The Issue The issue in this appeal is whether the decision of the City of Clearwater Development Code Adjustment Board denying Petitioner's application for variances for certain signage on his property is supported by the evidence in the record, or whether it departs from the essential requirements of law. See Section 137.014(f)(3), City of Clearwater Land Development Code.
Findings Of Fact Petitioner is the owner of certain property located at 1923-1943 U.S. Highway 19 North, Clearwater, Florida (Section 05-29-16, M&B 23.05). This property is zoned CC (Commercial Center), and is the site of a strip shopping mall. On or about March 23, 1989, Petitioner applied for three variances for the subject property, as follows: 243 square feet to permit a total of 411 square feet of property identification signage; 13.5 feet in height to permit a 33.5 foot high pole sign; permission for a roof mounted sign. The Development Code Adjustment Board denied Petitioner's application for variances on April 13, 1989, and Petitioner timely filed this appeal of the Board's decision. Under the provisions of the City of Clearwater Land Development Code applicable to the Petitioner's property, only 168 square feet of property identification signage and pole signs not to exceed 20 feet in height would be allowed without a variance, and roof signs of any kind are prohibited unless a variance has been granted. Several months prior to Petitioner's filing for these variances, a roof sign was erected on the building located on the subject property. This roof sign consists of individual letters spelling "Harbor Square", which is the name of this shopping mall. The letters are from 3 feet, to 4 feet 9 inches in height, and span a distance of 34 feet 9 inches in width. The roof sign replaced a property identification sign at the right of way which previously carried the name of the shopping center, but the space on the pole sign previously used to identify the mall was not eliminated. That space is now used to identify a uniform business in the mall. Petitioner is seeking these after the fact variances to authorize the roof sign which has already been erected, and to approve the height of an existing pole sign. An enforcement action initiated by the City is pending this variance determination. Tenants in the Harbor Square mall testified that the change in signage has made the mall more visible and accessible, and several of their customers have commented that their businesses are now easier to find. The tenants feel that this change in signage will benefit their businesses financially. The Development Code Adjustment Board has previously granted variances from the signage limitations imposed by the Code, but the evidence produced at hearing indicates that none of these variances were granted after the fact. The two variances which were approved for roof signs were based upon a finding of conditions unique to the property which created a hardship for the applicant. In both instances, the Board found that the applicant had not created his own hardship, but that it arose from the size or positioning of the property involved in each application. In this case, nothing unique about the property can be found. The applicant has caused his own problems by allowing a sign to be erected without first obtaining a permit or variance. The Petitioner urges that it was the responsibility of his sign contractor to obtain all necessary permits or variances, and that the contractor did not inform him that a variance was necessary before he erected the sign. However, neither the sign contractor nor the Petitioner himself was present to testify, and therefore, there can be no finding with regard to his credibility, or with regard to whatever arrangement he had with the contractor. In any event, as the property owner seeking a variance, Petitioner has failed to establish any basis for a finding of a hardship or circumstance unique to his property, other than the fact that he allowed this sign to be erected without obtaining the necessary approvals from the City.
Findings Of Fact On or about March 7, 1986, Petitioner submitted an application for a variance from the open space and rear set-back line requirements applicable to property located at 2612 U.S. 19 North, Clearwater, Florida. The subject property is zoned CC (commercial center). Petitioner's application requests a variance to provide 12.33% open space instead of 25%, and to construct a building 30 feet from the rear property line rather than 50 feet as required by the Land Development Code for property zoned CC. On or about April 24, 1986, the Development Code Adjustment Board denied Petitioner's application for a variance, and Petitioner timely appealed on May 6, 1986. The only evidence in support of its application offered by Petitioner was the testimony of Robby Tompkins. He testified that Petitioner's application is "unique" because Petitioner was 90% complete with its architectural plans for the renovation and modernization of the subject property when the current ordinance took effect, and Petitioner therefore urges that the current ordinance should not apply. Additionally, Petitioner argues that there will be no injury to the public as a result of the variance, and in fact the project will add 6800 square feet to its shopping center. Tompkins admitted that an increase in financial return was the primary reason Petitioner has sought the variance. Finally, he stated that if Petitioner complies with the 25% open space requirement, there will not be enough parking to meet Code provisions, and if sufficient parking is provided, there will not 25% open space.
The Issue The issues are whether Petitioner should terminate Respondent from his employment as a deputy sheriff for allegedly engaging in prohibited conduct pursuant to Chapter 89-404, Laws of Florida, as amended by Chapter 90-395, Section 6, Subsection 4, Laws of Florida (the Civil Service Act), and Petitioner's General Order Section 3-1.1, Rule and Regulation 5.2--relating to loyalty, Rule and Regulation 5.4--relating to duties and responsibilities, and Rule and Regulation 5.6-- relating to truthfulness; General Order Section 3-1.3, Rule and Regulation 3.20--relating to reporting procedures for the use of force; and General Order 3-2--relating to ethical requirements.
Findings Of Fact Petitioner is the Sheriff of Pinellas County and a constitutional officer described in Article VIII, Section 1, Florida Constitution. From sometime in 1989 until the termination of Respondent’s employment on March 14, 2008, Petitioner employed Respondent as a deputy sheriff in the Pinellas County Sheriff’s Office (the PCSO). Respondent was last assigned to the courthouse security division of the PCSO. On Saturday, November 3, 2007, Respondent was off-duty and volunteering as one of a number of parents who were supervising several high school bands that were practicing at Clearwater High School (CHS). Three juvenile males on bicycles approached the band practice area. Respondent yelled at them to stop, but did not identify himself as a deputy sheriff. One juvenile stopped. The other two juveniles ignored the commands and proceeded toward the Tarpon Springs Band. One of the riders wore a back pack with a baseball bat attached to the pack. Respondent reasonably believed that the juveniles, who were approximately 16 and 17 years old,1 presented an imminent danger of running into and potentially injuring members of the nearby Tarpon Springs Band. Respondent ran after the juvenile with a bat attached to his pack, grabbed the bat, and separated the juvenile from the moving bicycle. The second juvenile stopped at the point of separation. The juvenile with the baseball bat struck Respondent with his fist, and Respondent delivered a knee-spike2 to the mid- section of the juvenile. The knee-spike disabled the juvenile. The second juvenile was preparing to strike Respondent, when another parent pulled that juvenile away. Petitioner notified Respondent of the charges against him in a memorandum dated March 14, 2008 (the charging document). In relevant part, the charging document alleges in a paragraph entitled “Synopsis” that, during the altercation, Respondent failed to act within the scope of his responsibilities as a deputy sheriff. If that allegation were properly construed to allege that Respondent used excessive force, the fact-finder finds that a preponderance of evidence does not support a finding that Respondent is guilty of that charge of misconduct. Respondent acted reasonably during the altercation. Respondent used reasonable force to protect band members from harm, and Respondent used reasonable force to defend himself from a juvenile. The exigencies of the moment did not afford time for Respondent to disclose his employment with the PCSO before taking action he reasonably believed to be necessary to protect members of the Tarpon Springs Band. Respondent cooperated with the police investigation at CHS. CHS is located within the jurisdiction of both the PCSO and the Clearwater Police Department. The Clearwater Police Department responded to the scene and conducted an investigation. The investigation was documented in Clearwater Police Report No. CW07-33468 (the police report). Another allegation in the synopsis of the charging document is that Respondent was untruthful by deliberately or intentionally omitting or misrepresenting material facts outlining his involvement in the altercation, including a memorandum Petitioner authored on November 5, 2007. The fact- finder finds that a preponderance of evidence does not support a finding that Respondent is guilty of this charge of misconduct. It is undisputed that Respondent telephoned Corporal Victor Griffin, Respondent’s immediate supervisor on the evening of November 3, 2007, and reported the altercation in detail, including the attack by the juvenile and Respondent’s use of a knee-spike. Corporal Griffin instructed Respondent to inform Sergeant Edward Marshall, the next in command. Respondent telephoned Sergeant Marshall that night and informed him of the use of force and the details of the incident. At the hearing, Sergeant Marshall had little or no recall of the details of the conversation with Respondent on November 3, 2007. The only credible and persuasive testimony concerning that conversation is the testimony of Respondent. On the evening of November 3, 2007, Sergeant Marshall instructed Respondent to write a memorandum describing the incident and Respondent’s use of force when Respondent returned to work on Monday, November 5, 2007. Sergeant Marshall instructed Respondent to either reference the police report in the memorandum or attach a copy of the police report to the memorandum. Respondent drafted a memorandum on November 5, 2007. The memorandum referred to the police report, and Respondent submitted the memorandum to his supervisor. The police report included a handwritten, detailed description by Respondent of the use of force in the altercation. Petitioner had reasonable access to the police report. The Clearwater Police Department and the PCSO, by agreement, utilize a computerized joint records management system identified in the record as ACISS. Another allegation in the synopsis of the charging document is that Respondent failed to document the use of force, as required by agency policy. The fact-finder finds that a preponderance of the evidence does not support a finding that Respondent is guilty of this charge of misconduct. A complete description of the altercation and use of force was attached to the police report. That information fully documented the use of force and was available to Petitioner through ACISS.3 Another allegation in the synopsis of the charging document is that Respondent compromised the criminal investigation of the altercation by “accessing unauthorized information” and by “interfering with an ongoing investigation.” This allegation is based in substantial part on two undisputed facts that occurred on or about November 5, 2007. First, Respondent obtained a copy of the police report and discovered that the police report listed Respondent as a “victim/suspect.” Suspects are not entitled to a copy of a police report, but law enforcement officers may access the report. Second, Respondent persuaded the property department to change the status of brass knuckles found in a back pack at the scene of the altercation from being held for destruction to being held as evidence, so that the brass knuckles would not be destroyed. The fact-finder finds that a preponderance of the evidence does not support a finding that the undisputed actions of Respondent compromised the criminal investigation by accessing unauthorized information and intervening into an investigation in which Respondent was listed in the police report as a suspect. The undisputed actions of Respondent were consistent with the actions of the Clearwater Police Department, and neither action by Respondent compromised the investigation. The investigating officer for the Clearwater Police Department was off-duty on Monday and Tuesday, and she did not return to work until Wednesday, November 7, 2007. When the investigating officer returned to work, her sergeant instructed her to change the police report to list Respondent as a law enforcement officer, to delete his address from the report, and to change the designation of Respondent from a “victim/suspect”4 to a “victim” before finalizing the report. The investigating officer made those changes to the police report by computer entries on November 7, 2007, and those changes were available to the PCSO through ACISS. The sergeant also instructed the investigating officer to change the status of the brass knuckles from being held for destruction to being held as evidence, so that they would not be destroyed. The investigating officer contacted the property department of the PCSO to change the status of the brass knuckles to that of evidence and discovered the property department had already made that change at Respondent’s request. Respondent was entitled to a copy of the report because he was a law enforcement officer and was incorrectly listed on the report as a suspect. The actions of Respondent in changing the status of the brass knuckles so that they were listed as evidence was consistent with the actions of the Clearwater Police Department. Respondent did nothing on November 5, 2007, that the Clearwater Police Department did not do on November 7, 2007. If the investigating officer were to have returned to work on Monday, November 5, 2007, it is reasonable to conclude that the Clearwater Police Department would have provided a copy of the police report to Respondent, because Respondent would not have been listed as a suspect, and the Department would have changed the status of the brass knuckles so that they were being held as evidence. The investigating officer and her sergeant concluded the altercation was a matter of mutual combat and did not refer the case for prosecution by the state attorney. The nascence of the charges against Respondent emerged from two events. First, the mother of the two juveniles filed a complaint of excessive force against the PCSO. Second, when the investigating officer discovered that Respondent had already persuaded the property department to change the status of the brass knuckles, so that they would not be destroyed, the Clearwater Police Department complained to the PCSO about a deputy sheriff allegedly interfering with evidence. As a result, Petitioner initiated an administrative investigation that led to this proceeding. The penultimate allegation in the synopsis of the charging document is that Respondent provided confidential information regarding an open criminal case to another suspect. It is undisputed that when Respondent discovered on November 5, 2007, that he was listed as a suspect in the police report, Respondent told the parent that had prevented the second juvenile from attacking Respondent that the parent was also listed in the report as a suspect. The disclosure by Respondent was immaterial and had no impact on a pending criminal investigation. The Clearwater Police Department classified the altercation as mutual combat and did not refer the case for prosecution. The final allegation in the synopsis of the charging document is that Respondent failed to advise his supervisors of material facts regarding his “involvement in the ongoing . . . criminal investigation” and “subsequent actions” that Respondent took. The distinction, if any, between “involvement in the ongoing investigation” and “subsequent actions” is unclear to the fact-finder because the charges deal with Respondent’s actions during a pending investigation. The charges of misconduct do not address Respondent’s “subsequent actions” after the investigation was completed and case was closed. The investigating officer did not inform Respondent when she responded to the scene on November 3, 2007, that she was listing Respondent as a suspect. She did not decide to list Respondent as a suspect until she prepared her report that evening, long after Respondent had completed his written report that was included with the police report and had left the scene. Respondent did not learn that he was a suspect until Respondent obtained a copy of the police report on November 5, 2007. After obtaining a copy of the police report, Respondent talked to Lieutenant Rachel Hughes of the Courthouse Security Division at the PCSO and another of Respondent’s supervisors. Significant variation exists in the separate accounts of the conversation between Respondent and Lieutenant Hughes. The testimony of Lieutenant Hughes is inconsistent, self- contradictory, and less than credible and persuasive. The only credible and persuasive testimony concerning the conversation is the testimony of Respondent. During the conversation between Respondent and Lieutenant Hughes, Respondent expressed his displeasure at being listed in the police report as a suspect, stated that he would like to complain to someone at the Clearwater Police Department, and asked if Lieutenant Hughes knew anyone there. Lieutenant Hughes suggested that Lieutenant James Steffens at the Clearwater Police Department is a “good guy.” Before contacting Lieutenant Steffens, Respondent called the property department and identified himself as “Milewsky from over at the courthouse.” Respondent did not disclose that he was a suspect in the case involving the brass knuckles. Respondent knew or should have known that the property department employee reasonably believed that the call and request was related to official business. Lieutenant Larry Smith was in charge of the property department at the time and testified at the hearing. The property department would not have enhanced the status of the brass knuckles at the request of someone who was listed as a suspect in the police report. The failure to disclose to the property department that Respondent was a suspect in the case is not alleged in the charging document, and the ALJ cannot find Respondent guilty of a charge not alleged in the charging document. The relevant language in the charging document is confined to an allegation that Respondent failed to advise his “supervisors” of his “involvement in the ongoing . . . investigation” and his “subsequent actions.” Those assigned to the property department are not “supervisors” of Respondent. Respondent next telephoned Lieutenant Steffens of the Clearwater Police Department to discuss the fact that Respondent was listed as a suspect in the police report. Respondent and Lieutenant Steffens disagree over material details of the conversation, including the issue of whether Respondent requested Lieutenant Steffens to change the police report to delete Respondent’s name as a suspect. The fact-finder resolves the disparity in testimony between Respondent and Lieutenant Steffens against Respondent. The testimony of Lieutenant Steffens is the only credible and persuasive testimony concerning the conversation between the two men. Respondent did not want to remain listed as a suspect, but denied that the purpose of his call to Lieutenant Steffens was to have the report changed to delete his status as a suspect. Respondent insisted that his telephone call to Lieutenant Steffens was “unrelated” to changing his designation as a suspect. The testimony of Lieutenant Steffens was plausible, credible, and persuasive. Lieutenant Steffens recalled that Respondent advised Lieutenant Steffens that a Clearwater Police Department investigation contained erroneous information, and Respondent sought to get the error corrected “as soon as possible.” After emphasizing Respondent’s seniority and the lack of experience of the investigating officer, who was a rookie, Respondent stated that he did not want to make a complaint against the investigating officer, but just wanted the report changed so that Respondent was listed solely as a victim in the report. Respondent asked Lieutenant Steffens if they could get that done as quickly as possible. Lieutenant Steffens sent a message by email in this regard to Sergeant Wilton Lee, the supervisor for the investigating officer, asking Sergeant Lee to telephone Respondent. Sergeant Lee did not return to work until Wednesday, November 7, 2007. Before Lieutenant Steffens heard from Sergeant Lee, Lieutenant Steffens received a voice mail from Respondent inquiring as to why nothing had been done yet on the case. Lieutenant Steffens also received a telephone call from another suspect. Lieutenant Steffens telephoned Sergeant Lee directly about the inquiries. When Sergeant Lee reported to work on November 7, 2007, the police report was waiting for his approval. Sergeant Lee telephoned Respondent, whom Sergeant Lee knew to be a deputy sheriff, and agreed that Respondent should not be listed in the police report as a suspect. Respondent failed to advise his supervisors of two forms of involvement in the investigation. First, Respondent failed to advise his supervisors of his involvement in the enhancement of the brass knuckles from that of waiting for destruction to that of evidence. Second, Respondent failed to advise his supervisors of his efforts to change the police report to delete his name as a suspect. A preponderance of the evidence supports a finding that the failures described in the preceding paragraph violate requirements for loyalty and truthfulness. Those requirements are described in General Order 3-1.1 and Rules and Regulations 5.2 and 5.6. The Progressive Discipline Worksheet assigns 75 Progressive Discipline Points for violations of all of the charges in the charging document. However, a preponderance of the evidence supports a finding that Respondent is guilty of violating only two of the six charges of misconduct described in the synopsis in the charging document. The Worksheet does not delineate the points assigned to each charge, and Petitioner has not promulgated intelligible standards that enable the fact- finder to determine the points that should be allocated to the two violations committed by Respondent. No aggravating factors are evidenced in this proceeding. Respondent has no prior discipline during his 19 years of experience with the PCSO. The culpable actions of Respondent did not result in physical or financial harm to a member of the public or members of either the PCSO or the Clearwater Police Department. The culpable actions of Respondent did not compromise an ongoing criminal investigation. A preponderance of the evidence does not show that termination of employment is a reasonable penalty. Untruthfulness and disloyalty are serious offenses but, absent any aggravating circumstances, a reasonable penalty is suspension without pay beginning on March 14, 2008, and reinstatement to the former position of employment immediately upon the entry of a final order.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that Petitioner enter a final order adopting the findings of this Recommended Order; suspending Respondent’s employment without pay from March 14, 2008, to the date of the final order; and returning Respondent to his former position of employment as of the date of the final order. DONE AND ENTERED this 22nd day of December, 2008, in Tallahassee, Leon County, Florida. S DANIEL MANRY 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 22nd day of December, 2008.
Findings Of Fact By application filed on September 9, 1980, Respondent/Applicant, John H. Land Builders, Inc., sought a permit from Respondent, Department of Environmental Regulation (DER), to conduct dredge and fill activities in an approximate one acre area located in the southeast corner of a proposed housing development in Section 10, Township 29 South, Range 19 East, in Hillsborough County, Florida. A copy of this permit application may be found as DER Composite Exhibit B. Specifically, Land sought to excavate 4,100 cubic yards of material (muck) and to backfill the area with 14,400 cubic yards of granular material from adjacent uplands to allow for development of a street and building lots in an unnamed wetland. A permit from DER is required because the project involves a wetland that is contiguous with a ditch that connects to the Palm River, all of which constitute waters of the State that are subject to dredge and fill permitting requirements. The plans have been reviewed by other state and local authorities in the Hillsborough County area, and no adverse comments have been received. After the installation is completed, the elevation of the land will be raised, and will permit five homesites to be built on the land as well as the construction of an access road to the property from an adjacent street. The installation in question is but a small part of a larger proposed housing development known as Timberlake Subdivision that will ultimately involve more than 300 homesites. However, no further dredge and fill activities under DER jurisdiction will be undertaken. The proposal of Respondent/Applicant was received by the Department and certain timely additional requests were made from the Department to the Applicant to provide information necessary to evaluate the request for permit. Applicant subsequently furnished the required information, and it may be found in DER Exhibit C. The Department performed a field inspection and review of the dredge and fill site, including the surrounding areas, to assess the impact of water quality caused by proposed dredging and filling activities in wetlands areas. It concluded that the Applicant had affirmatively provided reasonable assurance to the Department that the short-term and long-term effects of the activity would not result in violations of the water quality criteria, standards, requirements and provisions of Chapter 17-3, Florida Administrative Code. A copy of the permit application appraisal may be found in DER Exhibit A. On January 21, 1981, DER issued its Intent to Issue a dredge and fill/water quality certification with certain conditions therein, including the requirement that future development be dependent upon separate stormwater review by the Department (DER Exhibit D). On October 20, 1980, Applicant filed a Notice of Stormwater Discharge with the Department's Southwest District Office in Tampa (DER Composite Exhibits B & F). Thereafter, the Department conducted a field inspection and review of the proposed housing development and surrounding areas to determine whether the proposed stormwater discharge would have a significant impact on water quality. Based upon the results of that inspection, which concluded that the proposed discharge would not have a significant impact on the waters of this State, the Department issued Applicant a stormwater exemption on November 7, 1980. The project site is located in an unnamed wetlands area. It is weedy and has a dense cover of primrose willow (Ludwigia peruviana), willow (Salix caroliniana), cattail (Typha sp.), red maple (Ace rubrum) and is overgrown with grapes vines (Vitus rotendifolia). It lies just to the north of a series of fish farms owned by Petitioner, Penisular Fisheries, Inc. Other commercial industries and single family dwellings are found south of the proposed activities. To the west and northwest lie marshlands, two old borrow pits, and Interstate Highway 4. Water runoff from the dredge and fill area will flow to the storm drainage system in the proposed street, and from there to a designated retention pond. Because there will be minor contaminants in the runoff, the water will be retained for treatment for a period of five days, which exceeds the 100 hour retention period required by DER. After treatment, the runoff will flow into a well-defined county drainage ditch west of 58th Street, travel down the ditch which lies adjacent to the fish ponds, and then meander into the existing marshland. Water runoff from the remainder of the project (excluding the dredge and fill area) will drain into the two existing borrow pit lakes which lie close to Interstate Highway 4. The designated retention pond will be located west of the project and has a controlled spill-off elevation. It will provide sufficient treatment to and cleaning of the water to insure that no violation of water quality standards will occur. A stormwater system to be constructed by Applicant will actually reduce the volume of water runoff now occurring. Reasonable assurances have been given that the short-term and long-term effects of the proposed activity will not result in violations of the water quality criteria, standards, requirements and provisions of the Florida Administrative Code. Based upon Use location of the point of discharge of Land's proposed stormwater discharge, the volume and frequency of discharge for which the proposed facilities are designed, and the anticipated constituents of discharge, the proposal will not have a significant impact on the water quality of the waters of this State. Accordingly, the exemption from stormwater licensing requirements was properly issued by the Department. Water quality violations which were alleged to have existed in a ditch on property adjoining the properties of Land and Petitioners were the subject of a notice of violation issued to the owners of that property. However, no notice of violation was ever issued to Land. Further, the ditch is not a part of the installation proposed by Applicant for issuance of the dredge and fill permit. Petitioners' concern is that Applicant has not given reasonable assurance that water quality standards would not be violated by the stormwater discharge and that downstream waters might be contaminated by urban runoff from the project. In reaching that conclusion, Petitioners' expert relied on a review of certain materials submitted to him by Petitioner's counsel. He did not visit the project site, nor had he reviewed drainage plans or construction drawings for drainage improvements contemplated by the notice of stormwater discharge filed by Land.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondent Department of Environmental Regulation grant the requested dredge and fill permit/water quality certification to Respondent/Applicant John H. Land Builders, Inc. It is further RECOMMENDED that the Respondent Department of Environmental Regulation enter a final order confirming the stormwater exemption issued by the Department to Respondent/Applicant on November 7, 1980. DONE and ENTERED this 27th day of April, 1981, in Tallahassee, Florida. DONALD R. ALEXANDER 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 27th day of April, 1981.
Findings Of Fact Jaime Fernandez was transferred in 1977 to Clearwater Traffic Engineering Department as an electrician's helper from the Clearwater Pollution Control Department. Prior to coming to Water Pollution Control, Respondent had been a CETA employee in the Parks Department from which he was fired for incompetence (Respondent's testimony). Although the exact situation was not made clear to the Hearing Officer, it appeared that Respondent appealed his firing from the Parks Department alleging some type of discrimination, and, following a hearing, the City was required to reemploy him. At all times here relevant, Respondent was an employee in the Classified Civil Service of Clearwater. Respondent testified that the evaluations he received at Water Pollution Control were satisfactory overall, and the request for a transfer was initiated by him. As an electrician's helper, Respondent was one of six or seven electrician's helpers. When he was subsequently transferred to the position of ET helper, he was the only ET helper in the Traffic Engineering Department. With a larger number of electrician's helpers it was easier to assign trench digging, painting and other similar menial jobs to Respondent without detracting from the overall efficiency of the Department than it was when Respondent became the only ET helper in a group with two ET's. Respondent served as an electrician's helper in the Traffic Engineering Department for approximately two years before he was transferred to the position of ET helper. During these two years as an electrician's helper, Respondent failed to get a satisfactory overall evaluation and never received a merit pay increase. He was transferred to the electronics shop as an ET helper in late 1979. In the six months follow-up review of Respondent's unsatisfactory evaluation report dated 2-9-80, the Director of the Traffic Engineering Department recommended Fernandez be terminated for incompetence. This recommendation was rejected by the Personnel Department because of insufficient documentation of the events giving rise to the recommendation. On August 25, 1978, Respondent was given a letter of reprimand following an accident involving a truck, driven by Respondent, and a building in which Respondent's inattention contributed to the accident (Exhibit 6). On April 14, 1980, Respondent was suspended from duty without pay for three days on charges of incompetence and inefficiency in his work product, errors in daily time cards and other reports, and continuous performance evaluations indicating improvement needed. On the instant charges the evidence was unrebutted that during the period August 1, 1980, through March 15, 1981, 19 errors were made by Respondent on the time sheets he submitted. Twenty-seven other employees in the same Department fill out time sheets and, during the same period, the next highest number of errors was eight. Most of the employees made only one or two errors in completing their time sheets. During the period February 2, 1981 to February 5, 1981, Respondent was given a work order to construct and install back boards in two transit controllers (Exhibit 1). Included in the work order was a drawing showing how the panel was to be connected and detailed instructions on how the work was to be performed. Despite close supervision, Respondent failed to follow the instructions, cut the wires longer than the maximum three feet lengths as shown on the work order, installed grounding bar in the wrong location, and did not properly lace the harness. This work order was within the capability of a reasonably qualified ET helper to complete in twenty hours. Respondent took forty-seven hours to accomplish this work and made numerous errors which had to be corrected by others. During a period in mid-February; 1981, Respondent was assigned a detector to repair. Repair of this equipment was also within the capability of a reasonably qualified ET helper in about four hours. After working on this detector for twenty-one hours, Respondent was still unable to repair it. It was given to an electronics technician who repaired the detector in approximately one hour. Respondent, in work order 136, was given an LT 169 load pack to repair. Test equipment is set up in the petitioner's shop for trouble shooting this equipment. After testing this load pack, Respondent replaced the part he thought defective but, when tested by someone else, the equipment was still inoperative. The part replaced by Respondent was the part most frequently found defective in this load pack. In this instance, this part was not the cause of the equipment being in operative. This was a routine work order that a reasonably qualified ET helper should have been able to complete. Respondent has been counselled and evaluated numerous times by different supervisors in the Traffic Engineering Department for the past three years and has yet to be assigned a satisfactory evaluation. No other employee has been retained in a position with the City of Clearwater for such an extended period with unsatisfactory evaluations. Respondent testified that he has completed a two-year course in electronics at Pinellas County Vocational School and has one year of college. Accordingly, he deemed himself better qualified as an ET helper than as an electrician's helper. He felt he should have been disciplined for incompetency as an electrician's helper during the two years he worked in that Division, rather than as an ET helper in which position he has worked for approximately one year. Respondent's testimony, that he was denied earned leave or pay for this leave when he was dismissed, was not rebutted. However, the City of Clearwater's regulations relating to leave were not presented to the Hearing Officer, and without access to these regulations, Respondent's claim cannot be resolved.
The Issue The issue in this case is whether Petitioner, Charles M. Childers, is entitled to an award of attorney's fees and costs from Respondent, the Department of Environmental Protection, pursuant to Section 57.111, Florida Statutes (1997).
Findings Of Fact Petitioner, Charles M. Childers, has been at all time material to this proceeding a commercial shrimp fisherman in the State of Florida. Mr. Childers has held, and continues to hold, a Saltwater Products License (hereinafter referred to as the "License") issued by the State of Florida. Respondent, the Department of Environmental Protection (hereinafter referred to as the "Department") is an agency of the State of Florida. The Department is charged with the responsibility for, among other things, the administration of Chapter 370, Florida Statutes. On or about September 27, 1995, Mr. Childers, was cited for alleged violations of Article X, Section 16(b)(2), Florida Constitution. In particular, Mr. Childers was charged with using shrimp trawl nets greater in size than 500 square feet in the nearshore and inshore waters (within three nautical miles of the shore) of the State of Florida. On February 9, 1996, following a non-jury trial, the County Court for Franklin County, Florida, determined that Mr. Childers was guilty of a second degree misdemeanor as a result of the activities that gave rise to the September 27, 1995, citation. Adjudication of guilt was withheld by the County Court. Mr. Childers was required to pay $125.00 in court costs. By letter dated July 5, 1996, the Department notified Mr. Childers that it intended to suspend his 1996/1997 License for a period of ninety days. The Department gave the following reason for its proposed action: This suspension is based upon your failure to comply with Saltwater Fisheries statutes for a conviction of a violation of Section 16, Article X of the State Constitution. Specifically, this concerns your September 27, 1995 arrest and subsequent conviction of using a gill net in Florida waters. The Department's decision to suspend Mr. Childers' License was predicated upon the following provision of Section 370.092(8)(b), Florida Statutes (1995), which provided: (b) In addition to being subject to any other penalties provided in this chapter, any violation of s. 16, Art. X of the State Constitution or any rules of the Marine Fisheries Commission which implement the gear prohibitions and restrictions specified therein shall be considered a major violation; and any person, firm, or corporation convicted of such violation shall be subject to the following additional penalties: 1. For a first major violation within a 7-year period, suspension of the saltwater products license for 90 days. [Emphasis added]. The Department informed Mr. Childers of his right to contest the proposed suspension of his License by requesting administrative proceedings pursuant to Section 120.57, Florida Statutes. On July 11, 1996, Mr. Childers requested an informal hearing to contest the Department's proposed action. Mr. Childers argued that the Department's proposed suspension of his License was inappropriate because he had not been "convicted" of any offense for which the Department could suspend his license. On or about August 8, 1996, the office of the Department's General Counsel issued a Memorandum discussing the issue of whether Mr. Childers had been "convicted" within the meaning of Section 370.092(8)(b), Florida, Statutes (1995). General Counsel's office opined that the Florida Legislature's use of the word "convicted" in Section 370.092(8)(b), Florida Statutes (1995), was intended to mean: any disposition by the court in a criminal proceeding, other than dismissal, acquittal, or entry of a finding of not guilty. "Conviction" includes a disposition based on a guilty or nolo contendere plea that incorporates adjudication withheld [sic] as part of the disposition or the charges. On August 23, 1996, an informal administrative hearing was held by the Department. At the informal hearing, Mr. Childers admitted that he had violated Article X, Section 16(b)(2), Florida Constitution. Mr. Childers argued, however, that no suspension of his license should be imposed because he had not been "convicted" of such violation. On September 30, 1996, a Notice of Final Order was entered by the Department rejecting Mr. Childers' argument that he had not been "convicted" of any offense as required by Section 370.092(8)(b), Florida Statutes (1995), and suspending his License for ninety days. In entering its Notice of Final Order, the Department gave the following rationale for rejecting Mr. Childers' assertion that he had not been "convicted" of any violation for which his License could be suspended under Section 370.092(8)(b), Florida Statutes (1995): C. The withholding of adjudication of guilt fails to alter the clear and unequivocal sanctions imposed by Section 370.092(8)(b), Florida Statutes. Any person, firm or corporation "convicted" of violation Article X, Section 16(b)(1), Florida Constitution, shall be (emphasis added) subjected to additional administrative and civil penalties listed in Section 370.092(8)9b), Florida Statutes. The intended meaning of the term "convicted" used by the Legislature in Section 370.092(8)(b), Florida Statutes, is clear. In the context of 370.092(8)(b), Florida Statutes, the word "convicted" was selected by the Legislature to indicate a judicial determination of sanctionable behavior, not necessarily the final resolution of any and all criminal proceedings. Mr. Childers appealed the Department's Notice of Final Order to the District Court of Appeal, First District (hereinafter referred to as the "First District Court"). On July 16, 1997, the First District Court entered an opinion reversing the Department's Notice of Final Order. Childers v. Department of Environmental Protection, 696 So. 2d 962 (Fla. 1st DCA 1997). The First District Court concluded that Mr. Childers had not been "convicted" within the "unambiguous meaning," of Section 370.092, Florida Statutes (1995). On October 9, 1997, pursuant to the Mandate of the First District Court, the Department entered an Order adopting the decision of the First District Court and dismissing its complaint letter against Mr. Childers. On October 30, 1997, Mr. Childers filed an Application for Attorney's Fees seeking an award pursuant to Section 57.111, Florida Statutes (1997). At the time Mr. Childers was cited for the violations of Article X, Section 16(b)(2), Florida Constitution, Section 370.092(8)(b), Florida Statutes, required a "conviction" for the Department to take action against a license. This provision, however, had been amended during the 1996 Legislative Session by substituting for the word "convicted" the phrase "receiving any judicial disposition other than acquittal or dismissal." Chapter 96-300, Laws of Florida 1996. This amendment to Section 370.092(8)(b), Florida Statutes, was not effective until January 1, 1997. The First District described the following pertinent history concerning the amendment to Section 370.092(8)(b), Florida Statutes: The Natural Resources Committee of the House of Representatives produced a Final Bill Analysis dated May 16, 1996. Under the heading "Substantive Analysis," it addressed the "Present Situation," reporting that, within months of the passage of the 1995 laws implementing the net ban, "F[lorida]M[arine]P[atrol] officers began to realize there were loopholes in the law." Fla. HR Comm. on Nat. Res., CS for HB817 (1996) Final Staff Analysis (May 16, 1996)(on file with comm.) at 3. One of the "loopholes" identified was that "DEP has encountered certain circuit court judges who, more often than not, have adjudicated without guilt [sic] alleged net-ban violators." Id. In the "Section-By-Section Analysis," the effect of the amendment proposed to section 370.092, Florida Statutes (1995) was described: "Imposes penalties on people . . . who have received any judicial disposition other than acquittal or dismissal, rather than only on those entities which have been convicted of violating the constitutional net ban." Id. At 6 (emphasis supplied). . . . Childers at 965-966. The foregoing legislative history and the amendment to Section 370.092(8)(b), Florida Statutes (1995), were available prior to the date that the Department first proposed to suspend Mr. Childers' License. The Department should have been aware of the foregoing legislative history at all times pertinent to this case. In support of its actions in this matter, the Department has asserted that it had a reasonable basis in fact to suspend Mr. Childers' License because: Mr. Childers admitted that he violated Article X, Section 16(b)(2), Florida Constitution; The disposition sheet from the County Court indicated that the "verdict" was "guilty"; The General Counsel's Office of the Department had opined that the Department's action was appropriate; and The action of the Legislature in amending Section 370.092, Florida Statutes, made the Legislature's intent clear that licenses be suspended even if adjudication is withheld. The Department has asserted that it had a reasonable basis in law to take the action it took with regard to Mr. Childers because: The term "convicted" was not defined by Section 370.l092(8)(b), Florida Statutes (1995), any other provision in Chapter 370, Florida Statutes (1995), or the constitutional amendment it was intended to implement; and Where definitions of "convicted" are provided, whether in other statutes, the Florida Rules of Criminal Procedure, or in Florida appellate court decisions, the definitions conflict. Therefore, the Department was justified in following one line of authority which supported its action.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: On or about January 28, 1977, at approximately 2:00 P.M., respondent Spencer, Clarence Jones, and John Aaron were all on duty as employees of the petitioner. The three men were dressed in City work clothes and were riding in a small truck with a City of Clearwater emblem on the side. John Aaron was driving the truck. As the City truck approached the intersection of Jones Street and Garden Avenue in Clearwater at a speed of about 5 miles per hour, it came upon three teenage pedestrians -- two girls and a boy -- walking on the left side of the rode. Driver Aaron said "Hey, now" or "Hey baby" to one or both of the girls. One of the girls said something offensive in reply. At that point, respondent Spencer asked Aaron to stop the truck. After two or three such requests, Aaron stopped the truck and respondent Spencer got out. By this time, the three teenagers had begun to walk away from the truck into a vacant field. Respondent Spencer walked up to the teenagers and one of the girls called him a "nigger" and continued to walk away. Spencer testified that the same girl swung at him with her fist. Neither Aaron nor Jones saw the girl make any threatening gestures toward respondent. After respondent was called a "nigger," he removed his belt and hit the girl twice with the belt as she was walking away. Respondent then returned to the City truck and the three employees drove off. By a "termination and dismissal notice," respondent was advised that he was dismissed as an employee of the City of Clearwater for his activities occurring on January 28, 1977. As causes and reasons therefor, petitioner listed three violations of Rule 14 of the Civil Service Rules of Clearwater. (Exhibit 4) Respondent timely filed his answer and explanation to the charges, petitioner did not accept the same and respondent therefore requested a hearing pursuant to City Ordinance Number 1643, S2-38. Pursuant to a contract between the City of Clearwater and the Division of Administrative Hearings, the undersigned Hearing Officer was duly designated to conduct the hearing. By an Agreement between the parties dated June 7, 1977, the parties recognized the recent ruling of the Circuit Court in and for Pinellas County (Civil Case No. 77-1023-7) which held invalid the referendum election amending the City's Civil Service System. Expressing doubt as to Whether the hearing should be held before the Civil Service Board or before a Hearing Officer appointed by said Board, the parties mutually agreed to waive any and all rights to a hearing before the Board, and to abide by the judgment rendered by the Board pursuant to the findings of the Hearing Officer pursuant to Ordinance Numbers 1643 and 1649, subject to the judicial review procedures established by law. (Exhibit 1)
Recommendation Based upon the findings of fact and conclusions of law recited above, it is recommended that the respondent's dismissal by the City of Clearwater be upheld and AFFIRMED. Respectfully submitted and entered this 13th day of July, 1977, in Tallahassee, Florida. DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Frank X. Kowalski, Esquire Chief Assistant City Attorney Post Office Box 4748 Clearwater, Florida 33518 Ronald E. Smith, Esquire 308 South Garden Avenue Clearwater, Florida 33516
Findings Of Fact The following findings are based on the uncontested facts alleged in Petitioner's Motion For Summary Recommended Order and from the Final Orders issued in Bayshore Homeowners Association v. Department of Environmental Regulation and Grove Isle, Inc., Case Nos. 79-2186, 79-2324 and 79-2354. On December 29, 1980 DER entered a Final Order on the application of Petitioner for a 90 slip marina in Biscayne Bay, Florida. The Order denied the permit because Grove Isle had not demonstrated that the project is "affirmatively in the public interest" and because the applicant had not demonstrated that it "can meet ambient water quality standards within the project area itself." In the Recommended Order on Remand the Hearing Officer had defined "existing ambient waters" to be the area in the cove between Grove Isle and the Miami mainland. The Final Order rejected that concept and held if any waters others than those contained within the immediate project site were to be considered as ambient, Petitioner must request a mixing zone as part of its application. See Section 17-4.242, (1)(a)2.b. and Section 17-4.244, Florida Administrative Code. By a letter received at the Department of Environmental Regulation on May 20, 1981, Grove Isle reapplied for the boat dock permit which was the subject of the foregoing proceedings. Petitioner's application, which was in the form of a letter from counsel, stated: May 18, 1981 Mr. Larry O'Donnell Department of Environmental Regulation Post Office Box 3858 West Palm Beach, Florida 33402 RE: GROVE ISLE - Application for Boat Dock Dear Mr. O'Donnell: On behalf of Grove Isle, LTD, I am reapplying for the boat dock permit previously applied for by Grove Isle, LTD. Please consider this a short-form application. Your office designated a previous file number, DF 13-7956, to this matter. In conjunction with that application I am applying for a mixing zone, pursuant to Rule 17-4.244, for both the construction and operation of this marina. Please refer to your file on the previous application and incorporate said documents into this reapplication. I am submitting with this application: A scale drawing (one inch = 100') of the proposed facility. (which you have) A certified survey of the proposed mixing zone. (one inch = 100') An application fee of $20.00 A copy of the Final Order issued by Jacob D. Varn, former secretary of DER, on the previous application. A copy of the Notice of Intent previously issued for this project, dated 9/23/79. (which you have) As you will note from reading Mr. Varn's Final Order, he concluded that issuance of this permit was not appropriate inasmuch as the applicant had not applied for nor received a designated mixing zone. We do not necessarily agree with this order and have, in fact, appealed this decision to the First District Court of Appeal. However, in an attempt to keep this matter from becoming any more complicated, we have decided to reapply for the permit and to apply for a mixing zone. We do not concede that a mixing zone should be required for this project or that the facility will result in the release of any pollutants so as to significantly degrade ambient water quality. However, should this project, through its construction or operation, result in the release of any pollutants, I believe they would be limited to: Bottom sediments placed in suspension by the installation of the concrete piles used to support the docking facility during construction; Minimal amounts of oil and grease which may escape from the various vessels moored to the docks; The constituants of anti-fouling paint which may be applied to the hulls of the various vessels moored at the docks. Turbidity will be controlled by the use of curtains during construction. If lowered water quality occurs at all in this project it would only occur within the designated mixing zone, as per Rule 17-4.242 (2)(b) F.A.C. Please advise me should additional information be needed to process this re-application. Yours truly, /s/ KENNETH G. OERTEL On June 19, 1981, DER sent a "completeness summary letter" to Petitioner which requested the following information: Your project is in Outstanding Florida Waters. Please provide the following items demonstrating compliance with Section 17-4.242, Florida Administrative Code. Please demonstrate that this project is clearly in the public interest and that this project will not result in the degradation of ambient water quality beyond the 30 day construction period. Petitioner responded by letter dated June 22, 1981 and which was received at DER on June 25, 1981. Petitioner said in pertinent part: Dear Mr. Duke: If you would check your previous file no. DF-13-7956, I believe you will find all the information you have requested has previously been provided to your office either in that permit file or through the administrative hearings held in pursuit of this application. I think it would be more fruitful if you would communicate with Al Clark, Attorney for DER, with regard to the status of this application. As I do not wish to speak on behalf of Mr. Clark, I believe you should confirm the status of this application with him, particularly in view of our attempt to comply with Secretary Varn's Final Order which suggests the application for this mixing zone. The record reflects no further correspondence between the parties until September 23, 1981 when the Department entered a Final Order Denying Application for Permit. The Order provided that: This project was reviewed previously (DF 13-7956) and was determined not to be clearly in the public interest pursuant to Section 17-4.242, F.A.C. No further evidence upon resubmittal, has been provided to clearly demonstrate that this project is in the public interest. Furthermore, the requested mixing zone exceeds that allowable pursuant to Section 17-4.244, F.A.C. and can be applied only during the construction period, pursuant to Section 17-4.242, F.A.C. During the operation of this facility ambient water quality is expected to be degraded in violation of Section 17-4.242, F.A.C. This order was entered ninety-one days after DER received Petitioner's June 22, 1981 letter.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Department of Environmental Regulation issue the permit applied for by Petitioner, Grove Isle, Ltd. on May 20, 1981 subject to the conditions contained in the Notice of Intent To Issue Permit dated October 23, 1979 which is a part of the record in Bayshore Homeowners Association et al., v. State of Florida Department of Environmental Regulation and Grove Isle, Inc., Case Nos. 79-2186, 79-2324 and 79-2354. DONE and RECOMMENDED this 12th day of February, 1982, in Tallahassee, Florida. MICHAEL P. DODSON 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 12th day of February, 1982.
The Issue The issue in this case is whether the evidence sustains the decision of the City of Clearwater Development Code Adjustment Board (the Board) to grant the application of the Appellant, the City of Clearwater for dock length, width and setback variances to allow the reconstruction of the public pier facility located at the west end of Magnolia Drive in Clearwater, Florida. (The pier was destroyed by the "No Name Storm of the Century" on March 12-13, 1993.)
Findings Of Fact On or about September 1, 1993, the City of Clearwater applied to the City of Clearwater Development Code Adjustment Board (the Board) for dock length, width and setback variances to reconstruct the public pier facility located at the west end of Magnolia Drive in Clearwater, Florida, where it terminates at the waterfront in an "aquatic lands/coastal zoning district." The pier was 91.5 feet in length and 40 feet in width; it was set back 12.5 feet from the extension of the adjacent property lines. It was destroyed by the "No Name Storm of the Century" on March 12-13, 1993. Since the site has 65 feet of waterfront, reconstructing it to its previous dimensions requires variances of: (1) 59 feet in dock length (over the 32.5 feet allowed by the City of Clearwater Development Code); (2) 17.25 feet in dock width (over the 22.75 feet allowed by the Code); and (3) 7.5 feet reduction in setback from the extended adjacent property lines (below the 20 feet required by the Code.) Before its destruction, the public pier at the west end of Magnolia Drive in Clearwater had been in existence for many years. (The original version was built in approximately 1915.) The evidence is that the community at large desires to reconstruct the pier to its former dimensions. The old pier has historic and sentimental significance. It also serves as a recreational facility for residents without private access to a dock on the waterfront. Especially in the last several years before its destruction, public use of the old pier brought with it problems of misuse, loitering, litter, noise, trespassing, and crime. The police did not have the resources to prevent these problems. Criminal activity in the area seems to have decreased since the destruction of the old pier. As a result, the property owners closest to the pier do not want the public pier reconstructed at all, and certainly do not want it reconstructed to its former dimensions. They oppose the variance application. The conditions imposed by the Board (no deviation from the proposed materials and building plan, the erection of signs as to closing times to be enforced by the police, proper lighting, and the installation of an electronic safety system, including a gate, to be monitored by the police) will help alleviate many of the concerns of the neighboring property owners but are not guaranteed to eliminate them in their entirety. The water is shallow in the vicinity of the site, and a dock of a certain length is necessary for the dock to be used for boats of any appreciable size and draft. However, this condition is not unique to the particular site in question, but is uniformly applicable all along the City waterfront, and there was no evidence as to the length of dock required for adequate water depth for use by boats. There is no competent, substantial evidence in the record from which it could be found that the granting of the variances will not be materially detrimental or injurious to other property or improvements in the neighborhood in which the property is located. There is no competent, substantial evidence in the record from which it could be found that the granting of the variance will not impair the value of surrounding property.
The Issue The issue to be determined by this Order is whether the Request for Administrative Hearing filed by Petitioner with the Department of Environmental Protection (“DEP”) on February 15, 2013, was timely1/ and, if not, whether the application of the doctrine of equitable tolling would serve to relieve Petitioner of the consequences of having failed to file a petition for hearing within the time allotted by applicable notice provisions.
Findings Of Fact The Parties Petitioner, SRQUS, LLC, is an active Florida, limited- liability corporation, and is the owner of submerged lands and adjacent upland property contiguous to Sarasota Bay. Petitioner is a closely held entity, the only members being Achim and Erika Ginsberg-Klemmt. Respondent, Department of Environmental Protection, is an agency of the State of Florida having jurisdiction for permitting Municipal Separate Storm Sewer Systems (MS4), including duties as a federally-approved state program for the implementation of the Federal National Pollutant Discharge Elimination System (NPDES) Program, pursuant to authority conferred under section 403.0885, Florida Statutes. Respondents, Sarasota County, City of Sarasota, City of Venice, Town of Longboat Key, and Department of Transportation (“DOT”) (collectively the “Applicants”) are responsible for certain existing stormwater point-source discharges to waters of the state from those portions of MS4 facilities owned or operated by one or more of the individual Applicants. The DEP issued a notice of proposed agency action to issue a renewal of an existing MS4 Permit to the Applicants. On January 30, 2013, Sarasota County arranged for the notice to be published in the Sarasota Herald-Tribune, which is a newspaper of general circulation in Sarasota County. The notice provided as follows: STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION NOTICE OF INTENT TO ISSUE PERMIT AND REQUEST FOR ADMINISTRATIVE HEARING The Department of Environmental Protection gives notice of its intent to issue a permit to Sarasota County, 1660 Ringling Boulevard, Sarasota, Florida 34236 within its jurisdiction and including the following co- permittees: Florida Department of Transportation District One, Town of Longboat Key, City of North Port, City of Sarasota, and City of Venice, for renewal of a Municipal Separate Storm Sewer System [MS4] permit. Any person whose substantial interests are affected by the proposed permitting decision of the Department may petition for an administrative hearing in accordance with Sections 120.569 and 120.57 of the Florida Statutes (F.S.). The petition must contain the information set forth below and must be filed (received) in the Department of Environmental Protection, Office of General Counsel, Mail Station 35, 3900 Commonwealth Boulevard, Tallahassee, Florida 32399-3000. Petitions must be filed within fourteen days of publication of this public notice or within fourteen days of receipt of the notice of intent, whichever occurs first. A petitioner must mail a copy of the petition to the applicant at the address indicated above, at the time of filing. The failure of any person to file a petition [or a request for mediation, as discussed below] within the appropriate time period shall constitute a waiver of that person?s right to request an administrative determination (hearing) under Sections 120.569 and 120.57, F.S., or to intervene in this proceeding and participate as a party to it. Any subsequent intervention will be only at the discretion of the presiding officer upon the filing of a motion in compliance with Rule 28-5.207 of the Florida Administrative Code. A petition must contain the following information: The name, address and telephone number of each petitioner, the Department Permit Number and the county in which the MS4 is located; A statement of how and when each petitioner received notice of the Department?s action; A statement of how each petitioner?s substantial interests are affected by the Department?s action; A statement of the material facts disputed by the petitioner, if any; A statement of facts that the petitioner contends warrant reversal or modification of the Department?s action; A statement of which rules or statutes the petitioner contends require reversal or modification of the Department?s action; and A statement of the relief sought by the petitioner, stating precisely the action that the petitioner wants the Department to take. Because the administrative hearing process is designed to formulate final agency action, the filing of a petition means that the final action of the Department may be different from the position taken by it in the notice of intent. Persons whose substantial interests will be affected by any such final decision of the Department on the permit revision have the right to petition to become a party to the proceeding, in accordance with the requirements set forth above. Mediation under Section 120.573, F.S. is not available for this proceeding. The permit application file and supporting data are available for public inspection during normal business hours, 8:00 a.m. to 5:00 p.m., Monday through Friday, except legal holidays, at Department of Environmental Protection, NPDES Stormwater Section, 2600 Blair Stone Rd. Room 560, Tallahassee, Florida 32399-2400, phone number (850) 245-8430. Date of pub. January 30, 2013. Because a portion of the Town of Longboat Key extends into Manatee County, the Town of Longboat Key arranged for the notice to be published in the Bradenton Herald, which is a newspaper of general circulation in Manatee County. The notice was published on February 4, 2013. The substance of the notice, except for the date of publication, was identical to that published in the Sarasota Herald-Tribune. Neither Petitioner, nor its representatives, saw either of the published notices prior to the filing of the Petition. On or about February 8, 2012, as a result of the filing of a pre-hearing stipulation in related litigation involving an Environmental Resource Permit (“ERP”) issued by the Southwest Florida Water Management District (“SWFWMD”), Petitioner became aware of the existence of the MS4 Permit. Erika Ginsberg-Klemmt obtained a copy of the permit online, and on February 12, 2013, sent an e-mail to employees of the DEP Ft. Myers? office expressing her general concern with water quality from the disputed stormwater outfall. She expressed her belief that Sarasota County was in violation of the existing MS4 permit, and requested that the recipients of her e-mail “[p]lease be so kind as to look into this matter and let us know what could be done to prevent this unacceptable condition to continue unchecked like it did in the past.” The e-mail did not request any information regarding the MS4 Permit renewal application, nor did it request any information regarding notices or deadlines related to the application. On February 13, 2013, Christopher Wright, a consultant for Petitioner, called the DEP to gather information and do some “legwork” related to Petitioner?s challenge to the SWFWMD?s ERP. The purpose of the call was to determine if information submitted to the DEP in conjunction with the MS4 application, particularly drainage basin maps, could have been of use in the SWFWMD litigation. Mr. Wright spoke with DEP employee, Heather Ritchie, regarding the drainage basin maps that had been submitted to the DEP. During the course of their discussion, Ms. Ritchie advised Mr. Wright that a Notice of Intent to issue the MS4 Permit had been issued by the DEP. However, Ms. Ritchie did not know when Sarasota County had published the notice or when the deadline for challenging the proposed agency action was to run. In short, Ms. Ritchie expressed to Mr. Wright that “she didn?t know what the status of things were.” The discussion then went back to the primary substance of the call, which was watersheds and discharge points. Ms. Ritchie agreed to provide Mr. Wright with an electronic copy of a drainage map from the MS4 Permit file. At 12:43 p.m., on February 13, 2013, Ms. Ritchie sent a map to Mr. Wright via e-mail, and indicated that “[i]f you have additional questions or comments, you may call or e-mail me.” Later on the afternoon of February 13, 2013, Mr. Wright decided that he should ask Ms. Ritchie for a copy of the Notice of Intent. At 5:59 p.m., on February 13, 2013, after the close of business for the day, Mr. Wright wrote to Ms. Ritchie thanking her for her “rapid response to my inquiry today,” and providing her with comments on various basin areas and discharge structures. Mr. Wright concluded his e-mail by stating that “at this time I would also like to request a copy of the Notice of Intent to Issue the MS4 Permit.” The next morning, February 14, 2013, Ms. Ritchie provided Mr. Wright with the Notice of Intent to Issue the MS4 Permit as requested. Later that morning, Mr. Wright inquired as to the time for filing a challenge to the permit. Ms. Ritchie replied at 2:34 p.m. that afternoon that the MS4 Permit “was publicly noticed by the county on January 30th with a 14 day window. The window closed yesterday.” There is no evidence that Ms. Ritchie had any specific information as to the date of publication or the deadline for filing a challenge prior to that communication with Mr. Wright. Petitioner filed the Petition on February 15, 2013. The disputes identified in the Petition were directed exclusively at a 46-acre drainage basin in downtown Sarasota, and a related discharge structure that discharges stormwater from the basin to Sarasota Bay just south of the intersection of U.S. Highway 41 and Fruitville Road. The disputed basin and discharge point are located in Sarasota County.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent, Department of Environmental Protection, issue a final order dismissing Petitioner?s Request for Hearing and Amended Petition for FLS000004-004 on the ground that the Petition was not timely filed. DONE AND ENTERED this 18th day of October, 2013, in Tallahassee, Leon County, Florida. S E. GARY EARLY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 18th day of October, 2013.
