The Issue The issue in the case is whether the Petitioner's request for payment from the Construction Industries Recovery Fund meets the requirements of law and should be approved.
Findings Of Fact On or about March 20, 1995, Petitioner entered into a contract with Kenneth Boaz (Boaz) doing business as Revival Remodelers. Boaz was licensed as a Certified Residential Contractor, Florida license number CR C035360. The contract was for the remodeling of Petitioner's home. The work appears to have been either uncompleted by Boaz or not completed in accordance with Petitioner's desires. The total amount of the contract, including change orders, was for $53,370.00. Petitioner paid $41,755.00 to Boaz, leaving an unpaid amount of $11,615.00. Petitioner sued Boaz (County Court, Pinellas County, Florida, Civil Division, Case Nos. 96-4335-CO and 96-4343-CO) and received a Final Judgment dated August 26, 1996, against Boaz in the amount of $5,796.00. Petitioner appears to have initiated an attempt to collect the judgment. By transmittal letter dated December 1, 1997, Petitioner received a check from an attorney in the amount of $1,501.77. The letter indicates that the forwarded amount was based on payment by Boaz of $1,877.21 minus a 20 percent commission of $375.44. The letter also indicates a "current balance of account" as $6,126.20. Boaz appealed the County Court decision to the Circuit Court (Sixth Circuit, Appeal No. 96-7707-CI-88B). By Order dated June 29, 1998, the Circuit Court affirmed the determination of liability, but vacated the amount of damages and remanded the case to the trial court for a new trial to determine damages. On remand, the County Court entered another Final Judgment awarding damages, dated October 28, 1998, and the case was again appealed to the Circuit Court (Sixth Circuit, Appeal No. 98-8369-CI-88A). By Order dated June 29, 2000, the Circuit Court again vacated the amount of damages and remanded the case to the trial court for a new trial to determine damages in accordance with directions provided in the Order. At some point during the litigation, Boaz filed for bankruptcy. The United States Bankruptcy Court for the Middle District of Florida, Tampa Division, in Case No. 01-20049-8B7, lifted the automatic bankruptcy stay applicable to Boaz, and by Stipulation for Entry of Final Judgment Liquidating Claims of Plaintiffs executed in April 2003, Petitioner and Boaz reached an agreement that Petitioner's claim was in the amount of $15,000. By Order Determining Claim of the Plaintiffs dated April 25, 2003, the County Court accepted the stipulated amount of $15,000 Petitioner filed a claim form seeking reimbursement from the Construction Industry Recovery Fund. The claim form has a signature purporting to be that of Petitioner. The form contains a receipt date of February 17, 1998. By Order dated August 15, 2003, Petitioner's claim was denied by the Construction Industry Recovery Fund Committee and the Construction Industry Licensing Board on the grounds that Petitioner had failed to present a Final Judgment as to the damages and that Petitioner failed to state a claim eligible for compensation from the fund.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a final order denying the claim for reimbursement filed by Petitioner. DONE AND ENTERED this 18th day of November, 2004, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM 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 18th day of November, 2004. COPIES FURNISHED: Adrienne C. Rodgers, Esquire Department of Business and Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-2202 Karen W. Scragg 9085 Leisure Lane, North Largo, Florida 33773-4707 Leon Biegalski, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202 Tim Vaccaro, Director Construction Industry Licensing Board Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue Whether Petitioner's request for arbitration by the Florida New Motor Vehicle Arbitration Board pursuant to Chapter 681, Florida Statutes, should be denied on the ground that the request was not timely filed with the Department of Agriculture and Consumer Services, Division of Consumer Services (hereinafter referred to as the "Department")?
Findings Of Fact Based upon the evidence adduced at hearing, the factual stipulations into which the parties have entered, and the record as a whole, the following Findings of Fact are made: Petitioner purchased the motor vehicle that is the subject of the instant controversy, a 1991 Mitsubishi Eclipse, on May 23, 1991, from King Mitsubishi, a Mitsubishi dealership located in Lighthouse Point, Florida (hereinafter referred to as the "Dealership"). Various problems developed with the vehicle which Petitioner reported to the Dealership, but the Dealership was unable to rectify within 18 months of the date of purchase. During this 18-month time frame Petitioner drove the vehicle less than 24,000 miles. Several of the problems that Petitioner reported during the first 18 months of her ownership of the vehicle still persist today. In June or July of 1993, Petitioner began considering the possibility of seeking arbitration under the State of Florida's "Lemon Law." To find out more about her rights, she obtained from a friend, and reviewed, a Florida state government publication on the "Lemon Law." In September of 1993, Petitioner sent a completed Motor Vehicle Defect Notification form to the Dealership requesting that it "make a final attempt to correct the . . . reported . . defects." On November 12, 1993, Petitioner brought the vehicle to the Dealership for such repairs to be made. When she picked up the vehicle five days later, she discovered that the defects she had reported had not been remedied. Dissatisfied with these results, Petitioner telephoned the Department and asked to be sent a Request for Arbitration form. She received the form on November 29, 1993. Petitioner then proceeded to gather the documentation that she needed to fill out the form. After gathering this documentation, Petitioner telephoned the Department a second time because she had some questions regarding certain items on the form. Her questions having been answered by the Department representative to whom she spoke, Petitioner completed the form and, on December 2, 1993, mailed the completed form to the Department. The Department received the completed form on December 6, 1993. At no time did Petitioner, a layperson acting without the benefit of legal counsel, ever intend to forfeit her right to request arbitration under Chapter 681, Florida Statutes. She was not under the impression, nor did the Department representatives to whom she spoke give her reason to believe, that if she failed to file her request for arbitration on or before November 23, 1993, her inaction would be deemed a waiver of her right to request arbitration under Chapter 681, Florida Statutes.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department enter a final order finding Petitioner's request for arbitration to have been timely filed and therefore not subject to dismissal on the ground of untimely filing. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 11th day of May, 1994. STUART M. LERNER 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 11th day of May, 1994. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 94-0755 The following are the Hearing Officer's specific rulings on the "findings of facts" proposed by the parties in their post-hearing submittals: Petitioner's Proposed Findings Accepted and incorporated in substance, although not necessarily repeated verbatim, in this Recommended Order.. Not incorporated in this Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer. Accepted and incorporated in substance. 4-5. Rejected as findings of fact because they are more in the nature of conclusions of law. 6-7. Accepted and incorporated in substance. Rejected as a finding of fact because it is more in the nature of a summary of evidence adduced at hearing than a finding of fact based upon such evidence. First sentence: Rejected as a finding of fact because it is more in the nature of a summary of testimony adduced at hearing than a finding of fact based upon such testimony; Second sentence: Accepted and incorporated in substance. Rejected as a finding of fact because it is more in the nature of a summary of testimony adduced at hearing than a finding of fact based upon such testimony. The Department's Proposed Findings 1-4. Accepted and incorporated in substance COPIES FURNISHED: Robert Feldman, Esquire Berman & Feldman 2424 Northeast 22nd Street Pompano Beach, Florida 33062-3099 Barbara Edwards, Esquire Department of Agriculture and Consumer Services 515 Mayo Building 2002 Old St. Augustine Road, B-12 Tallahassee, Florida 32399-0800 Honorable Bob Crawford, Commissioner Department of Agriculture and Consumer Services The Capitol, PL-10 Tallahassee, Florida 32399-0810 Richard Tritschler, General Counsel Department of Agriculture and Consumer Services The Capitol, PL-10 Tallahassee, Florida 32399-0810
The Issue This matter arose on Petitioner's Amended Administrative Complaint which charges Respondent with aiding an unlicensed person to evade Florida contracting licensing law and with conspiracy in using his general contractor's license to further such unlawful purpose. The parties submitted proposed findings of fact which have been incorporated herein to the extent they are relevant and consistent with the evidence.
Findings Of Fact Respondent is a registered general contractor, having been issued license number RG 0013006. On January 6, 1978, Respondent obtained Dixie County building permit No. 335 for the construction of Evans Square Shopping Center located in Cross City, Florida. After purchasing the raw land and securing the building permit, Respondent was unable to borrow the funds needed for construction of the shopping center, and thereafter sold his interest in the project to Allied American Properties of Florida, Inc. (Allied). On May 15, 1978, Respondent entered into a contract with Allied to construct the Evans Square Shopping Center. On May 22, 1978, Respondent entered into a con- tract with Raymond H. Moody, individually, and Florida Gulf Coast Construction Co., Inc., acting by and through its President, Raymond H. Moody, who were to perform the actual construction of the Evans Square Shopping Center. At the time of contracting, Moody and Florida Gulf Coast Construction Co., Inc., were unlicensed to perform the type of construction outlined in the contract. Florida Gulf Coast Construction Co., Inc., eventually obtained proper licensure but did so subsequent to the period at issue here. In the contract agreement with Florida Gulf Coast Construction Co., Inc., and Moody, Respondent agreed that he would assist in obtaining necessary permits and local government services required for the construction of the Evans Square Shopping Center. Subsequent to the signing of the May 22, 1978, contract, Respondent learned from Moody that neither he nor Florida Gulf Coast Construction Co., Inc., was properly licensed to perform the type of construction for which they had contracted. Respondent took no immediate action based on this information. Moody and/or Florida Gulf Coast Construction Co., Inc., continued to perform construction activities with the use of Respondent's building permit and contractor's license. Respondent received in excess of $50,000.00 with regard to the May 22, 1978, contract which included payment for the building permit he had previously obtained. He did not, however, receive reimbursement for the several hundred thousand dollars he had invested in this project before the sale to Allied.
Recommendation From the foregoing, it if RECOMMENDED that Petitioner enter a Final Order finding Respondent guilty as charged in the Amended Administrative Complaint and suspending his general contractor's license for a period of one year. DONE and ENTERED this 30th day of December, 1982, in Tallahassee, Florida. R. T. CARPENTER, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of December, 1982.
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 At about 12:00 noon on January 31, 1971, an automobile collision occurred in Clay County, Florida, between David Earl Mattox and Douglas Jay Gilbert. Mattox, driving a Chevrolet pick-up, slid into the rear of Gilbert's Ford sedan after being unable to stop on the wet pavement. Mattox was uninjured and Gilbert complained of a slight headache. An acquaintance of Gilbert was riding in Gilbert's car as a passenger. Neither driver reported the accident at that time and, in fact, drove his own vehicle to Gilbert's place of business to talk about the accident. A decision was made at that meeting to handle the matter privately without notification of insurance companies or law enforcement, authorities. Later that day, Gilbert's head and neck began hurting so Gilbert's father took him to a doctor in Green Cove Springs. The doctor advised Gilbert that he had suffered whiplash. Gilbert continued to visit the hospital for about two days for treatment and diagnosis. That same evening, after the diagnosis was received, Gilbert's father called Mattox and advised him that the accident should be reported. Mattox agreed and at approximately 5:00 p.m. on the day of the accident, Mattox called Libby at home. Mattox had planned a trip to Daytona Beach that evening so Libby agreed to wait until the next day to make his investigation of the accident. At about 3:00 p.m., February 1, 1977, Libby met with Mattox and Gilbert's father at Mattox's place of business. At that time, Libby interviewed Mattox and Gilbert's father, inspected Mattox's vehicle and prepared the accident report. Gilbert was not present at the meeting and at no time did Libby interview him or Gilbert's passenger regarding the accident. At no time did Libby inspect Gilbert's vehicle. Although another Florida Highway Payroll trooper was on duty in the area, Libby agreed to conduct the accident investigation even though he was not on duty. Libby attended the meeting in civilian clothes. Libby did not investigate the scene of the accident. The accident report prepared by Libby fails to disclose that Gilbert's vehicle contained a passenger and fails to include a diagram of the collision. The accident report recites the amount and degree of damage to Gilbert's car, notwithstanding Libby's failure to inspect the vehicle. The stated damages in the accident report are $150.00 whereas the actual damages were closer to $400.00. As reflected in the accident report, no arrests or charges were made as a result of the collision. As of the time of the hearing, no charges had been made and no supplemental report had been filed. It is the policy of FHP that all vehicles be inspected and all principals be interviewed, if possible, prior to the final preparation of an accident report. In addition, it is policy that Highway Patrol officers be in uniform when performing their duties. The accepted procedure in these circumstances would have been for Libby to either contact an on duty trooper to go on duty himself in uniform prior to investigating the accident. Libby has been previously disciplined for negligence in the performance of his duty.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Career Service Commission sustain the action taken by FHP. DONE and ENTERED this 8th day of September, 1977, in Tallahassee, Florida. MICHAEL R.N. McDONNELL Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Mr. B. M. Libby Post Office Box 322 Green Cove Springs, Florida 32043 Edwin E. Strickland, Esquire General Counsel Neil Kirkman Building Tallahassee, Florida 32304 Mrs. Dorothy B. Roberts Room 530 Carlton Building Tallahassee, Florida 32304 Enoch J. Whitney, Esquire Assistant General Counsel Neil Kirkman Building Tallahassee, Florida 32304
The Issue The issue for determination is whether Respondent committed the offenses set forth in the Administrative Complaint and, if so, what action should be taken.
Findings Of Fact At all times material hereto, Mr. Borek was licensed by the Department as a certified general contractor, having been issued license number CG C 58817. He was licensed on November 18, 1996. At all times material hereto, Mr. Borek was the qualifying agent of Atlantic Coast General Contractors, Inc. (ACGC), a Florida corporation, and has been its president. ACGC was issued a certificate of authority as a contractor qualified business on June 2, 1977, having been issued license number QB 07357. ACGC's license expired on September 1, 2001 and became null and void on September 1, 2003. The State of Florida, Department of State, administratively dissolved ACGC, as a corporation, on October 1, 2004, for its failure to file its annual report, as required by law; and, as a result, ACGC's authority to transact business, as a corporation, in the State of Florida was revoked on the same date. At all times material hereto, Tracey Meredith (Ms. T. Meredith) resided in and owned a home located at 7690 Northwest 16th Court, Pembroke Pines, Florida. Ms. T. Meredith wanted her mother, Jane Meredith1 (Ms. J. Meredith), to live with her so Ms. T. Meredith decided to have an addition built to her home, consisting of a bedroom, bathroom, and closet. Ms. T. Meredith obtained a proposal from ACGC and five other contractors for the addition. Each contractor was aware of the purpose of the addition. Ms. T. Meredith decided to contract with ACGC, which was not the lowest or the highest bidder, but was somewhat in the middle. On June 28, 2002, a Proposal/Contract (Contract) was executed with ACGC for the addition at a cost of $32,925.00. Even though the Contract showed Ms. T. Meredith as the contracting party, it was signed by Ms. J. Meredith because she (Ms. J. Meredith) was actually paying for the addition and signing the checks. Both Mses. T. Meredith and J. Meredith were in agreement with the Contract. The Contract provided, among other things, that the addition was 15 x 21; and that the payments would be as follows: 20% at acceptance of the Contract, 20% at permit issuance, 10% at slab, 20% at wall and roof framing, 10% at roof completion, 10% at finished walls and flooring, and 10% at final completion. No dispute exists that the cost of the Contract was reasonable. No dispute exists that the Contract failed to contain a provision explaining the consumer's rights under the Florida Homeowners' Construction Recovery Fund, formerly known as the Construction Industries Recovery Fund. No dispute exists that the Contract did not provide a date for completion of the addition. Regarding a completion date for the addition, Ms. T. Meredith testified that all the other proposals provided that the addition would be completed within six to eight weeks and that, at the beginning, Mr. Borek orally communicated to her that the addition would be completed by ACGC within six to eight weeks. To the contrary, Mr. Borek testified that, at the beginning, no completion date was given to her, either orally or in writing. None of the other proposals were submitted into evidence, only the Contract with Mr. Borek, which did not provide a completion date. It would not be reasonable for Ms. T. Meredith to accept Mr. Borek's proposal without it’s being within the time period of completion of the other proposals. The undersigned finds Ms. T. Meredith's testimony more credible and makes a finding of fact that, at the time of the signing of the Contract, Mr. Borek made an oral representation that the addition would be completed by ACGC within six to eight weeks. An expert in the field of general contracting, John Yanoviak (Mr. Yanoviak), testified on behalf of the Department. The undersigned finds his testimony credible, except as specifically indicated. A reasonable amount of time to complete the addition was a maximum of three months. Mr. Borek, as the contractor, was responsible for keeping the project timely and for quality control. On June 30, 2002, Ms. J. Meredith wrote a check, payable to ACGC, in the amount of $6,585.00. This amount was 20 percent of the contracted cost for the addition. No dispute exists that this check was written and presented to Mr. Borek. Paying this amount was in accordance with the Contract. Mr. Borek filed an application for a building permit with the City of Pembroke Pines (CPP) on or about July 3, 2002. The building permit was issued by CPP on or about October 25, 2002. Work on the addition was commenced before the issuance of the building permit. Ms. T. Meredith was aware of the date that the building permit was issued. Prior to the issuance of the building permit, Ms. T. Meredith complained to Mr. Borek regarding the addition’s not being completed. No evidence was presented to show that Ms. T. Meredith indicated to Mr. Borek that, by his failure to complete the addition within a six-to- eight-week period, he was not abiding by the Contract. No evidence was presented to show that she indicated her dissatisfaction to the degree of possibly terminating the Contract with ACGC. On November 12, 2002, Ms. J. Meredith wrote a check, payable to ACGC, in the amount of $6,585.00. This amount was paid after Mr. Borek obtained the building permit and was 20 percent of the contracted cost for the addition. No dispute exists that this check was written and presented to Mr. Borek. Paying this amount was in accordance with the Contract. On December 11, 2002, Ms. J. Meredith wrote a check, payable to ACGC, in the amount of $6,885.00. This amount was $300.00 more than 20 percent of the contracted cost for the addition. No dispute exists that this check was written and presented to Mr. Borek. An inference is drawn and a finding is made that this check was written in advancing of the addition. According to the records of the CPP's building department2 (Records), a CPP form for a revision to the addition was submitted on January 6, 2003, providing for an electrical change to the addition. Further, the Records indicate that, on March 20, 2003, an application for an electrical permit was submitted and that, on March 24, 2003, the permit was approved. Also, a revision to the plans of the addition was submitted to the CPP by the architect to the addition, Hernando Acosta, according to the Records. The Records indicate that the revision to the plans was dated January 30, 2003 by Mr. Acosta, that the revision was submitted on February 7, 2003, and that the revision was approved on February 11, 2003 by the CPP. In addition, in February 2003, Ms. T. Meredith received written communication from the CPP regarding a problem with the addition. Ms. T. Meredith received a copy of a letter from the CPP to Mr. Borek, dated February 18, 2003. The letter indicated, among other things, that the CPP had issued a "stop work status" on the addition due to Mr. Borek’s having issued a check, payable to the CPP, in the amount of $135.80, which was dishonored. Another revision, according to the Records, was submitted on March 27, 2003, regarding the trusses. The Records indicate that the revision was approved on April 17, 2003. Ms. T. Meredith became more dissatisfied with the progress toward completion on the addition by Mr. Borek to the point that she filed a complaint with the Department on May 21, 2003. In May 2003, Ms. T. Meredith received written communication from the CPP regarding a problem with the addition. By letter dated May 22, 2003, she received notification from the CPP, as information only, that a code violation had not been corrected within the allowable ten-day period, together with a copy of CPP's letter to Mr. Borek, dated May 22, 2003, of his failure to correct the code violation. The letter to Mr. Borek indicated, among other things, that Mr. Borek had until June 11, 2003 to correct the violation, identifying the inspection date and the violation. By a letter dated May 28, 2003, Ms. T. Meredith advised Mr. Borek, among other things, that he had seven days to continue with the work on the addition in accordance with the Contract or else the Contract would be considered by her to be "null and void"; that, if he did not do so, she would be "forced" to hire another contractor, with Mr. Borek being held financially responsible for completion of the addition; and that the Contract was to be completed within six to eight weeks. On June 12, 2003, Mr. Borek contacted the investigator for the Department regarding the complaint filed by Ms. T. Meredith. Among other things, Mr. Borek informed the investigator that he (Mr. Borek) was willing to complete the addition in 30 days. By his representation, Mr. Borek indicated that he would complete the addition on or about July 12, 2003. By a letter dated June 18, 2003, Mr. Borek notified the investigator, among other things, that he was working "diligently" to complete the addition. Mr. Borek failed to complete the addition within the 30-day period, as he had represented to the Department's investigator. The Records indicate that an application for a building permit, involving the roof to the addition, was submitted on June 25, 2003. The permit was issued, according to the Records, on July 30, 2003. Further, the Records indicate that a revision, regarding the size of a window and the elimination of a door, was submitted on July 8, 2003, and approved on July 9, 2003. In July 2003, Ms. T. Meredith received another written communication from the CPP regarding a problem with the addition. By letter dated July 9, 2003, she received notification from the CPP, as information only, that a code violation had not been corrected within the allowable ten-day period, together with a copy of CPP's letter to Mr. Borek, dated July 9, 2003, of his failure to correct the code violation. The letter to Mr. Borek indicated, among other things, that Mr. Borek had until July 28, 2003, to correct the violation, identifying the inspection date and the violation. In addition, in July 2003, Ms. T. Meredith received written communication from the CPP regarding another problem with the addition. She received a copy of a letter from the CPP to Mr. Borek, dated July 18, 2003, which indicated, among other things, that the CPP had issued a "stop work status" on the addition due to Mr. Borek having issued a check, payable to the CPP, in amount of $76.23, which was dishonored. Even though Mr. Borek failed to complete the addition within the 30-day period that he had represented to the Department's investigator and even though Ms. T. Meredith had received notification of the problems at the jobsite from the CPP, on September 10, 2003, Ms. J. Meredith wrote a check, payable to ACGC, in the amount of $4,000.00. No dispute exists that this check was written and presented to Mr. Borek. An inference is drawn and a finding is made that this check was written in furtherance of the addition. ACGC had been paid a total of $24,055.00 of the Contract cost of $32,925.00, which was approximately 73 percent of the Contract cost. The balance of the Contract cost was $8,870.00. Mr. Borek testified that, at the time of the writing of the check for $4,000.00, he and Ms. T. Meredith agreed that he would have until on or about November 15, 2003 to complete the project. Ms. T. Meredith testified that no such agreement was made. At the time of the check for $4,000, ACGC was almost 60 days beyond the completion date represented to the Department's investigator. No testimony was presented as to why the $4,000.00 was paid to ACGC in light of such a considerable delay in completing the job by ACGC and in light of the complaint being filed with the Department. Due to the lack of an explanation for the payment of the $4,000.00 to ACGC in furtherance of the project, Mr. Borek's testimony presents a reasonable explanation. Therefore, Mr. Borek's testimony is found to be credible. Hence, a finding is made that, on or about September 10, 2003, Mr. Borek and Ms. T. Meredith orally agreed that ACGC would have until on or about November 15, 2003, to complete the addition. Ms. T. Meredith continued to be dissatisfied with the progress on the addition by ACGC. Sometime after September 10, 2003, an incident occurred which caused her to reach the conclusion that she could not allow ACGC to continue working on the project. One day when she left for work, one of ACGC's workers was painting the exterior walls. When she returned from work later that same day, the same worker for ACGC was painting the exterior walls. Ms. T. Meredith immediately directed the worker to leave and to take all of his equipment with him; the worker did so. Ms. T. Meredith contacted Mr. Borek and informed him that she would not allow him to continue with the project. Mr. Borek repeatedly requested Ms. T. Meredith to allow him to continue with the project, but she refused. By letter dated October 9, 2003, Ms. T. Meredith terminated the Contract with ACGC. She mailed the letter on the same date and faxed it on October 14, 2003. Her mother was in agreement with terminating the Contract. Ms. T. Meredith indicated, among other things, in her letter to ACGC that its failure to complete the addition as of the date of the letter, when the oral agreement was completion within six to eight weeks, left her no choice but to terminate the Contract. Ms. T. Meredith included in the letter, among other things, what remained to be completed on the project and a cost of $539.55 for damaged items at her home caused by ACGC, with an itemized list. At the time of the termination, the following work remained to be completed: purchase and installation of plumbing fixtures; sewer hookup; molding; tile work in the bathroom; installation of storm panels and flooring; some painting; installation of an air conditioner; some electrical connections; and installation of an electrical panel, electric wall plates, and an electric light fixture. Ms. T. Meredith obtained a homeowner's permit and hired someone, Adam Friedman, to assist her in completing the addition. On December 15, 2003, the CPP issued a certificate of occupancy to her. As to expenditures by Mses. T. and J. Meredith in order to complete the addition, the undersigned finds the testimony of Mr. Yanoviak credible. Mses. T. and J. Meredith expended $19,170.52 to complete the addition. The expenditures for completion were reasonable and necessary. Not included in the expenditures for completion are the following: $3,941.31 for items not included in the Contract--a fence, pavers, wood floor, upgraded bathroom fixtures or accessories, closet woodwork and various Home Depot items (totaling $238.21); $250.00 for mill work associated with chair rails; and $2,400.00 for an exterior concrete slab. Included in the expenditures for completion is the following: $1,360.00 for a split-system air conditioning unit which was not installed by ACGC. Further, included in the cost of expenditures is an adjustment in favor of Ms. T. Meredith in the amount of $1,000.00 for the elimination of a window on the west elevation of the addition, which was orally agreed to by Ms. T. Meredith and Mr. Borek after the signing of the Contract and which would have been subtracted from the cost of the Contract. After Ms. T. Meredith terminated the Contract, she filed a claim under the Construction Industries Recovery Fund. The claim was dated October 10, 2003, one day after she terminated the Contract. Ms. T. Meredith set forth in the claim that she was requesting $12,000.00, which she indicated was the amount to pay another contractor to complete the project. The undersigned places very little weight upon the amount requested because the claim is prior to completing the project and fails to reflect the actual costs involved in completing the project, which were realized only after completion. Damage to items at Ms. T. Meredith's home occurred, during the work being performed by ACGC, for which ACGC was responsible. The following items were affected: damaged a window magnet that was part of the home's security system at $80.00; destroyed, broken, or thrown away one large planter pot, one archway, and two large stepping stones--all at an estimate of $440.34; and broken tiles in the front of the house at $13.57. The damages totaled $533.91. At the time of the hearing, Mr. Borek had not made any payments to Ms. T. Meredith or Ms. J. Meredith for their expenditures to complete the addition or for the damages. At the time of the termination, in accordance with the oral agreement of completion by on or about November 15, 2003, ACGC had a little over 30 days to complete the addition. In light of the finding that an oral agreement had been reached to allow ACGC until on or about November 15, 2003, to complete the addition and in light of the only incident since that agreement, presented by the evidence, was the situation involving ACGC's painter, the undersigned finds that the painting situation was not substantial and that, therefore, the termination on October 9, 2003, prior to the new agreed- upon termination date, was unreasonable. Ms. T. Meredith testified that, sometime during the middle of the year 2003, for a period of "exactly" 60 days, ACGC failed to perform any work at the project. Mr. Borek denies her assertion. Ms. T. Meredith testified that she kept records on everything. When she testified as to an exact 60- day period in the middle of 2003 during which no work was being done at the project, Ms. T. Meredith did not point to any of her records to verify the assertion or provide certain beginning and ending dates. Taking into consideration the standard of proof and the burden of proof, the evidence failed to show clearly and convincingly that no work was done at the jobsite by ACGC for a period of 60 days in the middle of the year 2003. Nothing was done by Ms. T. Meredith, the architect, or CPP to delay the completion of the project. Mr. Borek admits that he had other jobs in progress when he was working on the addition. He further admits that when changes had to be made to the project, whether by the CPP or the architect or Ms. T. Meredith or himself, he had to re- arrange his schedule to accommodate the other jobs, which included re-deploying his workers and subcontractors, which in turn caused delays. Further, Mr. Borek admits that the turnaround time for any changes given to the architect for the plans to the addition was reasonable and that the turnaround time for the CPP to review the changes to the plans submitted by the architect was reasonable. Consequently, no unreasonable or inordinate delays were caused by the architect or the CPP when changes were made to the plans of the addition. Mr. Borek performed some work for Ms. T. Meredith at no cost that was not required by the Contract. The extra work at no cost included the following: the removal of trees; pouring of an exterior concrete slab; and plastering of drywall. The slow progress in completing the Contract was significant and material and resulted in the Contract’s not being performed in a reasonable time. The delays in completion of the addition were significant and were the fault of Mr. Borek. In addition to re-deploying workers for other jobs on which ACGC was working, ACGC failed to properly perform work, which resulted in failed inspections by the CPP, which resulted in numerous delays, and failed to timely obtain an electrical permit. As to the failure to timely obtain an electrical permit, the electrical permit was obtained almost five months subsequent to the issuance of the building permit by the CPP. The electrical permit was applied for on March 20, 2003 and approved on March 24, 2003. CPP's turnaround time in approving the permit was short and inconsequential. As to the failure to properly perform work, the Records indicate construction defects, which were under Mr. Borek's, the contractor's, control and which resulted in failed inspections. Furthermore, the Records indicate prior construction faults, identified in inspections, not being timely corrected, which was under Mr. Borek's control and which resulted in delays until the faults were corrected. Mr. Yanoviak testified that failure to perform the Contract within a reasonable time constituted misconduct. The undersigned finds his testimony credible. A finding of fact is made that the failure to perform the Contract within a reasonable time constituted misconduct. Additionally, Mr. Yanoviak testified that the failure to perform the Contract within a reasonable time constituted a material breach of the Contract. The undersigned finds his testimony credible, and a finding of fact is made that the failure to perform the Contract within a reasonable time constituted a material breach of the Contract. Further, Mr. Yanoviak testified that, such material breach, justified terminating the Contract. The undersigned finds his testimony credible only as to a general application and, therefore, a finding of fact is made that, generally, the failure to perform a construction contract within a reasonable time would justify terminating the construction contract but does not justify terminating the Contract under the circumstances presented in the instant case. Both Mr. Borek and Ms. T. Meredith orally agreed to a new date for completion of the addition, i.e., on or about November 15, 2003. To disregard the new date of completion would be manifestly unjust. Furthermore, at the time of the termination of the Contract by Ms. T. Meredith, i.e., on October 9, 2003, the termination was unreasonable and not for just cause. Hence, a finding of fact is made that termination of the Contract by Ms. T. Meredith, prior to the new completion date, was not justified. Mr. Yanoviak also testified that failure to perform the Contract within a reasonable time constituted abandonment of the project. The undersigned finds his testimony credible only as to general application and, therefore, a finding of fact is made that, generally, the failure to perform a construction contract within a reasonable time would constitute abandonment of a project. However, as found above, a new date for completion of the project was orally agreed upon and the new date had not expired at the time of the termination of the Contract by Ms. T. Meredith. Hence, a finding of fact is made that, under the circumstances of the instant case, abandonment did not exist. The Department presented evidence of costs for the investigation and prosecution of this matter, excluding costs associated with attorney time. As of July 5, 2005, the costs for the investigation and prosecution totaled $880.18. As to prior disciplinary action, on September 9, 2004, the Department filed a Final Order in Department of Business and Professional Regulation vs. Bret Jayson Borek, Case No. 2003-069533, License No. CG Co58817 before the Construction Industry Licensing Board. In that case, an administrative complaint was filed against Mr. Borek for violating Section 489.129(1)(i), Florida Statutes (2001), by failing to comply in a material respect with a provision of Chapter 489, Florida Statutes, through the failure to obtain a certificate of authority for ACGC; and for violating Section 489.129(1)(q), Florida Statutes (2001), by failing to satisfy a civil judgment, related to the practice of construction, within a reasonable time. Mr. Borek waived his rights to an informal hearing, and no material fact was disputed. Among other things, the Final Order imposed an administrative fine of $1,000.00, required restitution of $15,218.94 to a roofing and sheet metal company and required payment of $506.92 for investigative costs.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation, Construction Industry Licensing Board enter a final order: Finding that Bret Jayson Borek committed the violations set forth in Counts I, II, and III; Dismissing Count IV; and Imposing the following penalties: As to Count I, an administrative fine in the amount of $1,000.00 and revocation of the license of Bret Jayson Borek. As to Count II, an administrative fine in the amount of $500.00. As to Count III, an administrative fine in the amount of $5,000.00 and revocation of the license of Bret Jayson Borek. S DONE AND ENTERED this 9th day of January, 2006, 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 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 9th day of January, 2006.
The Issue This is a license discipline case in which the Petitioner seeks to take disciplinary action against the Respondent on the basis of allegations of misconduct set forth in a four-count Administrative Complaint. The Administrative Complaint charges the Respondent with violation of the following statutory provisions: Sections 489.129(1)(g), 489.129(1)(h)2, 489.129(1)(k), and 489.129(1)(n), Florida Statutes (1996 Supp.).
Findings Of Fact The Respondent, Allen Fader, is, and has been at all times material, a licensed Certified General Contractor, having been issued license number CG C007504 by the State of Florida. At all times material, the Respondent was licensed to contract as an individual. The Respondent, by virtue of his license, advertised construction services for Gold Coast Construction Services, Inc., during 1997. The Respondent presented a business card, with the name of Gold Coast Construction Services, Inc., to Ruby M. Shepherd, a customer, in April of 1997. On April 14, 1997, the Respondent, doing business as Gold Coast Construction Services, Inc., contracted with Ruby M. Shepherd to enclose a patio and to install hurricane shutters at Ms. Shepherd's residence located at 12325 Northwest 19th Avenue, Miami, Florida. The contract was conditioned on Ms. Shepherd being able to obtain financing to pay for the construction described in the contract. The exact amount Ms. Shepherd was required to pay under the original April 14, 1997, contract cannot be determined from the evidence in this case.4 The Respondent assisted Ms. Shepherd in obtaining a loan for the financing of the construction work described in the contract. It took several months to obtain a loan. Ultimately, through the efforts of the Respondent, and of a person engaged by the Respondent to help obtain a loan, Ms. Shepherd received a loan through Town and Country Title Guaranty and Escrow. The check from Town and Country Title Guaranty and Escrow was in the amount of twelve thousand nine hundred seventy-nine dollars and fifteen cents ($12,979.15). The check was made payable to Ms. Shepherd and to Gold Coast Construction Services, Inc. At the request of the man who helped obtain the loan, Ms. Shepherd endorsed the loan check and agreed for the check to be delivered to the Respondent. The Respondent, doing business as Gold Coast Construction Services, Inc., negotiated the loan check and received all of the proceeds in the amount of twelve thousand nine hundred seventy-nine dollars and fifteen cents ($12,979.15). The Respondent received the proceeds of the loan on or about September 12, 1997. The Respondent did not take any action on Ms. Shepherd's construction project until November 14, 1997. On that day, the Respondent placed an order for the material for the hurricane shutters on Ms. Shepherd's project. Nothing more was done on Ms. Shepherd's project for quite some time. Towards the end of February of 1998, the Respondent had some health problems, which caused him to be unable to work for several weeks. Eventually, the Respondent attempted to pick up the shutter materials he had ordered for Ms. Shepherd's project. As a result of the delay, those materials had been returned to stock and had been sold to someone else. The Respondent ordered the materials again. Eventually, in June of 1998, the Respondent had the shutter materials delivered to Ms. Shepherd's residence, and began the process of installing the hurricane shutters. In the meantime, from September of 1997 until January of 1998, the Respondent did not contact Ms. Shepherd. During this period of time, Ms. Shepherd called the Respondent's office numerous times and left numerous messages asking the Respondent to return her calls. From September of 1997 until January of 1998, the Respondent did not return any of Ms. Shepherd's calls. In January of 1998, Ms. Shepherd was finally able to speak with the Respondent. From January of 1998 until the installation work began in June of 1998, Ms. Shepherd spoke to the Respondent on numerous occasions in an effort to find out when the Respondent was going to begin work or return the money he had been paid. During this period of time, the Respondent repeatedly made false assurances to Ms. Shepherd that the work would be performed within two weeks. On or about June 12, 1998, the Respondent obtained a building permit for Ms. Shepherd's project from the Miami-Dade Department of Planning, Development, and Regulation. Installation of the hurricane shutters began that same week. The installation process was delayed because some of the materials did not fit and had to be returned to the manufacturer for modifications. Following the modifications, the installation process resumed. After a few more days, the Respondent told Ms. Shepherd the hurricane shutter work was finished and that he was not going to do the patio construction work, because the loan Ms. Shepherd had received was not enough money to pay for both projects. After the Respondent told Ms. Shepherd that the installation of the hurricane shutters was complete, the Respondent never did any further work on Ms. Shepherd's construction project. The hurricane shutters installed at Ms. Shepherd's property by the Respondent were not installed correctly. Several of the hurricane shutters will not open and close properly. Several of the hurricane shutters are insufficiently fastened. A necessary shutter over the storage room door was never installed. The problems with the subject hurricane shutters can be corrected. The cost of the corrections necessary to make the shutters operate properly and to fasten them securely is approximately one thousand dollars ($1,000). The Respondent never called for an inspection of the installation of the hurricane shutters at Ms. Shepherd's residence. In their present condition, those hurricane shutters will not pass inspection, because they were installed improperly. If corrections are made, those hurricane shutters will pass inspection. By reason of the facts stated in paragraphs 12 and 13 above, the Respondent failed to properly and fully complete the hurricane shutter portion of the contracted work. The Respondent never did any work on the patio portion of the contracted work. At some point in time between September of 1997 and June of 1998, Ms. Shepherd and the Respondent agreed to a modification of their original contract due to the fact that the proceeds of the loan obtained by Ms. Shepherd were insufficient to pay for both the hurricane shutters and the enclosure of the patio. The essence of their modified agreement (which was never reduced to writing) was that the Respondent would not do the patio enclosure portion of the contracted work; the Respondent would do the hurricane shutter portion of the contracted work; the Respondent would be paid for the hurricane shutter portion of the contracted work; and any remaining balance of the loan proceeds that had been paid to the Respondent would be paid back to Ms. Shepherd. Implicit, but apparently unstated, in this modified agreement, was the notion that the Respondent would charge a fair price for the hurricane shutter portion of the contracted work. A fair price for the hurricane shutter portion of the contracted work at Ms. Shepherd's residence, including all materials, labor, overhead, and profit, would be approximately four thousand dollars ($4,000).5 The price of four thousand dollars presupposes properly installed hurricane shutters that will pass inspection. As previously mentioned, it will cost approximately one thousand dollars ($1,000) to make the corrections to the subject hurricane shutters which are necessary for the shutters to function properly and pass inspection. Accordingly, the fair value of the work performed by the Respondent at Ms. Shepherd's residence is three thousand dollars ($3,000). Ms. Shepherd has paid $12,979.15 to the Respondent, doing business as Gold Coast Construction Services, Inc. The fair value of the work performed by the Respondent at Ms. Shepherd's residence is $3,000. Therefore, the Respondent has been paid $9,979.15 more than he is entitled to keep. As of the date of the final hearing, the Respondent has not paid back any money to Ms. Shepherd.
Recommendation On the basis of the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be issued in this case concluding that the Respondent is guilty of the violations charged in each of the four counts of the Administrative Complaint, and imposing the following penalties: For the violation of Section 489.129(1)(g), Florida Statutes (1996 Supp.), an administrative fine in the amount of $100.00. For the violation of Section 489.129(1)(k), Florida Statutes (1996 Supp.), an administrative fine in the amount of $2,000.00. For the violation of Section 489.129(1)(n), Florida Statutes (1996 Supp.), an administrative fine in the amount of $1,000.00. For the violation of Section 489.129(1)(h), Florida Statutes (1996 Supp.), an administrative fine in the amount of $1,500.00, and placement of the Respondent on probation for a period of one year. It is further RECOMMENDED that the final order require the Respondent to pay restitution to Ms. Shepherd in the amount of $9,979.15, and to pay costs of investigation and prosecution in the amount of $266.55. DONE AND ENTERED this 9th day of September, 1999, in Tallahassee, Leon County, Florida. MICHAEL M. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 9th day of September, 1999.
The Issue Whether the vessel ("Imagine") owned by Petitioner, William Hackett ("Petitioner"), is a "derelict vessel" within the meaning of section 823.11, Florida Statutes (2019); and, therefore, subject to the provisions of sections 376.15(3), 823.11, 705.101(3), and 705.103, Florida Statutes.
Findings Of Fact On January 4, 2020, Officer Glen Way, a sworn FWC law enforcement officer, was on water patrol in an FWC patrol vessel within the public waters of Key West Harbor in Monroe County, Florida, when he observed a vessel (a 32-foot 1967 Hatteras known as "Imagine") sunken and nearly 90% submerged. There were no persons on board and the vessel looked abandoned. The electrical, propulsion, steering systems, and engines were well under sea water and inoperable. Based on his investigation, Officer Way concluded that the vessel suffered a severe marine casualty, had been discarded as sunk with no intrinsic value, and was derelict. His investigation further revealed that the vessel was owned by Petitioner. On January 8, 2020, Officer Way spoke with Petitioner and explained to him the derelict vessel process. That same day, Officer Way emailed Petitioner an Acknowledgement of Receipt of Documentation Related to A Derelict Vessel Determination. Subsequently, Petitioner had the vessel raised from being sunken and tied to a commercial salvage barge with a crane. Although the vessel was no longer sunk, it had been sunk for over two months and Officer Way observed that no corrective action had been taken by Petitioner to correct the systems. Significantly, Officer Way observed that the vessel’s propulsion and steering systems were still inoperable, the onboard engine was substantially corroded, and marine growth was visible along the waterline of the entire vessel. In addition, windows were boarded up with plywood, blocking the ability to safely navigate or operate the vessel upon the water. Officer Way also observed a 25-horsepower outboard motor affixed to the transom of the vessel. However, Officer Way persuasively and credibly testified that a 25-horsepower outboard motor is insufficient to propel the vessel safely upon the public waters of the State of Florida. In sum, the vessel was still wrecked, junked, substantially dismantled, and derelict. Subsequently, on July 28, 2020, and at 8:30 a.m. on August 13, 2020, Officer Way observed that the vessel was again sunk, inoperable, abandoned, left, wrecked, junked upon the public waters of the State, and derelict. The vessel has no intrinsic value. At the hearing on August 13, 2020, Petitioner candidly acknowledged that the vessel was again sunk and not operational.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Fish and Wildlife Conservation Commission enter a final order finding Petitioner’s vessel, "Imagine," derelict under section 823.11, abandoned under chapter 705, and subject to the provisions of sections 376.15(3), 823.11, 705.101(3), and 705.103. DONE AND ENTERED this 28th day of August, 2020, in Tallahassee, Leon County, Florida. S DARREN A. SCHWARTZ 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 28th day of August, 2020. COPIES FURNISHED: Brandy Elaine Elliott, Esquire Florida Fish and Wildlife Conservation Commission 620 South Meridian Street Tallahassee, Florida 32399 (eServed) William Hackett 419 Southard Street Key West, Florida 33040 Emily Norton, General Counsel Florida Fish and Wildlife Conservation Commission Farris Bryant Building 620 South Meridian Street Tallahassee, Florida 32399-1050 (eServed) Eric Sutton, Executive Director Florida Fish and Wildlife Conservation Commission Farris Bryant Building 620 South Meridian Street Tallahassee, Florida 32399-1600 (eServed)
