The Issue The issue in this case is whether Petitioner is entitled to certification as a Disadvantaged Business Enterprise pursuant to Rule 14-78, Florida Administrative Code.
Findings Of Fact Based upon my observation of the witnesses, their demeanor while testifying, the documentary evidence received and the entire record compiled herein, I make the following findings of fact: Petitioner, McNew Marine Construction Company, Inc. (McNew Marine), a Florida corporation engaged in the business of building bridges and grade separation structures, applied to the Respondent, Department of Transportation (DOT) for certification as a Disadvantaged Business Enterprise (DBE). McNew Marine is a small business concern with gross annual receipts of under two million dollars for the fiscal year ending August 31, 1988. There is no dispute that McNew Marine qualifies as a "small business concern" which is a necessary element of establishing entitlement to DBE status. Roberta McNew is a socially and economically disadvantaged individual (a woman) as that term is defined in Rule 14-78, Florida Administrative Code. Roberta McNew owns 95 percent of the stock of McNew Marine and is the Chief Executive Officer of the company. As set forth below, she handles the administrative and financial matters for the company. Her current salary with McNew Marine is $30,000 per year. Michael Miles owns five percent of McNew Marine. Roberta McNew negotiated with Michael Miles regarding the 5 percent interest in the company that was sold to him. Michael Miles holds the title of Vice President and is a field superintendent for the company. He has a degree in building construction and twelve years of marine construction experience. His salary with McNew Marine is $62,500 per year. Roberta McNew's husband, James (Rick) McNew is President and Chief Operating Officer of McNew Marine. Rick McNew does not own any of the stock of McNew Marine. Rick McNew provides field supervision on many of the company's projects and oversees many of the technical, construction aspects of the firm's business. Rick McNew has a degree in mechanical engineering and considerable experience in the civil engineering field. His salary with McNew Marine is $62,500 per year. Michael Miles and Rick McNew previously worked together in another marine construction company. Under the bylaws of McNew Marine, all corporate powers, business and financial affairs are exercised, managed and directed under the authority of the Board of Directors of the corporation. The Board of Directors for McNew Marine is composed of Roberta McNew and Rick McNew. Roberta McNew, as the majority shareholder, can control the number of directors and the composition of the Board of Directors by following the procedural steps outlined in the bylaws of the corporation. In reality, there are no regular Board of Directors' meetings and the company operates informally with Roberta McNew exercising ultimate control over the company. Roberta McNew graduated from Queens College in New York City with a major in education and a minor in psychology. Subsequent to obtaining her degree, Roberta McNew worked for approximately ten years for a large development company handling a range of business and financial matters including cost accounting for depreciable assets, payroll and general corporate accounting. While working for the development company, Roberta McNew took additional college level classes in computers and accounting. She is presently five courses short of obtaining a degree in computer science. Roberta McNew's work experience with the development company included extensive work with computers including the computerization of payroll systems, receivables, and other accounting functions. Roberta McNew first conceived of the idea of starting McNew Marine Construction during conversations with Michael Miles. Roberta McNew has long had a desire to own and operate her own company. While her husband and Michael Miles have considerable construction experience, they had previously always worked for large construction companies and had not operated a business. Neither Rick McNew nor Michael Miles had the business background to operate their own company. Roberta McNew provides the financial and managerial experience necessary for the company to operate. McNew Marine Construction was incorporated in the late summer or early fall of 1985. However, the business did not begin functioning until 1986. From the inception of the company, Robert McNew has owned at least ninety five percent of the stock. All of Rick McNew and Roberta McNew's funds are jointly held. McNew Marine was started with an initial capital investment of $2,000 from funds held jointly by Roberta McNew and Rick McNew. During the course of operations of the company over the last couple of years, Roberta McNew invested an additional $32,000 into the company through withheld salaries and other capital contributions. This additional $32,000 has been repaid by the company. Roberta McNew spends at least 40 hours a week at the office of McNew Marine. Her responsibilities include financial and administrative matters. Roberta McNew does not have any direct experience in construction or, more specifically, the building of bridges. Roberta McNew very seldom visits the job sites. All of the field operations are supervised by Rick McNew and/or Michael Miles. Roberta McNew controls the day-to-day office procedures including financial and bookkeeping matters and insurance issues. Roberta McNew selected the computer software program utilized by the company and has implemented the computerization of the payroll, accounts payable and general ledger of McNew Marine. Neither Rick McNew nor Michael Miles is familiar with or has the ability to run the company computers. Michael Miles and Rick McNew prepare job cost estimates based upon plans and bid proposals received by the company. After reviewing these estimates, Roberta McNew determines the profit margins to be placed on the bids and determines which jobs will actually be bid. Roberta McNew does not attend bid lettings. Michael Miles and Rick McNew handle all bid lettings for the company. Roberta McNew monitors and reconciles the check book of McNew Marine, but Michael Miles and Rick McNew have unlimited check writing authority. Roberta McNew determines the cost efficiency of buying or leasing equipment and decides whether the company can absorb the cost of purchasing new equipment. In determining the type and need for equipment, Roberta McNew depends upon Michael Miles and Rick McNew. However, Roberta McNew makes the ultimate decision to purchase or lease equipment. Roberta McNew handles negotiations regarding lease and purchase agreements for heavy equipment, office trailers and office supplies. Roberta McNew sets the salaries for the company. While Michael Miles and Rick McNew usually handle the actual hiring of laborers, carpenters, and other workers. Roberta McNew has ultimate control over hiring and firing in that she decides when the corporation can afford to hire more employees and when the corporation should hire such employees in order to generate more income. Roberta McNew coordinates all outside accounting services for the company. She also prepares all requisitions for payment and reviews and coordinates all payments to creditors. She has also coordinated efforts to obtain performance and non-payment bonds for the company. Roberta McNew is involved in the scheduling of work on the projects to the extent necessary to meet anticipated cash flow requirements. Roberta McNew coordinates the documentation of and requests for change orders. Roberta McNew prepares and furnishes all information necessary to comply with D.O.T. regulations and E.E.O. regulations. Over the objection of Michael Miles and Rick McNew, Roberta McNew established a corporate policy to cease engaging in marina work and confined the operations of the business to bridge and grade separation structures. The decision to quit handling "water work" was made by Roberta McNew following a review of the insurance rates associated with handling that type of work. While Michael Miles and Rick McNew coordinate most field decisions and activities, the general contractors who have subcontracted work with McNew Marine deal primarily with Roberta McNew regarding financial, administrative and other business matters. Edward Toppino, Jr., is the vice president and chief estimator for Toppino's, Inc., a construction company which has used McNew Marine as a subcontractor on some D.O.T. projects. He has primarily dealt with Roberta McNew regarding all business dealings his firm has had with McNew Marine and states that she has been more involved with the business than the owners of more than 90 percent of the DBE's with whom his company has dealt with over the last few years. The ownership and control exercised by Roberta McNew over the operations of McNew Marine are real, substantial, and continuing and not merely pro forma.
Recommendation In consideration of the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered certifying McNew Marine Construction, Inc. as a Disadvantaged Business Enterprise. DONE and ORDERED this 23rd day of August, 1989, in Tallahassee, Florida. J. STEPHEN MENTON Hearing Officer Division of Administrative Hearings The Oakland Building 2900 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of August, 1989.
The Issue The issue is whether Petitioner's application for certification as a minority business enterprise should be approved.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Background In this licensing dispute, Respondent, South Florida Water Management District (District), has proposed to deny an application of Petitioner, Everglades Surveying Joint Venture (Everglades), for certification as a minority business enterprise (MBE) under the District's Supplier Diversity & Outreach Program (Program). If the application is approved, Petitioner would be listed on the District's contract solicitation and vendor lists as a minority contractor. In its proposed agency action, as later amended, the District contends that the application should be denied because: the minority owner fails to meet the criteria in Rule 40E-7.653(5) and (6), Florida Administrative Code; the documents provided by Petitioner "do not support that the day- to-day operations are controlled by the minority applicant, nor is there evidence that the minority applicant possesses the authority to direct the management and policy of the business"; the minority business does not meet the size standard of a small business as required by Section 288.703, Florida Statutes; and the minority owner does not possess the necessary license to qualify the firm in its area of specialty as required by Rule 40E-7.653(5), Florida Administrative Code. In simpler terms, the District has contended that Petitioner's application is deficient in the areas of "management and control, the size standards[,] and the licensure." Petitioner disputes these allegations and contends that it meets all criteria for certification. As to the remaining requirements for certification in Rule 40E-7.653(4), (7), (8), and (9), Florida Administrative Code, the parties have stipulated that all of these criteria have been satisfied. The Minority Owner's Corporate Structure Ray J. Berryman, an Asian-Pacific American, is the minority owner seeking certification. Mr. Berryman is a professional engineer who has been in the engineering and surveying business for almost forty years. After working with other engineering firms for over a decade, in 1975 he started his own firm in California. At that time, the firm was known as Berryman & Stevenson, but its name was later changed to BSI Consultants, and then to Berryman & Henigar, Inc. The firm provides civil engineering and surveying services to public agencies on the West Coast. In 1994, Mr. Berryman acquired a Florida corporation known as Henigar & Ray, Inc., which was engaged in the business of providing surveying and civil engineering services. Although the company initially operated under the name of Henigar & Ray, Inc., doing business as Berryman & Henigar, in 1998 Mr. Berryman changed its name to Berryman & Henigar, Inc. (BHI), the same name as the California corporation. Mr. Berryman serves as director, chief executive officer, and operating manager of BHI. The firm's headquarters are in Orlando, and it has branch offices in Jacksonville, Tallahassee, Tampa, Ocala, and West Palm Beach. In March 1994, Mr. Berryman formed a Nevada holding company known as Berryman & Henigar Enterprises (BHE), in which he owns 77.5 percent of the stock and serves as chairman of the board and chief executive officer. BHE owns all of the stock in Berryman & Henigar, Inc. (the California corporation); Berryman & Henigar, Inc. (the Florida corporation); Employment Systems, Inc., a "staff easing company" incorporated in California in 1992; BHE Technical Staffing, a Nevada corporation; and Therapy Network, a Nevada corporation. However, BHE Technical Staffing and Therapy Network are no longer in business. Consolidated financial statements are issued for all of the companies. BHE was formed for the purpose of serving as a vehicle "to allow a relationship to exist" between the Florida and California corporations. After BHE was formed, Mr. Berryman changed the name of both the Florida and California firms (Henigar & Ray, Inc., and BSI Consultants, respectively) to Berryman & Henigar, Inc., one a Florida corporation, the other a California corporation, so that he could have "the strength, if you will, of both companies with a similar name." Except for a few administrative personnel, BHE has no other employees and it performs no professional services. Besides being the owner of BHE and the wholly-owned subsidiaries named above, Mr. Berryman also is a majority owner of at least one affiliated company known as GovPartner, a California firm providing "e-Government solutions for cities, courts, and governmental agencies." Whether Mr. Berryman controls other affiliated companies was not disclosed at hearing. Other MBE Certifications In June 1996, or before the District had a rule on MBE certifications, Henigar & Ray, Inc., doing business as Berryman & Henigar, applied with the District for certification as a MBE to provide civil engineering, surveying, environmental sciences, and construction management services. The application was approved, and a one-year certification was issued. The District then changed from a one-year to a three-year certification, and after an application for recertification was filed in 1997, Henigar & Ray, Inc., was reissued a certification that expired in 2000. By then, the District had adopted a rule which required, among other things, that the minority owner have a professional license in all fields in which the certification was granted. Through what the District calls an "error" or oversight, it failed to note that Mr. Berryman did not hold a professional surveyor's license, and it erroneously continued to certify BHI in the area of surveying. On August 26, 1999, the firm was given "graduated" status, which meant that it was no longer eligible for continued participation in the District's Program as a prime contractor due to the business having a net worth of more than $3 million and/or an average net income of $2 million after federal taxes for the preceding two years. However, the firm could still be counted (as a subcontractor) towards a prime contractor's goal attainment. In November 2000, the firm, then known as BHI, again applied for recertification as a registered vendor. The application was approved on March 1, 2001, for another three-year period, this time in the areas of surveying, civil engineering, and construction management. Whether BHI is still in the graduated status is not known. Besides holding MBE status with the District, BHI has been certified as a MBE with several local governments in Florida, including the City of Tampa, City of Orlando, Tampa Port Authority, and Orange County. Copies of BHI's applications filed with those governmental entities have been made a part of this record. The Joint Venture As an Asian-Pacific American, Mr. Berryman qualifies for minority status. Although not disclosed by the parties, but presumably because BHI has graduated status, and cannot serve as a prime contractor, or because its certification as a MBE in surveying may be taken away, Mr. Berryman desires to become a District MBE through another legal entity and provide surveying services as a prime contractor on the Comprehensive Everglades Restoration Project (CERP) now being undertaken by the District. Before filing his application, Mr. Berryman considered three options: filing as a corporation, a partnership, or a joint venture. He chose a joint venture since it gives the entity "the ability to have control outside of a corporate board." According to Mr. Berryman, even though the joint venture is theoretically controlled by a control board, under the make-up of the venture established here, that board can only represent "what Berryman & Henigar, Inc. commands and requires it to represent." Mr. Berryman also desired to have other members in the joint venture who would "provide a unique geographical location for projects being performed by [CERP]," and thus enhance its "probability of obtaining work through the District as a minority." To this end, Everglades was formed as a joint venture pursuant to a Joint Venture Agreement (Agreement) executed on October 12, 2001. So that Everglades would have a "formidable surveying company that would be able to win work," its members included BHI; GCY, Inc. (GCY), a Florida corporation providing surveying services; Jeffrey C. Cooner and Associates, Inc. (Cooner), a Florida corporation providing surveying services; and Southern Mapping Technology, Inc. (Southern Mapping), a Florida surveying corporation. According to the Agreement, the ownership of the joint venture is as follows: BHI - 51 percent GCY - 16.33 percent Cooner - 16.33 percent Southern Mapping - 16.33 percent Mr. Berryman opted for BHI to have 51 percent ownership in the joint venture so that he would control the entity. At the same time, however, he desired to give the other participants as much ownership as possible without giving up control. The Agreement establishes a Board of Control (Board) which has the responsibility and authority for the conduct and management of Everglades to approve and execute contracts, formulate and determine the policies of Everglades, approve consultants and subcontractor agreements, approve budgets and schedules, determine the allocation of work among members of Everglades, and decide all other matters necessary to its operations. After the joint venture's formation, five individuals were appointed to the Board: Mark A. Stokes and Steve Sharpe, both BHI employees appointed by Mr. Berryman; George C. Young, Jr., of GCY; Jeffrey C. Cooner of Cooner; and James S. Richmond of Southern Mapping. All members of the Board are non-minorities. In response to the District's proposed denial of the application, in May or June 2002, or six or seven months after it was filed, Mr. Berryman assumed a seat on the Board, replacing Mr. Sharpe.1 However, because of a District policy that no amendments to an application will be considered after the application is filed, the District has not taken into account this change in the Board's membership. Petitioner has not challenged the use of that policy. Paragraph 4.3 of the Agreement provides that the Board "shall reach decisions by simple majority vote of total votes cast. BHI shall cast 51 votes; GCY shall cast 16 votes; Cooner shall cast 16 votes; and Southern Mapping shall cast 16 votes." Thus, BHI has ultimate control over all of Everglades' decisions. At the same time, however, there is nothing in the Agreement which says that the Board must consult with Mr. Berryman, and obtain his approval, before a decision is taken. Rule 40E-7.653(5) Criteria Paragraph (5) of the rule requires, among other things, that the applicant establish that the minority owner "possess[es] the authority to control and exercise dominant control over the management and daily operations of the business." The District contends that Mr. Berryman does not exercise such control since he does not sit on the Board, Mr. Stokes and Mr. Sharpe, both non-minorities, are the individuals who actually cast votes on behalf of BHI, and nothing in the Agreement requires Mr. Stokes and Mr. Sharpe to consult with Mr. Berryman before they make a decision. In reality, Mr. Berryman has absolute control over all of the decisions made by Mr. Stokes, who occupies one of the two BHI seats on the Board. This was confirmed by Mr. Stokes at the hearing and was not contradicted. Even if Mr. Sharpe (who has been replaced by Mr. Berryman) were still on the Board, he would be subject to the same constraints. This is because Mr. Berryman has made it clear that he would quickly replace any BHI Board member who did not vote in accordance with his wishes. Since BHI (and Mr. Berryman) effectively controls the joint venture through 51 percent of the Board's voting power, it is found that the minority owner exercises dominant control over the management and daily operations of the joint venture, as contemplated by the rule. Rule 40E-7.653(6) Criteria Subparagraphs (6)(c) and (d) of the rule require that the applicant establish that "the net worth of the business concern, together with its affiliates, does not exceed five (5) million [dollars]," and that it "employs two- hundred (200) or fewer permanent, full-time employees," respectively. In determining the net worth, the same rule provides that the District shall "consider the most recent federal tax returns or annual financial statements for the business." After concerns were raised by the District over BHI's net worth and number of permanent employees, BHI filed a letter with the District on April 2, 2002, indicating that it had 118 full-time employees and a negative net worth of $1,460,176.00. On June 6, 2002, its counsel also filed an affidavit by BHE's Controller, together with consolidated financial reports for the year ending March 29, 2002, reflecting a negative net worth of $1,293,435 for BHE and all of its subsidiaries, including BHI. Counsel also provided an affidavit by the BHE Benefits Coordinator listing 96 full-time BHI employees as of May 17, 2002. In separate documents submitted earlier by the other joint venture participants, the net worth and number of permanent, full-time employees of each of those participants were as follows: GCY - $553,000.00 and 25 employees as of November 30, 2001; Cooner - $300,000.00 and 8 employees as of December 31, 2001; and Southern Mapping - $527,000.00 and 6 employees as of December 31, 2001. While the fiscal years of the participants are not identical, collectively these figures produce a total positive net worth of all Everglades members (including BHE, the parent of BHI) of $86,565.00 and less than 200 full-time employees at or about the date the application was filed. Despite this showing by Everglades that it met the net worth and size thresholds for a MBE, over the past two years BHI has made a number of filings with the District and other governmental entities which caused the District to doubt the veracity of the numbers submitted by Everglades and to ultimately deny the application. For example, in its application for recertification filed with the District in November 2000, BHI reflected that it then had a positive net worth of $1,013,790.00 and 305 full-time employees. In a Statement of Intent to Perform as a MBE Subcontractor dated October 23, 2001, BHI indicated that its net worth was $1,012,979.00 and that it employed 102 permanent employees. Almost identical numbers were shown in other filings made with the District on November 1, 2001, April 18, 2002, May 24, 2002, and May 31, 2002. However, in a Statement of Intent to Perform as a MBE Subcontractor executed by a BHI corporate officer (Mr. Stokes) on June 18, 2002, and filed with the District, the net worth of BHI was shown as $4,106,000.00 and the number of permanent, full-time employees was given as 350. Assuming these latter figures are accurate, Everglades would have a total net worth exceeding $5 million and more than 200 full-time, permanent employees, both of which exceed the thresholds permitted by the rule. In addition, on April 3, 2000, BHI filed certification documents with Orange County reflecting that it had 305 full-time employees and a positive net worth of $123,415.00. Identical figures were reflected in a filing made with the City of Tampa on April 3, 2002. In contrast, in a MBE certification filing made with the City of Orlando on May 20, 2002, which included net worth and number of employees for the latest three-year period, BHI represented that it had 97 employees in the years 2000, 2001, and 2002, and that its net worth for those years was a negative $898,676.00, a negative $1,376,645.00, and a negative $1,586,216.00, respectively. To add to the confusion, in an undated document filed with the City of Tampa, BHI indicated that it had 345 full-time employees and 35 part-time employees. However, in a June 12, 2002, filing with the Tampa Port Authority, BHI indicated that it had 116 full-time employees and a negative net worth of $1,586,216.00. Mr. Berryman conceded that the different filings were "embarrassing" and confusing, and he attributed them to mistakes by careless or untrained in-house personnel. As to the document reflecting a net worth of BHI in excess of $4 million, it was established that a secretary erroneously filled out the document and Mr. Stokes hurriedly signed it without verifying the numbers. Mr. Berryman also maintained that the numbers submitted by BHI to the District in the April 2, 2002, letter, as supported by the financial reports and affidavits filed on June 6, 2002, are the most accurate reflection of its net worth and number of employees. This assertion is accepted since all of the filings over the years (except the one on June 18, 2002) have consistently indicated that the net worth of BHI is far less than the $5 million threshold. Moreover, the more credible evidence supports a finding that the number of permanent, full-time employees of BHI and the other joint venture participants is less than 200. Based on these considerations, it is found that Everglades meets the net worth and employee thresholds prescribed by the rule. Professional Licensure Requirement Rule 40E-7.653(5), Florida Administrative Code, requires that the minority owner (Mr. Berryman) seeking certification "be the license holder, or the professional license holder" in the specialty for which certification is sought. Here, Everglades seeks to provide surveying services. The application filed with the District identified five BHI individuals who had professional surveying licenses which authorized the work, all non-minorities. Mr. Berryman was not identified as being one of them. The rule itself is clear and unambiguous and requires no interpretation. Since its adoption in late 1996, the District has consistently construed it to mean just what it says -- that in order for a minority owner to be certified, the owner must have a professional license in the area being certified. This interpretation of the rule was not shown to be unreasonable or clearly erroneous. Therefore, because Everglades intends to provide surveying services, Mr. Berryman, as the minority owner, must hold a surveyor's license under Chapter 472, Florida Statutes, in order to qualify as a MBE. While it is true that Mr. Berryman is a registered professional engineer (under Chapter 471, Florida Statutes) in the State of Florida (as well as 3 other states), and he can perform almost all of the surveying services under his engineering license,2 he does not hold a Florida surveyor's license, as required by the rule. While this result may seem unfair and based on highly technical grounds, it is consistent with the plain requirements of the rule.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the South Florida Water Management District enter a final order denying the application of Everglades Surveying Joint Venture for certification as a minority business enterprise. DONE AND ENTERED this 4th day of September, 2002, in Tallahassee, Leon County, Florida. ___________________________________ DONALD R. ALEXANDER 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 4th day of September, 2002.
The Issue The issue is whether petitioners' development is entitled to a favorable determination by respondent under Subsection 380.0651(3)(e)1.c., Florida Statutes (1989), and thus is exempt from development of regional impact review.
Findings Of Fact PETITIONERS' EXCEPTIONS In its Exception No. 1., Petitioners take exception to the Hearing Officer's determination that there was no evidence in the record to support a finding that Lee County Sheriff's Office, or any other local law enforcement officials strictly enforce Lee County Ordinance No. 90-51. Petitioners' exception is not supported by the record. Lee County Ordinance No. 90-51, requires that a vessel must proceed at idle speed, no wake, within five hundred feet of a water oriented structure, such as a seawall or dock. If enforced, the ordinance would require that boaters on the channel who venture closer than five hundred feet to the seawall which fronts a part of the island's shoreline or a dock located several hundred yards south of the collector canal, which is the site of Petitioners' proposed project, be obliged to travel no faster than idle speed, no wake in those areas. The Hearing Officer's determination that Ordinance No. 90-51 was not strictly enforced was based on the testimony of Lt. Graylish of the Florida Marine Patrol. Lt. Graylish appeared as a witness for Respondent and testified as to his opinion as a law enforcement officer on the impact of Lee County Vessel Control Ordinance No. 90-51 on vessel speeds in Estero Bay. During Lt. Graylish's direct examination when asked whether the Marine Patrol enforced the ordinance he replied: Well, we have the power to do it. The hardest problem for us is what in fact is that 500 foot distance. It's really hard on the water to come up with that, and then we've got a lot of transient traffic that goes through that area from out of state during season and part-time residents, and it's very difficult to enforce that when you don't have an actual sign placement indicating what in fact the condition is. [Tr. p. 118, Ins. 15-24] The lieutenant's testimony was uncontroverted. Petitioners produced no competent substantial evidence to refute Lt. Graylish's testimony. Likewise in its exceptions, Petitioners have failed to present competent substantial evidence to demonstrate why the Hearing Officer's determination that Ordinance No. 90-51 was not strictly enforced should be rejected. Accordingly, Petitioners' Exception No. 1. is therefore rejected as being contrary to the evidence presented. In its Exception No. 2, Petitioners object to the Hearing Officer's determination that the parties stipulated that manatees now frequent the channel (i.e., Coon Key Pass). Petitioners state that the parties only stipulated that "Estero Bay is an area that is, at least, frequented by manatees" and cites to the Transcript in support of its position. [See Petitioners' Exceptions] However, a review of the statement in the record which Petitioners rely on and which was made by Petitioners' own attorney at the hearing demonstrates that the Hearing Officer was correct in finding that the parties stipulated that manatees frequent the channel. In pertinent part the passage states: At this time I would like to stipulate to one thing that was omitted in here [i e., prehearing stipulation], is that we do stipulate that the areas are Outstanding Florida Waters and Class II waters, Estero Bay, and they are waters that are at least frequented by manatees . . . (emphasis added)[Tr. p. 8, Ins. 18-24] The Hearing Officer's finding that the parties stipulated that manatees now frequent the channel, which is part of Estero Bay, is consistent with the parties' stipulation. The exception is therefore rejected as unnecessary. In its Exception No. 3, Petitioners take exception to the Hearing Officer's finding that since there was no evidence that Ordinance No. 90-51 would be strictly enforced, DNR could not reasonably determine that Petitioners' project would not have an adverse impact on manatees. The issue in this case was whether Petitioners were entitled to a favorable determination under Chapter 380, Florida Statutes, that their proposed project was located so that it would not adversely impact Outstanding Florida Waters or Class II waters an would not contribute boat traffic in a manner that would adversely impact an area known to be, or likely to be, frequented by manatees. It was Petitioners' burden to show by a preponderance of the evidence that they were entitled to a favorable determination. It was therefore incumbent upon Petitioners to present competent evidence regarding the enforcement of Ordinance No. 90-51. This Petitioners did not do. Therefore, Petitioners' Exception No. 3 is rejected as either irrelevant or not being based on competent substantial evidence. In its Exception No. 4, Petitioners allege that Respondent's committed two discovery violations. These allegations are beyond the scope of what is permitted under the rules which deal with exceptions to recommended orders; however they will be addressed. Petitioners claim they were prejudiced by improper testimony from the Respondent's expert witnesses, Pat Rose and Kipp Frohlich. Petitioners state that these witnesses "allegedly re-examine Petitioners' project area on the afternoon prior to the hearing and alleged the discovery of new observations and conclusions at the hearings." [See Petitioners' Exceptions] Petitioners claim that this alleged re-examination precluded any opportunity for discovery and that therefore, "no testimony relating to this site visit should have been admitted into the record." However, Petitioners raised no such objection at the hearing and by not doing so have waived any right to do so now. Furthermore, there is nothing in the Florida Rules of Civil Procedure that would preclude an expert witness from engaging in a review of information to be relied on at the hearing prior to the hearing. Additionally, for clarification only, it should be noted that there is no evidence in the record which would have led Petitioner to believe that Pat Rose visited the site prior to the hearing. In Exception No. 4, Petitioner further alleged that the Hearing Officer should have disallowed the testimony of Lt. Graylish, because his name "first appeared on the prehearing stipulation (not signed by Petitioners) approximately 48 hours before the hearing . . . ." However, Petitioners' did not object at the hearing to the testimony of Lt. Graylish and furthermore, stated on the record in reference to signing the prehearing stipulation: due to our, I guess you would say our geographic differences, the prehearing stipulation was submitted . . . without my signature; and at this time I would like to on the record confirm that I stipulate to that prehearinq stipulation that was jointly prepared and finally submitted by the Department. (emphasis added) [Tr. p. 4, Ins. 21- 25] In addition to having stipulated to Respondent's witnesses, which included Lt. Graylish, Petitioners had raised this very objection prior to the hearing and the Hearing Officer had conducted a telephonic hearing on the matter. The Hearing Officer ruled that the witness would be allowed to testify at the hearing subject to Petitioners' objections at that time. A review of the record of the hearing indicates that Petitioners made no further objections to the lieutenant's testimony. Exceptions as to alleged discovery violations are improper pursuant to the rules and in this case there is no competent substantial evidence to demonstrate the existence of any discovery violations. Exception No. 4 is therefore rejected as being improper. Finally, at Exception No. 5, Petitioners take exception to the Hearing Officer's application of law to the findings of fact to support a determination that Petitioners failed to sustain their burden of demonstrating that their proposed project would riot "contribute boat traffic in a manner that will have an adverse impact on an area known to be, or likely to be, frequented by manatees." Petitioners allegation that this conclusion be rejected is based upon Petitioners' argument, discussed above, that the Hearing Officer erred in finding that Ordinance No. 90-51 was not strictly enforced. As stated in Paragraphs Nos. 1. and 3., any such rejection of the Hearing Officer's finding in this regard is unsupported by competent substantial evidence. Petitioners allege that the Hearing Officer's "sole conclusion of possible manatee impacts from this project was based on what he determined to be a lack of evidence that Ordinance No. 90-51 would be strictly enforced. Petitioners have narrowly construed the Hearing Officer's ruling. There is ample evidence in the record to support the Hearing Officer's conclusion that the Petitioners had not met their burden. In fact, the Recommended Order demonstrates that the ruling was also based on competent substantial evidence presented by Respondent that this proposed project demonstrated a potential for harm to manatees. In that regard, the Hearing Officer's conclusion was based on testimony from both Pat Rose and Kipp Frohlich. It was their testimony which led the Hearing Officer to conclude that a "favorable determination for Petitioners would not lie." The record is replete with evidence the Hearing Officer could have reasonably relied upon to conclude that Petitioners failed to sustain their burden of proof. [See Tr. p. 118, Ins. 6-9; p. 156 p. 1; p. 158, Ins. 4-6; p. 158. In. 9; p. 159, In.18; p. 176, Ins. 20-23; ; p. 218, Ins. 20-24; p. 219, In. 40p. 316, Ins. 22-23; DNR Exh. 17J Accordingly, Petitioners' exceptions to Conclusion of Law No. 5., is rejected as being contrary to Florida law and the evidence presented. RESPONDENT' S EXCEPTIONS Respondent alleges that Finding of Fact No. 15., should be rejected in its entirety inasmuch as it is not supported by competent substantial evidence. At finding of fact No. 15, the Hearing Officer implies that the Petitioners were "somehow surprised" on June 7, 1991, while the parties were preparing the Prehearing Stipulation to be filed at hearing on June Il, 1991, to learn that DNR intended to take the position at hearing that the proposed project would likely contribute boat traffic in a manner that would adversely impact an area frequented by manatees. In support of this finding the Hearing Officer refers to a comment made by DNR employee David Trimble at his June 5, 1990, deposition, during which he advised Petitioners that based upon the October 17, 1990 memorandum from the Division of Marine Resources he assumed that the manatee issue was "resolved" in Petitioners' favor. However, a review of the record reveals that at no time subsequent to November 8, 1990 or the date on which the unfavorable letter of determination was issued, could Petitioners reasonably claim they believed the issue regarding manatees was resolved. Accordingly, the Hearing Officer's finding in this regard is not based on competent substantial evidence and is rejected. At his deposition Mr. Trimble was asked who was responsible for making the final determination decision, to which he replied: I evaluate them and make a staff recommendation to my superiors. (emphasis added) [Tr. 22, Ins. 24-25] Q. So you go with your feeling - from what the letters say and - A. Not from my feeling, I go with what the letters say. [Tr. p. 23, Ins. 8-11] Furthermore, Trimble's statement at the deposition that he believed the manatee issue was resolved was given only after Petitioners specifically asked Mr. Trimble his opinion on the matter. Furthermore, Trimble was qualified to give only his opinion as to whether the manatee issue was resolved, not the agency's position which was memorialized in the November 8, 1991, letter of determination. Petitioners' claim that they believed the manatee issue was resolved and the Hearing Officer's subsequent finding that Petitioners' claim was meritious can not be supported on the basis of Trimble's answer to the following question: Q. Was, in your opinion - - and this is your opinion as the reviewer of the request - - was the manatee issue resolved . . . (emphasis added) [Tr. p. 26, Ins. 8-10] Further, the letter that was issued under the Executive Director's signature did not indicate that the manatee issue was resolved, quite the contrary. In fact, the Prehearing Stipulation at page 17, stipulated to by both parties after, the deposition of Trimble listed the following disputed issue for determination at the hearing: 2. Whether the DNR correctly determined that the proposed 132 wetslips in conjunction with the existing 161 slips, will contribute boat traffic in a manner that will have an adverse impact on an area known to be, or likely to be, frequented by manatees. In order to find that Petitioners were somehow surprised by this "newly discovered revelation" (i.e., that manatees were going to be an issue at hearing) the Hearing Officer improperly attributed more weight to the deposition testimony of Trimble thanit was due. Trimble was merely the conduit through which information on the manatee issue from the Division of Marine Resources passed. As he himself stated, he was the reviewer of the information - - he was not the final decisionmaker. Once having reviewed the material sent to him from the other divisions, he merely drafted the unfavorable letter of determination for the Executive Director's consideration. The Executive Director then reviewed the material and issued the letter of determination under his signature.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is recommended that respondent enter a final order confirming its earlier determination of November 8, 1990, under Subsection 380.0651(3)(e)1.c., Florida Statutes. RECOMMENDED this 16th day of August 1991, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of August, 1991.
Findings Of Fact Maritime Tug is a tug and barge company which purchases and sells barges in southeast Louisiana and transports them to Florida for repair, lease or sale. The company also engages in the lease of crew boats and tug boats. Stanley L. Kraly ("Stan L.") owns fifty-five percent (55%) of the stock of Maritime Tug and is the President of the company. Stan L. is twenty-four (24) years of age. He graduated from high school in 1984 and served four years in the United States Marines Corps in an infantry and reconnaissance battalion. His duties in the Marines included surface swimming, (the equivalent of a civilian lifeguard) and amphibious assault for hydrographic underwater beach surveys. Upon leaving the Marines, Stan L. began working for Maritime Fuel, Inc. ("Maritime Fuel") in Stuart, Florida. Maritime Fuel is owned by Stan L.'s father, Stanley R. Kraly ("Stan R."). Maritime Fuel is engaged in the dockside delivery of diesel fuel and marine-grade gas to privately owned boats and marinas. At Maritime Fuel, Stan L. was as an "assistant team leader." His duties included pulling the hose from the truck to fuel boats and assisting the "team leader" with other jobs. Maritime Tug was incorporated by Stan R. and Ken Hayes in March, 1989. In approximately July of 1989, Stan R. bought out Ken Hayes and became the sole owner of the company. Stan L. began working for Maritime Tug in June, 1989 as a deckhand apprentice. Stan L.'s duties as a deckhand apprentice included throwing and splicing lines. He split his time between Maritime Tug and Maritime Fuel for approximately three months. On October 10, 1989, Stan L. began working full- time for Maritime Tug. At that time, he also became president and majority stockholder of Maritime Tug as evidenced by a Stock Transfer Agreement dated October 10, 1989. Stan R. remains involved with Maritime Tug in the capacity of Vice- President and Treasurer of the company. His duties include the following: soliciting new business; negotiating financing on behalf of Maritime Tug and signing notes and leases; preparing job estimates; negotiating and signing contracts for major purchases and leases of tugs, barges, and other pieces of equipment. The evidence established that Stan R. is primarily responsible for the financial arrangements for Maritime Tug and only Stan R. signed for the line of credit established at Sun Bank by Maritime Tug. Stan R. completed five semesters at Maine Maritime College majoring in marine engineering. He has been a sales correspondent and manufacturer's representative for several companies. Stan R. has also owned a Texaco gas station and a welding company. Stan R. currently holds an inactive real estate license in the state of Florida. He is the sole stockholder of Maritime Fuel. He is also a partner in a business entity known as The Hast Corporation and is currently the president of the Marine Industry in Stuart. Because of his other business interests, Stan R. attempts to limit his involvement in the day to day operations of Maritime Tug. However, it is clear that Stan R. still plays an active role in the management of the company, especially with respect to financial matters. There is some confusion regarding the timing of Stan L.'s acquisition of his ownership interest in Maritime Tug. Maritime Tug's application to DOT for certification as a DBE is dated September 25, 1989. On page 3, paragraph number 10 of the application, the percentage of ownership of the company shows Stan L. and Stan R. owning fifty-one percent (51%) and forty-nine percent (49%), respectively. However, those numbers are crossed out on the application. On the same page, paragraph number 11, the ownership breakdown is shown as fifty- two percent (52%) and forty-eight percent (48%), respectively. Those percentages were initialed on the application form by Stan L. sometime prior to the final hearing. While both Stan L. and Stan R. testified that they had agreed in principal during the summer of 1989 for Stan L.'s purchase of a majority interest in Maritime Tug, there is no evidence of an actual transfer of stock other than the Stock Transfer Agreement which is dated October 10, 1989. On December 20, 1989, Ms. Kathy Garner, a consultant with DOT, conducted an on- site review of Maritime Tug during which she interviewed both Stan L. and Stan R. at Maritime Tug's place of business in Stuart, Florida. The notes recorded by Ms. Garner during the December 20, 1989 on-site interview indicate that the percentage of ownership was as it appears on the application, i.e., fifty- two percent (52%) for Stan L. and forty-eight percent (48%) for Stan R. DOT was not made aware of the October 10, 1989 stock transfer agreement between Stan L. and Stan R. (and in fact, was told that no agreement existed) until January 17, 1990, when DOT received an unsigned copy of the October 10, 1989, agreement. The October 10, 1989 Stock Transfer Agreement sets a purchase price of fifty-five thousand dollars ($55,000) for the fifty five percent (55%) interest purchased by Stan L. The Agreement leaves the amount of the payments to the discretion of the buyer (Stan L.) with a single required minimum annual payment of one thousand dollars. The Agreement states that the loan period is to be ten years. However, there are no acceleration provisions in the Agreement. Arguably, the buyer can take up to fifty-five years to pay off the purchase price. The first payment is due on October 10, 1990. As of the date of the hearing, there have been no payments made to Stan R. pursuant to the Agreement. Stan L. has given no collateral for this indebtedness which is apparently his only capital investment in the company and the only method of financing his purchase of fifty-five percent (55%) majority ownership in Maritime Tug. Stan L.'s fringe benefits are provided by Maritime Fuel, a corporation solely owned by his father, Stan R. Maritime Tug does not employ a secretary, but shares the full-time secretary employed by Maritime Fuel. Maritime Tug leases its office space from Maritime Fuel pursuant to a lease agreement for one hundred dollars per month. It is unclear whether the rental payments have been made. Since Stan L. became president and majority owner of Maritime Tug, the tug captain for the company (one of the most important positions for the company) was fired and a new captain was hired. Stan R. fired the former captain and hired the current captain, Mr. Alton Russell, in late April 1990. Stan L. was not involved in these decisions.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Respondent Department of Transportation enter a Final Order denying Petitioner Maritime Tug's application for certification as a Disadvantaged Business Enterprise. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 8th day of August 1990. J. STEPHEN MENTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this day of August 1990. APPENDIX TO RECOMMENDED ORDER CASE NO. 90-0881 The Petitioner has not filed any post-hearing proposed findings of fact, or conclusions of law. The Respondent has submitted a Proposed Recommended Order. The following constitutes the Hearing Officer's rulings on the proposed findings of fact contained in that submittal. Proposed Finding Paragraph Number in the Findings of Fact of Fact Number in the Recommended Order where accepted or the reason for rejection Adopted in substance in Findings of Fact Adopted in substance in Findings of Fact 2. Adopted in substance in Findings of Fact 3. Adopted in part in Findings of Fact 5. However, the last sentence is rejected as an overly broad summary of the testimony. Adopted in substance in Findings of Fact 7. Adopted in substance in Findings of Fact 6. Adopted in substance in Findings of Fact 8. Adopted in substance in Findings of Fact 9. Rejected as irrelevant. The provision in the bylaws appears to relate to the issuance of stock by the corporation and not the transfer of stock by individual holders of the stock. Rejected as unnecessary. Adopted in substance in Findings of Fact 10. Adopted in substance in Findings of Fact 12. COPIES FURNISHED: Brenda Bryant, Esquire Fields, Wilkinson, Bryant & Aiken, P.A. 55 East Osceola, Suite 100 Stuart, Florida 34994 William Peter Martin, Esquire Department of Transportation Haydon Burns Building, M.S. 58 605 Suwannee Street Tallahassee, Florida 32399-0458 Ben G. Watts, Secretary Department of Transportation Haydon Burns Building, M.S. 58 605 Suwannee Street Tallahassee, Florida 32399-0458 Robert Scanlan, Esquire Department of Transportation 562 Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0458
The Issue The issues in this case are whether Respondent committed an unlawful employment practice by discriminating against Petitioner based on sex, whether Respondent was sexually harassed, and whether Respondent retaliated against Petitioner for making a complaint of sexual harassment.
Findings Of Fact Ms. Hunt was hired by Sears on January 9, 2006, as an appointment specialist, which is a telemarketer position. Sears provides home improvement products such as siding. The duties of an appointment specialist include calling potential Sears customers and scheduling appointments for the Sears salespersons and the customers. Each year, the chief executive officer of Sears sends the Sears associates a reaffirmation statement of affirmative action and equal employment opportunity. The letter, which is posted at each call center, states in part: Our fair employment policies are not new to Sears. These policies prohibit harassment or discrimination against any applicant, associate, vendor, contractor, or customer on the basis of race, color, religion, gender, gender identity, ancestry, national origin, age, disability, veteran status, pregnancy, citizenship, sexual orientation, marital status, ethnicity, or any other reason prohibited by law. These policies also prohibit all forms of retaliation against any individual who complains of being harassed or discriminated against. Each new hire, including Ms. Hunt, is provided with a copy of the Sears harassment policy on their first day of employment. The harassment policy is also posted at each call center. The harassment policy states that Sears prohibits sexual harassment and provides examples of actions that may constitute sexual harassment. Such examples include “[i]nappropriate comments, jokes, or remarks because of or based on a person’s status” and “[t]ouching someone in a sexual way, including hugs, kisses, pinches, etc.” The Sears harassment policy further requires an employee to take action if the employee: [F]eel[s] uncomfortable in a situation because of someone’s harassing, sexually aggressive, abusive, or discriminatory behavior. [F]eel[s] that another’s harassing, sexually aggressive, abusive or discriminatory comments or actions toward [the employee] or a fellow associate, vendor, customer, etc. are improper in a work environment. [B]elieve[s] that another’s harassing, sexually aggressive, abusive, or discriminatory behavior impairs the [employee’s] ability to do [his or her] job, or [W]ants the harassing, sexually aggressive, abusive, or discriminatory behavior to stop. If an employee believes that a violation of the harassment and discrimination policy has occurred, the Sears harassment policy tells the employee to take the following actions: Explain the situation to your immediate supervisor or manager. If you are not satisfied with your supervisor’s or manager’s response, or if you are uncomfortable speaking with him or her, immediately contact his or her manager or your human resources representative. If you still find that sufficient attention has not been given to your complaint, or if you are uncomfortable talking with someone in your unit, associates should contact the company’s the EthicsAssist Line at 1-800-BASSIST or Associates Services at 1-888-88sears. Sears has a progressive discipline policy and a progressive progress policy. Employees are given coaching discussions and verbal performance memos for the first step. The second step, third, and fourth steps are performance plans for improvements. The last step is a final warning. Sears has a dress code policy. On April 6, 2006, Ms. Hunt was sent home because she was in violation of the dress code policy. On April 13, 2006, a coaching discussion was held with Ms. Hunt concerning her productivity. Ms. Hunt was not meeting the daily requirements for making calls. The minimum standard was 165 calls out daily and 12 appointments. Ms. Hunt was averaging approximately 78 calls per day. On May 15, 2006, Ms. Hunt received a step-two performance plan for improvement for not adhering to the Sears attendance policies. The performance plan stated the performance issues as follows: Tonja’s attendance does not meet company expectations. Since the beginning of her employment Tonja has had multiple occurrences. On 01-30 scheduled court date, 02-10 out due to a family emergency, 02-21 out due to a court hearing for her daughter, 03-06 out due to daughter personal issues, 03-30 called running late, 04-14 late, 04-19 late, 04-24 thru 04-25 out due to oral surgery. Tonja does not have any time available to her an[d] any further occurrences will count as separate occurrences. On June 1, 2006, Ms. Hunt received a verbal performance memo for not meeting the company requirements for productivity. Her productivity for April was .05, which was below the company minimum of 1.3. In October 2006, Ms. Hunt received a step-three performance plan for improvement. The performance issues were described as follows: Tonja’s productivity for the month of September was that of 0.64 which is well below company minimums of 1.3 and a company goal of 1.8. Tonja’s attendance has yet to improve. Since 05-15-06 Ms. Hunt has had 12 additional occurrences. On November 7, 2006, Ms. Hunt received a step-four performance plan for improvement due to work performance and misconduct. The performance issues were described as follows: Work Performance: Below monthly minimum standard of 1.3; Tonja’s results--.60 has not met standards since hire date. Attendance: 10/27/06, instructions given to Tonja to call in by noon on Monday & speak to Luis. Previously warned of attendance on 10/9/06 & 5/15/06. Failed to follow directive Could not be reached until 11/1 Misconduct: 10/27/06, received multiple complaints regarding inappropriate comments of a sexual nature to other associates on the call floor. Upon investigation, behavior was in violation of company policy. 11/3/06, Tonja instructed by Management and HR not to discuss investigation with other associates. Complaints received regarding Tonja not following this directive and discussing the matters of the investigation with other associates. On November 13, 2006, Ms. Hunt was given a performance memo which served as a “final warning.” The memo stated the reasons for the final warning as follows: As stated in the PPI Written Step IV document issued on 10-03-06, there were to be no more attendance occurrences. According to the timekeeping system, you clocked in 40 minutes late on 11-09-06. This memo serves as your final warning. Another attendance occurrence will result in immediate separation. On January 17, 2007, Ms. Hunt received her annual performance evaluation, which rated her on nine areas of performance. Ms. Hunt received an overall performance evaluation of two, which meant that improvement was needed. She received a rating of one in the areas of productivity, availability, and adherence to policy. A rating of one signifies that the performance is unacceptable. Sears terminated Ms. Hunt’s employment effective January 23, 2007, for poor performance. When Ms. Hunt began her employment with Sears, she worked in a unit in which Mr. Royston Kenneth Khadaroo was the team leader. As team leader, Mr. Khadaroo would provide assistance to the other employees concerning the work assignments. He was not a supervisor and had no authority to fire, discipline, or otherwise affect the terms and conditions of employment of the other employees in the unit. Beginning in May 2006, Ms. Hunt claims that Mr. Khadaroo began to sexually harass her.1 According to Ms. Hunt, Mr. Khadaroo made the following statements to her: “I think you are pretty” and “I think you must be cold.” Ms. Hunt took the second statement to mean that he was referring to her nipples. Ms. Hunt claims that on one occasion, he made a measurement using his finger and thumb. She took the action to mean that he was referring to the length of her crotch. On another occasion, Ms. Hunt claims that while Mr. Khadaroo was giving her a ride to her car that he put his hands between her legs. Prior to August 2006, Ms. Hunt made no attempt to advise her supervisor or other management at Sears concerning Mr. Khadaroo’s actions. In August 2006, Mr. Khadaroo approached Darlene Lighthouse, who was one of Ms. Hunt’s supervisors and told Ms. Lighthouse that Ms. Hunt had been making accusations against him and that he wanted the issue to be addressed by upper management. Mr. Khadaroo also advised Luis Saez, who was another of Ms. Hunt’s supervisors, that he wanted an investigation because Ms. Hunt had been making complaints against him. After Mr. Khadaroo complained to Ms. Lighthouse, she sent him home and talked to Ms. Hunt. Ms. Hunt told Ms. Lighthouse that Mr. Khadaroo had been sexually harassing her. Ms. Lighthouse sent Ms. Hunt home and began an investigation into the allegations. Up until Ms. Hunt’s claims, there had been no complaints from any employee concerning Mr. Khadaroo. Ms. Lighthouse’s investigation did not reveal any witnesses to Ms. Hunt’s allegations. There was no evidence to support or refute Ms. Hunt’s claims of sexual harassment. It was a case of “he said, she said.” To alleviate the situation, management decided to move Ms. Hunt from the unit in which Mr. Khadaroo worked. Ms. Hunt’s workstation was moved so that she worked a few rows away from Mr. Khadaroo. After the investigation, Ms. Hunt did not experience any further unwelcome advances or comments from Mr. Khadaroo. On October 12, 2006, Ms. Hunt filed a Charge of Discrimination with the Commission, alleging that Sears had discriminated against her based on her sex.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entering dismissing Ms. Hunt’s Petition for Relief. DONE AND ENTERED this 15th day of April, 2009, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL 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 15th day of April, 2009.
The Issue Whether respondent discriminated against petitioner in terminating his employment, either on account of his race or because he had engaged in protected activities?
Findings Of Fact In order to serve as Marine Patrol officers, candidates muse successfully complete a training program at DNR's Marine Patrol Academy, which only accepts one class a year. In 1983, DNR began its officer trainee program, an affirmative action effort to recruit members of minorities as Marine Patrol officers. The idea was to give recruits employment pending the annual beginning of the Marine Patrol Academy course, so that they would not be otherwise committed when classes started. In the interim, these officer trainees accompanied regular Marine Patrol officers, ordinarily in the field at the post nearest the trainee's home, and learned informally about the work. Ronald D. Jones, who is black, began as a Marine Patrol officer trainee in respondent's Division of Law Enforcement, on October 1, 1984. He and then Captain Thompson had discussed the position in May of 1984, after Clydie Hubbard, DNR's equal employment opportunity coordinator, referred Mr. Jones to Captain Thompson. Mr. Jones' home was in Quincy and the nearest Marine Patrol base on the water was in Carrabelle. Instead of being required to commute five days a week to Carrabelle, he was permitted to report to general headquarters in Tallahassee three days a week, and to Carrabelle two days a week. Weak In Swimming In the course of their first conversation, Captain Thompson informed Mr. Jones that he would have to pass a physical fitness test in order to be admitted to the Marine Patrol Academy. When Mr. Jones said "he felt he was a little weak in swimming," (T.52) captain Thompson told him that he would administer the test at Mr. Jones' convenience, whenever he felt he was ready to take it. Later in May, when Mr. Jones indicated he felt he was ready, the test was scheduled for June 8, 1984. On June 8, 1984, Mr. Jones passed every test easily, except for the swimming and floating tests. To pass the swimming test required swimming 300 yards in ten minutes or less. Mr. Jones was unable to swim more than two swimming pool lengths without clutching a rope for support. He also failed the floating test: he could not stay afloat for five minutes without grabbing for something. Captain Thompson told him he could pass the swimming and floating tests later, without having to retake any other portion of the physical fitness test, and suggested that he go to Alicia Crews at Florida State University or check with people at the YMCA or at Florida A & M University for swimming lessons or coaching. At the time Mr. Jones failed the tests, he was only an applicant for the officer trainee program and had no assurances of being chosen as a trainee. He did not follow the advice to seek help in order to improve his swimming. Numerous Reminders When he saw Captain Thompson in September of 1984, Captain Thompson reminded him he needed to pass the swimming and floating tests. Captain Thompson spoke to him on the telephone, in September of 1984, and, as he had when he had seem him, again told Mr. Jones he had to pass the tests. When he was hired, on October 1, he was reminded yet again about the swimming and floating tests, and Captain Thompson sent him a copy of the physical fitness requirements, Respondent's Exhibit No. 1, which mentioned that the tests had to be passed. As an officer trainee, he sometimes helped administer swimming and floating tests to others, but always refused offers to try again himself. Mr. Jones was consistently told he had to pass the swimming and floating tests in order to be admitted to the Marine Patrol Academy. At the time Mr. Jones was hired, DNR had a firm requirement that candidates pass the physical fitness assessment tests before entering the Academy. At one time the policy had been to let people in, if passing seemed to be within reach, but experience had persuaded those in charge that this was a mistake; people who were let in on this basis often actually regressed. Mr. Jones did not seem to be close to passing the swimming and floating tests, in any case. Early on Mr. Jones was told that training at the Academy would start in February, and written materials reflected this, although perhaps at one time someone told him March. In fact, classes at the Academy began on February 11, 1985. DNR decided to send out letters on January 21, 1985, three weeks ahead of time, so that applicants who held other employment could give notice of two weeks or better to their employers that they would be leaving, in order to enter the Academy. Before mailing these letters, DNR sought to determine how many positions were available. On December 21, 1984, Captain Thompson, sent a letter to Mr. Jones reminding him that he still had not passed the swimming and floating tests and telling him that he would have to make arrangements to do so on or before January 21, 1985. Respondent's Exhibit No. 3. Memo From The Trainee Four days earlier, on December 17, 1984, Mr. Jones had written Clydie Hubbard, DNR's EEO Coordinator, a memorandum on the subject "GHQ Staff," as follows: Against my better judgment, I deferred writing to you until now. To my knowledge there are no Black employees in GHQ's staff (Florida Marine Patrol). This is a problem not only for Tallahassee, but also the state of Florida, in turn [a]ffecting the Nation as a whole. How long must this problem exist in this department? How am I depicted as ap Black, if the entire GHQ is lilywhite? From the first time I set foot in GHQ, I knew it was time for a change. The training section is located in GHQ, so every employee of the Florida Marine Patrol has to pass through these offices. Thinking of other Black Sisters and Brothers coming to seek employment, they just can't believe their eyes. How can we be treated fairly? All the White faces and not one Black, let you know that racism does exist in 1984. Maybe you are not aware, but I think it's time something is done. This is a[n] opportunity for someone to change an ugly situation. People in the know, do not let opportunities go by. They hit at injustice; they hit at evils. They make life great for themselves by making life great for others. Have respect and esteem for every person. See beneath their exteriors, know them for what they really are. I'm not here to fight any battles, nor am I here to lose any. The reason I'm telling you these things is because President Reagan told me to. If there are any problems direct them to him. Thank you in advance for your interest in this matter. Respondent's Exhibit No. 6 He copied the N.A.A.C.P. State Conference; Dr. Elton J. Gissendanner, then Executive Director of DNR; Bob Graham, then Governor of the State of Florida; and Ronald Reagan, President of the United States. He did not, however, copy Captain Thompson, and Captain Thompson was unaware of the existence of this memorandum when he wrote his letter on December 21, 1984, Respondent's Exhibit No. 3, advising Jones that he needed to make arrangements to take and pass the swimming and floating tests on or before January 21, 1985. When Colonel Ellingsen received a copy of Mr. Jones' memorandum to Clydie Hubbard, on December 19 or 20, 1984, he telephoned Inspector Nash, a black Marine Patrol Inspector in Jacksonville, and asked him to investigate the allegations the memorandum made. Mr. Nash came over from Jacksonville and, after reading the memorandum, had a conversation of some two hours' duration with Mr. Jones. Mr. Jones said he had been personally discriminated against on account of the absence of black faces on the seventh floor of the Commonwealth Building where the Marine Patrol is headquartered. As they talked further, Mr. Nash came to believe that Mr. Jones wanted a job on the seventh floor at general headquarters, perhaps one that would not require swimming. In January of 1985, Mr. Jones talked things over with Dr. Gissendanner, DNR's Executive Director, who suggested, as others had before suggested, that Mr. Jones make arrangements to work with a swimming coach or otherwise get swimming lessons. Deadline Passes On January 20, 1984, Major Thompson, as he is now, not having heard from Mr. Jones, telephoned him and instructed him to present himself at his office the following day. Mr. Jones failed to appear at the appointed time. About three hours later, Captain Thompson found him in Colonel Ellingsen's office. The three of them discussed his taking the swimming test. Mr. Jones complained that it was a cold day. Indeed, he testified at hearing that it was six degrees." The pool in which the test was proposed to be given was out of doors, but the water was heated. Colonel Ellingsen and Captain Thompson offered to get into the water with him and told him that that day was the absolute deadline, but he refused to take the swimming test. On that account, Colonel Ellingsen advised him in his office that he would be terminated and wrote him a letter terminating him, effective 5:00 p.m. that day. Colonel Ellingsen knew of the memorandum when he terminated Mr. Jones, but the deadline for taking the physical fitness test was set without reference to any individual, and the requirement that the test be passed before admission into the Academy antedated the memorandum to Clydie Hubbard. There was no evidence that the memorandum precipitated petitioner's discharge or that any other factor entered into the decision aside from the fact that he was originally unable and was subsequently unwilling to try to pass the swimming and floating tests.
Recommendation It is, accordingly, RECOMMENDED: That FCHR dismiss petitioner's petition for relief from an unlawful employment practice. DONE and ENTERED this 14th day of August, 1987, at Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of August, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-3716 Petitioner's proposed findings of fact Nos. 3 and 7 have been adopted, in substance, insofar as material. With respect to petitioner's proposed finding of fact No. 1, the testimony was that he swam two lengths of the pool which a witness testified was 50 feet but may well have been 50 yards. With respect to petitioner's proposed finding of fact No. 2, admission to the academy was conditioned on passing the physical fitness tests. Petitioner's proposed finding of fact No. 4 accurately reflects the evidence as far as it goes, but Captain Thompson was unaware of the complaint when he wrote the letter. Petitioner's proposed finding of fact No. 5 has been rejected. The evidence did not establish retaliation on the part of DNR. With respect to petitioner's proposed finding of fact No. 6, petitioner was terminated for failure to take the swimming test on January 21, 1985, or on any other day before then, going back to May of 1984. With respect to petitioner's proposed finding of fact No. 8, being able to swim 300 yards could mean the difference between life and death for a marine patrol officer. Respondent's proposed findings of fact Nos. 1, 3, 4, 5, 7, 8, 9, 10, 11, 12, 13, 14, 15, 17, 18, 19, 20, 21, 22, 23 and 24 have been adopted, in substance, insofar as material. Respondent's proposed finding of fact No. 2 has been adopted, in substance, except that the record cited does not support a finding that a trainee's salary is 90 percent of a sworn officer's. Petitioner was paid $1,047.48 per month. Respondent's Exhibit No. 4. With respect to respondent's proposed finding of fact No. 6, the testimony was that he swam two lengths of 25 feet each, but the pool may in fact have been 25 yards long. With respect to respondent's proposed finding of fact No. 16, petitioner did not ask for a different job from Col. Ellingsen, although the evidence did not show that he had refused or declined any request that he ask for a job. COPIES FURNISHED: Donald A. Griffin, Executive Director Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1925 Mr. Tom Gardner Executive Director Department of Natural Resources 3900 Commonwealth Boulevard Tallahassee, Florida 32303 Laura S. Leve, Esquire Assistant General Counsel Department of Natural Resources 3900 Commonwealth Boulevard Suite 1003 Tallahassee, Florida 32399 Ronald D. Jones 211 Tropicaire Street Tallahassee, Florida 32304
The Issue The ultimate issue to be resolved in this proceeding is whether FLWAC should grant or deny permission to develop pursuant to the amended development order and, if granted, whether conditions and restrictions should be imposed. SFRPC contends: (1) that the City was without authority to enter an amended development order, (2) that the amended development order does not satisfy conditions which FLWAC previously imposed upon the development, (3) that prior orders of FLWAC are contrary to law, and (4) that a proposal respecting the placing of additional boat slips on the north side of Watson Island constitutes a substantial deviation from earlier development orders contrary to the City's findings in its amended development order. The City of Miami contends that FLWAC has already resolved the issues raised by SFRPC, that the appeal process is therefore improper, and that the placing of additional boat slips on the north side of the island does not constitute a substantial deviation from prior development orders.
Findings Of Fact The Findings of Fact set out in Paragraph 1 of the Recommended Order are based upon Hearing Officer's Exhibit 1 and Joint Exhibit 11. The Findings of Fact set out in Paragraph 2 of the Recommended Order are based upon the petition filed by the South Florida Regional Planning Council, the answer filed by the City of Miami, Hearing Officer's Exhibit 1, and Joint Exhibits 1 through 13. The Findings of Fact set out in Paragraph 3 of the Recommended Order are based upon Joint Exhibits 16, 17 and 19. The Findings of Fact set out in Paragraph 4 of the Recommended Order are based upon Joint Exhibit 19. The Findings of Fact set out in Paragraph 5 of the Recommended Order are based upon Joint Exhibits 25, 26, 27 and 28. The Findings of Fact set out in Paragraph 6 of the Recommended Order are based upon Joint Exhibits 29 through 33, 36 through 40, and 43. The Findings of Fact set out in Paragraph 7 of the Recommended Order are based upon the petition filed by the South Florida Regional Planning Council, the answer filed by the City of Miami, and Hearing Officer's Exhibits 1 and 2. The Findings of Fact set out in Paragraph 8 of the Recommended Order are based upon Hearing Officer's Exhibit 1 and Joint Exhibits 11, 19, 32 and 43. The Findings of Fact set out in Paragraph 9 of the Recommended Order are based upon Hearing Officer's Exhibit 1 and Joint Exhibit 32. The Findings of Fact set out in Paragraph 10 of the Recommended Order are based upon the testimony of the witness Dodrill; Hearing Officer's Exhibit 1; and Joint Exhibits 1, 14, 24, 29, 34 and 36. ENTERED this 17th day of May, 1983, in Tallahassee, Florida. G. STEVEN PFEIFFER Assistant Director 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 17th day of May, 1983. COPIES FURNISHED: All parties of record.
The Issue The following issues were presented in this cause: Did the Respondent properly qualify New World Homes? Did the Respondent make fraudulent misrepresentations related to contracting? The Petitioner submitted post hearing findings of fact in the form of a proposed recommended order. To the extent that the proposed findings of fact have not been included in the factual findings in this order, they are specifically rejected as being irrelevant, not being based upon the most credible evidence, or not being a finding of fact.
Findings Of Fact The Respondent, Carey L. Hendrix, is a registered residential contractor holding license number RR 0027167 issued by the Construction Industry Licensing Board through the Department of Professional Regulation. At the hearing, the Respondent admitted to the violations alleged in Count I of the Administrative Complaint, in that he failed to register as qualifying agent for New World Homes, a business entity under which he was conducting his contracting business on or about September 21, 1980. Respondent's failure to properly register was an unintentional oversight on his part. The allegations of fraud and misrepresentation in the profession of contracting arise from a letter dated April 22, 1982, addressed to Lane Hendrix at 2712 Fifteenth Avenue, West, Bradenton, Florida 33505, from Scott M. Brownell, attorney for Barbara Sailors (Petitioner's Exhibit 1). The Administrative Complaint specifically alleges that by failing to perform the jobs set forth in this letter in paragraphs numbered 1 through 10, the Respondent made false representations in the course of contracting. The letter (Petitioner's Exhibit 1), which is the subject of this controversy, was an offer by Brownell to settle a dispute between the Respondent and Ms. Sailors relating to a home Respondent had built for Sailors. The last paragraph of the letter states, "If this recitation of our agreement in any way differs from your understanding, please contact me at once." The Respondent did not contact Brownell regarding the agreement. The letter (Petitioner's Exhibit 1) recites that part of the consideration for Respondent's performing the jobs was withdrawal by Ms. Sailors of her complaint with the Department of Professional Regulation. While Ms. Sailors could have withdrawn her complaint, this would not have affected the Board's consideration of the matter. Her offer was of no value. On page two of the subject letter, unnumbered paragraph four states that after the estimates have been received and the supplies have been purchased by Ms. Sailors, "my clients will contact you and will expect, within two (2) weeks, an appointment be made for the completion of this work." The record does not reflect that Sailors contacted the Respondent as required in the above- quoted paragraph. Further, although not contacted by Ms. Sailors as indicated in Petitioner's Exhibit 1, the Respondent did send two employees to Sailors' house on or about May 24, 1982. Upon their arrival at the Sailors' house, these employees found that another contractor had been engaged by Ms. Sailors to replace certain portions of the deck and railing at the house (Item 9 of Petitioner's Exhibit 1). At that time, Ms. Sailors prepared a list of items of work (Petitioner's Exhibit 5) to be done by the Respondent in lieu of Item 9, as set forth in Petitioner's Exhibit 1. Respondent's employees repaired a few items on the list but were unable to do many of them because of the work being performed by the other contractor. The employees returned to Respondent, advised him of the presence of another contractor on the job, and presented to him the new list of repair items given to them by Ms. Sailors (Petitioner's Exhibit 5). The Respondent called Jim McGuirt, an investigator for the Department of Professional Regulation, regarding the situation which his employees had encountered. McGuirt advised the Respondent that if another contractor were on the job the Respondent would not have to do anything. No evidence was introduced that any of Respondent's work, which was the subject of Petitioner's Exhibit 1, was substandard or contrary to the codes. Evidence was received that the construction was inspected by local building authorities and a certificate of occupancy issued. As of the date of hearing, Ms. Sailors resided in the subject residence.
Recommendation Having found the Respondent, Carey L. Hendrix, guilty of one offense of violating Sections 489.129(1)(g) and (j), Florida Statutes, by violating Sections 489.119(2) and (3), Florida Statutes, it is recommended that the Respondent receive a letter of reprimand and be assessed a civil penalty of $300. DONE and RECOMMENDED this 8th day of September, 1983, 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 8th day of September, 1983. COPIES FURNISHED: John O. Williams, Esquire 547 North Monroe Street, Suite 204 Tallahassee, Florida 32301 Carey L. Hendrix 7712 South Avenue, NW Bradenton, Florida 33529 Frederick Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 James Linnan, Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32202
The Issue The issue in Case No. 89-1706 is whether the Stearns violated provisions of Chapter 403, Florida Statutes, in the construction of a dock on the Indian River. The issue in Case No. 89-1707 is whether Mr. Stearns is entitled to a dredge and fill permit for the construction of the above-described dock.
Findings Of Fact The Stearns reside at Sunrise Landing Condominium in Cocoa, Florida. The condominium complex lies on the western shore of the Indian River in north Brevard County. At this location, the Indian River is classified as a Class III water and is conditionally approved by the Department of Natural Resources for shellfish harvesting. By Purchase Agreement dated February 18, 1987, the Stearns agreed to purchase a unit at Sunrise Landings Condominiums from the developer. By subsequent Purchase Agreement Modification, the parties agreed that the Stearns had "permission to build a private boat dock providing buyer obtains all proper permits from the Army Corps of engineers and all other proper authorities." By Warranty Deed dated April 16, 1987, the developer conveyed the unit to the Stearns. The deed, which conveys a 1/72nd interest in the common elements, does not convey any right to build a dock. The deed states that the conveyance is subject to the Declaration of Condominium of Sunrise Landing II. The declaration, which was recorded prior to the deed to the Stearns, defines as Common Element the land lying adjacent and upland to the dock that the Stearns constructed. The declaration states that each unit owner owns an undivided share of the Common Element. Article III, Section 7 states: The Owner of a Unit . . . shall be entitled to use the Common Elements in accordance with the purposes for which they are intended, but no such use shall hinder or encroach upon the lawful rights of Owners of other Units. There shall be a joint use of the Common Elements . . . and a joint mutual easement for that purpose is hereby created. In February, 1987, prior to closing on their unit, the Stearns arranged with an individual named Kurt Ramseyer to construct the dock. Mr. Ramseyer completed construction of the dock on or about July 3, 1987. On or about February 22, 1987, Mr. Stearns executed an application for permit for activities in the waters of the State of Florida. The application warned the applicant that he must obtain all applicable authorizations before commencing work. The application, as well as all others completed by Mr. Stearns, was the joint Department of the Army/Department of Environmental Regulation form, effective November 30, 1982. The application describes the project as a dock consisting of two boat slips measuring 24 feet by 10 feet, a 24 foot by 4 foot pier, and a 12 foot by 12 foot deck. The application identifies as the adjacent property owners the individuals owning condominium units on either side of the Stearns' unit. Mr. Stearns did not complete the affidavit of ownership or control, in which the applicant attests that he is the record owner or, if not, will have "the requisite interest . . .before undertaking the proposed work." The Department of the Army received the application on May 11, 1987. At this time, a copy of the application was forwarded to the Department of Environmental Regulation ("DER") without the required application fee. By letter dated May 18, 1987, DER notified Mr. Ramseyer that the application fee had not been received and, until received, the application had not been officially received. DER received the application fee on May 28, 1987. By letter dated June 25, 1987, DER informed Mr. Stearns, through his designated agent, Mr. Ramseyer, that the proposed project would require a permit under Chapter 403, Florida Statutes, and that his application was incomplete. Among other items requested were descriptions of water depths within a 300-foot radius of the proposed structure, shoreline structures within 100 feet of the proposed dock, and the boats intended to be moored at the facility. By letter dated July 10, 1987, Mr. Stearns provided DER with additional information. Submitting a new application, Mr. Stearns represented this time that the proposed use was private single dwelling, rather than private multi- dwelling, as previously indicated. He also stated that the adjoining landowners were Sunrise Landings Condominium. Again, he failed to complete the affidavit of ownership or control. A partial site plan of the condominium complex shows the dock as five feet north and 45 feet south of the next nearest docks at the complex. As he had on the February 22 application, Mr. Stearns certified as true that he knew that he had to obtain all required authorization prior to commencing construction, although construction had already been completed at this time. In fact, Mr. Stearns indicated on the application, as he did on the October 27 application described below, that construction was "proposed to commence" on June 22, 1987, and was "to be completed" on July 3, 1987. The application explains a four foot increase in the length of the dock as necessitated by "water depth." Elsewhere, the application states that the river had receded four inches since March, 1987. In justifying the construction of the dock in two sections, Mr. Stearns explained that the "shallow depth of the water . . . could result in possible environmental damage to the river bottom, if power boats were allowed to be moored in close proximatity [sic] to the area of the bulkhead line." Mr. Stearns described the boats that he proposed to moor at the dock. At maximum capacity, one boat has a draft of 10 inches, and the other has a draft of 14 inches. Attached to the application is a diagram showing maximum/minimum water depths. The depths are 13"/9" at the bulkhead, 19"/15" at 10', 21"/17" at 20', 23"/19" at 30 `, 25"/21" at 40', and 26"/22" at 50'. Mr. Stearns explained: In order to minimumize [sic] the possible environmental damage to the river bottom aquatic growth, it was necessary to place the power boat mooring section of the dock a minimum of 20 feet away from the bulkhead line. Another diagram shows water depths of 22" to 26" from 50 feet to 300 feet from the bulkhead to the north and south of the dock. 15. By letter dated June 17, 1987, which Mr. Stearns attached to the July 10 application, the Department of the Army issued him a general permit for the proposed project. The letter warns that "it appears that a permit from the Florida Department of Environmental Regulation may be required." The attached diagram shows a structure with a total length of 36 feet. By letter dated July 30, 1987, DER informed Mr. Stearns that, among other things, the affidavit of ownership or control was incomplete; discrepancies existed between the original application and the most recent application, such as with respect to the names of different adjoining landowners and different proposed uses from private multi-dwelling to private single dwelling; it was unclear whether all permits were received prior to dock construction; and it was unclear what portion of the deed entitled the applicant to place the dock in its proposed location. By letter dated October 27, 1987, Mr. Stearns provided DER with additional information and submitted a partial new application. He attested to the fact that he was the record owner of the property, although he failed to provide the required legal description. As to the question involving different adjoining property owners, Mr. Stearns indicated that he believed that because the dock was located more than 25 feet from the nearest living unit, the approval of other property owners was not required. He explained that the private single dwelling unit was a condominium unit in an eight-unit building. He advised that construction of the dock was completed on July 3, 1987. As to water depths, he showed a depth of 9 inches at the bulkhead and 26 inches at 500 feet. Additionally, he showed mean low water of 12 inches at 10 feet, 16 inches at 20 feet, 23 inches at 30 feet, and 26 inches at 40 feet. By letter dated December 8, 1987, DER informed Mr. Stearns that his application was deemed complete as of October 29, 1987. By Intent to Deny dated January 8, 1988, DER notified Mr. Stearns of its intent to deny his application for a permit. The notice states that the project is not exempt from permitting procedures. The notice acknowledges the presence of about 40 piers installed at the condominium complex without the appropriate permits. The notice states that water depths within visual distance of the shoreline are relatively shallow with scattered marine grass/algae clumps in the vicinity due to the shallow water. In this regard, the notice concludes: Installation of a pier in such shallow water, less than 24 inches deep, for permanent mooring of a small watercraft will probably cause localized disturbance of the benthic community by prop wash. This situation is already evident at several of the nonpermitted piers. Additionally, the Notice of Intent raised the issue of ownership or control. Citing an earlier final order, the notice states that "`the Department will not knowingly issue a permit for dredging and filling or other activities which would constitute a trespass on private property."' By Petition for Administrative Hearing filed January 19, 1988, Mr. Stearns requested an administrative hearing on the Intent to Deny his application for a permit. By letter dated January 27, 1988, assistant general counsel for DER confirmed a recent telephone conversation with Mr. Stearns and stated that, pursuant to that conversation I will hold your petition pending further action by the Department towards resolution of the situation. If it appears that an amicable resolution cannot be reached, I will forward the petition to the Division of Administrative Hearings for the assignment of a hearing officer. By Notice of Violation and Orders for Corrective Action dated December 19, 1988, DER notified Mr. and Mrs. Stearns and 101 other persons owning or having owned units at Sunrise Landing Condominiums that an investigation of the property on June 2, 1987, had disclosed that 43 docks had been installed and placed less than 65 feet apart with 75 boat slips. These docks had been constructed without permits. A meeting with unit owners on March 15, 1988, had not produced a resolution of the dispute. The Notice of Violation alleges that the docks extended up to 20 feet waterward of the bulkhead through water depths of 8-24 inches. The docks allegedly were constructed within an area conditionally approved by the Department of Natural Resources for shellfish harvesting, but without a Department variance. The docks allegedly resulted in damage to state waters and pollution through localized disturbance of the benthic community by associated boat traffic prop wash in shallow water. The adversely impacted submerged bottom allegedly is highly productive with scattered seagrasses providing valuable fishery resources for the Indian River. Lastly, DER alleges that it had incurred investigatory expenses of at least $1500. After reciting the statutes allegedly violated by the construction of the docks, the Notice of Violation demands, among other things, the removal of all of the docks. By Petition for Formal Proceeding filed January 12, 1989, Mr. and Mrs. Stearns requested a formal administrative hearing on the Notice of Violation. Pursuant to notice, DER held an informal conference with numerous owners of docks, including Mr. and Mrs. Stearns, on February 9, 1989. At the conclusion of the meeting, DER agreed to hold open the informal conference period for an additional 30 days to allow settlement negotiations to be concluded. By Amended Notice of Violation and Orders for Corrective Action dated March 23, 1989, DER issued another notice of violation against the ten remaining dock owners, including Mr. and Mrs. Stearns, who had not yet removed or agreed to remove their docks. The allegations are substantially identical to those of the original Notice of Violation. Because of the failure of settlement negotiations, DER transmitted both files involving the Stearns to the Division of Administrative Hearings on March 31, 1989. In several prior cases, DER had previously informed other unit owners seeking to build a dock off of the bulkhead adjoining the Common Element that no permit was required because the project was exempt under Section 403.813(2)(b), Florida Statutes. In March or April, 1987, DER changed its position on this point. The docks 45 feet north and 5 feet south of the Stearns' dock were constructed without a dredge and fill permit, apparently in reliance upon the same exemption to which the Stearns claim to be entitled in the subject cases. The operation of boats in the vicinity of the dock constructed by Mr. and Mrs. Stearns would stir up the submerged bottom and result in prop dredging of critical vegetation. In sum, the intended use of the dock would disrupt the benthic community. At times, the Stearns have been unable to reach their dock with their boats due to the shallowness of the water. The waters of the Indian River surrounding the Stearns' dock are Class III waters that the Department of Natural Resources has conditionally approved for shellfish harvesting. The Department of Natural Resources has not granted the Stearns a variance for the construction of the dock. The dock is less than 500 square feet of total coverage. The moorings from the dock five feet to the south of the subject dock remained in place following the removal of the remainder of the structure. At the time of the application, the Stearns dock, whose construction had begun no later than June 22, 1987, and been completed on July 3, 1987, was 45 feet south of the nearest dock to the north and 5 feet north of the nearest dock to the south. Both of these docks had been built under claims of exemption. The Stearns dock was maintained for the exclusive use of the Stearns and was not available to other unit owners. DER has failed to prove any investigatory expenses directly attributable to the Stearns, as opposed to the 103 unit owners in general. Moreover, given the pending applications, which disclosed most of the specifics of the subject dock, including inadequate water depths, no portion of the investigation could properly be attributed to the Stearns, especially when the sole witness for DER could not testify to any specific damage to submerged bottom and vegetation caused by boats using the Stearns' dock. Additionally, actual damage and the investigatory expenses attributable thereto are divisible and could have been attributed to a particular violator, but were not.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Department of Environmental Regulation enter a Final Order denying the subject permit and ordering Mr. and Mrs. Stearns to remove their dock, upon such conditions as are necessary to avoid damage to the environment, but not imposing any administrative fine. ENTERED this 22nd day of February, 1990, in Tallahassee, Florida. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of February, 1990. APPENDIX Treatment Accorded Proposed Findings of DER 1-11: adopted or adopted in substance. 12: adopted as to general shallowness and excessive shallowness with respect to the passage of boats. 13-15: adopted or adopted in substance. 16: rejected as irrelevant. 17-24: adopted. 25: rejected as recitation of testimony, unsupported by the greater weight of the evidence, and irrelevant. Treatment Accorded Proposed Findings of the Stearns 1-3: adopted or adopted in substance, except that last sentence of Paragraph 3 is rejected as subordinate. 4: adopted. 5: rejected as unsupported by the greater weight of the evidence. Placing a dock in water too shallow for safe boating may arguably constitute a navigational hazard. 6: adopted. 7: rejected as unsupported by the greater weight of the evidence. In the first place, the facts at the time of the application should control whether the project was, at the time of its actual construction, exempt from the permitting requirements. In addition, the evidence showed that the pilings of at least the closer dock remained in the water following the removal of the decking. 8: first two sentences adopted. Second sentence rejected as unsupported by the greater weight of the evidence. 9: [omitted.] 10: rejected as unsupported by the greater weight of the evidence. It is clear from the operative documents--namely, the warranty deed and declaration of condominium--that Mr. and Mrs. Stearns lack the legal right to use the Common Element in the manner that they have used it. A clause in an unrecorded contract, which probably does not survive closing, cannot diminish the rights of other Unit Owners in their undivided shares of the Common Element, which, in part, the Stearns have seized for their private use. 11: first paragraph adopted. Second paragraph rejected as irrelevant and unsupported by the greater weight of the evidence. COPIES FURNISHED: Dale H. Twachtmann Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 Daniel H. Thompson General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, FL 32399-2400 Steven A. Medina Assistant General Counsel Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 Frank J Griffith, Jr. Cianfronga, Telfer & Reda 815 South Washington Avenue Titusville, FL 32780
The Issue Whether Building permit no. 93-2-4072 issued to Respondents William Lledo, Owner, and Key Marine Equipment, Inc., General Contractor by Monroe County violated Monroe County Comprehensive Plan provisions and Land Development Regulations.
Findings Of Fact On April 28, 1996, Petitioner, Department of Community Affairs (Department), received Monroe County Permit 93-2-4072 issued to Respondents, William Lledo (Lledo) and Key Marine Equipment, Inc., to construct a seawall with a five-foot wide cap which would serve as a docking facility. The project is proposed to be constructed on an undeveloped piece of real property owned by Lledo. The property is known as Lot 37, Sombrero Anglers Club South Subdivision, Boot Key, Monroe County, Florida. The property is located within the Keys Area of Critical State Concern. The proposed seawall/dock will not be supported by pilings or other supports and will not act to stabilize a disturbed shoreline. The shoreline at the subject property is not eroding. An eroding shoreline shows signs of the water undercutting the shoreline and contains no vegetation on the shoreline and submerged shelf. The subject property’s shoreline and adjacent submerged shelf are vegetated. The project will not be replacing a deteriorating seawall or bulkhead. The project, as proposed, requires the placement of fill in a manmade canal below the mean high water line. No principal use or structure has been established on the property nor is there any plan to construct a principal use on the property.
