Case No. 91-11103, the CILB imposed an administrative fine of $1,700.00. On October 24, 1996, the CILB, in Case No. 95-07490, imposed an administrative fine of $2,000.00, restitution of $28,501.39 based on an unsatisfied civil judgment, $119.53 in costs, and two (2) years of probation. Both cases were resolved without a final evidentiary hearing.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that a Final Order be rendered as follows: Suspending Reeves' licenses to practice contracting for six (6) months, requiring Reeves to pay an administrative fine in the amount of $5,000.00, and requiring Reeves to complete continuing education, with the subjects and hours to be determined by the CILB. Assessing costs of investigation and prosecution, excluding costs associated with an attorney’s time, in the amount of $1,302.91. Requiring Reeves to pay restitution to Beach in the amount of $2,560.29, representing the amounts paid by Beach for estimates and for work performed or ill-performed by Reeves which, on this record, are attributable to Reeves. DONE AND ENTERED this 13th day of June, 2001, in Tallahassee, Leon County, Florida. CHARLES A. STAMPELOS 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 13th day of June, 2001. COPIES FURNISHED: Patrick Creehan, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32308 Danny L. Reeves 267 Carroll Street Eastpoint, Florida 32328 Kathleen O'Dowd, Executive Director Construction Industry Licensing Board Department of Business and Professional Regulation 7960 Arlington Expressway, Suite 300 Jacksonville, Florida 32211-7467 Hardy L. Roberts, III, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202
Recommendation Having found the Respondent technically guilty of a violation of Section 489.129(1)(d), and thereby guilty of violating Section 489.129(1)(m), Florida Statutes, and based upon the matters in mitigation, the Hearing Officer recommends that the Respondent receive a private letter of reprimand for his technical violation. DONE and ORDERED this 30th day of March, 1982, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of March, 1982. COPIES FURNISHED: Michael E. Egan, Esquire 217 South Adams Street Post Office Box 1386 Tallahassee, Florida 32302 Mr. David H. Otto 1527 C Road Loxahatchee, Florida 33470 J. K. Linnan, Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32201 Samuel Shorstein, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
The Issue Whether Respondents discriminated against Petitioner, Nisrine Smith, on the basis of her disability, in violation of the Florida Fair Housing Act (FHA), chapter 760, part II, Florida Statutes; and, if so, the appropriate penalty.
Findings Of Fact Respondent Ocean Towers is a residential condominium facility in Volusia County, Florida, with numerous condominium units. Respondent Sentry managed Ocean Towers during the time period relevant to the instant matter, but it no longer serves as the manager of Ocean Towers. Ms. Smith leased a furnished condominium unit from its owner and resided at Ocean Towers, beginning in January 2019. Ms. Smith paid monthly rent to the condominium unit’s owner, which also included all utility charges. Ms. Smith is a person with a nonvisible disability, which she described as post-traumatic stress disorder, depression, and anxiety, who requires the use of an emotional support animal (ESA).3 On September 8, 2019, Ms. Smith brought an approximately 14-week- old female Rottweiler puppy named Vida to live with her at Ocean Towers. At that time, the “Daytona Beach Ocean Towers Rules & Regulations” provided, in part, as follows: Respondents’ Proposed Recommended Order concedes certain dispositive facts, and also includes contradictory factual findings—both within the Proposed Recommended Order itself, as well as when compared to evidence presented—that the undersigned considered and discusses in this Recommended Order. 3 Both Petitioner’s Proposed Recommended Order, as well as Respondents’ Proposed Recommended Order (which, as discussed in footnote 2 above, is largely duplicative of Petitioner’s Proposed Recommended Order), assert—in identical fashion—that Ms. Smith has a disability and requires the use of an ESA. While the evidence at the final hearing was not entirely clear on this point (a point which resulted in FCHR finding no reasonable cause), Respondents, in their Proposed Recommended Order, concede this point. The undersigned has thus based this Finding of Fact on this stipulation. Confusingly, other “original” or “nonduplicated” portions of Respondents’ Proposed Recommended Order state that Ms. Smith never provided documentation to it that she had a disability, which required an ESA, but Respondents have clearly conceded this particular factual finding in their Proposed Recommended Order. PETS: Guests may not have pets in the building. All authorized small pets except certified service dogs must be carried while in public areas of the building and garage. Unless inside units, pets must be on a leash and owners are responsible for cleaning up after their pet while on [Daytona] Towers property. Ms. Smith had not informed Ocean Towers about Vida’s arrival prior to bringing her to Ocean Towers. On September 12, 2019, Maria Montgomery, who was the administrative assistant for Ocean Towers, emailed Ms. Smith concerning Vida. The email stated that “new pets are to be firstly reported to the office and rules apply as I am sure you are aware.” It further states that “Service animal or companion pets all need to have registered papers copied to the office[,]” and further states “[w]e do not need to know ‘why’ if it is a companion animal-we just need to have the authorization on file for Security, etc. in the event someone asks why an animal not in the ‘normal’ pet description of 20 pounds or less is living in the building ” Ms. Montgomery’s September 12, 2019, email to Ms. Smith was likely precipitated by Ocean Towers resident Ms. Honeycutt, who was also the condominium association president in 2019. Ms. Honeycutt—who has been paralyzed since birth and uses a wheelchair—testified that she encountered Ms. Smith and Vida on two occasions. On the first occasion, in an elevator, Ms. Honeycutt testified that Vida jumped on her lap. On the second occasion, in the condominium lobby, Ms. Honeycutt testified that Vida again jumped on her lap, but that she was able to move away from Vida. Mr. Zehrung, who was the manager at Ocean Towers in 2019 (and employed by Sentry), testified that he received numerous complaints from other tenants about an unleashed Rottweiler, and was aware of Ms. Honeycutt’s encounters with the dog as well. After determining that Ms. Smith was the owner of the dog, he informed her of the Ocean Towers “Rules and Regulations” concerning pets; he stated that Ms. Smith did not initially tell him that Vida was an ESA, but did so about one week after this conversation. In response to Ms. Montgomery’s email request, Ms. Smith provided Ocean Towers with a letter, dated September 17, 2019, from the “Medical & Psychiatric Clinic of Florida, Inc.,” from “Yessica Sanchez, Office Coordinator, ARNP.” That letter stated: Ms. Nisrine Smith is currently being treated at the Medical & Psychiatric Institute of Florida, Inc. Ms. Smith presently has her pet Rottweiler, also known as Vida, with her in her apartment. It would be beneficial for her to have her pet if the apartment complex allows her to keep it. The September 17, 2019, letter, which is not from a treating physician, makes no reference to whether Ms. Smith has a disability, and further makes no reference to her dog as an ESA, but rather refers to the dog as a “pet.” Ms. Smith testified that, after submitting the September 17, 2019, letter to Ocean Towers, she felt everything would be “okay,” and that she would be able to keep Vida as an ESA. However, she testified that she was “rudely treated” by other residents, including comments about the dog’s size, and the Ocean Towers rules that require a resident to carry their pet while in the lobby and indoor common areas. Ms. Smith felt that she was being discriminated against by Ocean Towers because of Vida’s dog breed, Rottweiler. Both Ms. Honeycutt and Mr. Zehrung testified that the September 17, 2019, letter that Ms. Smith submitted to Ocean Towers was not a sufficient request for an ESA. They both testified that had Ms. Smith submitted an appropriate “ESA letter” with “correct documentation,” Ocean Towers would have allowed Ms. Smith to keep Vida at Ocean Towers. Mr. Zehrung testified that there were three or four other tenants of Ocean Towers who had ESA’s, with “documentation.” On September 19, 2019, Ocean Towers, through its attorney, sent, via certified and regular mail, a letter to Ms. Smith and the owners of the condominium unit, that stated, in pertinent part: It is our understanding that your current tenant has a rottweiler within the unit. Said possession of the dog in the unit in common elements of the Association is a violation of the governing documents of the Association. * * * The Association received a letter from your tenant indicating that the rottweiler is an emotional support animal; however, regardless if it is an emotional support animal, the Association will not permit this animal to reside at the property because it is a dangerous breed on the Association’s insurance and only small animals are permitted. The dog is not a service animal, and therefore must be removed from the property by September 30, 2019. Furthermore, prior to the removal of the pet from the property, the owner must carry the pet when the pet is not within their unit, the dog must be on a leash, the dog may not be in the common elements of the Association and must only use the facilities that are designated for relieving pet waste. At no point is this dog allowed to be not on a leash or not hand-carried. In the event that the dog is not removed by September 30, 2019, the Association will file before the Department of Business and Professional Regulation a petition for injunctive relief seeking the permanent removal of the dog. In the event that this is necessary, the Association will be entitled to recover their reasonable attorney’s fees and cost. The September 19, 2019, letter from Ocean Towers to Ms. Smith directly contradicts the testimony of Ms. Honeycutt and Mr. Zehrung in two important ways: (a) it admits that Ms. Smith’s September 17, 2019, letter was a request for an ESA; and (b) it denies Ms. Smith’s request (“regardless if is an emotional support animal”), based on the dog’s breed, labeling it a “dangerous breed on the Association’s insurance[.]”4 The undersigned further notes that the September 19, 2019, letter from Ocean Towers makes no reference to any incident of Vida jumping on Ms. Honeycutt, or any other incident of alleged aggressive behavior of Vida. Although Ms. Honeycutt’s testimony that Vida jumped on her lap on two occasions is credited, Respondents failed to present any other credible evidence that Vida was an “aggressive animal,” or whether Vida posed any direct threat to the safety of the residents of Ocean Towers, as Respondents contend in their Proposed Recommended Order. Additionally, Respondents did not present any evidence that demonstrated that a rottweiler was forbidden under any insurance policy that covered the Respondents. Ms. Smith testified that she felt that Ocean Towers and its residents discriminated against and harassed her, and as a result, she decided to move out of her condominium unit the weekend of September 21 to 23, 2019. She testified that she received the September 19, 2019, letter during the weekend that she moved out. 4 The September 19, 2019, letter also contradicts numerous proposed findings of fact in Respondents’ Proposed Recommended Order which contest whether Ocean Towers ever received “proper documentation” of Ms. Smith’s request for an ESA. Respondents’ Proposed Recommended Order states that the September 19, 2019, letter, and a September 25, 2019, letter “were silent as to the need of an ESA and neither letter addressed that Smith suffered from a disability that would entitle Smith to have an ESA animal[,]” and, ultimately, that “Towers did not discriminate against Smith because Smith never provided documentation to the Association that she had a disability that required her to have an Emotional Support Animal.” Resp. Proposed Recommended Order at p. 5, ? H. The undersigned notes that the September 19, 2019, letter, which contradicts these proposed findings, was written by Ms. Kirian, who is counsel of record in this matter, and who authored the Proposed Recommended Order. Additionally, as stated in note 3 above, Respondents concede, in their Proposed Recommended Order (which is identical to Petitioner’s Proposed Recommended Order on this point), that Ms. Smith “is a person with a non-visible disability who requires the use of an Emotional Support Animal (ESA).” Resp. Proposed Recommended Order, p. 3, ? A. After moving out, on September 25, 2019, Ms. Smith provided another letter from the “Medical & Psychiatric Institute of Florida, Inc.,” from “Asad H. Kahn, M.D.,” to Ocean Towers, which stated: Attention: Current Housing Manager Ms. Nasrine [SIC] Smith is currently receiving treatment at our office for psychiatric condition. She has a pet dog. It would not be emotionally beneficial for her to lose her pets at this point. We do not have any opinion on risk of safety of the residential area due to the animal. The safety of the area needs to be assessed by the security of the housing project. Ms. Smith testified that after moving out, she was able to purchase a home. She contends that she incurred moving expenses when she vacated Ocean Towers, and that her current monthly mortgage payments, which do not include utilities, are more expensive than her previous rental payments at Ocean Towers. However, Ms. Smith did not present any persuasive evidence that quantified any damages she contends that she incurred as a result of Respondents’ discriminatory housing practices. The undersigned finds that Ms. Smith established, by a preponderance of the evidence, that Respondents discriminated against her based on her disability, by failing to provide a reasonable accommodation—an ESA—in violation of the FHA.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the undersigned hereby RECOMMENDS that the Florida Commission on Human Relations issue a final order granting Nisrine Smith’s Petition for Relief, in part, as follows: (a) finding that Respondents engaged in a discriminatory housing practice based on Ms. Smith’s disability, by failing to provide a reasonable accommodation to Ms. Smith in the form of an ESA; (b) ordering Respondents to prohibit the practice of denying reasonable accommodations to individuals and tenants who request a reasonable accommodation on the basis of their disability; and (c) ordering Respondents to pay for the reasonable attorney’s fees and costs incurred by Ms. Smith’s counsel in this proceeding. DONE AND ENTERED this 30th day of March, 2021, in Tallahassee, Leon County, Florida. COPIES FURNISHED: Tammy S. Barton, Agency Clerk S ROBERT J. TELFER III Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of March, 2021. Nisrine Smith Florida Commission on Human Relations Room 110 4075 Esplanade Way Tallahassee, Florida 32399-7020 Joseph John St. Angelo, Esquire Community Legal Services of Mid-Florida 122 East Colonial Drive, Suite 200 Orlando, Florida 32801 Laura Qualatone Daytona Beach Ocean Towers, Inc 4188 South Atlantic Avenue New Smyrna Beach, Florida 32169 5143 Taylor Avenue Port Orange, Florida 32127 Marlene Kirtland Kirian, Esquire South Milhausen, P.A. Gateway Center 1000 Legion Place, Suite 1200 Orlando, Florida 32801 Cheyanne Costilla, General Counsel Florida Commission on Human Relations Room 110 4075 Esplanade Way Tallahassee, Florida 32399-7020
Findings Of Fact Petitioner, Roland Peterson, is the owner of Lots 4, 5 and 6, Block 7, Vilano Beach, in an unincorporated area of St. Johns County, Florida. Vilano Beach lies just eastward of the City of St. Augustine, Florida, and north of St. Augustine Inlet. The three lots are adjacent to each other. By applications dated June 7, 1985 petitioner sought the issuance of three coastal construction control line permits by respondent, Department of Natural Resources, Division of Beaches and Shores (Division), to authorize construction seaward of the coastal construction control line or setback line on Lots 4, 5 and 6. More specifically, petitioner sought approval to construct a beach-side snack bar with associated beach walkover, driveway and attached decks on Lot 4, and single family residences with associated dune walkover; driveway and attached decks on Lots 5 and 6. These applications were assigned Application Numbers SJ 220, SJ 221 and SJ 222 by the Division. They were deemed to be complete on August 6, 1985. After evaluating the three applications, the Division formulated recommendations to deny the requested permits. These recommendations were adopted by the Governor and Cabinet sitting as head of the agency at its November 5, 1985 meeting. Notice of such intended action was previously forwarded to petitioner on October 23, 1985. Said notice prompted the instant proceeding. As grounds for denying the permits the Division concluded that the three projects were located seaward of the seasonal high- water line and were therefore prohibited by a law, the projects lay in an area "highly vulnerable" to a major storm; and the cumulative impact of locating these and other structures further seaward could be expected to adversely impact the beach and dune system of the Vilano Beach area. The parties have stipulated that the Division has properly calculated the seasonal high water line in the questioned area, and that petitioner's three projects lie seaward of that line. The parties have also stipulated that the three projects lie seaward of the frontal dune within the meaning of Subsection 161.053t6)(a)1., Florida Statutes (1985).
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that application numbers SJ 220, SJ 221 and SJ 222 filed by Roland Peterson to construct various structures on Lots 4, 5 and 6, Block 7, Vilano Beach in St. Johns County, Florida, be DENIED. DONE and ORDERED this 14th day of May, 1986, in Tallahassee, Florida. DONALD R. ALEXANDER, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of May, 1986.
The Issue The issues to be determined is whether the City of Destin (“City”) has demonstrated its entitlement to place dredged material from the maintenance dredging of the East Pass (“East Pass” or “inlet”) entrance channel conducted pursuant to the Consolidated Joint Coastal Permit and Sovereign Submerged Lands Authorization, Permit Number: 0288799-003-JC (“Permit”), in the swash zone east of East Pass in accordance with the Notice to Proceed (“NTP”); and whether the Inlet Management Plan referenced in the NTP is an unadopted rule as described in section 120.57(1)(e), Florida Statutes.
Findings Of Fact Based upon the demeanor and credibility of the witnesses, the stipulations of the parties, and the evidentiary record of this proceeding, the following Findings of Fact are made: The Parties Petitioners, David H. Sherry and Rebecca R. Sherry, own Unit 511 at the Surf Dweller Condominium, 554 Coral Court, Fort Walton Beach, Florida. The Surf Dweller Condominium, which is on Santa Rosa Island in the unincorporated community of Okaloosa Island,1/ fronts the Gulf of Mexico, and straddles DEP Reference Monument R-7, which is between three and four miles west of DEP Virtual Monument V-611, and is between five and six miles west of the west side of East Pass. The Sherrys use the beach at their condominium on a daily basis for fishing, crabbing, swimming, walking, running, and general recreation. They also walk or run from Monument R-7 along the beaches to East Pass, and occasionally drive to and use the beaches on the east side of East Pass. Petitioner, John S. Donovan, owns Units 131 and 132 at the El Matador Condominium, 909 Santa Rosa Boulevard, Fort Walton Beach, Florida. The El Matador Condominium is on Okaloosa Island, fronts the Gulf of Mexico, and is approximately five miles west of Monument V-611, and is more than six miles west of the west side of East Pass. Mr. Donovan generally walks the beaches west of his condominium, but does occasionally walk along the beach to Monument V-607, which is the location of a seawall constructed by the Air Force on sovereign submerged lands to protect an Air Force tracking facility. Intervenor, Thomas Wilson, resides at 856 Edgewood Drive, Charleston, West Virginia, and owns a secondary residence at 1530 Miracle Strip Parkway, No. 101-B, Fort Walton Beach, Florida, in the vicinity of Monument R-14. Mr. Wilson uses and enjoys the gulf-front beaches between his property on Okaloosa Island and East Pass. Petitioners’ stated injuries are related to the allegation that the lateral movement of sand from the East Pass areas of influence is from east to west. Placing dredged material in the eastern disposal site would allegedly deprive the beaches in front of their property -- beaches that are miles from the nearest area of influence or spoil disposal site -- of their natural sand supply by cutting off what they allege to be the natural sand flow, causing the beaches in front of their properties to eventually erode. Petitioners alleged no immediate environmental injuries associated with the NTP. Petitioners’ stated objective in this case is to have any sand dredged from East Past to be placed on the western disposal areas at all times. The City is the applicant for the Permit and the NTP, and abuts the east side of East Pass. DEP is an agency of the State of Florida pursuant to section 20.255, Florida Statutes. DEP is the permitting authority in this proceeding and issued the NTP at issue in this proceeding to the City. The NTP was issued on February 2, 2018, without notice of rights language regarding the right to request a hearing or time limits for doing so. Petitioners received a copy of the NTP on October 1, 2018, and filed a challenge more than 14 days later, on November 30, 2018. East Pass Prior to 1928, the connection from Choctawhatchee Bay to the Gulf of Mexico flowed through what is now Old Pass Lagoon. After a storm in 1928, a high-tide breach of the shoreline near the current location of East Pass was formed. In 1929, a record rain event caused waters to rise in Choctawhatchee Bay. Residents of the area dug a relief channel at roughly the present location of East Pass. The waters releasing through the more hydraulically efficient flow path from Choctawhatchee Bay established a channel, which quickly enlarged to become the prominent inlet to the Gulf of Mexico. The permanent channel, now known as East Pass, is the only navigable passage from Choctawhatchee Bay and the Intercoastal Waterway to the Gulf of Mexico between Panama City, Florida, and Pensacola, Florida. East Pass separates the gulf-fronting beaches of the City to its east from the beaches owned by the United States as part of Eglin Air Force Base to the west. The entrance to East Pass is protected by two boulder-mount jetties: a 3,860 foot- long jetty on the west side of the inlet and a 1,210 foot-long jetty on the east side of the inlet. East Pass is an ebb tide dominated inlet, with a sizable amount of sediment moving in and out. When outgoing tidal flow moves though the constriction formed by the jetties, flow velocities are accelerated. When the water, and any entrained sediment, passes the jetties, flow tends to spread out to the east, west, and south, and naturally loses velocity. When the outgoing tidal waters reach a critical velocity where they can no longer carry the sand, the sand drops out of suspension, which forms the ebb shoal. Essentially, the ebb shoal is a large, semi-circular sandbar extending from the mouth of East Pass that was created by the ebb tide carrying sediments south. East Pass is a highly dynamic inlet system. There are processes spurred by the configuration and location of East Pass, tides, waves, and storms that have resulted in currents running to the east and west that change on a frequent basis. The Physical Monitoring Plan (“PMP”), which is part of the Permit, and thus, not subject to challenge in this case, established, for the period of 1996 through 2007, “a trend of west to east longshore transport, resulting in net gain immediately west of [East Pass] and a significant loss of sand along Holiday Isle east of [East Pass].” The PMP further established that a “drift nodal point” existed at East Pass. Longshore transport at uniform coastal locations is generally in one direction. However, when there are wave events coming from varying angles, and where beach contours are not parallel and uniform, or even linear, it is common for transport reversals to occur. The point at which those reversals occur is referred to as a nodal point. That point can be where east and west transport converges, or where it diverges. The shoreline in the vicinity of East Pass has exhibited “quite a few” nodal points over the past decade, resulting in frequent drift reversals and sand transport to the east and the west. The evidence as to the existence and effect of the East Pass drift nodal point, and its affect on the lateral transport of sand in the area, including the East Pass areas of influence, was substantiated by testimony and other evidence introduced at the final hearing. The testimony and evidence that there is no consistent direction of lateral sand transport in the vicinity of East Pass, and no predominant lateral current transporting sand in a westerly direction, is accepted. Evidence to the contrary was not persuasive. East Pass includes a federal navigation channel. The federal navigation channel requires routine maintenance to prevent it from shoaling. On an average, East Pass is dredged in two-year intervals. The last time that East Pass was dredged was in December of 2013. It has now shoaled with sand and become very hazardous for marine traffic. In December of 2018, the City declared a state of emergency relating to the navigational hazards caused by the accumulation of sand in the navigation channel. The Permit On February 26, 2015, DEP issued the Permit, which authorized the City to perform “periodic maintenance dredging of the federally authorized East Pass and Destin Harbor and navigation channels.” The Permit will expire on February 26, 2030. Notice of the issuance of this Permit was published in the Destin Log, a newspaper of general circulation, on December 24, 2014. No challenge to the issuance of the Permit was filed. As it pertains to the issues in this proceeding, the Permit provides that “Dredged material from . . . maintenance dredging activities will be placed in the swash zones of the beaches east and west of East Pass, as specified in the East Pass Inlet Management Plan.” The specific beach spoil placement sites are, as relevant to this proceeding, located “west of East Pass . . . between [DEP] reference monuments V-611 and V-622; and on 2 beach sites situated east of East Pass . . . from R-17 to R-20.5 and from R-23.5 to R-25.5.” Those areas correspond to what have been identified as the “areas of influence,” which are the beach areas east and west of East Pass that are affected by tidal forces generated by the inlet. The specified beach spoil placement sites, being conditions of the unchallenged Permit, are not subject to challenge in this case. The Permit establishes the criteria by which specific work is to be authorized. Specific Condition 5 provides, in pertinent part, that: 5. No work shall be conducted under this permit until the Permittee has received a written notice to proceed from the Department for each event. At least 30 days prior to the requested date of issuance of the notice to proceed, the Permittee shall submit a written request for a Notice to Proceed along with the following items for review and approval by the Department: * * * Prior to the second dredging event authorized under this permit, and each subsequent event, the Physical Monitoring Data, as specified in Specific Condition 9, shall be submitted to select the appropriate placement locations. Specific Condition 9 provides that: Following the initial placement of material on Norriego Point, fill site selection shall be supported by the latest physical monitoring data over a minimum of five years in accordance with the adopted East Pass Inlet Management Implementation Plan (July 24, 2013). All physical monitoring shall be conducted in accordance to the Approved physical monitoring plan dated August, 2014. A notice to proceed for specific projects shall be withheld pending concurrence by the Department that the data support the proposed placement location. The purpose of Specific Condition 9 is to identify, using supporting monitoring data from the eastern and western areas of influence, the “adjacent eroding beach” most in need of sand from the inlet. The requirement that physical monitoring data be used to determine which of the beach spoil placement sites identified in the Permit’s Project Description will receive the spoil from any particular periodic dredging event was to implement section 161.142, Florida Statutes. That section mandates that “maintenance dredgings of beach-quality sand are placed on the adjacent eroding beaches,” and establishes the overriding policy of the state regarding disposition of sand from navigational channel maintenance dredging. East Pass Inlet Management Implementation Plan The East Pass Inlet Management Implementation Plan (“East Pass IMP”) was adopted by Final Order of DEP on July 30, 2013.2/ The East Pass IMP was not adopted through the rulemaking procedures proscribed by chapter 120, Florida Statutes, or DEP rules. Despite a comprehensive Notice of Rights advising persons whose substantial interests could be affected of the means by which the East Pass IMP could be challenged, it was not. There are 44 maintained inlets in Florida. About half have individual inlet management plans. The East Pass IMP is not applicable to any inlet other than East Pass. The East Pass IMP does not require that any quantity of dredged material from the dredging of East Pass be placed at any particular location other than as established in the Permit. Rather, the disposal site is to be determined on a case-by-case basis based on the best monitoring data available for the beaches in the area of influence of East Pass. The critical element of the IMP, and that in keeping with the statutory requirement that sand be placed on “adjacent eroding beaches” is the “strategy” that “the recent erosion of adjacent beaches observed over a minimum of five years shall define the placement need in terms of location and volume.” The East Pass IMP, being applicable only to East Pass, is not of “general applicability.” Furthermore, the East Pass IMP does not implement, interpret, or prescribe law or policy. The Notice to Proceed On January 30, 2018, the City filed its Request for Notice to Proceed (“Request”). The Request addressed the criteria in Specific Conditions 5 and 9 of the Permit. Upon review, DEP determined the conditions of the Permit were satisfied and issued the NTP on February 2, 2018. The analysis of data submitted as part of the Request was designed to show areas of erosion and accretion within the eastern and western areas of influence in order to identify “critically eroded beaches.” The shoreline of Santa Rosa Island to the west of East Pass has historically been stable. To be sure, as is the case with any shoreline, there will be some areas of erosion and some areas of accretion. After Hurricanes Ivan and Opal, areas of Santa Rosa Island experienced erosion. DEP declared the shoreline to be critically eroded after the 2004-2005 hurricane seasons, which prompted Okaloosa County to commission a study to monitor the health of the Monuments R-1 through R-16 beach segment, a segment that includes Petitioners’ residences. Despite the fact that no post-storm beach restoration occurred in the area, the beach recovered naturally and gained sand following the post-storm recovery. In addition, Santa Rosa Island is known for “beach cusps,” which are crenulate3/ shapes along the shoreline. Depending on the season and storm conditions, those beach cusps can have a localized erosive effect on the beach, but those tend to be seasonal. They do not negate what the evidence shows to be the overall stable to accretional conditions of the beaches west of East Pass from Monument V-622 to Petitioners’ residences. Mr. Trammell offered testimony, including a discussion of photographic evidence, demonstrating the beaches west of East Pass have large dunes; multiple dune lines; tall, and thick vegetated dunes indicating established dune growth; pioneering vegetation indicating active, healthy dune growth and accretion; partially buried signs indicating dune advance; and broad and expansive beaches. Those features are indicative of a stable and accretional shoreline. Mr. Trammell’s testimony as to the western spoil disposal site was convincing and is accepted. At present, the Santa Rosa Island shoreline is not deemed by DEP to be “critically eroded.” The photographic evidence supports the data collected over time for the beaches west of East Pass, and the testimony offered at the final hearing, which collectively establishes, by a preponderance of the evidence, that the beaches to the west of East Pass are stable and accretional, are not subject to erosion caused by East Pass, and are not “adjacent eroding beaches” as that term is used in section 161.142. The shoreline east of East Pass, including the eastern area of influence and the proposed dredge material disposal sites at Monuments R-17 to R-20.5 and R-23.5 to R-25, except for the area immediately abutting the eastern jetty, is highly erosional. Mr. Trammell offered testimony, including a discussion of photographic evidence, demonstrating the beaches east of East Pass exhibit the following signs of significant and ongoing erosion: extensive dune erosion; exposed sea oat roots; reduced beach elevation; reduced beach width; crenulate bays; newly built dune walkovers that replaced old walkovers claimed by erosion; dune walkovers in close proximity to the shoreline indicating that the shoreline had receded to the walkover; and beach scarping at the shoreline indicating active erosion. Mr. Trammell’s testimony as to the eastern spoil disposal sites was convincing and is accepted. The eastern areas of influence are currently designated to be “critically eroded” by DEP, a designation maintained for more than 10 years. The photographic evidence supports the data collected over time for the beaches east of East Pass, and the testimony offered at the final hearing, which collectively establishes, by a preponderance of the evidence, that the beaches to the east of East Pass are critically eroded, a condition that is influenced by East Pass and or its navigational channel, and are “adjacent eroding beaches” as that term is used in section 161.142. Data in Support of the NTP The data submitted by the City to DEP in support of the Request included monitoring data for the eastern beach placement areas from the West Destin Four-Year Post-construction Monitoring Report and earlier annual post-construction reports covering the period from October 2012 to July 2017, and additional data from the Holiday Isle Emergency Beach Fill Two-Year Post-construction Report. DEP was also provided with historical monitoring data for the area west of East Pass, including the Western Beach Monitoring Report, which covered 2006 to 2017, and the Potential Borrow Area Impact Report, which included data from 1996 through 2012. DEP has also received recent profile data from April 2019. These reports, and the data contained within them, cumulatively provide more than 20 years of survey date, and demonstrate convincingly that the shoreline to the west of East Pass has been stable or accreting, and the areas to the east are eroded. The data submitted in support of the Request was sufficient to meet Specific Condition 9 that fill site selection be supported by the latest physical monitoring data over a minimum of five years in accordance with the East Pass IMP. Petitioners argue that the City failed to comply with the PMP, which requires, among other things, that the analysis of the dredged material disposal area include “preconstruction survey data and the most recent survey conducted at least five years prior.” The PMP establishes that “[p]reconstruction surveys shall be conducted no more than 90 days before construction commences. A prior beach monitoring survey of the beach and offshore may be submitted for the pre-construction survey if consistent with the other requirements” of the PMP. The City submitted a prior beach monitoring survey of the beach and offshore that is consistent with the PMP. Petitioners argue that the City violated a temporal limitation which provides that the City “may submit a prior beach restoration monitoring report for the west or east beach areas (Walton-Destin or Western Destin Beach Restoration Project) if the monitoring data is collected within 1 year of the proposed maintenance dredging event and if consistent with the other requirements of this condition.” Petitioners acknowledge in their PRO that the beach restoration monitoring report was timely when the Request for NTP was submitted. The information contained therein was sufficient to support the notice of proposed action on the NTP. The otherwise compliant data is no longer within one year of the proposed dredge. In that regard, the litigation in this case, initiated by Petitioners, has been ongoing for almost one year. Work authorized by the NTP cannot go forward when subject to challenge. If the PMP, which is not a rule, is unreasonably read so as not to account for delay caused by litigation, such delay becomes a tool for use by, and a reward for, a person dissatisfied with DEP’s outcome. In this case, the NTP was lawfully issued pursuant to compliant data, surveys, and analysis. As with any permit or license subject to a third- party challenge, the terms of the NTP are tolled pending Petitioners’ litigation, and do not become a ground for denial of the otherwise compliant Request. See § 120.60(1), Fla. Stat. (“An application for a license must be approved or denied within 90 days after receipt of a completed application unless a shorter period of time for agency action is provided by law. The 90-day time period is tolled by the initiation of a proceeding under ss. 120.569 and 120.57. Any application for a license which is not approved or denied . . . within 45 days after a recommended order is submitted to the agency and the parties, . . . is considered approved unless the recommended order recommends that the agency deny the license.”).4/ Furthermore, DEP has now received recent profile data from April 2019. The evidence establishes that the data provided to DEP as part of the Request includes the latest physical monitoring data over a period of greater than five years, and that the data collection met the standards for conducting physical monitoring. Fill Site Selection The NTP authorized “placement of dredged material in the swash zone east of East Pass.” In accordance with the Permit, that authorized area extends eastward from R-17 to R-20.5 and from R-23.5 to R-25.5, in Holiday Isle. The evidence is persuasive that placing dredged material on the eastern side of East Pass would not result in erosion on the western side of East Pass. Dredged material placed in the western beach placement area, and in the “shadow” of the western jetty, will tend to remain in that area. It would take a very long time, if at all, for that material to migrate further to the west. However, dredged material placed to the east of East Pass would, if the lateral shoreline drift is east to west as asserted by Petitioners (though not supported by a preponderance of the evidence as set forth in paragraphs 11 through 13), be introduced into the ebb shoal and likely move faster to the west as opposed to it being placed directly at the base of the west jetty. As such, placement of the dredged material on the eastern beach placement areas would, more likely than not, accomplish the beach effect objectives set forth in the Petition. The Eglin AFB Beach Restoration Project Petitioners relied heavily on photographs taken in 2010 and 2019 from roughly the same location in the vicinity of Monuments V-607 to V-608 to demonstrate that the beaches of Santa Rosa Island are eroding. The area depicted is outside of the area of influence of East Pass, and outside of the western beach placement area under the Permit. Those photographs depict a wide expanse of beach in 2010, with a seawall well upland from the shore in 2010. Then, in 2019, a photograph depicting the same stretch was offered that showed the same seawall, now at or below the water line. The photographs were, ostensibly, designed to depict naturally occurring erosion in the area. Mr. Clark testified that the seawall and boulder mound structure depicted in both photographs protect an Air Force mission-critical tracking facility. The seawall was originally constructed in 1979 after Hurricane Frederick, was constructed at that time to extend into the water, and was maintained in that configuration through the 1990s. One could not walk around the original seawall. Rather, for most of its history, passage around the seaward side of the seawall could only be accomplished by swimming or wading. The original seawall was damaged by Hurricane Opal, and destroyed by Hurricanes Ivan and Dennis in 2004 and 2005. The Air Force, needing to reconstruct the wall, applied for and received a joint coastal construction permit, allowing the structure to be constructed on sovereign submerged land below the line of mean high water. The seawall was rebuilt and, as stated by Mr. Clark, “it was in the water.” In 2010, the Air Force performed the small Eglin Air Force Base Beach Restoration Project, which placed artificial fill in front of the seawall, thereby creating a temporary beach. That beach fill project was “a one-shot deal,” did not involve any subsequent maintenance, and is now essentially gone, as was expected. Mr. Clark was neither surprised nor concerned with the fact that the area returned to what he described as its natural state, with the seawall below mean high water. The 2019 photograph was presented as evidence of erosion caused by East Pass. That was not the case. Rather, the 2010 photograph was evidence of an artificial and singular event, and the 2019 photograph depicts the natural state of the shoreline. Rather than depicting erosion, the 2019 photograph depicts a return to the stable shoreline that exists all along Santa Rosa Island to the west of East Pass. The photographs of the site of the 2010 Eglin Air Force Base Beach Restoration Project do not support a finding that the beaches of Santa Rosa Island are anything but stable, if not accretional, nor do they support a finding that the beaches of Santa Rosa Island are eroding. Ultimate Factual Conclusion Specific Condition 9 of the Permit requires the location of the spoil disposal be supported by the latest physical monitoring data over a minimum of five years in accordance with the East Pass IMP and the PMP. The greater weight of the competent substantial evidence establishes that the City submitted physical monitoring data consistent with the requirements of Specific Condition 9. The greater weight of the competent substantial evidence establishes that the eastern areas of influence of East Pass, including the beach disposal areas at R-17 to R-20.5 and R-23.5 to R-25.5, are critically eroded, a condition influenced if not caused by the East Pass, and constitute East Pass’s “adjacent eroding beaches.” Evidence to the contrary was not persuasive. The greater weight of the competent substantial evidence establishes that the western areas of influence of East Pass, including the beach disposal areas at Monuments V-611 to V-622, are stable, if not accreting, and are not East Pass’s “adjacent eroding beaches.” Evidence to the contrary was not persuasive. The greater weight of the competent substantial evidence establishes that the City met the standards for the NTP as proposed for issuance by DEP on February 2, 2018. Evidence to the contrary was not persuasive. Thus, the NTP should be issued.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection enter a final order: Approving the February 2, 2018, Notice to Proceed for the maintenance dredging of East Pass as authorized pursuant to Consolidated Environmental Resource Permit and Sovereign Submerged Lands Authorization No. 50-0126380-005-EI and State- owned Lease No. 0288799-003-JC, subject to the general and specific conditions set forth therein; and Denying the City of Destin’s Motion for Attorney’s Fees, Expenses and Costs pursuant to section 120.595(1). DONE AND ENTERED this 14th day of October, 2019, in Tallahassee, Leon County, Florida. S E. GARY EARLY 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 14th day of October, 2019.
