Findings Of Fact Respondent is Reinecke Insurance Agents, Incorporated, doing business as Dealers Association Plan. Respondent is also known as the Reinecke Agency, Inc., doing business as Dealers Association Plan. Respondent began business on March 1, 1978. At all times material hereto, Respondent has held a certificate of authority, issued by Petitioner, authorizing Respondent to engage in business as an administrator. Alarm Association of Florida, Inc. The Alarm Association of Florida, Inc. (Alarm) is a trade association that was incorporated on July 12, 1976, as a Florida not-for-profit corporation. Alarm was organized to provide an opportunity for its members to exchange ideas and share information concerning trade practices, business conditions, technical developments, and related subjects concerning the electrical protection industry. Alarm has two primary types of membership. Regular Membership is open to any individual, partnership, firm, or corporation engaged in the business of installing or providing alarm service in the electrical protection field for one year preceding the application. Associate Membership is open to any individual, partnership, firm, or corporation that is not engaged directly in the electrical protection business, but may supply goods or services to Regular Members. Officers and directors of Alarm are selected by the voting members, which are limited to Regular Members. About 25% of Alarm's membership consists of nonvoting members. Sometime prior to November 1, 1985, a representative or representatives of Alarm requested Respondent to make a presentation concerning an employee benefit plan that Alarm was considering establishing. Alarm had previously formed a committee to investigate the feasibility of sponsoring such a plan, which its members could join. Alarm thereafter decided to sponsor an employee benefit plan and use Respondent as the plan administrator. Respondent prepared or caused to be prepared the necessary documents. These documents included a trust agreement between various persons, as trustees (Alarm Trustees), and Alarm (Alarm Trust or Alarm Trust Agreement); the Alarm Association of Florida Health and Welfare Benefit Plan (Alarm Plan); and the Administrator Agreement between Alarm and Respondent. Each document was executed and delivered on November 1, 1985. The Alarm Trust Agreement states that the Alarm Trust is to be funded by the contributions made by the members of the Alarm Plan and the Alarm Trust funds are to be maintained as a reserve against claims by Alarm Plan participants. The Alarm Trust Agreement provides that Alarm may remove an Alarm Trustee at anytime and replace an Alarm Trustee who has resigned or been removed. The Alarm Trust Agreement states that the Alarm Plan Administrator, which was designated as Respondent, shall administer the day-to-day operations of the Alarm Trust, inter alia, to pay claims, provide "consulting and actuarial services necessary for the continuing successful operation of the [Alarm] Plan," and establish procedures for "Employee Contributions." "Employees" are "all qualified members of [Alarm] and their employees. The Administrator Agreement, which is authorized by the Alarm Trust Agreement, authorizes Respondent to use the Alarm Trust funds to review and pay claims and pay premiums on policies purchased by the Alarm Plan or Alarm Trustees. Among its various "powers and duties," Respondent is to demand monthly from the Alarm Trustees such funds "prudently required" for the payment of claims; do all things prudent for the daily administration activity of the Alarm Trust; make or cause to be made such reports, and file such information with appropriate public authorities, as may be required by the Trust by applicable laws; and negotiate and purchase such excess insurance or reinsurance as Respondent and the Alarm Trustees deem appropriate to compensate the Alarm Plan participants if claims exceed Alarm Trust assets. The Administrator Agreement states that Respondent is to receive 20% of the monthly contributions as its administrative fee. The Alarm Plan provides a detailed statement of the available benefits and various administrative matters, including claim procedures. In general, the Alarm Plan covers a wide range of medical, accident, and dental expenses. In capital letters on the first page, the Alarm Plan states: This is a self-funded, trade association member employee benefit plan established under Public Law 93-406 [Employee Retirement Income Security Act ("ERISA")], available only to qualified participating employers and their qualified employee participants. It is not available for individual coverage . . . The Alarm Trust Agreement likewise states that it "shall be interpreted in a manner consistent with its being . . . a welfare Benefit Plan pursuant to . . . ERISA . . ." Each Alarm member enrolled in the Alarm Plan makes a monthly contribution, which is paid to Respondent. The contribution is equal to the number of employees of the enrollee who have elected to participate in the Alarm Plan multiplied by the contribution rate. The Alarm Trustees set the contribution rate based upon the advice of Respondent. On at least one occasion, the Alarm Trustees increased the rate upon the advice of Respondent. At all times, the Alarm Trustees and Respondent have intended to keep the Alarm Plan and Alarm Trust actuarially sound. When Respondent first began business, it employed an actuarial service to set contribution rates. After a few years, Respondent terminated the service and thereafter recommended rate increases or initial rates for the various plans that it administered only as the need became apparent. Respondent uses the contributions to pay claims that it has received. As long as Respondent has determined that the claims are valid, the Alarm Trustees do not review the claims. The Alarm Trustees consider a claim only when a participant appeals a rejected claim. Respondent also uses the contributions to pay itself its 20% administrative fee and any reinsurance premiums due third-party insurers. Respondent pays any remaining funds to the Alarm Trustees, who hold such fund in the Alarm Trust as reserves against future claims. The Alarm Trust is liable for all claims. If the valid claims presented to Respondent exceed the contributions received for that month, the Alarm Trust provides the difference. However, the Alarm Trustees have reinsurance under which third- party insurers are liable to pay any claim in excess of $25,000, but not more than $1,000,000. Since the Alarm Plan has been adopted, Respondent and Alarm have solicited enrollees, such as by direct mail. In the case of new enrollees that are not already members of Alarm, Respondent may take an Alarm Plan application and Alarm membership application at the same time. In April, 1988, Alarm comprised 425-450 members. A couple of years ago, Alarm had only about 65 members. About 85 members have enrolled in the Alarm Plan. These enrollees are all employers. About 300 employees participate in the Alarm Plan. All of these employees are employed by enrolled employers. The record fails to disclose whether all of the enrollees are voting members of Alarm. Petitioner's Exhibit Number 11 lists the names of the enrollees. It appears from the names of the businesses that all, or nearly all, of them qualify for voting membership in Alarm. On advice of counsel, the Alarm Plan has never obtained a certificate of authority pursuant to the Act. Neither Respondent, Alarm, the Alarm Trustees, or the Alarm Plan has ever attempted to comply with any provision of the Act, based on the position that ERISA preempts the Act. The Alarm Plan is not fully insured and has no exemption from the Secretary of Labor. Professional Wrecker Operators of Florida, Inc. The Professional Wrecker Operators of Florida, Inc. (Wrecker) is a trade association that was incorporated on May 18, 1977, as a Florida not-for- profit corporation. Wrecker was organized to serve as a clearinghouse of trade information for its members, inform its members of applicable laws and legislative bodies of its members' views, and provide its members with an opportunity to learn about and assist each other. Wrecker has two classes of membership: active, which is limited to professional wrecker operators, and associate, which extends to "affiliated industry persons and companies in sympathy with [Wrecker's] precepts." Only active members may vote. Sometime prior to November 26, 1984, a representative or representatives of Wrecker requested Respondent to make a presentation concerning the possibility of Wrecker sponsoring an employee benefit plan. Wrecker thereafter decided to sponsor a plan and use Respondent as the plan administrator. Respondent prepared or caused to be prepared the necessary documents. These documents included a trust agreement between various persons, as trustees (Wrecker Trustees), and Wrecker (Wrecker Trust or Wrecker Trust Agreement); the Professional Wrecker Operators of Florida Health and Welfare Benefit Plan (Wrecker Plan); and the Administrator Agreement between Wrecker and Respondent. Each document was executed and delivered on November 26, 1984. Except for the deletion of Paragraph 8.2 in the Alarm Trust Agreement, the Wrecker Trust Agreement and Alarm Trust Agreement are identical in all material respects. The provisions of the Wrecker Administrator Agreement and Alarm Administrator Agreement are identical in all material respects. The Wrecker Plan and Alarm Plan are identical in all material respects. The facts set forth in paragraphs 12-16 above with respect to Alarm were identical with respect to Wrecker and are incorporated by reference herein. As of October 30, 1987, the Wrecker Plan had 89 enrollees. About 400 employees participated in the Wrecker Plan. At least five of the enrollees in the Wrecker Plan were not members of Wrecker. The Wrecker Plan never obtained a certificate of authority pursuant to the Act. The Wrecker Plan was not fully insured and had no exemption from the Secretary of Labor. Because the organizational documents of Wrecker offered membership to entities outside of the wrecking trade, Respondent believed that the Wrecker Plan was required to obtain a certificate of authority under the Act because the Wrecker Plan, unlike the Alarm Plan, did not qualify for an ERISA exemption from the Act. On May 22, 1986, Respondent filed with Petitioner an application for a certificate of approval under the Act for the Wrecker Plan. A representative of Petitioner informed Respondent that the approval would be denied unless a certified audit and actuarial report on the plan and trust were submitted. When this information was not thereafter provided, Petitioner's representative advised Respondent that a withdrawal of the application would look better than a denial, which was imminent. Respondent consequently withdrew the application by letter dated February 24, 1987, and never resubmitted the application. Respondent provided the Wrecker Trustees with monthly reports of contributions, claims, and other information pertaining to the current financial condition of the Wrecker Plan and Wrecker Trust. This report contained a category labeled "claims overpaid," which reflected the amount of claims for which no funds were available. At least one of the Wrecker Trustees misunderstood the category as monies that had been paid erroneously in excess of the amount of claims. On or about January 10, 1988, the Wrecker Trustees met with Respondent and were informed that the deficit in the Wrecker Plan and Wrecker Trust approximated $47,000. On January 22, 1988, Wrecker and the Wrecker Trustees received a letter from Respondent containing a one-page statement on Respondent's letterhead styled, "Estimated [Wrecker] Losses." Containing six entries, this statement disclosed $128,153.38 of "[e]stimated claims not paid at closing of the trust by the trustee's [sic]." The statement did not indicate the trust closing date, effective date, or the date through which the unreported claims were projected. Pursuant to a Consent Order dated March 29, 1988, incorporating a Settlement Stipulation For Consent Order entered into by the Wrecker Trustees and Petitioner, the Wrecker Plan ceased operations on February 29, 1988, and, although admitting no violation of the Act, paid an administrative fine of $5,000. A certified audit through that date discloses a deficit in the Wrecker Plan and Wrecker Trust of about $168,000. Florida Automobile Dismantlers and Recyclers Association The Florida Automobile Dismantlers and Recyclers Association (Dismantlers) is a trade association that sponsors the Florida Auto Dismantlers and Recyclers Association Health and Welfare Benefit Plan (Dismantlers Plan). On September 23, 1981, Dismantlers and Respondent entered into an Administrator Agreement and Dismantlers and various trustees, including M. L. Vaughn, the president of Respondent, entered into a trust agreement (Dismantlers Trust Agreement or Dismantlers Trust) with respect to the Dismantlers Plan. The Dismantlers Plan documents, which were provided by Respondent, are substantially identical to the Alarm Plan and Wrecker Plan documents. On or about October 3, 1983, Respondent, as administrator of the Dismantlers Plan, filed with Petitioner an application for a certificate of authority for the Dismantlers Plan under the Act, which became effective on October 1, 1983. Petitioner issued the certificate of authority. Respondent handles contributions and claims for the Dismantlers Plan in the manner described above for the Alarm Plan and Wrecker Plan. As the Dismantlers Plan administrator, Respondent is obligated to file with Petitioner such reports and documents as are required under the Act. Consequently, Respondent has filed with Petitioner annual statements of the Dismantlers Plan for each fiscal year ending from 1983 through 1987. An annual statement consists of three legal-size pages containing 19 questions, of which only three questions require answers that typically change each year. These questions request the number of employers enrolled in the plan, the number of participants participating in the plan, and the amount of funds handled by the plan and trust each year. The annual statement requires a copy of the most recent financial statement for the plan and trust. At the bottom of the annual statement, the person signing swears that he or she is familiar with the Act. At least two of the annual statements filed for the Dismantlers Plan from 1983 through 1987 were signed by Mr. Vaughn, as president of Respondent. The fiscal year of the Dismantlers Plan and Dismantlers Trust ends on January 31. On December 7, 1987, Respondent filed the Dismantlers Plan's annual statement for the fiscal year ending on January 31, 1987. The financial statements attached to the annual statement disclosed less than $10,000 available to pay claims, annual additions of $479,240, and annual deductions of $470,400. Mr. Vaughn testified that the 1987 annual statement of the Dismantlers Plan was filed late due to the presence in Respondent's offices of Petitioner's auditors for five months. Florida Independent Automobile Dealers Association The Florida Independent Automobile Dealers Association (Independent) is a trade association that sponsors the Florida Independent Automobile Dealers Association Health and Welfare Benefit Plan (Independent Plan). On September 20, 1983, Independent and Respondent entered into an Administrator Agreement. On July 18, 1978, Independent and Various trustees entered into a trust agreement (Independent Trust Agreement or Independent Trust), which, although naming a different initial administrator, was witnessed by a principal of Respondent. The Independent Plan documents, which were provided by Respondent, are substantially identical to the Alarm Plan and Wrecker Plan documents. On or about September 29, 1983, Respondent, as administrator of the Independent Plan, filed with Petitioner an application for a certificate of authority for the Independent Plan under the Act. Petitioner issued the certificate of authority. Respondent handles contributions and claims for the Independent Plan in the manner described above for the Alarm Plan and Wrecker Plan. As the Independent Plan administrator, Respondent is obligated to file with Petitioner such reports and documents as are required under the Act. Consequently, Respondent has filed with Petitioner annual statements of the Independent Plan for each fiscal year ending from 1983 through 1987. The fiscal year of the Independent Plan and Independent Trust ends on the last day of February. On December 7, 1987, Respondent filed the Independent Plan annual statement for the fiscal year ending on February 28, 1987. The financial statements attached to the 1987 annual statement disclosed a deficit of $289,552 available to pay claims, annual additions of about 2.8 million, and annual deductions of about $2.62 million. Attached to the 1987 annual statement is a one-page letter, signed by a trustee, stating that a rate increase of 14.3%, effective January, 1987, had produced additional funds of $270,395 and a second rate increase of 14.3%, effective October, 1987, would produce additional funds--over an unstated period of time--of $309,062, which would produce an Independent Trust surplus--at an unstated point in time-- of $118,483. Mr. Vaughn testified that the 1987 annual statement of the Independent Plan was filed late due to the presence in Respondent's offices of Petitioner's auditors for five months. Florida RV Trade Association The Florida RV Trade Association (RV) is a trade association that sponsored the Florida RV Trade Association Health and Welfare Benefit Plan (RV Plan). On September 1, 1983, RV and various trustees (RV Trustees) entered into a trust agreement (RV Trust Agreement or RV Trust). The RV Trust Agreement named Respondent as the administrator of the RV Plan. The RV Trust Agreement and RV Plan, which were provided by Respondent, are substantially identical to the Alarm Plan and Wrecker Plan documents. On or about October 6, 1983, Respondent, as administrator of the RV Plan, filed with Petitioner an application for a certificate of authority for the RV Plan under the Act. Petitioner issued the certificate of authority. Respondent handled contributions and claims for the RV Plan in the manner described above for the Alarm Plan and Wrecker Plan. As the RV Plan administrator, Respondent was obligated to file with Petitioner such reports and documents as are required under the Act. Respondent's obligations extended to ensuring that the security or surety bond required by the Act, if available, was obtained timely and posted with Petitioner. Respondent regularly obtained the surety bonds for plans holding a certificate of authority under the Act, which included the Dismantlers Plan and Independent Plan, through Dealers Insurance Company. Dealers Insurance Company and Respondent share the same telephone number, although they use different post office boxes. Mr. Vaughn is also president of Dealers Insurance Company, of which he is part owner. Glenna Bryan is the office manager of Respondent and office manager and vice president of Dealers Insurance Company. Although operating under a certificate of authority, the RV Plan never posted with Petitioner the security or surety bond required by the Act prior to 1987. By letter dated July 25, 1986, to the RV Trustees, Mr. Vaughn, on behalf of Respondent, stated, as he had at a meeting with the RV Trustees in April, 1986, that the only option available to restore financial soundness to the RV Trust was to merge the RV Plan and RV Trust into another plan and trust. In 1986 or early 1987, Petitioner demanded that the RV Plan post the security or surety bond required by the Act. Respondent obtained from Dealers Insurance Company a surety bond in the required amount of $100,000. The bond was duly signed on February 2, 1987, by Ms. Bryan for Dealers Insurance Company, which served as the surety on the bond. The surety bond was delivered to Respondent. Ms. Bryan, as office manager of Respondent, mailed the bond to the RV Trustees with a cover letter dated February 17, 1987. The letter stated that the bond had been "issued on behalf of the State of Florida [and] is a M.E.W.A. bond that will be posted with the State. . .." The letter requested that, after the RV Trustee had signed the bond as principal, he return it to Respondent. The RV Trustee duly executed the bond, but, instead of returning it to Respondent, he sent it to the RV attorney, who sent it to Petitioner together with a cover letter dated March 9, 1987. On March 9, 1987, RV paid the premium for the bond by check in the amount of $1,000 and payable to Dealers Underwriting Service. RV delivered the check to Mr. Vaughn. Dealers Underwriting Service, of which Mr. Vaughn is secretary and treasurer, promptly deposited the check. The premium has never been refunded to RV. The bond was delivered to Petitioner without the prior specific knowledge of Respondent or Dealers Insurance Company. By letter dated June 3, 1987, Dealers Insurance Company informed Petitioner that the bond was cancelled as of August 5, 1987. Dealers Insurance Company has also taken the position that the bond was never properly delivered and null and void ab initio. Dealers Insurance Company has thus refused to honor any claims or demands under the bond. Dealers Insurance Company had completed its underwriting prior to signing the bond and delivering it to Respondent. The only purposes of having the original bond returned to Respondent were to obtain a copy of a fully executed bond and ensure that it was properly filled in and filed. Dealers Insurance Company cancelled the bond because of the RV Trust's insolvency and imminent dissolution, which Dealers Insurance Company discovered due to the knowledge gained by Mr. Vaughn and Ms. Bryan in their capacity as employees of Respondent and in the course of their administration of the RV Plan. By order of Leon County Circuit Court entered July 20, 1987, the RV Plan and RV Trust were voluntarily transferred by the RV Trustees to Petitioner for liquidation on the grounds of financial insolvency. Petitioner has unsuccessfully demanded payment under the bond from Dealers Insurance Company.
Recommendation Based on the foregoing, it is recommended that Petitioner enter a final order: Dismissing the first count of the Administrative Complaint; As to the second count, dismissing the portion thereof alleging thatRespondent violated Section 624.437, Florida Statutes; As to the second count, finding Respondent guilty of violating Sections 626.891(1)(b) and 626.891(2)(e), Florida Statutes, as to the latter, by virtue of a violation of Section 626.8805(4) Florida Statutes; As to the third count, dismissing the portion thereof alleging that Respondent violated Section 626.891(1)(b), Florida Statutes; As to the third count, finding Respondent guilty of violating Section 626.891(2)(e), Florida Statutes, by virtue of a violation of Section 626.8805(4), Florida Statutes; As to the fourth count, finding Respondent guilty of violating Sections 626.891(1)(b) and 626.891(2)(b), Florida Statutes, as to the latter, by virtue of a violation of Section 626.8805(4), Florida Statutes. As to the fifth count, dismissing the portion thereof alleging that Respondent violated Section 626.891(1)(b), Florida Statutes; and As to the fifth count, finding Respondent guilty of violating Section 626.891(2)(e), Florida Statutes, by virtue of a violation of Section 626.8805(4), Florida Statutes. Based on the foregoing, it is further recommended that the Final Order suspend the certificate of authority of Respondent, pursuant to Section 626.893, Florida Statutes, for a period of three months from the effective date of the Final Order, for violation of Section 626.891(1)(b), Florida Statutes, proven as to the second count; impose an administrative fine against Respondent in the total amount of $9000, representing $5000 for the willful violation of Section 626.891(1)(b), Florida Statutes, proven as to the fourth count, and $1000 for each of the four violations of Section 626.891(2)(e), Florida Statutes, proven as to the second, third, fourth, and fifth counts. Each of these violations is based on demonstrated incompetence, which, at least in this case, implies an ignorance that is inconsistent with a finding of willfulness. DONE and RECOMMENDED this 13th day of June, 1988, in Tallahassee, Florida. ROBERT E. MEALE 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 13th day of June, 1988. APPENDIX Treatment Accorded Petitioner's Proposed Findings Count One 1-4. Adopted. 5-6. Rejected as contrary to the greater weight of the evidence. 7. Adopted. 8-9. Rejected as unnecessary. 10-11. Adopted, except that Respondent did not solicit Alarm; it only furnished the documents. 12-13. Adopted in substance. 14-18. Adopted. 19-21. Rejected as unnecessary. 20. Adopted. 22. First two sentences adopted. Last sentence rejected as unnecessary. Third sentence rejected as unsupported by any evidence. 23-25. Adopted in substance, except that the certificate of authority issued to the other plans is irrelevant to whether the Alarm Plan required one. 26. Rejected as legal argument. While it is evident that Respondent recognized the legal significance of admitting that plans were MEWA's, it is likely that it did not weigh the legal significance of "operation and maintenance" in its Answer. Count Two 1-4,6. Adopted. 5. Adopted in substance. 7. Rejected as legal argument and contrary to greater weight of the evidence. 8-11. Adopted. Adopted in substance. Rejected as unnecessary. 14-16. Adopted, except that Respondent did not solicit Wrecker; it only furnished the documents. 17-18. Adopted in substance. 19-23. Adopted. 24. Rejected as unnecessary. 25-26. Adopted. 27-28. Adopted in substance, except that the certificate of authority issued to the other plans is irrelevant to whether the Wrecker Plan required one. 29. Rejected as legal argument. Counts Three and Four All proposed findings adopted or adopted in substance. Count Five All proposed findings adopted or adopted in substance, except that 9,11, and 19 are rejected as unnecessary. Adopted. Rejected as against the greater weight of the evidence and unnecessary. 3-4. Rejected as unnecessary. 5-9,11. Rejected as legal argument. 10 and 13. Adopted. 12. Adopted in substance. 14 and 15. Rejected as argument and, in the case of 15, unnecessary. Rejected as unnecessary, except that M. L. Vaughn is President of the surety. Rejected as legal argument and against the greater weight of the evidence. COPIES FURNISHED: R. Terry Butler, Esquire Department of Insurance 413-B Larson Building Tallahassee, Florida 32399-8300 Geoffrey B. Dobson, Esquire Meredith & Dobson, P.A. 77 Bridge Street St. Augustine, Florida 32804-1957 Honorable William Gunter State Treasurer and Insurance Commissioner The Capitol, Plaza Level Tallahassee, Florida 32399-0300 Don Dowdell General Counsel Department of Insurance and Treasurer The Capitol, Plaza Level Tallahassee, Florida 32399-0300 =================================================================
The Issue The issues in this case are whether Franklin County (County) violated the law by placing unauthorized construction debris and material within a permitted revetment seaward of the coastal construction control line (CCCL); and whether the County should be required to take corrective action to remediate this violation.
Findings Of Fact Count I Since an undisclosed date in the late 1970s, the County has owned and maintained that portion of County Road 370, also known as Alligator Drive, located at Alligator Point in the southeastern tip of the County. Before then, the road was classified as a secondary road owned and maintained by the Department of Transportation (DOT). Sometime during the late 1970s, the Legislature transferred the ownership and control of some secondary roads, including County Road 370, from the State to local governments. A revetment is a man-made sloping structure, typically using rock boulders, designed in this case to protect County Road 370 from coastal erosion by absorbing the energy of incoming water from the Gulf of Mexico. It is the only structure protecting that roadway from the open winds and waters of the Gulf of Mexico. In regulatory parlance, a revetment is "armoring," also known as a "rigid coastal armoring structure" within the meaning of Florida Administrative Code Rule 62B- 33.002(5) and chapter 161. The Department has established a CCCL for the County. A permit is required before any person may conduct construction activities seaward of that line. However, if public infrastructure is threatened or damaged by erosion related to a storm event, as an emergency measure, a local government may construct a temporary armoring structure without first obtaining a permit from the Department. See § 161.085(3), Fla. Stat. Once the temporary structure is installed, the local government has 60 days in which to remove it or file an application for permanent authorization of the structure. See § 161.085(6), Fla. Stat.; Fla. Admin. Code R. 62-33.0051(5)(g). Construction debris may not be used for emergency protection. See § 161.085(6), Fla. Stat.; Fla. Admin. Code R. 62B-33.0051(5)(f). Construction debris is defined as "material resulting from the demolition of a structure" and does not "include such material which has been sorted, cleaned, and otherwise processed such that it meets the suitability criteria for armoring materials set forth in this rule chapter." Fla. Admin. Code R. 62B-33.002(15). On October 5, 1971, the Department of Natural Resources (DNR), which was later merged into the Department, issued to DOT Permit No. BBS 71-33 for the construction of a rock revetment on the south side of County Road 370 in the area that is the subject of the Amended NOV. See Department Ex. 2, ¶9. A Final Order issued by DNR on May 29, 1986, states in part that while the project was never constructed, "[s]ince 1971, DOT did place loose rock and rubble debris on several occasions in noncompliance to any engineering design and without construction." Id. However, a Department inspection in 1996 revealed that no debris was located within the area where the current revetment is built. See Finding of Fact 6, infra. On May 29, 1986, DNR issued to the County CCCL Permit No. FR-204 for the construction of a 1,500-foot rock revetment seaward of the established CCCL and adjacent to portions of County Road 370 abutting the Gulf of Mexico. See Department Ex. 2. The revetment was located approximately 350 feet east of DNR's [now Department] reference monument R-211 to approximately 150 feet west of DNR's reference monument R-213. Id. at ¶ 1. On November 7, 1994, the Department issued to the County CCCL Permit No. FR-446 for the re-construction of the original revetment authorized in 1986 and extension of the eastern limits of the structure. The revetment is located approximately 540 feet west of Department reference monument R-212 to approximately 140 feet east of Department reference monument R-213. See Department Ex. 3. The permit did not authorize placement of any construction debris within the revetment. On February 5, 1996, the County certified that the revetment was constructed in compliance with the permit. See Department Ex. 4. A final site inspection performed by the Department revealed that no unauthorized construction debris or other material had been placed in the permitted revetment. See Department Ex. 5. In July 2005, Hurricane Dennis made landfall in the Florida Panhandle causing damage to the shoreline along County Road 370. As an emergency measure after the storm event, the County replaced rock boulders that had been displaced back into the rock revetment seaward of the CCCL. It also placed unauthorized concrete debris and other debris material within the footprint of the rock revetment seaward of the CCCL. The unauthorized debris material has never been removed. Such debris poses a potential safety hazard to the public. On September 11, 2006, the County submitted to the Department an application for a joint coastal permit, which would authorize a 2.9-mile beach and dune restoration project along a segment of the Alligator Point shoreline. In 2007, a Department site inspection (attended by County officials and its consultant) revealed the presence of concrete debris and other debris material stacked on top of and intermixed with the previously permitted rock revetment. The purpose of the site inspection was to have the County's consultant formulate a debris removal plan, which would be incorporated as a condition in the joint coastal permit and sovereign submerged lands authorization. An enforcement action was not initiated because the debris removal plan, if completed, would resolve the violation. On May 11, 2011, the County's application for a joint coastal permit was approved and Permit Number 0269516-001-JC was issued. See Department Ex. 6. Special Condition 5 of the permit gave the County specific instructions on how to remove the construction debris within the previously-permitted rock revetment and included a requirement that it be placed in an upland disposal site. Id. at p. 6 of 23. An attachment to the permit identified the debris and derelict structures to be removed. However, the County has never undertaken the beach re- nourishment project or completed any of the work relating to the debris removal plan. This is because the voters of the County rejected the funding mechanism for the project several years before the permit was issued. On January 9, 2012, the Department conducted an inspection of the site to document how much debris was in the revetment and where it was located. The inspection revealed the presence of a significant amount of concrete debris and other debris material scattered throughout the revetment and continuing eastward. See Department Ex. 7. A NOV was issued after the inspection. On March 8, 2012, a follow-up inspection was conducted by the Department and County representatives. The conditions observed at that time were essentially the same as those present during the January inspection. During the March inspection, a County representative pointed out several pieces of concrete debris that he believed were the remains of an old swimming pool from an upland property that had been placed on top of the revetment after a storm event. Prior to that time, the County had taken no steps to remove this debris, and it had never notified the Department that concrete pool debris had been placed in the revetment, apparently by an unknown third party. An Amended NOV was issued on August 31, 2012, which added a Count II, relating to the area east of the permitted revetment, and identified the corrective action to be taken by the County for both Counts. The corrective action for Count I requires the County, within 60 days of the effective date of a final order in this proceeding, to remove all construction debris and other debris material, seaward of the CCCL, from and adjacent to the footprint of the previously permitted rock revetment. It further requires the County to promptly dispose of all debris at an appropriate disposal facility landward of the CCCL. If compliance with these conditions requires the County to remove the debris during the Atlantic hurricane season, the time frame to complete the removal activity shall be within 60 days after the end of that season. Except for a contention that it is not responsible for removing all of the debris in the revetment, the County does not dispute the charges in Count I. See Stip., ¶ 7.a. In an effort to limit its liability, the County points to language in a 1986 DNR Final Order, which states in part that "loose rock and rubble debris" was placed in the revetment footprint by DOT "on several occasions" in the 1970s. Department Ex. 2, ¶ 9. However, a Department inspection of the site in 1996 just after the structure was rebuilt determined that there was no unauthorized debris in the footprint of the permitted revetment. The results of that inspection were not credibly disputed. The County also contends that other debris may have been placed in or on top of the revetment by unknown third parties after various storm events in later years. But even if this is true, it is the responsibility of the property owner, in this case the County, to remove the debris. The County also seeks "equitable relief" on the ground it lacks the necessary finances to perform the corrective action. The County Director of Administrative Services stated that due to the recession, the property tax base has been cut in half (from $4.1 billion to $1.9 billion) between 2006 and 2011, essentially cutting ad valorem property taxes by 50 percent. The County further points out that the Federal Emergency Management Agency (FEMA) is not a source of funding to correct the violations. Several years ago, FEMA funding was available to the County on a one-time basis to either construct a bypass road for portions of Alligator Drive adjacent to the previously permitted rock revetment or to maintain the rock revetment. Based upon FEMA's recommendation, the County opted to build a bypass road, which is approximately 75 percent completed, with the remainder temporarily delayed due to pending condemnation litigation with an affected property owner. However, the County described the bypass road as being far less safe than County Road 370 because the bypass road has sharp turns, poor driving visibility, and a much smaller right-of-way (52 feet versus 80 to 100 feet for County Road 370). In any event, FEMA funding for performing revetment-related work adjacent to County Road 370 is no longer available. Finally, the County estimates that there are "a hundred [truck] loads of material to be removed from this area," and if the debris is removed, it will "reduce the volume of protection that [the road] currently [has]" and increase the risk of the road failing. The County suggests that even if the debris is removed, it has no money to then restore the structural integrity of the revetment. If that part of County Road 370 becomes unsafe or unusable, approximately 400 homes west of the revetment will lose the only paved hurricane evacuation route from the coastline, and emergency services may not be able to quickly access the area. As discussed in the Conclusions of Law, despite these unfortunate circumstances, the financial condition of the violator is not a consideration in formulating a corrective action plan. Count II Beginning in September 2000, and continuing until at least through July 2005, the County placed material, including granite rock boulders, rock, and debris material, in a location east of the previously permitted rock revetment, seaward of the CCCL. The granite rock boulders are permitted material taken from the rock revetment. A permit for a permanent rigid coastal armoring structure has never been obtained for the placement of the authorized material, and the debris material has never been removed. The construction activity is located to the east of the previously permitted rock revetment seaward of the CCCL approximately 140 feet east of Department reference monument R-213 to approximately 80 feet east of Department reference monument R-214. To address the violations in Count II, the County has agreed that within 60 days of the effective date of a final order in this case, it will submit to the Department a complete application for a rigid coastal armoring structure located between Department reference monuments R-213 and R-214 that complies with all Department requirements. All work shall be completed prior to the expiration of the permit. If a complete application is not timely submitted, or the structure is not completed prior to the expiration of the permit, the County will remove all material placed seaward of the CCCL pursuant to a Department approved debris removal plan.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter a final order determining that the County is liable for the violations in Count I. As corrective action, within 60 days of the effective date of a final order in this proceeding, the County shall remove the existing construction debris and other material seaward of the CCCL from within the footprint of the previously permitted rock revetment and dispose of the material at an appropriate disposal facility landward of the CCCL. If compliance with the time period requires the County to complete activities during the Atlantic hurricane season, the time frame for completing the debris removal activities is 60 days after the end of the hurricane season. It is further RECOMMENDED that, based upon the parties' agreement at final hearing, the Department also determine that the County is liable for the violations in Count II. As corrective action, within 60 days of the effective date of this Order, the County shall submit to the Department a complete application for a rigid coastal armoring structure located between Department reference monuments R-213 and R-214 that complies with all Department permitting rules and statutes. The County shall complete the permitted construction prior to the expiration of the permit. If the County does not submit a complete application within 60 days of entry of a final order, or does not construct the structure authorized by the permit prior to the expiration of the permit, the County shall remove all material placed seaward of the CCCL pursuant to a Department approved debris removal plan. DONE AND ENTERED this 29th day of January, 2013, in Tallahassee, Leon County, Florida. S D. R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of January, 2013.
The Issue By this action Petitioner seeks to recover costs, expenses and damages associated with state response to an oil spill incident occurring February 26, 1987, within three miles of the Florida shoreline. Respondent's vessel was responsible for that spill. In particular the costs, expenses and damages claimed are related to salaries, per diem allowances, Federal Express charges, beach sand replacement, equipment, use of a cellular phone, and consulting work at the shore and off site. Petitioner also seeks damages for bird mortality resulting from the spill. See Chapter 376, Florida Statutes, and Chapter 16N- 16, Florida Administrative Code.
Findings Of Fact On the evening of February 26, 1987, the motor vessel Fernpassat struck the south jetty at the entrance to the St. Johns River at a location within three miles of the Florida shoreline. In doing so it ruptured the hull and spilled a substantial amount of heavy fuel oil. The type of the oil was No. 5 or 6 Bunker C. A preliminary estimate placed the amount of oil in excess of 100,000 gallons. While the true amount may have been somewhat less, it was a significant spill in that it substantially threatened the public's welfare and the environment and generated wide public interest. Petitioner's exhibit 3 is a map which depicts the basic location where the vessel collided with the jetty with an "X" mark. The area impacted by the discharge ran from roughly Atlantic Beach, Florida, to Guana State Park in St. Augustine, Florida. This is approximately 25 miles of beach front. Beach property over which Petitioner has regulatory and proprietary responsibility had oil deposited upon it. The oil spill killed or injured a number of birds. The event was responded to by the "Federal Region IV Regional Response Team" (RRT). The federal on-scene coordinator (OSC) was Captain Matthew Woods, U.S. Coast Guard. The RRT, through management and control provided by the OSC, took necessary steps to combat the effects of the spill. Respondent immediately accepted responsibility for the cleanup through the use of a consultant and cleanup contractor. Under this arrangement the OSC monitored the contractor's cleanup efforts to make certain that the job was done satisfactorily. Florida officials were part of the RRT. Rule 16N-16.009(21), Florida Administrative Code, calls for personnel from Petitioner; the State of Florida, Department of Environmental Regulation (DER); and the State of Florida, Department of Community Affairs (DCA) to represent state interests as members of the RRT. Each of these agencies participated as members of the RRT. This furthered the legislative intent expressed at Section 376.021(6), Florida Statutes, to support the RRT through implementation of the "Federal Water Pollution Control Act," which is also known as the "Clean Water Act," 33 U.S.C. ss. 1251-1376. By its efforts the RRT promoted the removal of the oil in accordance with a national contingency plan. Pursuant to Section 376.021(6), Florida Statutes, the state is expected to complement applicable provisions within the "Federal Water Pollution Control Act" as well as render the support previously described. Both the support and complementary functions of the state are part of Florida's "Pollutant Spill and Prevention Control Act," Sections 376.011-376.17, 376.19-376.21, Florida Statutes. Chapters 16N-16, Florida Administrative Code, more completely identifies the role played by the state agencies in this instance. This chapter was adopted pursuant to authority set out in Section 376.07, Florida Statutes, which, among other things, empowered Petitioner to make rules which developed and implemented criteria and plans to respond to spills such as the one at issue. In its complementary role the state has established a "State Response Team" (SRT). This organization in defined at Rule 16N-16.009(13), Florida Administrative Code. It is constituted of predesignated state agencies available continually to respond to a major spill. This incident was a major spill or discharge as defined in Rule 16N-16.009(18), Florida Administrative Code. The predesignated state agencies, pursuant to the rule defining the SRT and Section 376.07(2)(e), Florida Statutes, act independently of the federal authorities, although they are expected to cooperate with the federal authorities in the efforts at cleanup. What that meant here is that notwithstanding the concerns which Captain Woods had and the state participation in the RRT through Petitioner, DER and DCA, there was a parallel function by the SRT which had its own mandate. This allowed the SRT to pursue an independent agenda in the spirit of cooperation with the OSC in an attempt to protect the resources over which the state has jurisdiction, including the beach front and birds. Both Captain Woods and the consultant to the spiller, James L. O'Brien, who is a man of considerable credentials in giving advice about oil spill problems, expressed their understanding of the interests which the state might have in carrying out its functions and did not find that reality a hindrance in performing their duties. As a result, even though state employees and equipment and consultants to the state had limited utility for the OSC and the consultant to the spiller in carrying out their duties, it does not follow that claims by the state for reimbursement in categories set out in the statement of issues must fail unless found to support the OSC or spiller's choice in attempts at cleanup. The question is whether the costs, expenses and damages are reasonably related to support for the RRT or complementary of that function through the SRT and owed or expended from the Florida Coastal Protection Trust Fund (Fund) for recoverable items. See Section 376.11, Florida Statutes. Petitioner's exhibit 15 is a copy of the state contingency plan. See Section 376.07(2)(e), Florida Statutes. It identifies the membership of Petitioner, DER and DCA. Other claimants for costs, expenses, and damages who were involved in the response to this incident as predesignated agencies are the Florida Game and Fresh Water Fish Commission (Commission), the State of Florida, Department of Transportation (DOT), and the Attorney General. The state contingency plan explains the operational responsibilities of state agencies when responding to the incident. This is a more specific reference to those responsibilities as envisioned by the general guidelines announced in the "Pollution Spill Prevention and Control Act." Having considered the testimony and exhibits in the context of the state support and complementary role in responding to the spill contemplated by the aforementioned laws, regulations and contingency plans, the costs, expenses and damages sought by the Petitioner are reasonably related to those purposes. Those costs, expenses and damages are detailed in Petitioner's exhibit 16 and summarized in Petitioner's exhibits 8 and 9. With the exception of $15,654.37 in costs and expenses for Petitioner's Executive Office and Division of Law Enforcement and $3,336.16 for salaries for the Commission, DOT and DCA, all claims for expenses and costs have been paid from the Fund. Petitioner wishes to impose the costs, expenses and damages in the state response whether or not claims were disbursed from the Fund. The damage claim associated with future beach re-nourishment by replacement of sand that had been befouled by oil and needed to be removed is a reasonable claim in the amount of $10,222.50. It has been paid from the Fund and is held in the Erosion Control Trust Fund until needed. The on-scene consulting fee of $3,525.00 and the oil spill assessment study fee of $9,880.00 commissioned by Petitioner through Jacksonville University are reasonably related to the Department's role in response to the spill. As Petitioner's exhibit 8 depicts, $30,312.53 has been disbursed from the Fund in costs, expenses and damages reasonably related to the response to the spill. There remains unpaid from the Fund the aforementioned costs and expenses in the amount of $18,990.53 which are reasonably related to the response to the spill. Those latter amounts, although presented for payment from the Fund by the agencies in question, were not paid, based upon some fiscal anomaly. By inference, it does not appear from this record that the Fund owes the agencies for these claims. According to Section 376.13, Florida Statutes, on February 27, 1987, Governor Martinez declared a state of emergency in response to the oil spill. That proclamation was withdrawn on March 25, 1987. The activities for which claims for costs and expenses are advanced transpired in the time frame of the state of emergency declaration. The amount which Respondent has expended in the cleanup effort is $700,000 plus or minus $200,000. None of this money has been paid to satisfy claims for costs, expenses and damages previously described. While it has been found that costs, expenses, and damages are reasonably related to the state's purposes in responding to the spill, not all items are recoverable. They are only recoverable if recognized for recovery by Chapter 376, Florida Statutes, and Chapter 16N-16, Florida Administrative Code, and owed or expended from the Fund. Petitioner's claims in its exhibit 8 in the amount of $12,901.30 and DOT claims for $675.19 in that exhibit qualify for recovery as well as the on-scene consulting fee of $3,525.00. Other claims do not qualify with the exception of a limited recovery for bird mortality. Reasons for this fact finding are set forth in the conclusions of law. Petitioner has disbursed $176,058.00 to the Commission for damages related to alleged bird mortality. This money was disbursed from the Fund. Petitioner now concedes that the amount should be reduced by half. This recognizes that the cost estimate for damages dealt with pairs of birds not single birds. Petitioner now asks for $88,075.00. Two hundred fourteen (214) birds are said to have died as a result of the spill, according to Petitioner. Petitioner seeks damages for each of these birds. The number proven to have been killed by the event and the theory upon which the damage claim is predicated leads to a result which diminishes the claim for reasons to be explained. As with other claims, Section 376.021.(4)(c), Florida Statutes, anticipates the payment of damages from the Fund. Section 376.11(1), Florida Statutes, is in aid of recovery of damages, as is Section 376.11(4)(d), Florida Statutes. However, these claims must be susceptible to proof that readily identifies and explains valuation methods of the birds and recognizes the predicate of establishing the actual number lost in this episode. For the most part, Petitioner has failed in the endeavor. Mark Damian Duda is a wildlife biologist with the Commission. He earned a bachelor of science degree from West Virginia University and received his master's degree in natural resource policy and planning from Yale University, both with honors. He was assigned the task of trying to arrive at an acceptable method for valuing birds that had been killed. His assessment is generally set forth in a report, a copy of which is Respondent's exhibit 3. Having considered a number of options, he reached the decision to employ what he describes as the replacement value method. Quoting from his report concerning this method, he has this to say: Replacement Value Method We believe the replacement value method is the most useful and logical method to determine the value of wildlife lost in the February 27 Jacksonville oil spill. A replacement cost approach can avoid many of the problems involved in attempting to estimate the use of value of biological resources. Under the replacement cost approach, the resource is valued at what it would cost to replace it. If the resource is replaced, the problems of identifying all its uses, the monetary value of these uses, and the users affected by the resource loss are eliminated, except for the period between the initial loss and the replacement. Four Florida institutions were asked to estimate the cost of obtaining specimens of the birds killed in the Jacksonville oil spill, or the price at which they would be willing to sell members of each species. Their estimates are shown in Table 4. One problem with most of these estimates is that they are not true replacements costs; but rather the cost of collecting already existing specimens from the wild and redistributing them to the Jacksonville Area. This does not represent true replacement, since true replacement requires a complete recovery of the species population. This can be most clearly assured by using only captive breeding programs for replacement. However, many of the species in this list probably cannot be bred in captivity. Therefore, true replacement of these species through captive breeding is probably impossible. It is absurd to value them at zero since they cannot be replaced. Therefore, this section presents some calculations on the assumption that they could be redistributed or replaced. Table 1 presents the replacement costs for the birds. The numbers were derived by multiplying the number of dead birds times the average replacement costs given in Table 4. Using this approach, the total replacement costs for the birds estimated to have been killed in the Jacksonville oil spill is $176,058.00. It should be noted that we use a deliberately conservative approach, using body counts only, and thereby underestimating the total mortality. There is an increasing amount of scientific literature indicating that actual body counts appear to significantly underestimate the total mortality resulting from a spill. For example, there have been a variety of experiments that show only 5 percent to 25 percent of the birds that die at sea, wash in or beach themselves on shore. The percent of loons found is probably even lower because of their low buoyancy and wide-ranging distribution. An alternative approach to estimating replacement costs is to estimate the cost of creating new habitat or enhancing existing habitat to support enough nesting pairs of each species to replenish the population. Again, to represent true replacement costs, this should be new or enhances habitat, not just the cost of acquiring already existing habitat. Tables 1 and 4 within Respondent's exhibit 3 are replicated here for convenience as Appendix 2 and Appendix 3, respectively. The numbers of birds shown in Duda's table are not numbers about which he has direct knowledge. They are numbers purportedly obtained from Tim O'Meara and Peter Southall, biologists who work for the Commission who got their information from the Central Region and Northeast Region, respectively. In particular, they allegedly received their information from rehabilitators working in the two regions. Neither biologist testified at hearing, and the exhibits do not satisfactorily establish what involvement the biologists had in a direct inventory of birds, if any, or the other sources of their information which was then given to Duda in preparing his report. The rehabilitators in the Central Region did not testify nor were any exhibits presented which spoke to records kept by those individuals that set out bird deaths in that area. The only person who presented any reliable information concerning bird mortality was Cindy Mosling, rehabilitator in the Northeast Region. Any records which she maintained were not produced at hearing. Nonetheless, she did remember some details concerning bird mortality, and from this testimony 56 common loons, 3 gannets, 1 black skimmer and 2 hooded mergansers are found to have died as a result of the oil spill. The replacement value method by Duda speaks to the fact that his method does not constitute a complete recovery of the species population. Instead, what is shown in Respondent's exhibit 3 is averaging of estimates from Table 4 on costs for collecting existing specimens from the wild and releasing them back to the Jacksonville area after a period as opposed to a captive breeding program. That explanation is not correct, either, because there is no intention to release birds to the wild after raising them or rehabilitating them in captivity in one of the Florida institutions mentioned in Table 4. Moreover, only one of those programs has been relied upon by Petitioner in arriving at a cost estimate. That program is Sea World. As a consequence, the cost analysis in Table 1 related to hooded mergansers is incorrect in that it reflects an average of $150 and not the $200 quoted by Sea world. Again, the prices reflect pairs and not single birds. Robin Friday is the curator from Sea World who supplied cost estimates for pairs in Table 4 to Respondent's exhibit 3. He arrived at his price estimates in a 15 to 20 minute telephone conversation with Duda. To the extent he had no actual experience with price lists reflecting cost of a specie, he assumed that theoretical permits would be issued to collect live birds or eggs in the wild and that he would keep them in a captive environment, hoping they would breed while in captivity. In the latter category, the costs to promote the outcome of breeding in captivity formed his estimate. It can be seen that this departs from Duda's method for valuation. Notwithstanding this fact, Duda relied upon the price quotation by Friday. The main species of birds which Friday has had experience with are waterfowl. Of the species which have been verified as lost in this incident, he had had experience with common loons and hooded mergansers. The hooded merganser is a waterfowl with which he has close experience in breeding, acquisition and disposition. The common loon is a shore bird. In his career he has worked to rehabilitate two or three of those birds. He has had no experience with gannets and black skimmers, which are shore birds. As Friday identified, waterfowl may be sold, shore birds may not. Sale of the shore birds is prohibited by law. His price quotes for the hooded mergansers are from actual experience in sales. His quotations on the other species are matters of conjecture in collecting, housing, feeding and establishing a breeding program for them based upon limited experience in rehabilitating common loons and no experience with gannets and the black skimmer. The price estimate on the hooded merganser of $100 per bird is accepted. The price estimates for common loons, gannets and black skimmers are not. They are too speculative. Jean Benchinol is a curator in Gulf Breeze, Florida, who works for Animal Park, Inc. She testified at hearing. She was presented as a witness who could corroborate the Friday opinion on bird valuation. Her cost estimates may be found as Petitioner's exhibit 14, quotes for single birds. She has had direct involvement with hooded mergansers. She has sold those birds and quoted the price at hearing as being $100. This coincides with the price per bird quoted by Friday. For other birds in her price estimates that cannot be bought and sold and that remain at issue here, that is, common loons, gannets and the black skimmer, she categorized them as capable of surviving in captivity or not. The black skimmers can live in captivity and the common loon and gannet cannot, according to the witness. She had had a common loon in captivity before and noted that it did not do well, being more receptive to northern climes. At hearing her opinion about birds that could not survive in the Florida environment was rejected. In this final analysis, that refers to the common loons and gannets. Likewise, having considered her explanation concerning her valuation for the black skimmer, that opinion is rejected. In rejecting this method, the cross examination at hearing concerning valuation for the royal tern was significant in that it pointed out the inexact and unreliable nature of the method. This method contemplated receiving a live bird in her facility and the costs for medication, housing, feeding and staff time for approximately 60 days. In summary, on the subject of bird mortality, there is no inherent prohibition against valuation; birds do have a value that can be measured in monetary terms. Here the effort to arrive at that understanding fails in the inventory of casualties and method of valuation, with a limited exception. It is also observed that the Respondent had paid the rehabilitators to house, feed and nurse birds back to health that were injured, a similar activity to the theoretical exercise envisioned by Duda, Friday and Benchinol.
Recommendation Based upon the consideration of the facts and the conclusions of law reached, it is, RECOMMENDED: That a Final Order be entered which requires the Respondent to reimburse the Fund in the amount of $17,301.58 and dismisses all other charges against Respondent. DONE and ENTERED this 26th day of July, 1990, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of July, 1990. APPENDIX 1 The following discussion is given concerning the proposed facts of the parties. Petitioner's Facts Paragraphs 1 and 2 are subordinate to facts found. Paragraph 3 is not necessary to the resolution of the dispute. Paragraphs 4 and 5 are subordinate to facts found. The first two sentences of Paragraph 6 are subordinate to facts found. The last two sentences are not necessary to the resolution of the dispute. Paragraph 7 is not necessary to the resolution of the dispute. Paragraph 8 is subordinate to facts found. The first two sentences of Paragraph 9 are subordinate to facts found. While it is agreed that the correspondence from Petitioner to Respondent did not indicate that claims for costs and expenses were only subject to collection if paid from the Florida Coastal Protection Trust Fund, in the administrative forum recoupment of costs, expenses and damages may only be permitted for monies owed or expended from the fund. Paragraphs 10-13 are subordinate to facts found. It is acknowledged as set forth in Paragraph 14 that money was transferred from Coastal Protection Trust Fund to the Erosion Control Trust Fund for future beach renourishment. The more relevant fact is whether the claim for damages of value under the renourishment is legitimate and that determination has been made favoring the Petitioner. The concept of using the funds that are being held for purposes of future renourishment is in keeping with a reasonable disposition of the damage claim. Paragraphs 15-24 are subordinate to facts found. The first sentence to Paragraph 25 is contrary to facts found. The second sentence is subordinate to facts found. The third sentence is an accurate statement of what Table 1 contributes but the findings in that table are rejected in part. The first sentence to Paragraph 26 is subordinate to facts found. The second sentence is accepted in the sense of recognizing that a list was maintained; however, that list was not produced at hearing as an aide in determining the number of birds that were killed. The third sentence is rejected. The fourth and fifth sentences are knowledged and those underlying facts were taken into account in accepting the representations by the witness Mosling concerning the number of birds that died as a result of the oil spill which she could recall. Paragraph 27 is subordinate to facts found. Paragraph 28 is subordinate to facts found. Paragraph 29 is not necessary to the resolution of the dispute. The first sentence to Paragraph 30 is subordinate to facts found. The second sentence is not necessary to the resolution of the dispute. The first sentence to Paragraph 31 is subordinate to facts found. The second sentence is accepted with the exception that certain categories of water fowl are bought and sold in the free market. Concerning the third sentence, while it is acknowledged that curators are the better persons to attempt valuation, they must have sufficient understanding of the varieties on which they are commenting to have their opinions accepted and their methods of analysis of costs must stand scrutiny. This was not achieved in this instance. The last sentence in Paragraph 31 is not accepted in that the replacement value method was not adequately explained and does not allow a ranking of whether it is inexpensive, or cheaper or some where in the middle. Paragraph 32 is subordinate to facts found. The first sentence to Paragraph 33 is subordinate to facts found. The second sentence is subordinate to facts found as it references hooded mergansers. The other references are to species which have not been found to have been lost to the spill. The last sentence is accepted in the sense that the remaining species have limitations placed upon their use by state and federal law which prohibits the buying and selling. Paragraph 34 in its reference to the cost of hooded mergansers is accepted. The balance of the information was not utilized in that the Petitioner failed to demonstrate that other species had been lost to the spill. In Paragraph 35 of the species that testimony was presented about, only the common loon, gannets and black skimmer pertain. While it is acknowledged that the method that the witness Friday used to estimate the value of those species is an accurate portrayal of his efforts, those efforts were rejected as were those of Ms. Benchinol described in Paragraph 36. In Paragraph 36 the explanation of her methods is correct. The methods were not accepted either in support of the testimony by Friday or in her own right. There is no significance to the discussion concerning the brown pelican and inadequate proof was made that the brown pelicans were lost. Respondent's Facts The first sentence to Paragraphs 1 is subordinate to facts found. The last two sentences are not necessary to the resolution of the dispute. As to Paragraph 2, it is acknowledged that Mr. Healey served as the liaison to the RRT and OSC. In the second sentence to that paragraph it is accepted that the state supports the RRT. It also has the function to compliment the RRT and to act independent of the federal response. The first sentence to Paragraph 3 is subordinate to facts found. The second and third sentences are not necessary to the resolution of the dispute. The fourth and fifth sentences are subordinate to facts found. While Paragraph 4 accurately describes the circumstance, this did not deter the state from pursuing its independent function in responding to the spill event. Paragraph 5 accurately portrays the OCS's idea of who was necessary to support the federal response. It does not preclude the activities of other state employees in carrying out their functions. Paragraph 6 is contrary to facts found. Paragraph 7 is a correct statement but does not preclude the state's efforts in its own right at responding to the spill. Paragraph 8 is subordinate to facts found. Paragraph 9 while an accurate portrayal does not preclude the state in its efforts. The same pertains to Paragraph 10. Paragraph 11 is contrary to facts found. Paragraph 12 is subordinate to facts found. Paragraph 13 is contrary to facts found as is Paragraph 14. Paragraph 15 is subordinate to facts found. Paragraph 16 is not relevant. Paragraph 17 is an accurate portrayal of the federal use of the state helicopter but does not preclude request for reimbursement for uses which the state had of that helicopter. Paragraph 18 is subordinate to facts found. The first two sentences within Paragraph 19 are subordinate to facts found. The third and fourth sentences are not relevant to the issue of whether the state was entitled to seek the assistance or Jacksonville University for its own purposes distinct from those of the federal response. The latter sentence is a correct portrayal of the outcome but for reasons different than contemplated by the Respondent. Paragraph 20 is subordinate to facts found. Paragraph 21 is subordinate to facts found. Paragraph 22 is subordinate to facts found in its first two sentences. The third sentence is not accepted beyond the fact that the Department of Interior using a nonconsumptive use technique, whether other federal agencies use that method was not subject to determination from the record. The first three sentences to Paragraph 23 are not necessary to the resolution of the dispute. The fourth sentence is not accepted. The fifth and sixth sentences are subordinate to facts found. As to the seventh sentence, it is not clear that there was the intention of redistributing to the Jacksonville area. The eighth sentence is subordinate to facts found. Paragraph 24 is subordinate to facts found as are Paragraphs 25 and 26. The suggestion of the price for hooded mergansers as set out in Paragraph 27 is not accepted. The lesser scaup was not found to have been lost to the spill. The state price of $100.00 per bird for hooded mergansers is accepted. Paragraphs 28-31 are subordinate to facts found as it pertains to the species that were proven to have been lost. Paragraph 32 is not necessary to the resolution of the dispute. Paragraphs 33 and 34 are subordinate to facts found, with the exception that it has been determined that the number of dead birds which Ms. Mosling can recall involvement with is accepted. Paragraphs 35 through 37 are subordinate to facts found in the species determined to have been lost, with the exception that the actual price for hooded mergansers was $100. COPIES FURNISHED: Tom Gardner, Executive Director Department of Natural Resources 3900 Commonwealth Boulevard Tallahassee, FL 32399 Kenneth J. Plante, General Counsel Lynn M. Finnegan, Assistant General Counsel Department of Natural Resources 3900 Commonwealth Boulevard Tallahassee, FL 32399 Robert B. Parrish, Esquire James F. Moody, Jr., Esquire Taylor, Moseley & Joyner 501 West Bay Street Jacksonville, FL 32202
Findings Of Fact The Petitioner is an agency of the State of Florida, which, through its Division of Florida Highway Patrol, maintains a "zone rotation wrecker system" for the State of Florida. The "rotation list" is used to determine which wrecker service is called to remove wrecked, abandoned or stolen vehicles from public thoroughfares in connection with investigations or operations of the Florida Highway Patrol. The rotation list is made up of names of wrecker operators who have been placed on that list following an investigation into their background and inspection of equipment they employ in order to insure compliance with the Petitioner's rules, particularly related to the safe operation of the wrecker service equipment and the safe and appropriate handling of towed and stored vehicles. When a wrecker is called to respond to an accident or to the need for a motorist to have a vehicle towed, the Florida Highway Patrol calls the wrecker service at the top of the list to obtain wrecker services. This wrecker service is then rotated to the bottom of the rotation list in the context of which wrecker service will be called for succeeding wrecker service needs. The admission and retention of reputable wrecker service operators on the rotation list who can be trusted to care for the public's vehicles in an appropriate manner, both as to towing and storage, are primary concerns of the Petitioner. Respondent, Jarkow's Wrecker Service ("Jarkow") participates in the Florida Highway Patrol rotation wrecker system in Bay County, Florida. The Respondent's business establishment is located at 5715 Titus Road, Panama City, Florida. Stuart Jarkow and his wife live on the premises of the business. The Respondent had been on the Florida Highway Patrol rotation wrecker service list for approximately three years as of the time of hearing. On January 9, 1989, Trooper Vernon D. Welch, Florida Highway Patrol, investigated an accident on State Road 2301 in Bay County. The accident involved a 1986 Toyota pickup truck owned by Jerry Davis, who was driving it at the time. The accident occurred at approximately 2:15 a.m.., when Mr. Davis swerved to avoid a dog. The truck rolled over and came to rest on its top. Mr. Davis was uninjured, but the vehicle was not in a condition to be driven under its own power and required towing. Pursuant to a call by Trooper Welch from the rotation list, the Respondent and his wrecker responded to the scene of the accident. He towed the Davis truck to his storage lot in Bay County at his place of business where it remained until January 16, 1989. During the time it rested at Mr. Jarkow's storage lot and place of business, Mr. Davis, the owner, did not go to inspect the truck because he believed that Mr. Jarkow would charge him a $25.00 fee for such inspection. Mr. Davis had purchased the truck in 1988 and replaced two of the tires at the time of purchase. Later, on August 5, 1988, he bought two other tires. At the time of the accident, the truck was equipped with four 14-inch steel- belted radials and a Sears Diehard battery, which Mr. Davis had purchased three months after buying the truck. At the time of the accident, the tires and rims were all in very good condition. Mr. Davis also kept a spare 14-inch wheel in the bed of the truck. After the vehicle rolled over during the accident, the wheel was retrieved and returned to the vehicle and was in the vehicle when Mr. Jarkow towed it to his place of business. All four tires were inflated when the vehicle was towed to Jarkow's lot. Garry's Auto Salvage ("Garry's") is a firm which deals primarily in late-model vehicles for salvage. Pursuant to contracts with insurance companies, Garry's transports and stores damaged vehicles at its place of business, pending appraisal of the value of the vehicle or the damage cost by the insurance company responsible for the risk of an accident. At such time as insurance companies make financial settlements with the owners of the vehicles, Garry's typically purchases the damaged vehicle in order to sell the parts which can be salvaged. Pursuant to a contract with Superior Insurance Company, Carry's acquired Mr. Davis' truck on January 16, 1989. The vehicle was to remain at Garry's until the insurance company made final settlement with the owner. Greg Johnson, a car hauler for Garry's, was asked to pick up the 1986 Toyota truck from Jarkow's place of business. Upon arrival at Jarkow's, Mr. Johnson presented a "pickup order" to Stuart Jarkow, the Respondent. Mr. Jarkow did not immediately release the vehicle; but after approximately 30 minutes, during which undisclosed negotiations apparently occurred, Mr. Jarkow agreed to release it to Mr. Johnson. Mr. Johnson completed an inventory report describing the condition of the vehicle. He described the rims as "good" because they were not bent or otherwise damaged. Due to the poor condition of the tire tread which he observed on the tires, he described them as being in poor condition. Mr. Jarkow refused to sign the inventory report initially but later signed it after writing "no" in spaces reserved for "spare (tire) spoilers, and shades." He also wrote "tire only in bed" on the inventory form. Mr. Johnson paid Jarkow for the towing and storage charges, put the Toyota truck onto his transporter truck and went straight to Garry's. He unloaded the truck at Garry's in an area in the storage lot designated for cars on which insurance settlements had not yet been completed. Mr. Johnson did not remove anything from the vehicle after he had picked it up from Jarkow. The Toyota was in the same condition when it arrived at Garry's as it was when Mr. Johnson picked it up from Jarkow. Russ Breeland, Manager of Garry's, met Mr. Johnson when the Toyota was brought in to that place of business. Mr. Breeland looked at the vehicle to make sure that nothing was missing. He immediately noticed that the tires and wheels were not original. He observed only one Toyota wheel on the vehicle. The right-side tires were deflated, and the tires had very poor tread condition. The battery did not match as being original to the vehicle. In particular, due `to the battery's weathered condition, it appeared to have been sitting out in the weather for a substantial period of time and later installed in the wrecked truck. The original battery posts were in a weathered state indicating that they had not been recently connected to any battery terminals. A short time after the vehicle was brought to Garry's, the owner, Jerry Davis, arrived there to inspect the truck. He met with Donald Lizotte, an employee of Garry's. Mr. Lizotte and Mr. Davis inspected the vehicle, and Mr. Davis became upset when he discovered that the wheels and the battery appeared to have been replaced with unrelated, inferior parts. Mr. Lizotte wrote down the serial numbers and makes of the tires on the back of the inventory report, a description of the rims, and the make of the battery. The tires on the truck were a mix of recapped radial tires and bias-ply tires. Such a mix of radial and non-radial tires is very atypical and not normally done because a match of such tires on a vehicle can cause the vehicle to sway and to track with the ruts of a road, creating erratic steering and a road hazard. The Sears Diehard battery, which had been purchased by Mr. Davis and installed in his truck before the accident, was not in the truck. The battery found in the truck was a Delco battery. The 14-inch wheel, which had been kept in the bed of the truck by Mr. Davis, was missing. Rather, a 15-inch spare tire was found in the truck, without a wheel. Upon leaving Garry's, Mr. Davis called the Florida Highway Patrol on January 16, 1989. He made a verbal complaint to Lt. Charles Helms against the Respondent. Mr. Davis had seen photographs of the truck taken by Mr. Lizotte when the truck arrived at Garry's and concluded that Jarkow had swapped the parts or that someone, while it was in Jarkow's custody, had swapped the parts on the vehicle. Lt. Helms informed Mr. Davis that he should file a written complaint with the Florida Highway Patrol. On January 26, 1989, Lt. Helms, accompanied by Trooper Welch, went to Garry's to look at the truck. He obtained Mr. Lizotte's photographs and took additional photographs of the vehicle. Trooper Welch observed from the appearance of the lug nuts and the rims that the wheel rims had recently been changed. Mr. Davis delayed filing a written complaint with the Florida Highway Patrol until April 4, 1989. Lt. Helms initiated a criminal investigation to determine if the truck parts had been stolen and submitted the results to the State Attorney's office on July 18, 1989. Lt. Helms later learned that no criminal charges would be filed by the State Attorney's office. He pursued an administrative investigation against the Respondent, in any event. During his investigation, Lt. Helms was advised by Mr. Breeland of a prior incident involving the removal of wheels and tires from a vehicle which had been towed by and stored at Jarkow. Lt. Helms investigated that incident which involved the replacement of wheels and tires from a 1986 Mustang owned by Leo Shealy. That incident occurred in July of 1988. The Mustang was owned by Mr. Shealy but driven by his son. The vehicle was involved in an accident on July 20, 1988 in Panama City. The accident was investigated by Officer Mitchell Pitts of the Panama City Police Department. The Mustang was equipped with expensive aluminum wheels and radial tires at the time of the accident. Mr. Shealy's son had spent approximately $1,000.00 on the new wheels and tires one week prior to the accident. The Respondent was called to tow the Mustang to his place of business. Prior to removal of the vehicle from the accident scene, Officer Pitts observed that the wheels and tires were in good condition and that the rims were a "mag type" wheel and, in other words, were the wheels purchased by Mr. Shealy's son and installed on the vehicle prior to the accident. Mr. Shealy's son was driving the mustang when the accident occurred and was taken to the hospital. Following his release from the hospital, Mr. Shealy and his son went to Jarkow to check on the condition of the vehicle and retrieve some of their personal effects from the interior of the vehicle. On that visit, the tires and rims were unchanged. Mr. Shealy inquired about the stereo equipment in the vehicle, and Mr. Jarkow told him that the vehicle would be kept locked up where no one could tamper with it. He assured Mr. Shealy that there would be no problem about anything being removed from the vehicle. Mr. Shealy received a call from an insurance adjuster, Ronald LaMaster, several days later. Mr. LaMaster requested that he sign a release form at Jarkow so that the Mustang could be picked up by Garry's and taken to Garry's for adjustment and settlement. Mr. Shealy met with Mrs. Jarkow at 8:00 a.m. on that Saturday morning and signed a release form. While he was at Jarkow, Mr. Shealy told Mrs. Jarkow that he hoped that the vehicle could be "totaled", that is, that the full appraisal value would be paid for the vehicle, instead of repairing the damage, because he did not want to endure a lengthy period of time while repairs were being effected. Mrs. Jarkow replied that if Mr. Shealy desired it, the vehicle could be totaled, that is, that Jarkow could take steps to insure that the vehicle in its damaged condition would not have sufficient value over the cost of the necessary repairs, so that the insurance company would declare it a total loss and pay the appraised value for the vehicle to Mr. Shealy. Mr. Shealy assumed, from her comments, that Mrs. Jarkow was assuring him that the Respondent could render the appearance of the Mustang such that it would be appraised as not worthy of repair. Following his conversation with Mrs. Jarkow, Mr. Shealy did not feel secure about the arrangements made about his vehicle. He drove back to Jarkow at 11:00 a.m. that same morning. He did not immediately recognize the Mustang at the storage lot at Jarkow, although it was sitting in the same place as he last saw it. The wheels and tires had already been replaced since he had spoken with Mrs. Jarkow that morning with inferior black-painted wheels and old rotten tires. Mr. Shealy then called Mr. LaMaster and told him to advise Garry's not to pick up the Mustang as arranged. Mr. Shealy later called Jarkow. A dispatch service answered the telephone, and Mr. and Mrs. Jarkow did not respond to the telephone call. Mr. Shealy told that dispatch service to have Mr. Jarkow return his call. When his call was not returned, Mr. Shealy called again some time later that same day and spoke with the dispatch service once again. Mr. Shealy was told then that Mr. Jarkow intended to call him but that he must have been busy. Mr. Shealy then told the dispatch service to relay a message to Mr. Jarkow to the effect that he could either put the original equipment back on the Mustang or answer for failure to do so to the Bay County Sheriff's Department. Mr. Shealy told the dispatch service that he would return at 2:00 p.m. to inspect the vehicle. Mr. Shealy returned to Jarkow at 2:00 p.m. that same day. He knocked on the door and no one responded. He observed the vehicle, however, and saw that his son's wheels and tires had been installed on the vehicle once again. He took photographs of it and then called Mr. LaMaster requesting that the Mustang be taken from Jarkow as soon as possible. Mr. Shealy never made a report to the sheriff's department, however. He merely stated that he, in effect, did not wish to encounter any further problems in dealing with-the vehicle and the accident. Based upon these incidents with the Toyota truck and the Mustang, Lt. Helms concluded, in his opinion, that the Respondent had engaged in a pattern of conduct demonstrating a lack of reputability as a wrecker service. Lt. Helms presented his findings to Major Jimmy C. Wright, the Troop Commander. Major Wright reviewed the investigation and recommended removal of the Respondent from the rotation list because equipment had been removed from the vehicles while they were in the Respondent's custody. Major Wright concluded in recommending this agency initial action that the incidents involving the two vehicles, in his opinion, demonstrated a lack of reputability within the meaning of Rule 15B-9.007(7), Florida Administrative Code. He felt that the Florida Highway Patrol could no longer rely on the Respondent to perform a caretaking function in an appropriate manner with vehicles entrusted to its custody for towing and storage. Major Wright interpreted Rule 15B-9.007(7), Florida Administrative Code, to mean that the Respondent was responsible for acts of third persons under his control or for their acts with regard to vehicles which were under his control. He concluded that the rule at issue concerned the responsibilities of the wrecker service business and did not merely relate to a singular individual who owned or operated the business regardless of what sort of business entity under which it operates. Thus, Major Wright concluded, under the above-cited rule as he construed it, that Jarkow was responsible for the acts occurring at his business location. Accordingly, based upon his 30 years' experience with the Florida Highway Patrol and working with the standard wrecker rotation system set up by the statute and rule cited herein, both as a trooper arid in a supervisory capacity, and in consideration of his interpretation of Rule 15B- 9.007(7), Florida Administrative Code, to which he testified, Major Wright recommended that the Respondent be removed from the wrecker service rotation list for a lack of reputability, pursuant to Rule 15B-9.007(7), Florida Administrative Code.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is therefore, RECOMMENDED that the Respondent, Jarkow's Wrecker Service, be removed as a rotation wrecker operator for Bay County, for Troop A of the Florida Highway Patrol.. DONE AND ORDERED this 31st day of July, 1990, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31st day of July, 1990. APPENDIX TO RECOMMENDED QRDER IN CASE NQ. 90-0072 Petitioner's Proposed Findings of Fact 1. Accepted. 2-37. Accepted. Respondent's Proposed Findings of Fat 1-9. Accepted. 10-26. Accepted. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter. Accepted. Accepted. Accepted, to the extent that it depicts what Major Wright's opinion was, rather than as a bin&[ing conclusion of law. Accepted. Accepted. Accepted, but not dispositive of aniy disputed material issues. Accepted, but not dispositive in itself of any material issues. The maintenance of appropriate insurance coverage does not obviate the requirement for demonstrated reputability. COPIES FURNISHED: Leonard R. Mellon Executive Director Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, FL 32399-0500 Enoch Jon Whitney, Esq. General Counsel Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, FL 32399-0500 R.W. Evans, Esq. I. Ed Pantaleon, Esq. Department of Highway Safety and Motor Vehicles Neil Kirkman Building Suite A-432 Tallahassee, FL 32399-0500 Brian D. Hess, Esq. 9108 West Highway 98 Panama City Beach, FL 32408 =================================================================
The Issue Whether Respondents committed the violations alleged in the Amended Administrative Complaint and, if so, what penalties should be imposed.
Findings Of Fact Based upon the evidence adduced at hearing and the record as a whole, the following findings of fact are made: Petitioner is a state agency. It is responsible for administering and enforcing the provisions of Chapter 493, Florida Statutes. Respondent Carlos Ooten is now, and has been since July 25, 1991, the holder of a Class "C" (Private Investigator) license (No. C-91-00210) issued by Petitioner. Since July 25, 1991, Mr. Ooten has also held a Class "E" (Recovery Agent) license (No. E-91-00036) issued by Petitioner. In the application that he submitted to Petitioner to obtain his Class "E" license, Mr. Ooten revealed that on October 30, 1980 (when he was 19 years old) he had been convicted in Ohio of "Traff PCP" and sentenced to "1-10 years confinement" 2/ and that, subsequently, on October 7, 1982, he had received his "final release."3/ Petitioner determined that Mr. Ooten met the qualifications for licensure notwithstanding this 1980 conviction (of which it had been made aware by Mr. Ooten). Respondent Tarco Recovery, Inc. (Tarco) is a Florida corporation. It was incorporated in August of 1991 by Alden S. Tarte, Esquire, who became its first president. On December 16, 1991, Mr. Tarte, in his capacity as Tarco's president, submitted to Petitioner an application requesting that Tarco be granted a Class "R" (Recovery Agency) license. On the application, Mr. Tarte indicated that he was the president of Tarco, that Mr. Ooten was Tarco's secretary, and that Stuart Martin was Tarco's general manager. At a special meeting of the Tarco Board of Directors held on December 30, 1991, Mr. Ooten was elected vice-president and Mr. Martin was elected secretary. Tarco sent to Petitioner a copy of the minutes of this special board meeting to supplement its application. Petitioner received this submission on January 9, 1992. Mr. Martin resigned as secretary and general manager of Tarco, effective January 29, 1992. By letter dated April 8, 1992 (and received by Petitioner April 10, 1992), Tarco advised Petitioner of Mr. Martin's resignation and the acceptance of the resignation by Tarco's Board of Directors. By letter dated April 21, 1992, Mr. Ooten resigned his positions as vice president and director of Tarco. Mr. Ooten's resignation was accepted at a special meeting of Tarco's Board of Directors. Tarco sent to Petitioner a copy of Mr. Ooten's letter of resignation and the minutes of the special board meeting at which Mr. Ooten's resignation had been accepted. These materials were received by Petitioner on April 28, 1992. By letter dated June 4, 1992, Petitioner notified Tarco that its application for a Class "R" license had been approved. The license was issued five days later. It has remained in effect since that date. On or about October 25, 1995, Mr. Ooten purchased Tarco from Mr. Tarte and succeeded Mr. Tarte as Tarco's president. Mr. Ooten sent the following letter to Petitioner, dated November 1, 1995, to advise Petitioner of this "change in corporate officers": RE: Change in Corporate Officers TO WHOM IT MAY CONCERN Please review the enclosed documents as they pertain to Tarco Recovery, Inc., R9100128. Effective October 26, 1995, Alden Tarte has resigned as President of Tarco Recovery, Inc. and Carlos Ooten was elected President. Carlos Ooten previously held the position of Vice President as reflected in the original Corporation Papers submitted to the State in 1991 for the issuance of the "R" License. If there is anything further required of myself or Tarco Recovery, Inc. please notify me at the above mailing address. Thanking you in advance for your cooperation in the matter. Petitioner, apparently, never received the letter Mr. Ooten had sent it. (The letter is not among the documents in "the complete licensure file of Tarco" maintained by Petitioner, which was admitted into evidence as Petitioner's Exhibit 1.) Shortly after Mr. Ooten's purchase of the business, Victoria Cogburn began working for Tarco as its director of operations. As the director of operations, she handled the "paper flow through the office." Ms. Cogburn had occasion to correspond with Petitioner concerning matters relating to Tarco's licensure. On July 18, 1996, she sent to Petitioner, by facsimile transmission, a copy of a Certification of Insurance completed by Tarco's insurance company, along with a cover letter. The cover letter was typed on stationery with Tarco letterhead, which reflected that Mr. Ooten was the "President/Owner" of Tarco. The following day, July 19, 1996, Petitioner issued Tarco a renewal license. When Mr. Ooten received a copy of the renewal license, he noticed that it erroneously reflected that Mr. Tarte was president of Tarco. Accordingly, he sent the following letter, dated September 5, 1996, to Petitioner requesting that the license be reissued to indicate that he, not Mr. Tarte, was Tarco's president: RE: R9100128 TO WHOM IT MAY CONCERN I am in receipt of Tarco Recovery, Inc.['s] "R" License which was renewed 7/19/96 (copy attached). I am curious as to why this license still reflects Alden Tarte as President due to the fact that on November 1, 1995 I notified the State of a change in corporate officer. I have enclosed a copy of the letter sent reflecting this change. Please reissue my "R" License to show Carlos Ooten as President. If you have any questions or problems, please do not hesitate to contact me. This letter, like the November 1, 1995, letter, Mr. Ooten had previously sent to Petitioner, apparently, was never received by Petitioner (The letter is not among the documents in "the complete licensure file of Tarco" maintained by Petitioner.) Before being hired by Tarco, Ms. Cogburn had worked for All Pro Recovery, Inc. (All Pro), an Orlando recovery agency. As a business possessing an Orange County occupational license, All Pro was eligible for and, at its request, received access to Tag Talk, a service provided by the Orange County Tax Collector (Tax Collector) that qualified businesses, like All Pro, after entering into a contract with the Tax Collector, were able to use free of charge to obtain information concerning vehicles registered with the Department of Highway Safety and Motor Vehicles (DHSMV). Such information was accessed by telephone, with the caller using an access code and password provided by the Tax Collector. As an employee of All Pro, Ms. Cogburn had been given All Pro's access code to Tag Talk and assigned a password that she could use, with her employer's consent, to access Tag Talk. Ms. Cogburn continued to use All Pro's access code and her All Pro password to access Tag Talk after she began working for Tarco. It was her understanding that she had authorization from All Pro to do so inasmuch as she continued to "work[] directly for All Pro on Mitsubishi work." Although the owner of All Pro, Arlie Jarrell, testified at the final hearing in the instant case that he did not authorize Ms. Cogburn to use, following her departure from All Pro, the All Pro access code and the password she had been assigned as an All Pro employee to access Tag Talk, there has been no showing that Mr. Ooten knew or should have known that Ms. Cogburn, acting in her capacity as a Tarco employee, was accessing Tag Talk without All Pro's authorization. Ms. Cogburn, while an employee at All Pro, had become acquainted with Roland Dube, the owner of Florida Vehicle Recovery Bureau (FVRB), a Tampa recovery agency. When one of Tarco's clients, Infiniti Financial Services (IFS), indicated that it had repossession work in Tampa that it wanted Tarco to perform, provided Tarco had a "branch office" in the Tampa area to do the work, 4/ Ms. Cogburn (who was now a Tarco employee) contacted Mr. Dube to find out whether he would be interested in operating his recovery agency as a Tarco "branch office" for purposes of performing this work. Mr. Ooten, on behalf of Tarco, and Mr. Dube, on behalf of FVRB. subsequently entered into a verbal "reciprocal" agreement whereby Mr. Dube agreed to operate FVRB as a Tarco "branch office" to perform, for a fee, Tampa repossession work (including storage of repossessed vehicles) for Tarco clients and Mr. Ooten agreed to operate Tarco as an FVRB "branch office" to perform, for a fee, South Florida repossession work (including storage of repossessed vehicles) for FVRB clients. Mr. Ooten had discussions with Mr. Dube "about having an 'RR' ['branch office'] license in place," but he (Mr. Ooten) did not pursue the matter further and such a license was never obtained. Mr. Ooten did, however, obtain insurance ($1,000,000.00 general liability, $500,000.00 garagekeepers, and $3,000.00 personal property) covering FVRB's Tampa storage facility (located at 10616 U.S. Highway 92 East in Tampa) where FVRB stored vehicles it repossessed. FVRB (purporting to act as Tarco's Tampa "branch office" in accordance with the agreement into which Mr. Ooten and Mr. Dube had entered, hereinafter referred to as the "Reciprocal Agreement") repossessed approximately ten vehicles (Repossessed Vehicles) at Tarco's request. All of these vehicles were repossessed pursuant to referrals received by Tarco from IFS, and, following their repossession, they were stored by FVRB at its Tampa storage facility. Tarco's agreement with IFS provided that IFS would pay Tarco, in addition to a repossession fee, a storage charge of $10.00 a day per vehicle for each day following the first ten days of storage that the vehicle remained in storage. The Reciprocal Agreement between Tarco and FVRB, on the other hand, did not address the subject of storage charges. All but three of the Repossessed Vehicles were picked up, at IFS's direction, from FVRB's Tampa storage facility. FVRB was paid by Tarco a repossession fee for having repossessed these vehicles. The three Repossessed Vehicles that remained at FVRB's Tampa storage facility were: a 1995 Infiniti, VIN #JNKAY21DOSM204138, repossessed on November 18, 1996 (Vehicle 1); another 1995 Infiniti, VIN #JNKAY21DISM204844, repossessed on December 9, 1996 (Vehicle 2); and a 1993 Infiniti, VIN #JNKG01C5PM220701, repossessed on January 29, 1997 (Vehicle 3). (These three vehicles will hereinafter be referred to collectively as the "Subject Vehicles.") The Subject Vehicles were all owned by IFS and had been leased to the individuals from whom they had been repossessed. Five months after the last of the Subject Vehicles had been repossessed, IFS still had not taken any action to remove these vehicles from FVRB's Tampa storage facility, nor had it paid Tarco for any of the repossession work done in connection with these vehicles. Accordingly, on June 29, 1997, for each of the three Subject Vehicles, Tarco sent IFS an invoice advising IFS the amount Tarco claimed that IFS owed Tarco (as of that date) for the repossession work IFS had requested Tarco to perform in connection with the vehicle described in the invoice, and it also served on IFS, and filed with the DHSMV, a completed Towing and Storage Notice of Claim of Lien and Proposed Sale of Vehicle form (Claim Notice) for each vehicle. Tarco took such action after Ms. Cogburn had telephoned the DHSMV and, in response to her question of what "remedy we [Tarco] could have on vehicles on our [Tarco's] storage facility 5/ that we [Tarco] considered abandoned," was told that the "only process to obtain titles to vehicles that were, in essence, abandoned was to file under the [Chapter] 713 statute for the lien of a vehicle for storage and/or towing." The DHSMV, at Ms. Cogburn's request, sent forms for Tarco to use to obtain title pursuant to Chapter 713, Florida Statutes, and Tarco used these forms. The invoice for Vehicle 1 stated that IFS owed Tarco $325.00 for an "Administration/Lien Fee" and $4,4850.00 for "Storage Charges" for a total of $5,175.00. According to the invoice, the "Storage Charges" were based on a rate of $10.00 a day through December 31, 1996, and $25.00 a day after December 31, 1996. The invoice for Vehicle 2 stated that IFS owed Tarco $325.00 for an "Administration/Lien Fee" and $4,630.00 for "Storage Charges" for a total of $4,955.00. According to the invoice, the "Storage Charges" were based on a rate of $10.00 a day through December 31, 1996, and $25.00 a day after December 31, 1996. The invoice for Vehicle 3 stated that IFS owed Tarco $325.00 for an "Administration/Lien Fee" and $3,550.00 for "Storage Charges" for a total of $3,875.00. According to the invoice, the "Storage Charges" were based on a rate of $25.00 a day. It was Mr. Ooten's decision to charge IFS (for post-December 31, 1996, storage) $25.00 a day, rather than the agreed-upon $10.00 a day. He "figured that if [he] raised the price [IFS] would react faster." The Claim Notice form that Tarco used provided as follows: TOWING AND STORAGE NOTICE OF CLAIM OF LIEN AND PROPOSED SALE OF VEHICLE DATE TO: REGISTERED OWNER LIENHOLDER NAME ADDRESS CITY STATE, ZIP NAME ADDRESS CITY STATE, ZIP NAMES AND ADDRESSES OF ANY OTHER PERSONS, INCLUDING ANY OTHER LIENHOLDERS, CLAIMING INTEREST IN VEHICLE **************************************** LIEN[O]R (TOWING DESCRIPTION OF & STORAGE VEHICLE COMPANY) NAME YEAR MAKE ADDRESS CITY STATE, ZIP VIN# DATE STORED STORED AT TELEPHONE Each of you is hereby notified that the above vehicle was towed at the request of , and the above named lienor is in possession of and claims a lien on the above described vehicle for towing and storage charges accrued in the amount of . The charges will continue to accrue at the rate of per day. The lien claimed by the above named lienor is subject to enforcement pursuant to F.S. 713.78 and unless said vehicle is redeemed from said lienor by payment as allowed by the law, the above described vehicle may be sold to satisfy the lien. If the vehicle is not redeemed and that vehicle which remain[s] unclaimed, or for which the charges for recovery, towing, or storage services remain[s] unpaid, may be sold after 35 days free of all prior liens. The above designated Lienor proposes to sell the vehicle as follows: PUBLIC AUCTION TO BE HELD AT COMMENCING AT AM/PM ON THE DAY OF , 19 . STATEMENT OF OWNERS RIGHTS Notice that the owner or lienholder within 10 days after the time they have knowledge of the location of the vehicle may file a complaint in the county court in which the vehicle is stored or in which the owner resides to determine if their property was wrongfully taken or withheld from them. Notice that upon filing a complaint, an owner or lienholder may have their vehicle released upon posting with the court a cash or surety bond or other adequate security equal to the amount of the charges for towing and storage to ensure the payment of such charges in the event they do not prevail. Notice that any proceeds from the sale of the vehicle remaining after payment of the amount claimed to be due and owing to the lienor will be deposited pursuant to subsection (5) of F.S. 713.78. NOTE: The 35 day time frame that the vehicle must be held should not include the day of towing or storage or the date of sale. When a separate notice of sale is sent 15 days prior to the sale date, the date the notice was mailed or the date of sale should not be included in the 15 days. The newspaper ad must be placed 10 days prior [to] the scheduled date of sale, but the 10 days should not include the date the notice was placed in the newspaper or the date of sale. Each of the Claim Notice forms was completed by Ms. Cogburn and then signed by Mr. Ooten. On each of the completed forms, typed in on the line next to "NAME" under "REGISTERED OWNER" was "REPOSSESSION"; typed in the line next to "NAME" under "LIENHOLDER" was "Infiniti Financial Services"; typed in on the line next to "NAME" under "LIEN[O]R (TOWING & STORAGE COMPANY)" was "Tarco Recovery, Inc."; typed in on the line next to "STORED AT" under "DESCRIPTION OF VEHICLE" was "2780 NW 38th Street Miami, FL 33142," which was also identified as the location where (at 4:00 p.m. on October 23, 1997) the "PUBLIC AUCTION [WOULD] BE HELD." At the time he signed these completed Claim Notice forms, Mr. Ooten knew that the Subject Vehicles were stored, not at the Miami address given in the notices, but at FVRB's Tampa storage facility and were in the actual possession of FVRB. According to the completed Claim Notice forms, the "towing and storage charges accrued" to date with respect to Vehicle 1, Vehicle 2, and Vehicle 3 were $5,175.00, $4,955.00, and $3,875.00, respectively, and "charges [would] continue to accrue at the rate of $25.00 per day." Not having received any response from IFS to either the invoices or the Claim Notices, Tarco had published in the October 9, 1997, edition of the River Cities Gazette, a local Miami-Dade County newspaper, a notice of the "public sale" of the Subject Vehicles. The notice provided as follows: Notice is hereby given that on Thursday, October 23, 1997 at 4 pm there will be a PUBLIC SALE of the following vehicles. Sealed bids will be accepted from 4 pm until 5 pm. The sale will take place at 2780 NW 38th Street, Miami, FL. These vehicles are being sold for storage liens. At the time the notice was published, the Subject Vehicles were still at FVRB's Tampa storage facility; however, it was Tarco's intention to have the vehicles at the auction site in Miami at the time of the auction. Tarco made arrangements with a transport company to have the Subject Vehicles picked up at FVRB's Tampa storage facility and delivered to the auction site; Mr. Dube, however, refused to release the vehicles and they remained at FVRB's Tampa storage facility. The public auction of the Subject Vehicles was held on October 23, 1997, as scheduled. At the time of the auction, the Subject Vehicles were, as they had been since the date of their repossession, at FVRB's Tampa storage facility and not at the auction site. IFS had not taken any action to claim the Subject Vehicles, nor had it paid any of the fees that, according to Tarco, it owed Tarco for services provided in connection with these vehicles. No member of the general public appeared at the auction to submit a bid to purchase any of the Subject Vehicles. Following the auction, for each of the Subject Vehicles, Mr. Ooten signed an Affidavit of Sale by Storer, Warehouseman, Mechanic or Repair Garage, in which he stated that the Subject Vehicle in question "was lawfully sold to Tarco Recovery, Inc. (purchaser) at 2789 NW 38th Street, Miami, FL on October 23, 1997 in enforcement of a legal lien for just and reasonable charges . . . for storage justly owing and unpaid to October 23, 1997," and in which he further stated the following: The certificate of title last issued on said vehicle is surrendered herewith, or (b) the certificate of title cannot be forwarded, but a true copy of the court order or notice under which said sale was made is hereto attached, and notice of sale was duly given the owner of said motor vehicle by newspaper ad (copy of which is attached) published October 9, 1997, in the River Cit[ies] Gazette. Affiant has no knowledge or information of any lien or claim against said vehicle except a lien in favor of Infiniti Financial Services, 990 W. 190th Street, Torrance CA 90502. All applicable laws and regulations relating to sale of said vehicle were duly complied with and observed. Affiant believes said purchaser now truly owns said vehicle, and affiant or said storer, warehouseman or repairer will save harmless anyone damaged by any false or wrongful statement herein made. According to the affidavits, the "just and reasonable charges . . . for storage justly owing and unpaid to October 23, 1997," were $8,050.00 for Vehicle 1, $7,830.00 for Vehicle 2, and $6,750.00 for Vehicle 3. The affidavits were filed with the Clerk of the Circuit and County Courts of Miami-Dade County and with the DHSMV. On October 29, 1997, for each of the Subject Vehicles, Mr. Ooten executed, under oath, a five-paragraph Certificate of Compliance. Except for paragraph 2, which described the Subject Vehicle in question, the certificates were identical and provided (in paragraphs 1, 3, 4, and 5 thereof) as follows: 1. I (We) hereby make oath that the undersigned lienor claims a lien on the following described vehicle per Florida Statute 713.585 for unpaid storage and/or repair charges. The attached Notice of Claim of Lien and Proposed Sale of Vehicle was sent by registered or certified mail, at least 45 days prior to the proposed or scheduled date of sale of vehicle, to the registered owner of the vehicle, and to all other persons claiming an interest in or lien thereon, as disclosed by the Department of Highway Safety and Motor Vehicles or of a corresponding agency evidencing such mailing are attached. The Notice of Claim of Lien and Proposed Sale of Vehicle contains all of the information as required in Florida Statute 713.585(1)(a) through (i). For those persons who have not acknowledged receipt of the aforementioned notice, a true copy of said notice was published once in the River Cit[ies] Gazette which is a newspaper circulated in DADE County Florida, at least 20 days prior to the proposed or scheduled date of sale of the vehicle. 6/ A copy of this publication is attached. The certificates were filed with the Clerk of the Circuit and County Courts of Miami-Dade County and with the DHSMV. On November 6, 1997, Mr. Ooten, on behalf of Tarco, sent FVRB the following letter: In furtherance of our numerous prior verbal requests, demand is hereby made for immediate possession of the following three (3) vehicles: 1995 Infiniti J30 VIN# JNKAY21DOSM204138 1993 Infiniti Q45 VIN# JNKG01C5PM220701 1995 Infiniti J30 VIN# JNKAY21DISM204844 Your failure to return forthwith said vehicles to the possession of Tarco Recovery, Inc. will result in our claim against Florida Vehicle Recovery Bureau for possession and monetary damages. On November 19, 1997, Mr. Dube, on behalf of FVRB, sent the following letter to Tarco: RE: Repossession and storage of vehicles Attention: Carlos Ooten and Victoria E. Cogburn Dear Mr. Ooten and Ms Cogburn: This letter is to advise you that the following charges have been incurred on the subject vehicles: 1995 Infiniti J30 Vin# JNKAY21DOSM204138 Repossession Fee $200.00. Storage since 11-18-96 $11,010.00 1995 Infiniti J30 Vin# JNKAY21DISM204844 Repossession Fee $325.000. Storage since 12-11-96 $10,320.00 1993 Infiniti Q45 Vin# JNKG01C5PM220701 Repossession Fee $200.00. Storage since 01-29-97 $8,850.00 Total owed is $30,905.00 as of November 19th. Storage will keep accumulating at $30.00 a day per vehicle. We can accept cash or certified funds plus a release letter from Inifinit[i] Financial stating current authorization to pick up units on the[ir] behalf. Please be advised that any attempt to illegally obtain storage titles by the use of affidavits containing false or misleading information will be turned over to the State Attorney's Office. Our attorney, Tom Dandar, can be reached at the same number you called previously if you wish to discuss our possessory lien under chapter 713 of Florida law. At no time prior to receiving this letter had Tarco been billed for storage by FVRB. Tarco's attorney responded, on behalf of Tarco, to Mr. Dube's letter by sending Mr. Dube the following letter: Our law firm represents Tarco Recovery Inc. of Dade County, Florida. You are hereby notified that our client objects to the charges set forth in your letter of November 19, 1997, regarding the three (3) subject vehicles. Moreover, your continued failure to forthwith return possession of the vehicles to Tarco Recovery represents a conversion of property. PLEASE GOVERN YOURSELF ACCORDINGLY. Tarco subsequently filed the following Complaint in Hillsborough County Circuit Court (Case No. 97-08538): COMES NOW, the Plaintiff, TARCO RECOVERY, INC., through counsel and sues Defendant, ROLAND ROBERT DUBE d/b/a FLORIDA VEHICLE RECOVERY BUREAU, and states: This is an action for damages exceeding $15,000.00, exclusive of interest and costs. Plaintiff is a Florida corporation with its principal place of business located in Dade County, Florida. Defendant is sui juris and a resident of Hillsborough County, Florida, doing business as Florida Vehicle Recovery Bureau in Hillsborough County, Florida. This action involves property located in Hillsborough County, Florida. Count I (Replevin) Plaintiff realleges paragraphs one (1) through four (4) above, as though fully stated herein. This is an action to recover possession of personal property located in Hillsborough County, Florida. The description of the personal property is identified as follows: 1995 Infiniti J30 VIN# JNKAY21DOSM204138; 1993 Infiniti Q45 VIN# JNKG01C5PM220701; and 1995 Infiniti J30 VIN# JNKAY21DISM204844. Said vehicles are hereinafter collectively referred to as the "Property." Plaintiff is unable to determine the present value of the Property because the Defendant has denied Plaintiff access thereto. However, according to the N.A.D.A. Official Used Car Guide, the retail value of the Property is $65,250.00. On October 23, 1997, Plaintiff acquired ownership of the subject vehicles pursuant to a lawful sale conducted under Section 713.78 of the Florida Statutes. Documentation of Plaintiff's Notice of Claim of Lien, Affidavit of Sale, and Application for Certificate of Title with respect to all three (3) vehicles are attached hereto as Plaintiff's Composite Exhibit "A." To Plaintiff's best knowledge, information, and belief, the Property is located at 10616 U.S. Highway 92 East, Tampa, Hillsborough County, Florida. The Property is wrongfully detained by Defendant. Defendant has refused to voluntarily surrender the Property despite Plaintiff's demand therefor. The Property has not been taken for any tax, assessment or fine pursuant to law. The Property has not been taken under an execution or attachment against Plaintiff's property. WHEREFORE, Plaintiff demands judgment against Defendant, ROLAND ROBERT DUBE d/b/a FLORIDA VEHICLE RECOVERY BUREAU, for possession of the Property, plus court costs, interest and attorney's fees pursuant to Florida law. COUNT II (Conversion) Plaintiff realleges paragraphs one (1) through four (4) above, as though fully stated herein. This is an action for conversion of personal property located in Hillsborough County, Florida. Plaintiff owns the personal property identified as follows: 1995 Infiniti J30 VIN# JNKAY21DOSM204138; 1993 Infiniti Q45 VIN# JNKG01C5PM220701; and 1995 Infiniti J30 VIN# JNKAY21DISM204844. Said vehicles are hereinafter collectively referred to as the "Property." On or about October 23, 1997, Defendant converted the Property to his own use. The value of the Property cannot be determined at this time because Defendant has denied Plaintiff any access to inspect the Property and determine its condition. However, according to the N.A.D.A. Official Used Car Guide, the retail value of the Property is $65,250.00. Defendant has refused to return the Property, despite Plaintiff's demands therefor. WHEREFORE, Plaintiff demands judgment for damages against Defendant, ROLAND ROBERT DUBE d/b/a FLORIDA VEHICLE RECOVERY BUREAU, plus all applicable prejudgment and court costs of this action. On December 3, 1997, the DHSMV, based on the documentation it had received from Tarco, issued title certificates for the Subject Vehicles in Tarco's name. On January 6, 1998, the DHSMV advised Tarco in writing that it had, that date, cancelled these title certificates, explaining that a review of its files had "reflect[ed] that [the] title[s] [were] issued in error as [it] ha[d] been advised by [its] legal staff that the vehicles [were] involved in legal litigation at this time." In or about April of 1998, Mr. Ooten, at the request of a client who was concerned about Tarco's licensing status, telephoned Petitioner and asked to be sent a letter "of compliance." He subsequently received, in response, the following letter, dated April 27, 1998, from Marilyn Thompson, Petitioner's Assistant Director: Mr. Carlos Ooten Tarco Recovery, Inc. Post Office Box 66158 Miami Springs 33266 In response to your telephone request of today, enclosed is a Custodian of Records Statement regarding your Recovery Agency license #R91-00128 licensing status. Please call Marsha Stroud at . . . if we may be of further assistance. The "Custodian of Records Statement" accompanying the letter read as follows: In my capacity as Assistant Director, Florida Department of State, Division of Licensing, I am the official Records Custodian for the Division. I hereby certify that Recovery Agency license #R91-00128 was issued on June 8, 1992, in the name of Tarco Recovery, Inc., located at 2789 NW 38th Street, Miami Springs, Florida. This license has been renewed every two years and is valid, pursuant to Chapter 493, Florida Statutes, until June 8, 1998. A further search indicates that this license is currently in good standing and has never been suspended. On or about May 1, 1998, shortly after he had received Ms. Thompson's April 27, 1998, letter and her "Custodian of Records Statement," Mr. Ooten received a telephone call from Perry Wood, an investigator with Petitioner. Mr. Wood, on April 28, 1998, had received an anonymous telephone call. The caller had complained that Mr. Ooten had replaced Mr. Tarte, who had passed away, as Tarco's chief operating officer "without [Petitioner] being notified of Mr. Tarte's death." Mr. Wood, as part of his investigation of the complaint, telephoned Mr. Ooten and asked if Mr. Ooten "was aware that Mr. Tarte had been dead for several years." Mr. Ooten answered untruthfully. He told Mr. Wood that he had "just learned of it [Mr. Tarte's death]" two and a half weeks earlier. On May 22, 1998, the presiding judge in Hillsborough County Circuit Court Case No. 97-08538 issued his Final Judgment in the case, which provided as follows: THIS CAUSE coming before me for a non- jury trial on the 12th day of May, 1998, and the court having heard all of the evidence and arguments of counsel, and otherwise being duly advised in the premises, the court finds that Plaintiff is claiming ownership by way of its claim of lien pursuant to [Section] 713.78, Florida Statutes, and in order for the Plaintiff to prevail, it must show that it had possession of the vehicles and that it actually did the work. The evidence shows that at all times the Defendant possesses the vehicles, the Plaintiff did not have possession of the vehicles, Plaintiff's allegation in the affidavits submitted to obtain title were untrue, the foreclosure sale took place in a county other than where the vehicles were located, and thus Plaintiff is not the owner of the vehicles and its claim of lien fails. It is ADJUDGED that the Plaintiff is not the owner of the three vehicles: 1995 Infiniti J30, VIN- JNKAY21DOSM204138, 1995 Infiniti J30 VIN- JNKAY21DISM204844, 1993 Infiniti Q45 VIN- JNKG01C5PM220701. It is further ADJUDGED that judgment is hereby entered in favor of the Defendant ROLAND ROBERT DUBE d/b/a FLORIDA VEHICLE RECOVERY BUREAU, and against Plaintiff, TARCO RECOVERY, INC., and the Defendant shall go hence forthwith without day. It is further ADJUDGED that this court reserves jurisdiction to award costs, damages and attorney fees to the Defendant. No award of "costs, damages and attorney fees" was subsequently made to the Defendant.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner issue a final order dismissing Counts I, II, and IV of the Amended Administrative Complaint; finding Respondents guilty of the violations alleged in Counts III and V through XVII of the Amended Administrative Complaint; and, for having committed these violations, suspending their licenses (Mr. Ooten's Class "C" and Class "E" licenses and Tarco's Class "R" license) for a period of one year and requiring them to jointly pay a fine of $4,200.00. DONE AND ENTERED this 28th day of January, 2000, in Tallahassee, Leon County, Florida. STUART M. LERNER 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 28th day of January, 2000.
The Issue The issue for determination is whether Petitioner is liable for the costs and expenses incurred by Respondent in responding to a pollutant discharge, occurring on November 6, 1992, at the waters off John Lloyd State Park, Dania, Florida, and for damages to natural resources resulting from the pollutant discharge.
Findings Of Fact On November 6, 1992, a DC-7 airplane crashed off the Atlantic Coast of Florida, more particularly, 100 yards from John Lloyd State Park, and one quarter of a mile north of Dania Pier in Dania, Florida. The DC-7 was a chartered cargo airplane and had departed from Miami International Airport. The DC-7 was chartered from Claudio Castillo by Miguel Delpino, United States General Manager of Aerochago Airlines, to carry cargo for Aerochago Airlines. Even though Aerochago Airlines owned aircraft, its aircraft was unavailable due to maintenance work being performed. During the flight from Miami International Airport, the DC-7 developed engine trouble, i.e., two of its engines failed. The aircraft began to lose altitude. In an attempt to regain altitude, the captain of the aircraft dumped 3,000 gallons of aviation fuel. However, the DC-7 failed to regain altitude and crashed. Remaining on the crashed aircraft were 3,000 gallons of aviation fuel and 150 gallons of motor oil. When the DC-7 crashed, only the crew and two passengers were on board. One of the passengers was Mr. Castillo. On the same day of the crash, the Florida Marine Patrol (FMP) of the Department of Natural Resources, now the Department of Environmental Protection (DEP), arrived at the crash scene at 3:20 a.m. and investigated the crash. The DEP had four employees investigating the crash: three FMP officers and one employee from the Office of Coastal Protection. The remaining aviation fuel and motor oil in the crashed DC-7 was discharging into the coastal waters. The DEP employees attempted to abate the discharge. The equipment necessary for the employees' investigation of the crash and abatement of the discharge and the cost for the equipment were the following: (a) a DEP vehicle at a cost of $7.00; (b) a twin engine vessel at a cost of $120.00; (c) an underwater sealant kit at a cost of $16.66; (d) scuba tanks at a cost of $9.00; and (e) photographs at a cost of $24.00. The total hours expended by DEP's four employees were 36 hours, at a cost of $685.84. Due to the DC-7 leaking aviation fuel and motor oil into Florida's coastal waters, removal of the aircraft from the Atlantic Ocean was necessary. DEP contracted with Resolve Towing and Salvage (RTS) to remove the DC-7. RTS is a discharge cleanup organization approved by DEP. RTS' contractual responsibilities included removal of the entire DC-7 aircraft and all debris within 100 yards of the center of the aircraft; disposal of the aircraft; plugging the engines to help stop the leakage; and removal and delivery of the engines which failed to the National Transportation Safety Board (NTSB) and the Federal Aviation Authority (FAA). Because the submerged DC-7 was located in an environmentally sensitive coral and sea-plant area, RTS was required to use extreme care in removing the aircraft. The contractual cost was fixed at $34,000.00 A DEP employee, Kent Reetz, was at the scene of the crash during RTS' cleanup. His responsibility was to monitor the removal of the DC-7 by RTS and to ensure that the aircraft's removal was in compliance with DEP's standards. During the removal of the DC-7 from the water, the fuselage ruptured, scattering debris which was dangerous to the public and to the coral and sea-plants. DEP determined that RTS was not responsible for the fuselage rupturing, but that the rupture was caused by several storms, prior to the aircraft's removal, and by the aircraft being submerged for an extended period in salt water. DEP contracted with RTS to remove the dangerous debris emitted when the fuselage ruptured. The contractual cost was fixed at $9,050.00 The total contractual cost between DEP and RTS was $43,050.00. DEP paid RTS from the Coastal Protection Trust Fund. In responding to the pollutant discharge, DEP incurred a total cost of $43,912.50. DEP assessed damages to the natural resources based upon the amount of pollutants discharged which were 3,000 gallons of aviation fuel and 150 gallons of motor oil. Using the statutory formula, DEP assessed damages to the natural resources in the amount of $57,898.72. Based upon the costs incurred by DEP in responding to the pollutant discharge in the amount of $43,912.50 and the damages to the natural resources in the amount of $57,898.72, DEP sought reimbursement and compensation from Mr. Castillo in the total amount of $101,811.22. DEP invoiced Mr. Castillo for reimbursement of the costs and for compensation for the damages. DEP provided Mr. Castillo with detailed and itemized expense documents for the costs that it had incurred in responding to the pollutant discharge. The documents showed the expenses incurred, what each expense represented, and the formula for computing each expense. Further, DEP provided Mr. Castillo with a document showing the amount of the damages to the natural resources, the formula for computing the damages, and how the damages were computed. The charter of November 6, 1992, was not the first time that Mr. Delpino had chartered the same DC-7 from Mr. Castillo. Prior to and, again, at the previous charter, Mr. Castillo represented to Mr. Delpino that he, Mr. Castillo, was the owner of the DC-7. The owner of a chartered aircraft is responsible for obtaining the aircraft's crew and insurance and for maintaining the aircraft. For the previous charter, Mr. Castillo was responsible for obtaining the DC-7's crew and the insurance and for maintaining the aircraft. Mr. Delpino had no reason to expect the charter for November 6, 1992, to be any different. Furthermore, Mr. Castillo did not inform Mr. Delpino that the responsibilities would be different. For the present charter, as before, Mr. Castillo handled all matters relating to the crew, insurance, and maintenance. Regarding the insurance, Mr. Castillo presented to Mr. Delpino an insurance certificate which, after the crash, was discovered to be false. Also, regarding maintenance, prior to the crash, the two engines which failed were to be removed and repaired, but, although they were removed, they were returned without being repaired. Mr. Castillo was the owner of the DC-7. Also, the crash of the DC-7 was investigated by several federal governmental agencies, including the FAA, the U.S. Coast Guard, and the NTSB. Both the Coast Guard and the NTSB issued reports on the crash, which identified Mr. Castillo as the owner of the DC-7. Mr. Castillo was responsible for the discharge of the 3,000 gallons of aviation fuel and 150 gallons of motor oil from the DC-7 into Florida's coastal waters.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection (DEP) enter a final order assessing Claudio Castillo $43,912.50 for costs related to DEP responding to the pollutant discharge on November 6, 1992, at Florida's coastal waters off John Lloyd State Park, Dania, Florida, and $57,898.72 for damages to natural resources resulting from the pollutant discharge--all totaling $101,811.22. DONE AND ENTERED this 26th day of August, 1997, in Tallahassee, Leon County, Florida. ERROL H. POWELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 26th day of August, 1997.
Findings Of Fact Petitioner John L. Lynch is and has been since June 1, 1970 a Trooper in the Florida Highway Patrol, a division in the Department of Highway Safety and Motor Vehicles. During his service he had previously received "satisfactory" annual ratings until September 1, 1979 and a special evaluation on September 15, 1979, when he was evaluated "conditional." On October 25, 1979 Petitioner Lynch filed a grievance alleging that the conditional performance ratings were based on facts other than job performance. The Grievance Committee found there was reason to question the justification for ratings in certain categories, but recommended that the grievance be denied and a copy its report together with the disputed evaluations be placed in Petitioner's personnel file. The Executive Director adopted the recommendation of the Committee but cautioned Petitioner's supervisors to reflect an accurate and properly justified evaluation of his job performance. Petitioner requested an administrative hearing, which request was transmitted by Respondent to the Division of Administrative Hearings. Subsequent to the forwarding of Petitioner's request for a hearing, Respondent filed a Motion to Dismiss on grounds that the request for an administrative hearing was premature. Petitioner Lynch filed a Response, and after oral argument the Hearing Officer denied the Motion to Dismiss. It was concluded that the determination by the agency head that the disputed evaluations were not based upon factors other than job performance was an order subject to an administrative hearing and was not an allegation that the Respondent agency failed to comply with the rules and regulations which would have required the employee to first file a grievance with the State Personnel Director if dissatisfied with the agency head's decision. Prior to hearing the parties filed a Stipulation (Joint Exhibit No. 1) indicating a factual dispute as to allegations contained in Paragraphs 3 and 4 of Petitioner's "Petition for a Section 120.57 Administrative Hearing." The Stipulation also requested the Hearing Officer to make a determination of certain legal issues. On July 5, 1979 Petitioner Lynch, a Trooper I with the Division of Highway Patrol, Department of Highway Safety and Motor Vehicles, was evaluated by his supervisor, Sergeant W. F. Hinson, on the Employee Performance Evaluation and given a "conditional" rating for the period September 1, 1978 to September 1, 1979. He was again evaluated "conditional" in a special evaluation on September 15, 1979. Petitioner then filed a grievance pursuant to Rule 22A- 10.04, Florida Administrative Code and a three-member Employee Improvement Committee was appointed pursuant to Rule 22A-10.04(4)1, which heard the grievance on December 5, 1979. The Committee filed its report dated December 31, 1979 with the Executive Director, the agency head, recommending that the grievance be denied "since the Committee was presented with insufficient evidence to support the allegation that the evaluations were based on factors other than performance." The Executive Director adopted the report and denied the grievance but stated since the Committee found reason to question the justification for ratings in certain categories, a copy of the Committee report will be affixed to both evaluation reports and placed in Petitioner's personnel file (Joint Exhibit No. 2). The Committee Chairman, who prepared the report, testified at the hearing and supported the report (Transcript, pages 145-148). The Committee had found reasons to question the justification of ratings in certain categories but did not change the evaluation of Petitioner inasmuch as the Committee members had understood from a previous matter that it was not the duty of the Committee to change evaluations (Transcript, pages 151-154). The Committee also felt it lacked competence to evaluate the "area of 'attitude' and things of that nature" (Transcript, page 158). Prior to the subject evaluations of Petitioner Lynch, a petition signed by fourteen (14) wrecker companies was filed with Sergeant W. J. Hinson alleging favoritism and irregularities in the procedures of the wrecker services rotation in the district serving Ocala, Florida. Both Petitioner and Sergeant Hinson work in that district, and Sergeant Hinson is responsible for the regulation and use of the wrecker companies. On June 13, 1979 a meeting was conducted to hear the wrecker companies' grievances. On June 15, 16, 17 and 18, 1979 Sergeant Hinson surveilled Petitioner on the midnight shift in an unmarked car. On June 19, 1979 Petitioner was charged with numerous violations of rules, regulations, policies and statutory laws by Sergeant Hinson and was recommended for suspension and dismissal. Petitioner Lynch was thereafter suspended for sixteen (16) hours without pay. The suspension was not at issue in this administrative hearing, having been resolved under the agreement between the State of Florida and the Florida Police Benevolent Association, Inc., and no further facts concerning that incident were adduced at the hearing. On July 5, 1979 Petitioner was evaluated as "conditional" and was also evaluated as "conditional" on September 15, 1979. He believes that his "conditional" rating was a result of the filing of the wrecker companies' complaint. The Report on Petitioner's Grievance heard December 5, 1979 noted the Complaint of the wrecker service operators, and found that Petitioner is a friend of the complainant wrecker operator and Sergeant Hinson is a friend of the wrecker operator who was accused of receiving more than his share of the wrecker business from the roadways of the Ocala area. The Grievance Committee discussed the fact that Petitioner Lynch felt his "conditional" ratings by his supervisor, Sergeant Hinson, did not evaluate his job performance but reflected Hinson's suspicions that Petitioner supplied information to the wrecker complainant and encouraged the complainant to file the aforementioned petition. The Committee reviewed the Employee Performance Evaluation of Petitioner and the factors of appearance, attendance, job knowledge, work quality, work quantity, initiative, dependability, attitude, and relationship with others. It found that the ratings on job knowledge, work quality, work quantity and initiative to be questionable. At the administrative hearing the Chairman of the three-member Grievance Committee which reviewed the grievance filed by Petitioner Lynch supported the report of the Committee and stated he felt from his own review that the "conditional" evaluations were fair. Sergeant Hinson, witness for Respondent, who rated Petitioner, had counseled him prior to the rating as to his appearance factor, attendance, work quantity, activity reports and other work-related matters. Captain Hodges, who sat in on and reviewed the first rating and reviewed the second rating, had no reason to doubt the truthfulness of any of the ratings given Petitioner. The Corporal, who helped with the evaluations, worked with Petitioner and had supervised him for eight years felt he heeded supervision or would begin to make mistakes." Petitioner was not present at the time he was rated by the Sergeant and Corporal (Transcript, page 250). After a review of the evidence filed in this case including the Stipulation, a copy of which is attached hereto and made a part hereof, and after listening to the witnesses for both parties and studying the legal documents, the Hearing Officer finds that the factors on the Employee Performance Evaluation are largely "subjective" as opposed to "objective". The bias or motivation of a supervisor who rates an employee on appearance, attitude, initiative, and relationship with others is difficult and often impossible to assess, and the rating of the same employee during the same period but by two supervisors may be inconsistent depending upon the values, education, and cultural background of the person responsible for the rating. Ratings for job knowledge, work quality and work quantity also depend on the education, knowledge and expectations of those who rate and review the Employee Performance Evaluation. There was conflicting evidence presented to the Grievance Committee and at the subject hearing on the ratings given Petitioner for job knowledge, work quality, initiative and dependability, but this was insufficient to require a recommendation by the Hearing Officer to change the evaluation made by Petitioner's immediate supervisor. The Grievance Committee had properly reached the same conclusion. The evidence to substantiate the rating given Petitioner Lynch was in the area of attendance; ascertainable appearance such as smoking, need for a haircut and the wearing of a hat; the number of accidents or road incidents reported; and the adherence to established work practices in the district. The Hearing Officer finds, as the Grievance Committee had previously found and the varying opinions of the numerous witnesses substantiated, that the findings of one supervisor as to many of the rating factors on the evaluation are so personal that a rating by another supervisor may be dramatically different. Witnesses made such statements that they could not "second guess" a supervisor, could not "look into his skull," or were not competent to judge "attitude." Sufficient evidence was produced to substantiate the rating of the supervisor on the evaluation factors that are mainly "objective." As for the "subjective" factors the fact that the "conditional" evaluation came in a time sequence that could have indicated an unlawful motive or biased judgment was insufficient evidence to find that the evaluation was a result of unlawful motivation. In summary, there is insufficient evidence to support the allegation of Petitioner Lynch that his "conditional" evaluations were based on factors other than job performance. Both parties submitted proposed findings of fact, memoranda of law and proposed recommended orders. These instruments were considered in the writing of this order. To the extent the proposed findings of fact have not been adopted in or are inconsistent with factual findings in this order, they have been specifically rejected as being irrelevant or not having been supported by the evidence.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that the Employee Performance Evaluation of Petitioner John L. Lynch for September 1, 1978 to September 1, 1979 and for September 15, 1979 be affirmed inasmuch as there is insufficient evidence to show that factors other than job performance entered into his rating on said evaluations. It is also recommended that the Grievance Committee's Report and the final order of the agency head be affirmed. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 11th day of September, 1980. COPIES FURNISHED: Enoch J. Whitney, Esq. Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, FL 32301 Gene "Hal" Johnson, Esq. Florida Police Benevolent Association, Inc. 216 South Adams Street Tallahassee, FL 32301 DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of September, 1980.
