The Issue In an order entered on October 30, 1991, the Florida Commission on Ethics (EC) found probable cause that Respondent, Donald H. Sanders, as a Coral Springs city commissioner, violated section 112.313(7)(a), F.S., by acting as an investment broker for an individual who is president of a large land development company which frequently has business before the city commission. In a subsequent order entered on December 11, 1991, the EC found probable cause that the same respondent in his capacity as city commissioner violated section 112.313(7)(a), F.S., by having a loan contract with a company doing business with the city. The issues for determination in this proceeding are whether those violations did occur and, if so, what penalty is appropriate.
Findings Of Fact Respondent, Donald L. Sanders (Sanders), is now, and for the past fourteen years has been, a city commissioner in Coral Springs, an incorporated city in Broward County, Florida. Sanders' occupation is stockbroker. He has been employed as such for thirty years, the last nineteen of which have been with the firm, Paine Webber. Coral Ridge Properties The City of Coral Springs was created by special act of the legislature in 1963, at the behest of Coral Ridge Properties, Inc., the largest landowner and developer of the community. Personnel of Coral Ridge Properties acted as the city officials in the beginning. Gradually, as the community built up, the city hired employees. In 1969, the then residents of the city elected their first five member commission pursuant to the charter established in the special act. Werner Buntemeyer was involved in the initial creation of the city as an employee of Coral Ridge Properties, Inc., and as the city's first city manager. By 1974, the manager job became too big for Buntemeyer's dual role and he resigned, choosing to stay with the company. He is now president of Coral Ridge Properties, Inc., and has worked in that capacity for thirteen years. Werner Buntemeyer is also president of Florida National Properties, Inc., a wholly owned subsidiary of Coral Ridge Properties, Inc., and the land holding company for Coral Ridge Properties. Both companies, Coral Ridge Properties, Inc., and Florida National Properties, Inc. (CRP/FNP), are wholly owned subsidiaries of Westinghouse Communities, Inc., a part of Westinghouse Corporation. Buntemeyer receives bonuses based on the success of these companies. The twenty-five square miles that comprise the City of Coral Springs has grown in population from zero in 1963, to approximately 85,000. CRP/FNP no longer owns most of the land in the city; it is, however, a large landowner with substantial development interests and the city's major developer. Issues affecting CRP/FNP come before the city commission at virtually every meeting. CRP/FNP has representatives who attend those meetings. Buntemeyer does not attend routinely, and probably has attended only twice in the fourteen years that Respondent Sanders has been on the commission. Buntemeyer lobbies commission members individually by inviting them to his office to discuss issues such as economic development or other issues of interest to the company. Buntemeyer has lobbied Sanders individually in this manner. Sanders moved to Coral Springs in 1975, and became active in the community in various organizations. The city in those days was quite small, and folks gathered in the evening after work to socialize. This is how Sanders initially met Werner Buntemeyer. At some point, Sanders suggested some investments to Buntemeyer. Sanders was recommended to Buntemeyer by someone else, so he made some investments through Sanders, even though he mostly invested through other firms. Sanders checked with the city attorney and understood that so long as he did business with Buntemeyer personally, and not with Coral Ridge Properties, a conflict problem would not exist. Sanders did not pursue a formal opinion from the attorney or from the Ethics Commission on this issue. However, Sanders did ask the Ethics Commission on another occasion whether Paine Webber could bid on city bond issues while he was on the city commission. The answer, as Sanders remembers, was "no." Between 1986 and 1990, Respondent Sanders brokered investment transactions for Werner Buntemeyer totalling approximately $142,883.00. The total commission to the firm on these transactions was $5,696.00, and the total commission paid to Sanders was approximately $2,275.00. The document created at the inception of the relationship was a normal contract between a broker and client. There is no evidence that Sanders' public duty was ever actually compromised by his relationship with Werner Buntemeyer. From the summaries of commission meetings submitted as Advocate's exhibit #12, virtually all of the votes taken on any issue were unanimous, 5-0 or 4-0. In only one instance did Sanders dissent from the majority. It was a minor issue involving a letter from Coral Ridge Properties regarding trespassing. The commission voted to ask the developer to sit down with the offending students and explain its position in a more sensitive manner. According to the minutes of the meeting, Sanders felt the commission was responding to threats. (Advocate's exhibit #12, 11/20/90 meeting). R. L. LaRoche In 1987, Sanders had just purchased a home and was looking for some cash to pay off his bills. He had heard that developers in town sometimes made second mortgage investments through their pension plans so he decided to go that route, if possible, to avoid the points and extra costs of borrowing through a conventional lender. Ronald LaRoche is the sole owner and president of R. L. LaRoche, Inc., a general contracting company specializing in commercial and municipal construction. Sanders and LaRoche were occasional social friends; they played golf and saw each other sometimes at parties. Sanders called up LaRoche, made an appointment, saw him in his office and asked if he had money in his pension fund that he was willing to loan. On May 29, 1987, the parties closed on a $15,000.00 loan to Donald Sanders and his wife, secured by a second mortgage on the Sanders' condominium. The lender and mortgagee is "R. L. LaRoche, Inc. Profit Sharing Plan and Trust." Terms of the note called for monthly interest payments of $150.00 (12 percent), with the principal coming due at the end of a twelve-month period, on May 29, 1988. The loan was extended each year until LaRoche wanted to make a similar loan to someone else and asked Sanders to pay off his loan. The loan was repaid in August 1992. R. L. LaRoche, Inc. Profit Sharing Plan and Trust is a benefit offered to the company's employees, like a pension plan, and is available only to that company's employees. At Ronald LaRoche's election, the company makes contributions to the plan. If the company is profitable, normally contributions are made. The employees receive their benefits when they leave the company. The plan has been in existence for ten to twelve years with the number of employees eligible to participate ranging from six to fifteen. In consultation with his attorney and accountant, Ronald LaRoche makes all of the decisions regarding contributions to, and investments for the plan. There are Internal Revenue Service (IRS) guidelines governing investments and, as fiduciary, LaRoche considered the Sanders' loan to be well within the guidelines. Twelve percent was considered a good return, given the economy at the time. On December 20, 1988, the Coral Springs city commission, including Respondent Sanders, voted to approve R.L. LaRoche, Inc., as one of the contractors to bid on construction of the Coral Springs City Center. LaRoches' bid was $700,000.00 lower than the second bid, and R. L. LaRoche, Inc., was awarded the contract on March 28, 1989. The contract was in excess of $4 million. From time to time, change orders or other matters relating to the contract with R. L. LaRoche, Inc., came before the city commission. The votes were mostly routine, based on recommendations by city staff, but the commissioners also asked questions about the change orders to ensure themselves as laypersons why the change was required. Until the conflict issue was brought up, Sanders voted on the matters affecting the contract. After he was publicly criticized, he abstained from the discussion and votes. At the time that the contract was awarded to Ronald LaRoche's company, Sanders did not think about a potential conflict; when the issue was raised and he did think about it, he felt he was still okay because he considered the profit sharing plan to be a separate entity from the corporation. Moreover, he did not consider that any of his votes were influenced by his loan. The Profit Sharing Plan and Trust is described in a fifty-three page document titled "Summary Plan Description for R. L. LaRoche, Inc. Profit Sharing Plan and Trust" (Advocate's Exhibit #13). Under the plan the trustee is granted substantial discretion. The plan itself is voluntary and the employer, R. L. Laroche, Inc., has the right at any time to reduce benefits, discontinue contributions or terminate the plan and trust. Notification of such must be provided to the appropriate governmental agency or agencies pursuant to the Internal Revenue Service Code of 1954 and the Employee Retirement Income Security Act of 1974 (ERISA). Benefits, once vested, are sacrosanct, and the trustee is prohibited from entering into a transaction with the employer, any relative of the employer, any corporation controlled by the employer, and any officer or stockholder of the employer without first requesting a determination of legality from the U.S. Department of Labor. (See Section 6.15, p. 35/48, Advocate's exhibit #13.) In summary, the plan's very existence, investments and contributions are subject to the discretion of Ronald LaRoche, as trustee, but the exercise of that discretion is heavily regulated by the IRS and the Department of Labor. A creature of the employer corporation, the plan and trust nonetheless has a life of its own.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a final order and public report be issued dismissing the complaints in these consolidated cases. DONE AND ENTERED this 27th day of October, 1993, in Tallahassee, Leon County, Florida. MARY CLARK 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 27th day of October, 1993. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 93-161EC The following constitute specific rulings on the findings of fact proposed by the parties. The Advocate's Proposed Findings 1 and 2. Adopted in paragraph 1. Adopted in paragraph 4. Adopted in paragraph 5. Adopted in paragraphs 3 and 4. Adopted in paragraph 4. Adopted in paragraphs 2 and 5. Adopted in paragraph 5. Rejected as uneccessary. Adopted in paragraph 6. 11 and 12. Adopted in paragraph 8. 13 and 14. Adopted in paragraph 10. 15 and 16. Adopted in substance in paragraph 12. 17 and 18. Adopted in paragraphs 12 and 14. 19. Adopted in paragraph 13. 20 and 21. Adopted in paragraph 15. 22. Adopted in paragraph 16. 23 - 26. Adopted in paragraph 17. 27 and 28. Adopted in paragraph 18. Rejected as unnecessary and immaterial. Adopted in substance in paragraphs 19 and 20. Rejected as unnecessary. Adopted in substance in paragraph 20. Findings of Fact proposed by Respondent Respondent's findings of fact are included in the first four pages of his "Fact, Law and Recommendation [sic] Order". They are unnumbered and mixed with argument on the issues. The proposed findings of fact are substantially those adopted by the parties by stipulation and as such have been incorporated here. Only two factual statements by Respondent need to be specifically addressed as unsupported by the weight of the evidence: He references the profit sharing plan as a separate corporation; it was not a corporation. He also dismisses LaRoche's authority over the plan as minimal; it was not, but the plan still is a separate entity. COPIES FURNISHED: Virlindia Doss, Esquire Advocate for the Commission on Ethics Office of the Attorney General The Capitol, PL-01 Tallahassee, Florida 32399-1050 Hilliard Moldoff, Esquire Whitelock and Moldof 1311 Southeast Second Avenue Fort Lauderdale, Florida 33316 Bonnie Williams, Executive Director Ethics Commission Post Office Drawer 15709 Tallahassee, Florida 32317-5709 Phil Claypool, General Counsel Ethics Commission Post Office Drawer 15709 Tallahassee, Florida 32317-5709
Conclusions An Administrative Law Judge of the Division of Administrative Hearings has entered an Order Closing File in this proceeding. A copy of the Order is attached to this Final Order as Exhibit A.
Other Judicial Opinions REVIEW OF THIS FINAL ORDER PURSUANT TO SECTION 120.68, FLORIDA STATUTES, AND FLORIDA RULES OF APPELLATE PROCEDURE 9.030 (b) (1) (C) AND 9.110. TO INITIATE AN APPEAL OF THIS ORDER, A NOTICE OF APPEAL MUST BE FILED WITH THE DEPARTMENT’S AGENCY CLERK, 2555 SHUMARD OAK BOULEVARD, TALLAHASSEE, FLORIDA 32399-2100, WITHIN 30 DAYS OF THE DAY THIS ORDER IS FILED WITH THE AGENCY CLERK. THE NOTICE OF APPEAL MUST BE SUBSTANTIALLY IN THE FORM PRESCRIBED BY FLORIDA RULE OF APPELLATE PROCEDURE 9.900(a). A COPY OF THE NOTICE OF APPEAL MUST BE FILED WITH THE APPROPRIATE DISTRICT COURT OF APPEAL AND MUST BE ACCOMPANIED BY THE FILING FEE SPECIFIED IN SECTION 35.22(3), FLORIDA STATUTES. YOU WAIVE YOUR RIGHT TO JUDICIAL REVIEW IF THE NOTICE OF APPEAL IS NOT TIMELY FILED WITH THE AGENCY CLERK AND THE APPROPRIATE DISTRICT COURT OF APPEAL. MEDIATION UNDER SECTION 120.573, FLA. STAT., IS NOT AVAILABLE WITH RESPECT TO THE ISSUES RESOLVED BY THIS ORDER. FINAL ORDER NO. DCA10-GM-115 CERTIFICATE OF FILING AND SERVICE I HEREBY CERTIFY that the original of the foregoing has been filed with the undersigned Agency Clerk of the Department of Community Affairs, and that true and correct copies have been furnished as indicated to each of the persons listed below on this DW say of , 2010. aula Ford Agency Clerk By U.S. Mail Amy Taylor Petrick, Assistant County Attorney Palm Beach County 300 North Dixie Highway, Suite 359 West Palm Beach, FL 33401 Tel.: (561) 355-2529 Fax.: (561) 255-4324 Email: apetrick@co.palm-beach.fl.us William L. Hyde, Esquire Gunster, Yoakley & Stewart, P.A. 215 S. Monroe Street, Suite 618 Tallahassee, FL 32301 Phone: (850) 521-1980 Facsimile: (850) 576-0902 Email: whyde@gunster.com James M. Crowley, Esquire Gunster, Yoakley & Stewart, P.A. 450 E. Las Olas Blvd., Suite 1400 Fort Lauderdale, FL 33301 Phone: (954) 713-6416 Facsimile: (954) 523-1722 Email: jcrowley@gunster.com FINAL ORDER NO. DCA10-GM-115 Claudia McKenna, City Attorney City of West Palm Beach 401 Clematis Street West Palm Beach, FL 33401 Phone: (561) 882-1350 Facsimile: (561) 822-1373 Email: cmckenna@wpb.org Keith W. Davis, Esquire Trela White, Esquire Attorney for Village of Royal Palm Beach Corbett & White, P.A. 1111 Hypoluxo Road, Suite 207 Lantana, FL 33462 Phone: (561) 586-7116 Facsimile: (561) 586-9611 Email: keith@corbettandwhite.com; trela@corbettandwhite.com By Hand Delivery Richard E. Shine Assistant General Counsel Department of Community Affairs By Interoffice Mail The Honorable Donald R. Alexander Administrative Law Judge Division of Administrative Hearings The Desoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675
The Issue At issue in this proceeding is whether petitioners' application for consent to construct a private dock within John Pennekamp Coral Reef State Park should be approved.
Findings Of Fact The parties Petitioners, Ian Koblick and Tonya Koblick, are the owners of Lots 3 and 4, Block 9, Anglers Park, Key Largo, Monroe County, Florida, according to the plat thereof recorded in plat book 1, page 159, public records of Monroe County, Florida. Such real property is contiguous to Largo Sound, a navigable water body, and title to the submerged lands under Largo Sound is vested in the State of Florida, in trust for the people of the state. Respondents are the Department of Natural Resources (DNR) which, pertinent to this case, includes the Division of State Lands and the Division of Recreation and Parks; and, the Board of Trustees of the Internal Improvement Trust Fund (Board of Trustees) which is comprised of the Governor and Cabinet, who are also the agency head of the Department of Natural Resources. Sections 20.25, Florida Statutes. The Division of State Lands performs all staff duties for the Board of Trustees related to acquisition, administration and disposition of state lands, and the Division of Recreation and Parks is charged with the duty to supervise, administer, regulate, control, preserve and maintain all public parks held by the state. Sections 253.01 and 258.004, Florida Statutes. The application On January 29, 1988, petitioners submitted a joint application to the Department of Environmental Regulation (DER) and the Department of the Army, Corps of Engineers (Corps), to construct a private single-family dock on the sovereign submerged lands contiguous to their property. Thereafter, on February 10, 1988, a copy of the application was likewise filed with the Division of State Lands, presumably by DER in conformance with Section 253.77, Florida Statutes, since the project involved construction on state lands. According to the application, the proposed dock would measure 70 feet in length and 4 feet in width, and include one boat slip measuring 30 feet in length and 9 feet in width. Petitioner Ian Koblick proposed to dock his personal boat at such facility, and to use such boat for, inter alia, commuting to and from work. Construction of the dock does not, however, bear any relationship to petitioner's ability to access their property, since their property is accessible by road. On February 3, 1988, DER notified petitioners that their application was exempt from its dredge and fill permitting requirements, pursuant to Section 403.813(2)(b), Florida Statutes, and on April 27, 1988, the Corps notified petitioners that their project was authorized by a Department of the Army general permit, issued under the authority of Section 10 of the Rivers and Harbors Act of March 3, 1899 (33 U.S.C. 403), which allowed the construction of private single-family piers in navigable waters of the United States under certain conditions. In the interim, by letter of February 22, 1988, DNR's Division of State Lands advised petitioners that their project would require approval pursuant to Chapter 253, Florida Statutes (presumably Section 253.77, Florida Statutes), and that since the project was located within John Pennekamp Coral Reef State Park, it might be affected by comments requested of DNR's Division of Recreation and Parks. Following a delay occasioned by DNR's study of dock and fill encroachments within John Pennekamp Coral Reef State Park, discussed infra, the Division of State Lands, by letter of March 9, 1989, advised petitioners that: . . . The fundamental problem with your dock application lies in the fact that the proposed structure falls within the boundaries of John Pennekamp Coral Reef State Park. Pursuant to Florida Administrative Code 16D-2.011(3), construction activities of any kind are prohibited within Pennekamp Park unless initiated by the Division of Recreation and Parks . . . I understand that . . . our Florida Keys Field Office is presently preparing a package for submittal to Tallahassee so that a final response of your request can be made . . . . Thereafter, following the Board of Trustees' resolution of the encroachment issue, discussed infra, the Division of State Lands, by letter of September 26, 1991, denied petitioners' application for a consent for use of state lands, based on Rule 16D-2.011(3), Florida Administrative Code. However, by letter of November 13, 1991, the Division of State Lands advised petitioners that: The Division of State Lands has reconsidered its denial of consent for use of the state lands associated with Mr. Koblick's residential dock, as stated to Mr. Koblick in my letter of September 26, 1991, and has determined that there is no basis in its rules to deny his application for a single- family dock. Therefore I rescind that letter. However, Mr. Koblick's dock is located in John Pennekamp Coral Reef State Park and construction activities in the park are a violation of the Florida Administrative Code Rules of the Division of Recreation and Parks. The Board of Trustees of the Internal Improvement Trust Fund has dedicated the responsibility of the John Pennekamp State Park to the Division of Recreation and Parks of the Department of Natural Resources. Based upon our assessment, I strongly recommend that you contact Fran Mainella, Director, Division of Recreation and Parks, at the address above, to determine if Mr. Koblick's application is consistent with its policies and codes prior to beginning any construction activities. In response to such correspondence, petitioners, by letter of December 17, 1991, requested authorization from the Division of Recreation and Parks to construct their dock within the park. By letter of December 27, 1991, the Division of Recreation and Parks, based on Rule 16D-2.011(3), Florida Administrative Code, denied petitioner's application. Here, by complaint against respondents, DNR and the Board of Trustees, petitioners contest the propriety of the Division of State Land's failure to issue a consent of use permit pursuant to Rule 18-21.005(1)(a), Florida Administrative Code, and the refusal of the Division of Recreation and Parks to approve their application for authorization to construct their dock within the boundaries of John Pennekamp Coral Reef State Park. Petitioners contend, as set forth in their proposed recommended order, that they should prevail in the instant proceeding based on the following "theories": 1/ The "riparian rights" provision in Dedication 22309A, must be construed as of September 21, 1967 (the date of the dedication), to include the riparian right to build a dock in Pennekamp Park. When the "riparian rights" provision was adopted it was intended to afford land owners protection from Board of Parks and Historic Memorials Rules which prohibited dredging, filling and other construction activities in Pennekamp Park. The "riparian rights" provision was also intended to assure that adjacent landowners would not be treated in a different manner merely because of their proximity to Pennekamp Park. Having obtained an exemption from the Department of Environmental Regulation ("DER") on February 3, 1988, Petitioners were entitled to a consent of use "by rule" in accordance with Rule 18-21.005(1)(a), Fla. Admin. Code. Since Respondents authorized and permitted numerous docks, seawalls, and dredge and fill activities in Pennekamp Park for over 20 years, their decision to apply Rule 16D-2.011(3), Fla. Admin. Code, to Petitioners' single family dock is arbitrary and unreasonable. The April 12, 1990, Board of Trustees "Policy" was ineffective to modify the riparian rights provision in Dedication 22309A, or to repeal the consent of use granted on February 3, 1988, by Rule 18- 21.005 Fla. Admin. Code. Because the April 12, 1990, Board of Trustees' Policy prohibits "future authorizations" it does not apply to Petitioners' application which was deemed authorized as of February 3, 1988. The John Pennekamp Coral Reef State Park On December 3, 1959, the Board of Trustees dedicated certain portions of the outer Continental Shelf situated seaward of a line three geographic miles from Key Largo, Monroe County, Florida, to the Florida Board of Parks and Historic Memorials, the predecessor to DNR's Division of Recreation and Parks. Such dedication was for the express purpose of establishing the area as the Key Largo Coral Reef Preserve, now known as the John Pennekamp Coral Reef State Park, and to restrict the use of such submerged lands to park, recreational and preservation purposes. At the time of the aforesaid dedication, the State of Florida and the United States of America (United States) had been involved in litigation regarding the seaward boundaries of the State of Florida in the Gulf of Mexico and the Atlantic Ocean, and the Trustees recognized that all, or a portion, of the dedicated lands might ultimately be found not to lie within the boundary of the State of Florida. Notwithstanding, there apparently being a community of interest between the state and federal governments regarding the preservation of the coral reef formation, the State of Florida dedicated whatever interest it might have in such submerged lands for park, recreational and preservation purposes. Ultimately, the United States prevailed, and the State of Florida was found to have no interest in the submerged lands lying seaward of a line three geographic miles from Key Largo. Notwithstanding, the dedication of December 3, 1959, was generally known to describe the westerly boundary of John Pennekamp Coral Reef State Park, and provided established reference points from which additional submerged lands dedicated on September 21, 1967, discussed infra, could be identified. By Dedication 22309A, dated September 21, 1967, the Board of Trustees dedicated to the Florida Board of Parks and Historic Memorials, the predecessor to DNR's Division of Recreation and Parks, certain sovereignty lands in Monroe County, Florida, as follows: Those submerged tidal bottom lands in the Atlantic Ocean lying between the John Pennekamp Coral Reef State Park and Key Largo including the submerged land in Largo Sound and the various inlets along the easterly coast of Key Largo; as and for public State Park purposes only . . . SUBJECT, HOWEVER, to any riparian rights and interest which may exist in or affect the above described lands. Considering the dedication of December 3, 1959, which was commonly known to delineate the then western boundary of John Pennekamp Coral Reef State Park, and the dedication of September 21, 1967, the current boundaries of the park can be located by a surveyor. Those boundaries extend from the three-mile limit offshore to the mean high water line of Key Largo, within fixed lines on the north and south, and include Largo Sound, under which the submerged lands contiguous to petitioners' property lie. Today, as a consequence of the aforesaid dedications and certain leases between the Board of Trustees and the Division of Recreation and Parks, John Pennekamp Coral Reef State Park consists of approximately 56,000 acres, of which 53,000 acres are submerged. Administered by DNR's Division of Recreation and Parks, the park currently draws approximately one million visitors a year. The rules at issue Section 253.77, Florida Statutes, provides: (1) No person may commence any excavation, construction, or other activity involving the use of sovereign or other lands of the state, the title to which is vested in the Board of Trustees of the Internal Improvement Trust Fund or the Department of Natural Resources under this chapter, until such person has received from the Board of Trustees of the Internal Improvement Trust Fund the required lease, license, easement or other form of consent authorizing the proposed use. Consistent with such provision, the Board of Trustees have adopted Rule 18-21.005, Florida Administrative Code, which establishes the form of approval required for various activities. Pertinent to this case, subsection (1)(a) of the rule provides that where, as here, the proposed activity is exempt from DER permitting requirements under Section 403.813(2)(b), Florida Statutes [providing for exemption of private docks of 500 square feet or less of over- water surface area under certain circumstances], it "is hereby exempted from any requirement to make application for consent of use, and such consent is herein granted by the board " Notwithstanding the provisions of Rule 18-21.005(1)(a), Florida Administrative Code, which grants, "by rule," consent of use where the project is exempt from DER permitting requirements, the Division of Recreation and Parks' Rule 16D-2.011(3), Florida Administrative Code, prohibits all construction activities in John Pennekamp Coral Reef State Park not specifically initiated by the Division of Recreation and Parks. Such rule has been effective since July 16, 1975, and is similar to other rules applicable to all other state parks, which likewise prohibit construction activities not initiated by the division. 2/ The purpose of the Division of Recreation and Parks' rule is to protect and preserve the coral reef formations and other natural resources of the park, and is premised on the assumption that the cumulative impact of construction activities in the park, such as docks, seawalls, groins, boat ramps, mooring buoys and ski ramps, would have an adverse effect on the park's natural resources. 3/ Construction activities in the park Following receipt of petitioners' application in February 1988, it became apparent that, notwithstanding the provisions of Rule 16D-2.011(3), Florida Administrative Code, encroachments into John Pennekamp Coral Reef State Park existed. Consequently, the Board of Trustees, as head of DNR, directed that DNR prepare a comprehensive report on all filling and construction activities that had occurred in the park. Thereafter, on August 22, 1989, the Board of Trustees directed DNR to conduct public meetings with respect to a proposed policy to address the encroachments that were discovered. Pertinent to this case, DNR's study identified 40 private docking facilities within the park boundaries. Of those structures, DNR's report revealed that seven were constructed prior to the park's expansion in 1967, 22 had no apparent authorization, six had received permits from either DER, Monroe County or the Corps but not DNR, and five had been "authorized" by DNR. The study further identified four commercial docking facilities within the park, only one of which was authorized, it having been registered as a grandfathered structure, and 12 unauthorized fills. 4/ Regarding the five private docks that had been "authorized," the proof demonstrates that the first dock was approved by the Board of Trustees on September 13, 1974, prior to the effective date of Rule 16D-2.001(3), Florida Administrative Code, and that the Division of Recreation and Parks, although asked to comment, voiced no objection to its construction. Such authorization was apparently granted under the "Trustees' Exemption Rule," the provisions of which do not appear of record. The remaining four docks were "approved" for a consent of use in 1980, 1982, 1986, and 1987, respectively, by field staff of DNR's Division of State Lands, under the exemption afforded by Rule 18- 21.005(1)(a), Florida Administrative Code, but no approval was ever requested of, or granted by, the Division of Recreation and Parks. Regarding the "approval" garnered from the Division of State Lands for the four private docks, it is worthy of note, in so far as it may have borne on the Trustees' policy choice of April 12, 1990, discussed infra, that under the provisions of Rule 18-21.005(1)(a), Florida Administrative Code, consent of use is automatic and no express or separate authorization is required. Notwithstanding, the Division of State Lands has, when requested to do so by applicants who apparently desire written confirmation of such exemption, provided such "approval." Based on DNR's study and the public meetings, DNR recommended a policy to the Board of Trustees, at their meeting of April 12, 1990, to address the encroachments that had occurred in the park. That policy, approved by the Board of Trustees, was as follows: Private Docks: . . . (1) that all docks in existence prior to 1967 within state park waters receive authorized structure status; (2) that all docks within state park waters legally authorized by the Department of Natural Resources or the Board of Trustees during or after 1967 receive status as authorized structures; (3) that all other private docks in existence since 1967 within state park waters that are not legally authorized by Department of Natural Resources or the Board of Trustees have been evaluated on a case-by- case basis, taking into consideration any authorization issued by state and federal environmental agencies and, using the Florida Keys Marina and Dock Siting Policies and Criteria - 18-21.0041, Florida Administrative Code, as a guideline for reviewing environmental impact on marine communities, designate the structure as either authorized or require removal or modification; and (4) that no future authorizations will be issued for the construction of new private docks in state park waters. Commercial docks: . . . (1) that docks currently authorized within state park waters by the Department of Natural Resources or Board of Trustees will retain authorized status until such time that current authorization expires; (2) that all other docks be considered as unauthorized structures and removed from state park waters within 90 days of receiving legal notification from the Department of Natural Resources; and (3) that no expansion of authorized commercial docks or construction of new commercial docking facilities be authorized. Fills: . . . (1) that unauthorized fills have been evaluated on a case-by-case basis using environmental impact to the marine environment as the primary evaluation criteria; (2) fills found to be detrimental to the marine environment may require partial or complete removal; and (3) no new fills be authorized. Such policy was an apparent effort by the Board of Trustees to fairly resolve the status of structures existent before the park's boundaries were expanded in 1967, as well as subsequent encroachments, some of which, until 1988, were approved by the Division of State Lands under the provisions of Rule 18-21.005(1)(a) in apparent ignorance of, or refusal to accord deference to, the Division of Recreation and Parks Rule 16D-2.011(3). The Board of Trustees' policy has not been formally adopted as a rule, but does reflect an interpretation of Chapter 18-21, Florida Administrative Code, that would preclude the approval of a consent of use where the proposed activity would violate the rules of the Division of Recreation and Parks. See also Kreiter v. Chiles, 595 So.2d 111 (Fla. 3d DCA 1992), rev. denied 601 So.2d 552 (Fla. 1992), discussed infra, where the Board of Trustees denied a request for a consent of use under similar circumstances. Riparian rights and the "subject to" clause Here, petitioners contend that the riparian rights provision contained in the "subject to" clause of Dedication 22309A should be construed to include the right of riparian upland owners, such as petitioners, to construct a dock on adjacent sovereign submerged lands. For the reasons that follow, petitioners' contention is rejected. As heretofore noted, Dedication 22309A, dated September 21, 1967, expanded the boundaries of John Pennekamp Coral Reef State Park by dedicating certain sovereignty lands in Monroe County, Florida, as follows: Those submerged tidal bottom lands in the Atlantic Ocean lying between the John Pennekamp Coral Reef State Park and Key Largo including the submerged land in Largo Sound and the various inlets along the easterly coast of Key Largo; as and for public State Park purposes only . . . SUBJECT, HOWEVER, to any riparian rights and interests which may exist in or affect the above described lands. The "subject to" clause was inserted into the aforesaid dedication by the Board of Trustees based on its staff's recommendation that the dedication be authorized: . . . but . . . contain the provision that the statutory riparian rights and the right to purchase the riparian bottom lands by an affected upland owner not be impaired in any manner. (Emphasis added). Considering the staff recommendation, which was the apparent impetus for the "subject to" clause, and the language of the "subject to" clause, it is concluded that the "subject to" clause is clear and unambiguous and evidences no intention to accord upland owners any riparian right beyond that existent under law. Such rights were defined at the time, as they are now under Section 253.141(1), Florida Statutes, as follows: Riparian rights are those incident to land bordering upon navigable waters. They are rights of ingress, egress, boating, bathing, and fishing and such others as may be or have been defined by law . . . . As will be addressed in the conclusions of law, riparian rights did not at the time, and do not now, include the unqualified right to construct a dock on sovereign submerged lands, and petitioners' contention that the "subject to" clause should be so interpreted is rejected as contrary to the clear and unambiguous language of such clause. In reaching the foregoing conclusion, the proof offered by petitioners regarding the Board of Trustees' sale of state owned submerged lands in the park to private persons subsequent to 1967, the Board of Trustees' authorization for the construction of an access or navigational channel in the park by a private person subsequent to 1967, and the authorizations granted for private docks within the park, as heretofore discussed, has not been overlooked. However, for the reasons that follow, such proof failed to persuasively demonstrate, as contended by petitioners, that the "subject to" clause was intended to afford upland owners an unqualified right to construct a private dock on sovereign submerged lands or to restrict the Division of Recreation and Parks, or its predecessor, from restricting such construction activities in the park. Foremost among the reasons petitioners' proof was unpersuasive is the conclusion reached that the "subject to" clause is clear and unambiguous. Under such circumstances, resort to extrinsic evidence to interpret the clause is unnecessary, and the proof offered by petitioners is irrelevant. Moreover, as to the proof itself, it is woefully lacking in sufficient specificity to persuasively demonstrate that the clause should be interpreted differently. With respect to the proof dealing with the Board of Trustees' sale of some state-owned submerged lands within the park to private persons subsequent to 1967, there was no proof regarding the date of any such sales, to whom it was sold, or the circumstances surrounding the sale, but simply generalized proof that such sales had occurred. The same lack of specificity exists with regard to the proof offered with regard to the Board of Trustees' authorization for the construction of a navigation channel within the park subsequent to 1967. Under such circumstances, the proof offered fails to demonstrate any persuasive nexus between the Board of Trustees' action and the "subject to" clause. Rather, the Board of Trustees' action may as easily be ascribed to other legal authority upon which the board was empowered to alienate state lands, as the "subject to clause," and any conclusion to the contrary would be base speculation. See e.g., Sections 253.12 et. seq., Florida Statutes (1967). Finally, the proof offered regarding the authorizations granted for the construction of private docks within park boundaries, discussed supra, and the opinions expressed within DNR during such period that common and statutory law regarding riparian rights contemplated the construction of such docks pursuant to the riparian owner's right of ingress and egress, does not compel a different conclusion. Rather, such proof evidences a misapprehension of the law, as opposed to a reflection of any significance to be accorded the language used in the "subject to" clause beyond its patent import.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondents render a final order which denies petitioners' request for consent of use, as well as their request for authorization to construct a private dock within the boundaries of John Pennekamp Coral Reef State Park. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 2nd day of February 1993. WILLIAM J. KENDRICK 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 2nd day of February 1993.
The Issue The issue in this case is whether a proposed activity by Cayo Costa Island Partnership is exempt from permitting.
Findings Of Fact Cayo Costa Island is a bridgeless barrier island situated between Gasparilla Island to the north and Captiva Island to the south. East of Cayo Costa Island is Pine Island, and east of Pine Island is Cape Coral. In the 1960s, Travis Gresham subdivided and commenced development of a portion of Cayo Costa Island. Development included the dredging of canals. Eventually, one or more plat maps were recorded in the public records of Lee County, so that warranty deeds for residential lots referred to such recorded plat maps. There is also a subdivision sales plat map, which may not have been recorded. Not all of the land was subdivided into lots. The sales plat map reserves a considerable amount of land and canals for future development. One of the reserved areas is to the east of the subdivided lots. The location of the proposed dock is in the extreme southwest corner of this unplatted area. The dock would be located at the western end of a relatively wide manmade canal, which measures 2000 feet long and 105 feet wide. The east end of the canal terminates in Pine Island Sound. Petitioner and her late husband purchased from Mr. Gresham lot 16 in block 1 over 30 years ago, and they moved onto the island almost 20 years ago. The lot does not abut the canal, nor the upland adjacent to the subject dock. She has permanently resided on the island continuously since 1976. In 1984, she and her husband conveyed their property by warranty deed to the State of Florida, reserving a life estate. Petitioner's husband and some friends constructed the subject dock at the end of the canal in September 1978. A couple of years later, another nearby resident named Carl Noah substantially enlarged the dock. On March 16, 1993, Mr. Noah conveyed by warranty deed his real property to Paul Faust. At the same time, Mr. Noah gave Mr. Faust a quitclaim deed for "boat docks constructed by [Mr. Noah] to be used with the [residential] structure." After purchasing the property from Mr. Noah, Mr. Faust was contacted by Petitioner, who told him that she had previously owned the dock and that Mr. Noah had shared it with her. Mr. Faust agreed to share the dock with her, for as long as he owned it. There are no recorded easements concerning the use of the dock. On the sales plat map, the west end of the canal is clearly separated from the subdivided area by a road, which is named Harbor Drive. However, Harbor Drive was never constructed and there is no physical evidence of the proposed road. Petitioner's late husband and his friends who helped build the dock mistakenly believed that the west end of the canal terminated at Harbor Drive. Undoubtedly, other persons were similarly confused, including the property assessor, who had never assessed the property that separates the west end of the canal from Harbor Drive. However, in May 1993, Noel Andress, one of the partners of Cayo Costa Island Partnership, obtained a warranty deed from Mr. Gresham for a triangular- shaped piece of land running north just to the existing dock from the intersection of Harbor Drive and an actual road known as La Costa Drive. Mr. Andress quitclaimed the triangular-shaped parcel, which is described by metes and bounds, to Cayo Costa Island Partnership on January 13, 1994. After Mr. Andress acquired the triangular-shaped parcel, he directed his attorney to write Petitioner and Mr. Faust and inform them to remove their personal property from the real property that Mr. Andress had recently acquired. Mr. Faust is contesting this matter in court. Unfortunately, the record does not include the application or applications submitted by Cayo Costa Island Partnership. Mr. Andress testified that he submitted an application in February or March of 1993. The proposed dock, which would replace the dock built by Mr. Sellars and Mr. Noah, would serve a single family. The proposed dock would consist of two sections: a 5' by 92' main section and a 6' by 10' walkway to the upland area. Thus, the total area of the dock would be 520 square feet. The application reportedly provides that Cayo Costa Island Partnership would use turbidity barriers during construction. The location of a 92-foot dock running parallel to the end of a 2000- foot long undeveloped canal presents no impediment to navigation. There is no reason to infer an adverse impact to flood control or, as long as turbidity barriers are used, a violation of water quality standards. By letter dated June 15, 1994, the Department of Environmental Protection acknowledged receipt of the application, as well as additional drawings and documents submitted on April 8, 1994. Based on these materials, the letter states that the proposed project "appears to qualify as an activity which is exempt from the need for a Department wetland resource permit under Florida Administrative Code Rule 17-312.050(1)(h)."
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Department of Environmental Protection enter a final order dismissing the petition of Petitioner. ENTERED on November 22, 1994, in Tallahassee, Florida. ROBERT E. MEALE 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 on November 22, 1994. APPENDIX Rulings on Petitioner's Proposed Findings A-C: rejected as not findings of fact. A1: rejected as not finding of fact and irrelevant, except for last sentence, which is adopted or adopted in substance. A2-end: rejected as irrelevant, recitation of evidence, subordinate, and unsupported by the appropriate weight of the evidence. Rulings on Cayo Costa's Proposed Findings 1-10: adopted or adopted in substance. 11-12: rejected as subordinate. 13-15: adopted or adopted in substance. 16-23: rejected as subordinate, recitation of testimony, and unnecessary. 24-31: adopted or adopted in substance. 32-33: rejected as irrelevant. COPIES FURNISHED: Virginia B. Wetherell, Secretary Department of Environmental Protection Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 Kenneth Plante, General Counsel Department of Environmental Protection Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 Barbara Mathews Trescott Pepper Law Firm 1505 S.E. 40th St. Cape Coral, FL 33904 Mary F. Smallwood Ruden, Barnett P.O. Box 10888 Tallahassee, FL 32302 John Chaves Department of Environmental Protection Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400
The Issue The issue is whether Petitioner must forfeit his vested benefits in the Florida Retirement System (FRS), pursuant to section 112.3173(3), Florida Statutes, due to Respondent's commission of an act of extortion, as defined in section 836.05, Florida Statutes.
Findings Of Fact Petitioner has lived for much of his life in West Palm Beach. Petitioner's family owned a Pepsi-Cola bottling company in West Palm Beach until selling it five or six years ago. Petitioner started with the company as a truck driver and eventually served as a vice-president. Petitioner served as a locally elected official in West Palm Beach for nearly 20 years. Petitioner was elected commissioner of the Board of Commissioners of the City of West Palm Beach and served for 12 years. Subsequently, he was elected and reelected commissioner of the Board of County Commissioners of Palm Beach County. Petitioner was prevented by term limits from serving beyond his second four-year term, which was due to end in December 2010. However, Petitioner resigned from the county commission five months earlier after he pleaded guilty to, and was adjudicated guilty of, the extortion that is described below. Petitioner had planned to retire from public office after finishing his term in December 2010. In his early 60s and evidently secure financially, Petitioner looked forward to retirement, during which he planned to volunteer in the community and play with his grandchildren. In the final year of his final term in public office, Petitioner busied himself with--or, perhaps more aptly, obsessed over--one major piece of unfinished business: the South Cove Restoration Project. The South Cove Restoration Project is an ecological restoration project in the Lake Worth Lagoon in downtown West Palm Beach. The Lake Worth Lagoon is a 20-mile long body of water in central Palm Beach County. Located just east of Flagler Drive and north of the Royal Park Bridge, the South Cove Restoration Project's primary sponsor is Palm Beach County, although the state has provided funds and the City of West Palm Beach and the Florida Inland Navigation District are also identified as project "partners." The project consists of the creation of two acres of mangrove/spartina habitat, 3.5 acres of potential seagrass habitat, and one acre of rock revetment/oyster reef. The project also includes a 565-foot elevated boardwalk running from the sidewalk along Flagler Drive to the largest mangrove island and a 16-foot square observation deck. Lastly, the project includes the capping of an old dredge hole with clean sand. This will reduce turbidity in the adjacent water column by preventing the continual resuspension of fine-grained particles that tend to collect in the dredge hole. For many years, water-quality issues in the Lake Worth Lagoon have received the attention of state, regional, and local officials, including Petitioner. For a couple of years, Petitioner had served as the county representative to, and chair of, a consortium of governmental entities that had formed the Lake Worth Lagoon Initiative (Initiative). Members of the Initiative have been drawn from the Florida Department of Environmental Protection, the South Florida Water Management District, the Palm Beach County chapter of the League of Cities, and Palm Beach County. The mission of the Initiative is to restore water quality in the lagoon by obtaining and providing funding from various sources for projects to address such issues as water quality, habitat, and pollution-control. The Initiative has supported the South Cove Restoration Project, which is located to the south of a larger project recently undertaken by the City of West Palm Beach to dredge the Intracoastal Waterway adjacent to Flagler Drive as part of extensive renovations of an old city marina. The dredge spoil from the city marina project will provide the fill for the dredge hole in the South Cove Restoration Project. The South Cove Restoration Project was first identified in 1997 as a Surface Water Improvement and Management project. In August 2008, the Department of Environmental Protection proposed to issue the permits necessary for the project's construction and operation. Trump Plaza challenged the proposed permits in DOAH Case No. 08-4752, and Flagler Center Properties, LLP, intervened on the side of Trump Plaza. Trump Plaza is the owner- association of two 30-story condominium buildings, and Flagler Center Properties is the owner of two eight- or nine-story office buildings. Due to the proximity of their buildings to the South Cove Restoration Project, both parties challenged the project on the grounds of, among other things, the potential obstruction of their view and the unreasonable infringement on their qualified rights to a dock. These properties and the uplands adjoining the South Cove Restoration Project are all entirely within the city limits of the City of West Palm Beach. This litigation delayed the issuance of the permits by 15 months. However, in September 2009, an Administrative Law Judge issued a recommended order approving the permits, and, in November 2009, the Department of Environmental Protection issued the final order issuing the permits. Members of the Johnson family own Flagler Center Properties. Like the Koonses, the Johnsons have lived in West Palm Beach for many years. The eldest Johnson is of the age of Petitioner's parents, and Petitioner knew the next generation of Johnsons, as they grew up together in West Palm Beach. The third generation of Johnsons and Koonses even attend the same school. But all of these relationships notwithstanding, at least certain members of the Johnson family with ownership interests in Flagler Center Properties have opposed at least certain aspects of the South Cove Restoration Project. The extortion occurred late in the approval process for the South Cove Restoration Project. The two acts of extortion took place in the six weeks before a vote by city commissioners to allow a fourth wheelchair-ramp access to be constructed from the existing sidewalk, over the seawall, and onto the boardwalk. The city commission vote took place on June 17 or 19, 2010. As expected, the city commissioners unanimously approved the fourth wheelchair ramp. Within a few days after the city vote, the last project sponsor to commit funds--the board of the Florida Inland Navigation District--approved its $1.5 million contribution. Evidently, the District vote was even more of a certainty that the city vote because--to the extent that Petitioner's extortion was designed to ensure final passage of the South Cove Restoration Project--Petitioner's concern, at the time of the extortion, was the city vote, not the District vote. In anticipation of the city vote, on May 6, 2010, at 9:14 a.m., Petitioner called the Johnson family attorney to discuss the Johnson family's continued objection to the project, especially the boardwalk. Petitioner failed to reach the attorney, so he left a voicemail. After a brief greeting, Petitioner demanded that the attorney send Petitioner immediately a memo outlining the remaining objections of the Johnson family to the South Cove Restoration Project. And if you don't--then I'm going to do a Public Records Request to the City of West Palm Beach on this. Dean, just for the heads up, good friend of mine, I'm going to work as hard as I've ever worked in twenty years of public service to take the Johnsons through the ringer on this if they don't support the City of West Palm Beach. I'll have kids picketing at the building and what I'm going to say is they want [a] marina instead of an island. I told you, this is very personal for me. Okay. This is something I really, really want. After twenty years I want the Johnsons to step away and congratulate me personally on all the work I've done. Okay? I have no idea why they're trying to fuck me on the deal but this is very personal. I'm going to work five [sic] hours a day for the next six weeks. I'm going to leverage every possible person, program--I have to get a five-oh vote out of the City Commission. It's very personal, Dean. So, I can't understand why they want to do it ultimately, I want them to say we've [sic] love to have this project. I'm going to door to door at every tenant in the building and throw them under the fucking bus. I'm going to say they want a marina out here versus a public island. I'm going to the FBI--I'm going to the Foundation. I'm going to every tenant in the building. I'm going to see if I have a banking relationship with anybody in there. I want this done and it's a personal thing for me. Shortly after this voicemail, Petitioner instructed a county employee to visit the Flagler Center Properties' site and photograph dead trees and the property's stormwater outfall. The record is not reliably developed on these points, except to the extent that these two issues are mentioned in Petitioner's next voicemail to the Johnson family attorney, which took place after the photographs were taken. To dispel any doubt of his seriousness, Petitioner called the Johnson family attorney again on June 9, 2010, at 6:18 pm: Hey, it's Koons. Just wondering, are the Johnsons still fighting that island on the maintenance issue? I was just wondering because I don't know if you noticed the dead trees that they have in their building in downtown West Palm Beach. Can't even take care of their own property with the dead trees. I don't know why they're worrying about maintenance on something else [the South Cove Restoration Project]. Anyway, also, do you have a map of where their stormwater goes? I was just trying to think if they were ever under a pre- treatment of their stormwater that goes off, I think, right where that island is going to be. Anyway, just let me know. Let me know if you want me to call Code Enforcement or what you want me to do. Thanks. By Information dated August 3, 2010, the State of Florida alleged that Petitioner "on or between May 6, 2010, and June 17, 2010, . . . did either verbally or by a written or printed communication, maliciously threaten an injury to the reputation of [the Johnson family] with intent to compel the persons so threatened . . . to do any act or refrain from doing any act against their will, contrary to Florida Statute 836.05 (2 DEG FEL)". The Information also alleges two misdemeanors that are irrelevant to this case. After three interviews with the authorities, Petitioner resigned from the county commission on August 3, 2010. The next day, Petitioner pleaded guilty to extortion and the two misdemeanors, and the court adjudicated Petitioner guilty of all three offenses and sentenced him to five years' county probation for the extortion and fined him $10,000 for the extortion. There is no evidence whatsoever that Petitioner extorted the Johnson family for personal financial gain. He had already declined to run for another elected office, so the record does not support a finding that he engaged in this extortion for his personal political gain. There is no evidence whatsoever that Petitioner engaged in this extortion for any other personal purposes, including obtaining wheelchair access for a family member or obtaining improper sexual advantage. It is difficult to find that Petitioner engaged in this extortion to cement some sort of personal legacy. The South Cove Restoration Project is not an exceptionally large project, in terms of water quality impacts. It appears to have already been named, so general naming rights--to paraphrase a theater critic, the graffiti of the political/philanthropic class--do not seem to be involved. (Charles Isherwood, "The Graffiti of the Philanthropic Class," N.Y. Times, December 2, 2007, http://www.nytimes.com/2007/12/02/theater/02ishe.html). As noted above, the sole practical concern of Petitioner, at the time of the acts of extortion, was the city vote on the fourth wheelchair ramp. But this vote was a near certainty and concerned an inconsequential matter--a fourth wheelchair ramp--that would not have prevented the project from going forward. Some proponents of the project even believed that the city vote was unnecessary, and a fourth ramp could have been located nearby at a location not within the jurisdiction of the city. Almost all that is left to explain the extortion is Petitioner's characterization of his acts, which he admitted were driven by anger, frustration, and stupidity. The narcissistic demands in the first voicemail that the Johnson family pay public homage to Petitioner and the eerie passive- aggressive nature of the second suggest pride to the point of hubris. But nothing else--except, of course, anger and stupidity. At all material times, Petitioner was in FRS-covered employment, owned vested FRS benefits, and had not filed for FRS retirement benefits. By letter dated November 8, 2010, Respondent advised Petitioner that he had forfeited his FRS benefits when he entered a guilty plea to the felony of extortion. He timely requested a hearing.
Recommendation It is RECOMMENDED that the Division of Retirement Services enter a final order determining that Petitioner's acts of extortion, described above, do not constitute grounds for forfeiture of his FRS pension. DONE AND ENTERED this 9th day of August, 2011, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE 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 8th day of August, 2011. COPIES FURNISHED: Sarabeth Snuggs, Director Division of Retirement Department of Management Services Post Office Box 9000 Tallahassee, Florida 32315-9000 Jason Dimitris, General Counsel Department of Management Services 4050 Esplanade Way, Suite 160 Tallahassee, Florida 32399-0950 Geoffrey M. Christian, Esquire Department of Management Services 4050 Esplanade Way, Suite 160 Tallahassee, Florida 32399-0950 Mark A. Emanuele, Esquire Panza, Maurer and Maynard, P.A. Bank of America Building, Third Floor 3600 North Federal Highway Fort Lauderdale, Florida 33308
The Issue The issue is whether Respondent Alexander J. Milanick should be required to pay attorney fees and costs in the amount of $4,976.00 to Petitioner Charles Osborne to compensate Petitioner for his defense of an ethics complaint filed with the Florida Commission on Ethics.
Findings Of Fact The Town of Beverly Beach, Florida has a population of about 600 located in Flagler County, Florida. It is about one mile from north to south, and occupies about .4 square miles. It is bounded on the west by the Intracoastal Waterway and on the east by the Atlantic Ocean. U.S. Highway A1A is the main north-south route through the town. Mr. Osborne is an aerospace engineer who served on the Beverly Beach Town Commission from 1997 through March 1999. He was mayor from March 1999 until 2001. He has lived at 2641 Osprey Circle, in Beverly Beach, in a home constructed at that location, since 1995. This residence is closer to the southern boundary of Beverly Beach than to the northern boundary. Dr. Milanick is a dentist who, along with his brother John, and a person named McGee, during times pertinent, owned land immediately north of Beverly Beach. On the property then and currently owned by Dr. Milanick, and east of A1A, is a restaurant named the Shark House. The premises has also been known as Crabby Joe's. In 1995, Dr. Milanick applied to the Town Commission to have his property, and that of his brother, and that of McGee, annexed into the town limits of Beverly Beach. He did this by asking a Mr. Taylor to do what was necessary to cause the annexation to occur. Mr. Taylor thereafter filed a petition with the Town Commission. By Ordinance 95-9-4, the Town Commission, in 1995, assented to the request and it was made effective November 15, 1995. The Ordinance purported to annex the Milanick property into the Town of Beverly Beach and to zone it general commercial. Mr. Osborne was not a member of the Town Commission and was not mayor during this time. The Ordinance, however, was defective in four ways. The Ordinance purported to annex the property into Bunnell, Florida; it was not properly signed by all commissioners; it was not publicly noticed; and it did not provide a legal description of the property. It was not filed with either the Flagler County Clerk of the Court or the Florida Secretary of State. The matter languished until 1997 when Dr. Milanick determined that his property had not in fact been moved within the boundaries of Beverly Beach. Dr. Milanick brought this to the attention of the Town Commission in October 1997. At a Town Commission meeting on December 3, 1997, the Town Attorney stated that he had not had a chance to look into the Milanick and Shark House issue. At a Town Commission meeting on February 4, 1998, Dr. Milanick inquired as to the progress being made on the annexation of his property and was told that the Town Attorney would get with him and discuss the procedure. Subsequently, the Town Attorney, Pat McCormick, suggested that it would be necessary to start the process from the beginning if the land was to be annexed. At a Town Commission meeting on March 4, 1998, Mayor Osborne stated that there was no benefit to the annexation of the Shark House. One member of the Town Commission suggested that they honor past commitments. Dr. Milanick was in attendance at this meeting. At a Town Commission meeting on May 5, 1999, Dr. Milanick and his brother again attended the Town Commission meeting and requested the annexation of their property and discussed the procedure that would be necessary. At a Town Commission meeting on June 2, 1999, a motion was made to go forward with Ordinance 95-9-4 and to amend the official city map and legal description to include the Shark House property. The motion passed but Mayor Osborne vetoed it. During a regular monthly meeting of the Town Commission on July 7, 1999, James Kearn, an attorney retained by Dr. Milanick, who was authorized to act for Dr. Milanick, appeared and requested that the Commission direct the Town Clerk to sign Ordinance 95-9-4 and to forward it to the county and the state in order to determine if the Ordinance was valid. This request was approved by the Town Commission. Mayor Osborne, vetoed the measure. Thereafter, the veto was over-ridden by the Commission. At a Town Commission workshop on July 21, 1999, there was additional discussion regarding the annexation of the Shark House. Mr. Kearn accused Mayor Osborne of discussing the Milanick annexation matter with Sid Crosby, Clerk of the Court of Flagler County. Mayor Osborne denied the charge. The discussion became heated and accusatory and Mayor Osborne threatened to have the sheriff eject Mr. Kearn from the meeting. Subsequent to the action of the Town Commission of July 7, 1999, the Town Clerk, Douglas Courtney, took Ordinance 95-9-4 to Syd Crosby, Clerk of the Court for Flagler County. In a memorandum dated July 26, 1999, Mr. Courtney reported to the Town Commission that Mr. Crosby would not file Ordinance 95-9-4 because it was defective. One of the defects cited was that the instrument purported to annex the land into the City of Bunnell, Florida. No creditable evidence was adduced which indicated that Mayor Osborne visited Syd Crosby for the purpose of preventing the recording of the annexation of Dr. Milanick's property. Mr. Crosby concluded from the beginning that Ordinance 95-9-4 was not recordable. Mayor Osborne suggested some solutions which would permit the annexation, including, re-submission of a proper application. Over a period of time some "glitch" bills were considered which would annex the land. However, none passed. Mr. Kearn attended the Town Commission meeting on February 2, 2000, and the minutes of the meeting noted that he was accompanied by "a person taking notes." Following this meeting, in a February 16, 2000, letter to Dennis Knox Bayer, Town Attorney, Mr. Kearn claimed that Mayor Osborne had a personal vendetta against Dr. Milanick, and that he was exercising dictatorial efforts to prevent citizens to speak at town meetings. He further demanded that ". . . all Town officials, including you as their representative, refrain from saying things that are simply and blatantly false, which only serve to incite Mr. Milanick." At a town meeting on March 1, 2000, Mr. Kearn complained about the annexation not being on the agenda and Mayor Osborne stated that a request for inclusion on the agenda had not been made in writing. Mr. Kearn was permitted to speak for three minutes, he spoke for three minutes, and immediately thereafter Mayor Osborne adjourned the meeting. On or about April 25, 2000, Dr. Milanick and his brother John, filed suit against the Town of Beverly Beach and Mayor Osborne personally, in the Circuit Court of the Seventh Judicial Circuit in and for Flagler County. The suit alleged that the Town of Beverly Beach and Mayor Osborne violated the civil rights of the Milanicks. The suit alleged that Mayor Osborne had a vendetta against Dr. Milanick and should be held personally liable to Dr. Milanick. The Circuit Court dismissed the civil rights count against Mayor Osborne and the town, and this dismissal was affirmed by the Fifth District Court of Appeal. The Circuit Court also dismissed the mandamus action, finding that the 30- day limitations' period for filing a petition for a writ of certiorari applied and that a prima facie case for mandamus had not been established. The Fifth District Court of Appeal, on October 19, 2001, remanded that count to the Circuit Court with directions to grant the petition for mandamus, but upheld the dismissal of the civil rights counts. On January 23, 2003, the Circuit Court entered its Alternative Writ of Mandamus. The Writ incorporated the allegations of Plaintiff's Complaint by reference and ordered that the Defendants take whatever steps necessary to sign and record Ordinance 95-9-4. When this occurred, Mr. Osborne was no longer an elected official of Beverly Beach. The Circuit Court complaint filed by Dr. Milanick recited that the recording of the ordinance did not occur because Mayor Osborne conferred with the Clerk of the Court to block recording of the ordinance. The adoption of the matters recited in the complaint as true, by the appellate court, does not make them proven facts because no evidence was taken in the case. The complaint, moreover, alleges actions, such as being tyrannical and peevish, which could not in any event constitute a violation of a person's civil rights. The complaint does not allege that Mr. Osborne took any action, as mayor, because he wished to obtain a personal advantage and does not allege that the annexation of Dr. Milanick's real property would affect Mr. Osborne's real property in terms of value or otherwise. As of the date of the hearing, Dr. Milanick's property had not been annexed into the corporate limits of Beverly Beach. Mr. Osborne, while serving as mayor, was not helpful in causing the annexation to occur and it is apparent that his relations with Mr. Kearn were not amicable. Mr. Osborne, while serving as mayor was irascible, intimidating, and controlling. Mr. Osborne believed that the annexation would bring no benefit to Beverly Beach and believed it would, "change the town's character." Mr. Osborne gained nothing directly or personally by preventing, or making difficult, the annexation of Dr. Milanick's land. As an elected official, he was permitted to advance his own ideas with regard to what he believed would be best for Beverly Beach and for himself as a citizen and property owner of Beverly Beach. He could act in this regard so long as he did not secure a special privilege, benefit, or exemption for himself, as opposed to a general benefit. A letter signed by Mr. Kearn dated July 18, 2003, accompanied by an affidavit signed by Dr. Milanick, requested that the Commission conduct an investigation into the activities of Mr. Osborne during the period when he was the mayor of Beverly Beach. For reasons which become apparent hereafter, this letter, which had the words "Via Airborne Overnight Mail" stamped on its face, will be hereinafter referred to as the "Airborne" letter. The following statements were contained in the "Airborne" letter: Specifically, while Mayor, Charles Osborne simply refused to sign and record the ordinance duly adopted by the Town, which annexed land into the Town as a general commercial, simply because he personally did not want anymore general commercial land in the Town, which could jeopardize his personal investment in the Town. He also met with the former Clerk of Court for Flagler County, Mr. Syd Crosby, to persuade the Clerk to not record anything regarding the annexation of such land, in order to prevent the completion of the annexation. He thus plainly put his purely personal concerns, ahead of his duties as mayor, and fiduciary duty to the citizens of Beverly Beach. The mayor still refused to oblige the Town's request, or to honor the duly adopted resolution, for his own personal reasons, irrespective of his duties as mayor to the citizens of Beverly Beach.... Even worse, he met with the former Clerk of Circuit Court of Flagler County, Mr. Syd Crosby, to attempt to persuade Mr. Crosby to not record any ordinance presented by the Town, annexing the Milanicks' property. Mayor Osborne repeatedly ignored and defied the will of the Town to complete the annexation, to pursue his own personal agenda, i.e., stopping annexation of land as general commercial. The "Airborne" letter then parroted items that indicated that the Circuit Court had found to be true, as follows: Additionally, Mr. Osborne simply does not allow anyone to speak with whom he disagrees, or to address matter that he does not want addressed. Mayor Osborne has... refused to put the Milanicks' matters or requests on the Town Council agenda; taken action regarding the Milanicks' properties, without any notice to the Milanicks, or without knowledge by the Milanicks that such action was being taken against their property, as required by the Town's own law; refused to allow the Milanicks to speak to matters that affect their personal and property interests, once the Town Council had opened discussion regarding the annexation and zoning of the Milanicks' properties; blatantly and willfully misrepresented the Milanicks' positions, actions, and statements at Town meetings, beyond the scope of the privilege normally attendant to a politician's statements at such meeting, in order to defeat the Milanicks' requests, and to harm the Milanicks; refused to honor Ordinances passed by previous Town councils, as detailed above; refused to follow through with completing the annexation approved by previous council members of the Town; worked to undercut the recording of the completion of the signing of the ordinance, and the recording of the ordinance, to complete the annexation, all as detailed above. The matters in paragraph 25, are misleading because they indicate that the Circuit Court found these items to be true when in fact no evidentiary proceedings with regard to these items occurred in the Circuit Court. Moreover, the Complaint alleged several matters which Dr. Milanick either knew to be untrue, or should have known that it was untrue. Specifically, the Complaint alleged that Mayor Osborne "did not want anymore general commercial land in the Town, which could jeopardize his personal investment in the Town." This allegation implies that he was acting for some personal and specific reason financial reason, as opposed to a general opposition to development. This allegation, had it been true, would have been actionable pursuant to Section 112.313(6) The Complaint also alleged that Mayor Osborne met with Syd Crosby in order to prevent the annexation of the Milanicks' property. This allegation, coupled with the allegation as to a financial interest, bolsters the asserted improper purpose. Based on this Complaint, the Executive Director of the Commission issued a Determination of Investigative Jurisdiction and Order to Investigate, which was filed with the Commission on September 26, 2003, and assigned Complaint Number 03-091. Investigator Travis Wade of the Commission was directed to conduct a preliminary investigation into whether or not there was probable cause to believe a violation of Section 112.313(6), Florida Statutes, had occurred. That section reads as follows: (6) Misuse of public position.--No public officer, employee of an agency, or local government attorney shall corruptly use or attempt to use his or her official position or any property or resource which may be within his or her trust, or perform his or her official duties, to secure a special privilege, benefit, or exemption for himself, herself, or others. This section shall not be construed to conflict with s. 104.31. Mr. Osborne learned of the Determination of Investigative Jurisdiction and Order to Investigate and thereafter retained Robert J. Riggio, of the firm of Riggio & Mitchell, P.A., located in Daytona Beach, as his attorney. Mr. Riggio worked on the case from October 24, 2003, until September 29, 2004. He charged $150 per hour, which is below the customary charge in the Daytona Beach area, and the hourly rate therefore, is reasonable. He expended 33 hours which is reasonable. He expended $180 in costs. These expenditures totaled $4,976 which was billed to Mr. Osborne. He paid the bill. On April 6, 2004, a second letter dated July 18, 2003, was sent to the Commission by Mr. Kearn by facsimile. This will be referred to as the "Fax" letter. This was precipitated by a request to Mr. Kearn from Investigator Wade that he provide a copy of the original letter. The "Fax" letter differed from the "Airborne" letter. In the second paragraph of the "Fax" letter the following sentence appears: "Specifically, while Mayor, Charles Osborne simply refused to sign and record the ordinance duly adopted by the Town, which annexed land just north of Mr. Osborne's manufactured home . . . ." And in the fourth paragraph of the "Fax" letter, the following sentence appears: "The Mayor objected, because it would serve to annex land as general commercial, just north of his own manufactured home." It further stated that his motivation was ". . . stopping land as commercial near him." Mr. Kearn testified under oath that when Investigator Wade was discussing the case with him, that he, Mr. Kearn, realized the "Fax" letter was a draft that had been sent to Investigator Wade in error. Mr. Kearn said that the "Fax" letter was a draft that had subsequently been edited by Dr. Milanick who knew, July 18, 2003, that Mr. Osborne did not live in a manufactured home located immediately south of the property which was sought to be annexed. Mr. Kearn said that it the "Airborne" letter was supposed to be the operative document. He said that he realized that the "Fax" letter was being used by Investigator Wade when he was talking to him on the telephone on June 8, 2004, and that he advised Investigator Wade of the error. He testified that he made it perfectly clear to Investigator Wade that the "Airborne" letter was the operative document. Investigator Wade's Report of Investigation, however, recites that during the telephone interview of Mr. Kearn, that Mr. Kearn advised him that Mr. Osborne resided in a mobile home community immediately south of the Milanick property, while he served as mayor and that Mr. Osborne's interest in stopping the annexation was to use his position for his personal benefit. At the hearing, Investigator Wade stated under oath that Mr. Kearn advised him during their telephone conversation that Mr. Osborne resided in a mobile home community immediately south of the Milanick property while he was serving as mayor. Investigator Wade stated that the issue of whether or not Mr. Osborne lived in the immediate vicinity of the Milanick property was the key element in his investigation because if that were true, stopping the annexation could be a personal benefit to Mr. Osborne. Mr. Wade was a disinterested and credible investigator and witness and his testimony is taken as true and accurate. Mr. Osborne did not live in either a manufactured or mobile home. The type of home he lived in is irrelevant. What is relevant is that Mr. Osborne did not live adjacent to, or in the vicinity of, the Milanick property. In fact, Mr. Osborne did not live near the north side of town. He lived closer to the south side of town and it is unlikely that the annexation of the Milanick property would have an economic effect on Mr. Osborne's property. Mr. Kearn was aware of Mr. Osborne's resident address because he had him served with a civil suit at his residence in 2000. Mr. Kearn knew that Mr. Osborne did not live in a mobile home community, or in a manufactured home near the Milanick property, or anywhere near it. Nevertheless, he asserted that to be true when he talked to Investigator Wade. Mr. Kearn is the attorney and agent of Dr. Milanick. Mr. Kearn is, therefore, the alter ego of Dr. Milanick so that the actions of Mr. Kearn, are the actions of Dr. Milanick. The Commission, found in their Public Report, dated September 8, 2004, that Mr. Osborne's opposition to the annexation was not connected to any desire to secure a benefit for himself. The Commission dismissed the Milanick complaint on a finding of "no probable cause."
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Ethics enter an order requiring Dr. Milanick to pay Mr. Osborne $4,976.00. DONE AND ENTERED this 1st day of July, 2005, in Tallahassee, Leon County, Florida. S HARRY L. HOOPER 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 1st day of July, 2005. COPIES FURNISHED: Kaye Starling, Agency Clerk Commission on Ethics 3600 Maclay Boulevard, South, Suite 201 Post Office Drawer 15709 Tallahassee, Florida 32317-5709 James J. Kearn, Esquire James J. Kearn, P.A. 138 Live Oak Avenue Daytona Beach, Florida 32114-4912 Gary S. Edinger, Esquire 305 Northeast First Street Gainesville, Florida 32601 Martin A. Pedata, Esquire Martin Pedata, P.A. 505 East New York Avenue, Suite 8 DeLand, Florida 32724 Robert J. Riggio, Esquire Riggio & Mitchell, P.A. 400 South Palmetto Avenue Daytona Beach, Florida 32114 Bonnie J. Williams, Executive Director Commission on Ethics 3600 Maclay Boulevard, South, Suite 201 Post Office Drawer 15709 Tallahassee, Florida 32317-5709 Phillip C. Claypool, General Counsel Commission on Ethics 3600 Maclay Boulevard, South, Suite 201 Post Office Drawer 15709 Tallahassee, Florida 32317-5709 Virlindia Doss, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050
