The Issue At issue in this proceeding is whether a fence constructed by Charles and Kathleen Moorman (Moormans), as owners, and Your Local Fence, Inc. (Your Local Fence), as contractor, in the Big Pine Key Area of Critical County Concern, Big Pine Key, Monroe County, Florida, was contrary to the provisions of Chapter 380, Florida Statutes.
Findings Of Fact Background Petitioner, Department of Community Affairs (Department), is the state land planning agency charged with the responsibility of administering and enforcing the provisions of Chapter 380, Florida Statutes, including Areas of Critical State Concern, and all rules promulgated thereunder. Monroe County is a local government within the Florida Keys Area of Critical State Concern designated by Section 380.0552, Florida Statutes, and is responsible for the implemen-tation of, and the issuance of development orders that are consistent with, the Monroe County comprehensive plan and land development regulations, as approved and adopted in Chapters 9J-14 and 28-20, Florida Administrative Code. Most of Monroe County, including the Big Pine Key Are of Critical County Concern discussed infra, is contained within the Florida Keys Area of Critical State Concern. Respondents, Charles and Kathleen Moorman (Moormans) are the owners of Lots 15, 16, and half of Lot 17, Block D, Pine Heights Subdivision, Big Pine Key, Monroe County, Florida. Such property is located within the Big Pine Key Area of Critical County Concern, as well as the Florida Keys Area of Critical State Concern, and consists of native pine lands, which are natural habitat for the Key Deer. Respondent, Your Local Fence, Inc. (Your Local Fence), is a business engaged in constructing fences in Monroe County, and is owned by Mr. Moorman. On March 20, 1991, Monroe County issued to the Moormans, as owners, and Your Local Fence, as contractor, building permit No. 9110002231 to construct a fence on the foregoing property. As permitted, the fence would be constructed of wood to a height of 6 feet and, except for a setback of 25 feet, would completely enclose the Moormans' property. So constructed, the fence would measure 125 feet along the front and rear of the property and 75 feet along the side property lines for a total of 400 linear feet. Pertinent to this case, the Moormans' permit was not effective until 45 days after it was rendered to the Department (the "appeal period"), which period accords the Department an opportunity to review the permit and decide whether to contest its issuance by filing an appeal with the Florida Land and Water Adjudicatory Commission (FLWAC), and , if appealed, its effectiveness is stayed until after the completion of the appeal process. Section 380.07(2), Florida Statutes, and Section 9.5-115(a), Monroe County Land Development Regulations (MCLDR). Here, the Department, pursuant to the provisions of Section 380.07, Florida Statutes, filed a timely appeal with FLWAC to contest the issuance of such permit. Notwithstanding the Moormans' express knowledge that their permit was not effective until expiration of the Department's appeal period and, if appealed, resolution of the appeal process, the Moormans erected the fence on their property. Such action was contrary to the provisions of the Monroe County land development regulations and Chapter 380, Florida Statutes. Sections 9.5- 111(a) and 9.5-115(a), MCLDR, and Section 380.07(2), Florida Statutes. By separate recommended order to FLWAC, bearing Case No. 91-4110DRI, 91-5966DRI, 91-5968DRI, and 91-6603DRI (the "FLWAC Cases"), it was found, for reasons hereinafter discussed, that building permit No. 9110002231, issued by Monroe County for the construction of the Moormans' fence in the Big Pine Key Area of Critical County Concern was not consistent with the Monroe County comprehensive plan and land development regulations. Accordingly, it was recommended that FLWAC enter a final order reversing Monroe County's decision to issue such permit and to deny the Moormans' application for such permit. Consistency of the Moorman permit with the Monroe County comprehensive plan and land development regulations Big Pine Key is the primary habitat of the Key Deer, an endangered species, and Monroe County has designated most of Big Pine Key, including the properties at issue in these proceedings, as an area of critical county concern. 1/ Pertinent to this case, Section 9.5-479, Monroe County Land Development Regulations (MCLDR), provides: Purpose: The purpose of the Big Pine Key Area of Critical County Concern is to establish a focal point planning effort directed at reconciling the conflict between reasonable investment backed expectations and the habitat needs of the Florida Key Deer which is listed as endangered under the Federal Endangered Species Act. Focal Point Planning Program: Monroe County shall initiate a focal point planning program for the Big Pine Key Area of Critical County Concern that considers the following: The reasonable investment backed expec- tations of the owners of land within the Big Pine Key Area of Critical Concern; The habitat needs of the Florida Key Deer; The conflicts between human habitation and the survival of the Florida Key Deer; The role and importance of freshwater wetlands in the survival of the Florida Key Deer; Management approaches to reconciling the conflict between development and the survival of the Florida Key Deer; and Specific implementation programs for the Big Pine Key Area of Critical County Concern. The focal point planning program shall be carried out by the director of planning, in cooperation with the officer in charge of the National Key Deer Refuge. The planning program shall include a public participation element, and shall provide for notice by publication of all public workshops or hearings to the owners of land within the Big Pine Key Area of Critical County Concern. The focal point planning program for the Big Pine Key Area of Critical County Concern shall be completed within twelve (12) months of the adoption of this chapter, and the director of planning shall submit a report together with recommended amendments to the Monroe County Comprehensive Plan and this chapter within thirty (30) days after the completion of the focal point planning program for the Big Pine Key Area of Critical County Concern. Interim Regulations: Notwithstanding any other provisions of this chapter, no development shall be carried out on the Big Pine Key Area of Critical County Concern prior to the completion of the focal point planning program required by subsection C of this section and the adoption of amendments to the Monroe County Comprehensive Plan and this chapter except in accordance with the following: No development shall be carried out in the Big Pine Key Area of Critical County Concern except for single-family detached dwellings on lots in the Improved Subdivision District or on lots having an area of one (1) acre of more. And, Section 9.5-309, MCLDR, provides: It is the purpose of this section to regulate fences and freestanding walls in order to protect the public health, safety and welfare. * * * Big Pine Key Area of Critical County Concern: No fences shall be erected here until such time as this chapter is created to provide for the regulation of fences within this ACCC. The foregoing land development regulations were adopted by Monroe County to further and implement the standards, objectives and policies of the Monroe County comprehensive plan. Here, such regulations further the plan's "Generic Designations and Management Policies," contained within the plan's "Criteria for Designating Areas of Particular Concern," to maintain the functional integrity of habitat and, more particularly, the requirement that: Development within areas identified as Key Deer habitat shall insure that the continuity of habitat is maintained to allow deer to roam freely without impediment from fences or other development. Rule 28-20.020(8), Generic Designations, subparagraph 4, Florida Administrative Code. Over the course of the past five years, Monroe County has discussed design criteria for fences on Big Pine Key but has not yet adopted a regulation that would provide for fences within the Big Pine Key Area of Critical County Concern, as mandated by Section 9.5-309, MCLDR, nor has Monroe County amended Section 9.5-479, MCLDR, to permit, pertinent to this case, any development except single-family detached dwellings on lots in the Big Pine Key Area of Critical County Concern. Under such circumstances, it was concluded in the FLWAC Cases, and is concluded here, that the permit issued by Monroe County for the construction of the Moorman fence in the Big Pine Key Area of Critical County Concern is not consistent with the Monroe County comprehensive plan and land development regulations. Other considerations At hearing, Mr. Moorman offered proof that the Department had failed to appeal every fence permit issued by Monroe County in the Big Pine Key Area of Critical County Concern, and contended, as a consequence of such failure, that the Department should be precluded from contesting the issuance of his permit, or maintaining this enforcement action. Mr. Moorman's contention was not found persuasive in the FLWAC Cases, and is not found persuasive in this case. Here, the proof demonstrates that the Department's Key West Field Office, to which Monroe County renders its permits, was established in 1983, and that from January 1, 1984 to September 15, 1986, the Monroe County land development regulations did not regulate fences on Big Pine Key and the Big Pine Key Area of Critical County Concern (BPKACCC) did not exist. Effective September 15, 1986, the Monroe County land development regulations were adopted in their current form and, among other things, created the BPKACCC and prohibited fencing within such area. Accordingly, prior to September 15, 1986, there was no prohibition against erecting fences in the BPKACCC, and no reason for the Department to question the propriety of such develop-ments. Since the effective date of the current regulations, the Department has, as contended by Mr. Moorman, failed to appeal some permits for fencing in the BPKACCC. Such failure was, however, persuasively shown to have occurred as a consequence of severe understaffing, which inhibited the Department's ability to review all permits issued by Monroe County in a timely fashion (i.e., before the appeal period expired), and the breach of a memorandum of understanding entered into between the Department and Monroe County, and not as a consequence of any position adopted by the Department that fencing in the BPKACCC was permissible. Accordingly, the Department's appeal of the Moorman permit is not inconsistent with any position it has previously taken with regard to the propriety of fencing in such area. 2/ Moreover, neither the Moormans nor Your Local Fence made any inquiry of the Department as to why some permits were appealed and others were not, or requested that the Department waive its appeal period, prior to erecting their fence. Under such circumstances, it was found in the FLWAC cases, and is so found here, that the proof fails to support the conclusion that the Department misled the Moormans or Your Local Fence so as to bar it from contesting the propriety of their permit or, here, from maintaining this enforcement action. 3/
Recommendation Based on the foregoing findings of fact and conclusions of law, it is recommended that the Department of Community Affairs enter a final order directing the respondents, Charles Moorman, Kathleen Moorman, and Your Local Fence, Inc., to remove the 400 linear foot fence constructed on the Moorman property, and that the respondents not construct, reconstruct, enlarge or expand a fence on the subject property unless and until such time as the Monroe County Board of County Commissioners adopts, and the Department of Community Affairs approves, a comprehensive plan and land development regulations which specifically authorize such development. Removal of the subject fence shall occur within thirty (30) days after the entry of the final order. RECOMMENDED in Tallahassee, Leon County, Florida, this 30th day of April 1992. 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 30th day of April 1992.
Findings Of Fact Respondent, Arthur B. Lujan (Lujan) and his wife, Betty L. Lujan, are the owners of a 34.09-acre parcel of land which includes Enchanted Island and its surrounding submerged lands. 1/ Enchanted Island is a 3 1/2-acre island located in Florida Bay to the east of Key Haven and north of U.S. Highway 1, Monroe County, Florida. On January 15, 1986, Lujan applied to Monroe County for a land clearing permit and fill permit. The permits, as requested, would have permitted him to clear, after-the-fact, the island of vegetation, fill the island to +4' MHW (mean high water), and restore an access road to the island. Lujan's applications were approved, and the permits issued on February 4, 1986. The Department of Community Affairs (Department), pursuant to Section 380.07, Florida Statutes, filed a timely appeal with the Florida Land and Water Adjudicatory Commission (Adjudicatory Commission). Background In 1970, Lujan and his wife purchased the subject property, which included Enchanted Island and its surrounding submerged lands. At that time, an access road connected the western tip of the island to U.S. Highway 1. 2/ In or about April 1972, Lujan constructed, by the deposit of fill over bay bottom, an access road from U.S. Highway 1 to the eastern tip of Enchanted Island. Since this work was being performed without a federal permit, the Department of the Army, Corps of Engineers (Corps) on April 26, 1972, advised Lujan to cease and desist all unauthorized work in navigable waters of the United States. Lujan complied with the Corps' request, but did not remove the road. In late December 1972, Lujan began fill work on the western access road and on Enchanted Island itself. According to Lujan, his intention was to clearly define the boundary of Enchanted Island, raise its elevation from approximately +3' MSL (mean sea level) to +4' MSL, and restore the western access road, which had been subjected to erosion. Lujan was performing the work on the access road without a federal permit, and on January 4, 1973, the Corps advised Lujan to cease and desist all unauthorized work in navigable waters. 3/ In response to the cease and desist order, Lujan ceased activity on both the access road and Enchanted Island itself. 4/ At that time, the boundary of Enchanted Island had been defined by a perimeter road above MHW and the access road restored, but the elevation of the island had not been raised or its interior altered. Lujan further responded to the Corps' cease and desist order by filing suit in the United States District Court, Southern District of Florida (District Court) to enjoin the Corps from any further interference with the use and enjoyment of Enchanted Island. That suit was dismissed without prejudice when Lujan agreed to submit an after-the-fact permit application to the Corps. That application, filed May 30, 1973, sought leave to restore the western access road, place three culverts through the road, and to remove the unauthorized eastern access road and place its material on the island to bring the final elevation of the island to +4' MLW (mean low water). Subsequently, on June 17, 1974, the Corps denied Lujan's permit. In February, 1975, Lujan again filed suit against the Corps in District Court seeking injunctive and declaratory relief and de novo review of the Corps' permit denial. The United States responded by instituting suit against Lujan for violation of the permit requirements of Section 10 of the Rivers and Harbor Act of 1899, and the Federal Water Pollution Control Act of 1972. In their action, the government sought civil penalties, and an order that the unauthorized work be removed and the area restored to its pre-existing condition. These two actions (Case Nos. 75-150-CIV-EBD and 75-635-CIV-EBD) were ultimately consolidated. On December 5, 1975, the District Court ruled that the Corps' permit denial was neither arbitrary nor capricious. The court further ordered Lujan to remove the western access road and restore the area to the natural depth of the adjacent bottom, and to pay a civil penalty. 5/ Lujan appealed. On appeal, the United States Court of Appeals, Fifth Circuit (Appellate Court) agreed with Lujan's assertion that, inter alia, the Corps had breached an agreement to only consider in their determination substantive objections from the state agencies who had to be notified. The Appellate Court found the state agencies' objections to lack substance, and reversed the decision of the District Court. On remand, the Corps was instructed not to consider any previously filed objections from the state agencies since they were not specific in nature. 6/ Following remand, the Corps notified Lujan that viewed from the context of its 1975 regulations, the interior of Enchanted Island was deemed a wetlands area which could not be filled absent a Corps permit. The District court found, however, that since the Corps acted improvidently in stopping Lujan's activities in January 1973, it would be inequitable for the Corps to retroactively apply its wetlands policy to Lujan's property. Succinctly, the court found in its order of April 26, 1985, that: In 1972, when Lujan initially was ordered to cease work on the road, Corps jurisdiction was not exercised above MHTL. Its 1975 regulations created a "wetlands policy" which asserted jurisdiction over activities above MHTL. Had the Corps not interfered capriciously with Lujan's activities, he would have completed his fill project prior to the change in regulations and the project would have been "grand fathered in" ... Retroactive application of the permitting requirement is not appropriate. Consequently, the court held: The Corps is directed to reopen the permit application only with respect to the western access strip and only so that the administrative process may effec- tuate a reasonable restoration plan. No permitting is required as to Enchanted Island above MHTL, and the Corps is enjoined from exercis- ing jurisdiction over the area (to the extent that Lujan's activities do not affect navigable waters, which would confer jurisdiction upon the Corps). The parties shall meet, formulate an agreed restoration order, and submit it to the court for evaluation within sixty (60) days of this order. (Emphasis added). Lujan and the Corps experienced no difficulty in formulating an agreed restoration plan for the western access road; however, they reached an impass when Lujan insisted that the plan include approval of his desire to fill the interior of Enchanted Island to +4' MHW. While it took no exception to the court's order that it not exercise jurisdiction over the interior of Enchanted Island, the Corps refused to agree that a provision directing the filling of the interior of the island was appropriate. According to the Corps, such matters were not a subject matter of the current litigation and could be an infringement upon county and state permitting requirements. At a hearing held November 15, 1985, at which Mr. Lujan was present, the court concurred with the Corps and directed that any language which referred to raising the existing uplands of Enchanted Island to +4' MHW be deleted. Notwithstanding the court's instruction that the restoration plan contain no reference to filling the uplands of the island, the plans attached to the consent agreement still contained such language, in brackets, when submitted to the court. By order of December 20, 1985, the court ratified the restoration plan, as submitted; however, by order of February 14, 1986, the court corrected its oversight by deleting the bracketed language which dealt with filling the uplands of the island. Current Development Activities On January 6, 1986, Lujan applied with the Florida Department of Transportation (DOT) for a driveway permit which would allow him to connect the western access road through DOT right-of-way to U.S. Highway 1. Receipt of this permit was crucial to Lujan's plans, since at sometime subsequent to January 4, 1973, the portion of the western access road which occupied DOT right-of-way had been removed, creating a water gap in the road. On January 8, 1986, the requested permit was granted, with the following legend stamped conspicuously thereon: VALIDITY OF THIS PERMIT IS CONTINGENT UPON PERMITTEE OBTAINING NECESSARY PERMITS FROM ALL OTHER AGENCIES INVOLVED. On January 14, 1986, Lujan began to prepare the island to receive fill. On that day Lujan filled the "water gap" in the access road and began the process of leveling the high and low portions of the island by bulldozing on the southerly end of the island. It was Lujan's intention to level to the north end of the island and along the access road, and then fill and grade the island. At approximately 5:30 p.m., January 14, 1986, George Garrett, a Monroe County biologist, arrived on the job site with the announced intention of red tagging it since no county permits had been obtained. In response, Lujan exhibited a copy of the District Court's order. Mr. Garrett, at that point, elected not to red tag the job site and requested that Lujan with his supervisor the next day. 7/ Mr. Garrett's request that Lujan meet with his supervisor the next day regarding the project did nothing to deter Lujan's clearing efforts. The proof establishes that when Mr. Garrett left the island on January 14, 1986, there had been some scarification at the southerly end of the island, but the mangrove community which dominated the central portion of the island, discussed infra, had not been disturbed. At 8:30 a.m., January 16, 1986, when the island was again inspected, the island had been cleared of most vegetation and leveled, and the mangroves which had occupied the interior of the island were now resting in several large piles of debris. On January 15, 1986, Lujan met with Bob Herman, Mr. Garrett's supervisor, to discuss the activities which were occurring on the island. As a consequence of that meeting, the job site was red tagged pending Lujan's application for and receipt of Monroe County permits. On January 15, 1986, Lujan filed an application with Monroe County for a fill permit which would permit him to fill the island to +4' MHW and restore the western access road, as well as a land clearing permit which would permit him, after the fact, to clear the island of vegetation. Attached to the applications were copies of the District Court's order of December 20, 1985, and the consent agreement of December 16, 1985. On each application Lujan affixed the following legend: This application is without waiver of applicant's rights in Case Nos. 75-150-CIV-EBD and 75-635-CIV-EBD and position that no permits may be required and that such permits (if any) should be processed using 1972 county laws then in effect. Lujan's applications were not accompanied by a vegetation survey and plot plan as required by Chapters 4 and 18, Monroe County Code, infra. The applications were, however, accompanied by a copy of the December 16, 1985, consent agreement, which contained plans for the restoration of the westerly access road. These plans delineated the areas to be filled, the location of culverts, and the location and elevations of the proposed paved access road. On February 4, 1986, upon instructions from its County Attorney, Monroe County issued a fill permit and land clearing permit to Lujan despite his failure to provide a vegetation survey or disclose his development plans for the island. Each permit contained the following remarks: Said permit issued in accord with the Federal Court Orders entered by Judge Ned Davis on the 26th day of April, 1985, and on the 20th day of December, 1985. Immediately upon receipt of the county permits, Lujan began to fill the interior of the island and restore the westerly access road as rapidly as possible. According to Lujan, he had a contract to obtain fill on advantageous terms if he could promptly remove it from the Key West naval station. By February 14, 1986, auspiciously, Enchanted Island had been cleared of vegetation and its elevation raised to +4' MHW, and the access road restored. On February 20, 1986, the Department of Community affairs (Department) noticed its appeal of the Monroe County permits to the Adjudicatory Commissions. 8/ Enchanted Island At the time Lujan was stopped by the Corps on January 4, 1973, the topography of Enchanted Island had been altered by the establishment of a perimeter road around its boundaries above the MHW mark, and its westerly access road restored. Mangroves fringed the island waterward of the perimeter road, but none existed along the newly restored access road. The interior of the island, located upland of the perimeter road, was not shown to have been significantly altered at that time. On January 14, 1986, when Lujan began to clear and grade the island, its topography had not changed significantly from January 1973; the perimeter of the island was still defined by a roadway above MW and the fringing mangroves waterward of the road still stood. At the center of the island, upland from the perimeter road, a depression existed which covered approximately 15-25 percent of the island's lands and which was characterized by red, black and white mangroves, as well as some buttonwood. This depression was saturated by water at a frequency and duration adequate to support its wetlands species; however, since it was located upland of the MHW mark the Source of its waters was most probably from percolation and rainfall. Located elsewhere on the interior of the island were buttonwood, Bay Cedar and sea oxeye daisy. By January 16, 1986, Lujan had cleared the interior of the island of any significant vegetation, and leveled it. The mangroves, which now fringed portions of the access road, as well as those which fringed the island, were not, however, disturbed. Monroe County Regulations Chapter 4, Article II, of the Monroe County Code (MCC) establishes and regulates development within a shoreline protection zone. Pursuant to Section 4-18, MCC, the zone is established as follows: There is hereby established a shoreline protection zone in all that portion of the county defined in Section 22F-8.02, Florida Administrative Code, and generally known as the Florida Keys. The shoreline protection zone includes submerged lands covered by the waters of the Atlantic Ocean and the Gulf of Mexico (Florida Bay) out to the seaward limit of the State's territorial boundaries, whether in sovereign or private ownership, including those lands contiguous to such waters where fringing mangrove communities occur. In order to maintain the functional integrity of these mangrove communities, the interior boundary of the shoreline protec- tion zone is hereby established at a line extending fifty (50) feet laterally upland from the landward limit of the shoreline mangroves. The shoreline mangroves shall include mangrove communities which contain red (Rhizophora mangle), black (Avicennia nitida) or white (Laguncularia racemosa) mangroves but excluding those mangrove communities which are isolated inland and separated from open water areas by nonmangrove natural vegetative communities. Consequently, all of the western access road and the portion of Enchanted Island lying within 50' upland from the landward limit of the shoreline mangroves are within the shoreline protection zone. The mangroves which occupied the depressed area in the central portion of the island were not, however, within the zone. Pemittable uses within the shoreline protection zone are delineated by sections 4-19 and 4-20, MCC, as follows: Sec. 4-19. Permitted uses in zone. Only the following uses are permitted within the shoreline protection zone established by this article: Access canals or channels; Docks; Elevated boardwalks; Other structures elevated on pilings; Utility lines, crossing or rights-of-way. Sec. 4-20. Uses permitted upon special approval; special exception uses. The following uses are permitted by special approval of the zoning board as provided by the provisions of chapter 19, article IV of this Code of Ordinances. Access driveways and turnarounds for single-family residences. [Additionally] ... the follow- ing standards shall also be met before the zoning board may grant approval for a special exceptions use within the shoreline protection zone: The principal structure shall be located as close as possible to the landward edge of site so as to reduce driveway length. All access driveways and turnarounds shall provide for piped culverts under the access driveway and/or turnaround at appropriate intervals so as to maintain tidal regime. To secure a permit for development within the shoreline protection zone, whether for a permitted use or special exception use, it is incumbent upon the applicant to comply with the provisions of section 4-21, MCC. That section provides: No development permit of any kind shall be issued to any person to undertake any development within the shoreline protection zone without first obtaining a zoning clearance from the zoning official. An application for any development permit within the shoreline protection zone shall be referred to the zoning official. The materials to be referred to the zoning official shall include the following, in duplicate: Proposed site plan A natural vegetation map Other information as may be appropriate to determine the impact of the development on the natural functions of the shoreline protection zone. The placement of landfill within the shoreline protection zone is hereby prohibited and no permit shall be issued authorizing the same, except as provided in section 4-20 of this article. No application for a zoning clearance shall be approved and no permit shall be issued except upon a written finding by the zoning board 9/ that the proposed development will not encroach upon or destroy the value of areas within the shoreline protection zone or otherwise adversely affect those conditions and characteristics which promote shoreline stabilization, storm surge abatement, water quality maintenance, wildlife and marine resource habitats, and marine productivity. Lujan's proof in support of his request for a fill permit within the shoreline protection zone was deficient. He offered no natural vegetation map or proposed site plan, and offered no proof that his proposed activity would not encroach upon or destroy the value of the shoreline protection zone or otherwise adversely affect shoreline stabilization, storm surge abatement, water quality maintenance, wildlife and marine habitats, and marine productivity. Significantly, Lujan also failed to disclose his plans for the development or use of the island. Absent proof that the fill activity is designed to create an access driveway or turnaround for single-family residences, the deposit of fill within the shoreline protection zone is prohibited. 10/ Section 4-21(c), MCC. Under the circumstances, it is concluded that Lujan has failed to demonstrate that he is entitled to a special exception use which would permit the deposit of fill on the westerly access road or upon those lands lying within 50' upland from the landward limit of the shoreline mangroves (the shoreline protection zone). Lujan's failure to disclose the nature of his plans to develop the island also rendered it impossible to evaluate the criteria established by section 4-20(b)(1), MCC. The deposit of fill within those areas of Enchanted Island lying upland of the shoreline protection zone is governed by chapter 19, MCC. Pertinent to this proceeding, section 9-111, MCC, provides: (a) Deposit of Fill. No person shall engage in the deposit of fill within the unincorporated areas of Monroe County, without first having obtained a county permit for such activity. (1) Definitions. Deposit: The act of placing, discharging or spreading any fill material. Fill: Any material used or deposited to change elevation or contour in upland areas, create dry land from wetlands or marsh in an aquatic area, or material discharged into a body of water to change depth or benthic contour. * * * Uplands: Land areas upon which the dominant vegetative communities are other than species which require saturated soil for growth and propagation. Wetlands: Aarshes and shallow areas which may periodically be inundated by tidal waters and which are normally characterized by the prevalence of salt and brackish water vegetation capable of growth and reproduction in saturated soil, including but not limited to the following species: * * * Black mangrove Buttonwood Red mangrove White mangrove * * * * * * * * * * * * Upland permit application. In reviewing all applications for a permit in upland areas, consideration will be given to the nature of indigenous vegetation, and protection of same as defined in chapter 18 of the Monroe County Code, which set standards for the removal of endangered and protected vegetative species, and to drainage patterns and the possible effects the deposit of fill would have upon water and storm runoff. * * * Wetland permit application. In reviewing all applications for a permit in wetland areas, consideration will be given to the natural biological functions, including food chain production, general habitat, nesting, spawning, rearing and resting sites for aquatic or terrestrial species; the physical aspects of natural drainage, salinity and sedimenta- tion patterns, physical protection provided by wetland vegetation from storm and wave action. The proposal will also be reviewed in conjunction with chapter 4 of the Monroe County Code, which provides for the protection of wetland vegetative communities within Monroe County. When reviewing applications for fill permits, whether within or without the shoreline protection zone, the provisions of Chapter 18, MCC, and the Monroe County Comprehensive plan, which deal with land clearing, must also be evaluated. Pertinent to this case, chapter 18 provides: Sec. 18-18. Land clearing permit -- Required ... It shall be unlawful and an offense against the county for any person, either individually or through agents, employees or independent contractors, to clear, by mechanical or any other means, any land located within the unincorporated areas of the county without having first applied for and obtained a land clearing permit from the building department of the county. A land clearing permit shall be required for the removal of all or parts of naturally occurring vegetation in the county. * * * Sec. 18-19. Same -- Application (a) Any person requesting a land clearing permit shall file an application with the county building department on a form provided by such department. Such application shall contain the following information: * * * A map of the natural vegeta- tive communities found on and adjacent to the site, prepared by a qualified biologist, naturalist, landscape archi- tect or other professional with a working knowledge of the native vegetation of the Florida Keys ... With projects that are five (5) acres or more in size, the vegetation map does not have to identify the location of individual trees. For projects of this size, the vegetation map should identify the different vegetative communities, such as tropical hammock, mangrove and buttonwood transitional, and be accompanied by a descriptive narrative that identifies any significant trees or natural features of the side (sic). An overall site plan of the land for which the permit is requested, indicating - the shape and dimensions of said land, the purposes for which clearing is requested, and the steps taken to minimize effects of clearing on surrounding vegetation and water bodies. A site plan analysis prepared by a qualified individual, as described above in (3), shall be included. * * * Sec. 18-21. Same -- Approval. After an application for a land clearing permit has been filed and verified, the building department and the planning and zoning department shall review and consider what effects such removal of vegetation will have upon the natural resources, scenic amenities and water quality on and adjacent to the proposed site. Upon finding that such removal of natural vegetation will not adversely affect the natural resources, scenic amenities and water quality adjacent to the proposed site, the permit shall be approved, approved subject to modification or specified conditions, or denied. In the event a request is denied, the reasons for denial shall be noted on the application form and the applicant shall be so notified. Pertinent to this case, the Monroe County Comprehensive Plan, Coastal Zone Protection and Conservation Element, provides: NATURAL VEGETATION MANAGEMENT POLICIES In recognizing the need to preserve as much natural vegetation as possible, the County will direct its land use and development regulations to minimize destruction of natural vegetation and modification of landscape. Guidelines and performance stan- dards designed to protect natural vegetation from development will be developed and enforced. Clearing of native vegetation for development will be controlled. Land clearing will be restricted to site area being prepared for immediate construction. If the construction cannot begin within reasonable time, the cleared area will be replanted with ground cover. * * * 3. Regulations controlling development in areas characterized primarily by wetland vegetative species such as mangrove and associated vegetation will emphasize preservation of natural vegetation to the maximum degree possible. Local regulations in this regard will be consistent with the appropriate State and Federal regulations. 8. The existing County ordinances designed to protect and conserve natural vegetation will be strictly interpreted, rigidly enforced, and/or amended when necessary. Lujan violated the provisions of sections 9-111 and 18-18, MCC, when he, without benefit of a permit, leveled and cleared Enchanted Island of vegetation. Now, after the fact, he requests the appropriate fill and land clearing permits; however, he offers no vegetation map, no plan to mitigate the removal of endangered and protected species, and no proof as to the drainage patterns on the island and the probable effect the deposit of fill or the removal of vegetation would have upon storm runoff or water quality. While no vegetation map was submitted, the proof at hearing did establish the general nature of the vegetation existent on the island prior to clearing. That proof established that the mangrove community previously located at the center of the island reposed in relative isolation, and that its natural biological functions were nominal. Consequently, the removal of that vegetation was not counterindicated from the biological function perspective; however, the impact of such removal and the filling of that area on storm runoff and water quality was not addressed by Lujan. Further, Lujan offered no plan to mitigate the impact caused by his removal of Bay Cedart, and endangered species. With respect to the access road, Lujan offered no vegetation survey, and the proof was insufficient to assure that only minimal clearing would occur. Additionally, Lujan offered no proof concerning the impact that such removal, if any, and the deposit of fill would have on drainage patterns, storm runoff, or water quality. The premises considered, it is concluded that Lujan has failed to demonstrate his entitlement to a fill permit or land clearing permit for Enchanted Island and the access road. In addition to the reasons set forth in paragraphs 27-28, supra, Lujan has also failed to address the issues of storm runoff and water quality.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Florida Land and Water Adjudicatory Commission enter a Final Order reversing Monroe County's decision to issue the subject permits No. 14723A and 14724A, and deny Lujan's request for a land clearing and fill permit for Enchanted Island and the westerly access road. That such Final Order specify those items set forth in paragraph 10, Conclusions of Law, as the changes necessary that would make Lujan's proposal eligible to receive the requested permits. DONE AND ORDERED this 9th day of April, 1987, in Tallahassee, Florida. WILLIAM J. KENDRICK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of April, 1987.
The Issue The issue for consideration in this case is whether the Respondent's license as a certified general contractor in Florida should be disciplined because of the alleged misconduct outlined in the Administrative Complaint filed herein.
Findings Of Fact At all times pertinent to the allegations contained herein, the Petitioner, Construction Industry Licensing Board was the state agency responsible for the licensing and regulation of construction contractors in this state. Respondent, Frank W. Miller, was licensed as a certified general contractor in Florida under License No. CG C036176. On June 2, 1988, Lots of Casey Key, Inc., a group of investors and contractors, including the Respondent, purchased the land in question located in Sarasota County, Florida. On June 26, 1988, the group hired an environmentalist from a list provided by the county, who evaluated the property with a view toward development. The developers also hired a surveyor and an engineer to get the proper permits for the development. They also published all required notices and acquired at least some of the required permits for the initial stage of the development. This consisted of the construction of a fishing pier extending from the property into Sarasota Bay. This permit was taken out by the Respondent. The Respondent and his associates also contacted Robert B. Patten, an environmental consultant, with a view toward having the eight acres in question rezoned so that houses could be built on it. After examining the property, however, Mr. Patten advised Respondent there were so many protected mangroves on the property, both state and local permits would be required and he, Patten, was not interested in the job. He suggested that Respondent hire an attorney to insure the proper permits were obtained. Respondent claims that in January of 1989, he took his site drawing for the proposed development to the county natural resources office headed by Mr. McCarthy, told him what was planned at the property, and secured his approval. Mr. McCarthy was not called as a witness, and all the appropriate permits were not offered, so at most it can be found that McCarthy approved the concept of the activity in principle. At approximately this same time, the environmentalist the group hired to insure compliance with the environmental requirements purportedly also assured them that the proposal was environmentally sound and properly permitted. It is accepted that he did. As a result, the group acquired the state and county permit for the pier and, in addition, a permit to clear the uplands. They also procured a permit from the Southwest Florida Water Management District and the appropriate agency governing the construction and installation of utilities. In addition, the Respondent procured a permit allowing construction of a boardwalk and a seawall. He did not, however, procure the appropriate permit to allow him to cut, trim, or top mangroves in the numbers shown here. The group hired Southern Landscaping to do all the land work under a contract which called for all mangrove trimming to be done in accordance with the Division of Natural Resources rules This company, which was the low bidder in the procurement process, was relied on to trim the mangroves in accordance with the law and before beginning work, showed how the trees would be trimmed. It appeared to Respondent at this time that the work was being and would be done properly. On March 10, 1989, Belinda S. Perry, an employee of the county's Natural Resources Department, was out on Casey Key and observed that at the Respondent's work site clearing work was being done. She questioned the permitability of this work. She also observed that the mangroves on the north side of the property had been improperly cut, and she asked her associate, Mr. McCarthy, to check it out. He did and thereafter, on March 14, 1989, Respondent came to the office with a copy of his state-issued permit. After analyzing the permit and comparing the work done with the terms thereof, Ms. Perry and Mr. McCarthy advised Respondent it appeared his work was in excess of the limits imposed by his permit and that they would have to notify state authorities and get back to him. At that time, Respondent was cooperative and indicated he wanted to get the proper authorization. As a result, Ms. Perry contacted Ms. Toledo, of the Department of Environmental Regulation, discussed the possible violation with her, and arranged to visit the site with her on March 20, 1989. When they did, Ms. Perry again observed the cutting on the North side of the property in addition to which there was a corridor which had been cut to the east (water) side of the property heading toward the bay. At that point, they contacted Mr. McClintock, the forester, who examined the Respondent's permit. When he saw it permitted only the relocation of 20 palm trees and made no mention of or gave no approval of cutting or trimming of mangroves, he authorized the issuance of a stop work order on March 20, 1989. Ms. Perry and Ms. Toledo, pursuant to the terms of that order, served a copy on Mr. Miller and advised him he was in violation of both state and county regulations and should discontinue the work at the site. Ms. Toledo recalls that when she visited the site on March 20, 1989, she observed much the same situation as described by Ms. Perry. She also recognizes that one of Respondent's permits allowed the moving of palms, and he also had one for the construction of a fishing pier. As a part of this second permit, Respondent was allowed to cut mangroves. Nonetheless, she noted on her visit that in the area to the left of the pathway, many more mangroves had been cut than were allowed by the permit. This cutting was in the form of trimming in excess of any exemption criteria outlined in Rule 17-27.060, F.A.C., (17- 321.060), which allows trimming by a property owner without a permit, but of no more than 25 % of the lateral branches. The red mangroves on the property had been topped which is totally prohibited, and the trimming of the remaining white and black mangroves was to an extent in excess of the permitted 25%. At that time, Mr. Miller indicated to Ms. Toledo that he was the general contractor in charge of the site, and the workers doing the actual trimming were operating under his direction. This is corroborated by the testimony of Mr. Boatright, one of the trimmers, who indicates much the same. At that time, in Ms. Toledo's opinion, Mr. Miller was uncooperative and aggressive and as a result, on March 31, 1989, she drafted a warning notice which was issued on April 3, 1989. On that latter date, Ms. Toledo again went to the site and saw that additional and different mangroves had been trimmed in excess of the exemption criteria mentioned above. Thereafter, on April 7, 1989, she had a telephone conversation with the Respondent during which she advised him that the Department of Environmental Regulation intended to file criminal and civil charges against Lots of Casey Key, Inc. because of the violations described. At that time, Respondent expressed his regret that the situation had happened. As a result of the visits by Ms. Toledo and Ms. Perry, in late March or early April, 1989, Steven T. Cooley, environmental prosecutor for the 15th Judicial Circuit of Florida, was notified through the Sarasota County Sheriff's Department and Division of Natural Resources that there was significant damage to a mangrove forest at Lots of Casey Key. Mr. Cooley conducted an extensive investigation into the matter and caused a collateral criminal investigation to be conducted as well, and as a result of these inquiries, decided to file criminal charges against Mr. Miller and a co-defendant, Mr. Burke. This decision was based on the investigation which revealed that the county's tree protection ordinance, Ordinance 83-44, which included mangroves among the protected species, had been violated. It appeared that Respondent and Mr. Burke had hired subcontractors who committed a significant cutting, (trimming, topping and stumping) of more than 2000 mature trees. The Respondent and Burke were contacted by code enforcement people, (Perry and Toledo), and advised to stop. Nonetheless, additional damage was done after the notice to stop and a Stop Order was thereafter issued. Respondent had a permit to cut mangroves in a corridor area out to the fishing pier, but the actual cutting far exceeded the terms of the permit. The first cutting was a thinning out of mangroves around Casey Key, which, in itself, was a violation, and even after the Respondent was informed he was in violation, he improperly cut more trees. Not all trees were cut down to the ground, but many of those which were illegally trimmed were trimmed to a point where the tree would ultimately die. This was verified by county tree experts. Mr. Cooley filed criminal charges against the Respondent rather than the actual workers who did the cutting because, in his opinion and as a result of his investigation, the workers were merely agents working under the direction of the Respondent. Mr. Miller originally pleaded Not Guilty to the charges against him but subsequently, on June 25, 1990, changed his plea to Guilty. At a sentencing hearing held in December, 1990, adjudication of guilt was withheld, and Mr. Miller was fined a total of $15,000.00; ordered to perform 500 hours of public service, and ordered to spend 10 weekends on the road gang. In addition to the criminal charges, a civil suit was filed by the county against Lots of Casey Key, Inc., to prevent additional cutting of mangroves. By stipulation, a temporary injunction was entered. Trial on the permanent injunction had not been held at time of hearing. According to Mr. McClintock, a sampling taken on March 22, 1989, after the stop work order was approved, showed approximately 2175 mangrove trees had been severely cut on the northern side of the property and between 75 and 100 cut down to the ground in the corridor on which the pathway to the fishing pier was to be constructed. This accounted for a total of 2275 trees. When he went back to the property on March 30, 1989, after the stop work order had been issued, McClintock observed that while cutting was no longer in progress, an additional cutting had taken place, and he counted approximately 78 additional trees which had been destroyed. He later verified that additional trees were cut in the corridor area as well. Taken together, a total of approximately 2350 trees were improperly cut in violation of the state and county codes protecting mangroves. This destruction is the largest in the recollection of Norman C. Easey, the Director of the county's forestry division, and it constituted a serious impact on what was then the largest single mangrove stand in the southern part of Sarasota County. Respondent does not deny that the trees were cut. He notes, however, that after Ms. Perry first came out and advised him of the possibility he was in violation, he agreed not to cut further and in fact, tried to cooperate. He met with his associates who encouraged him to nonetheless continue the cutting even though he advised against it. Ultimately he was able to convince them. An associate, Norman Sharrit, the architect for the project, recalls that Respondent spontaneously exclaimed to him that Burke and Jaffe, the other partners, directed the additional cutting after the stop work order was issued. Nonetheless, after securing his associates' agreement to suspend any cutting, Respondent attempted to contact the trimmers, Southern Landscaping, to advise them to stop work but claims he could never find anyone on site. In this claim, he is supported by Davis Baker, an adjacent retired homeowner, who, in observing the clearing process on a daily basis, noticed that the cutters kept very irregular hours and were gone as often as not. Respondent also claims he left word for the cutters to stop on the company's answering machine but the work continued. It is this additional work, after Respondent's efforts to get the work stopped, that constituted the additional cutting charged. Respondent also claims that the additional trees near the walkway were cut as activity beyond the scope of the contract which he had entered into with the landscape company. Mr. Miller also contends that the work was not done under his license because he was not an owner of Casey Key Estates. The owners of that company, the parent company for development, were Mr. Burke and Mr. Jaffe. He was, however, the Secretary of the corporation, but claims he did not have complete control as to who did what and where. He claims he was not a stockholder in the company and had no ownership in the operation. Under the terms of his agreement with the owners, he was to get a percentage of the profits when the development was completed. As of the date of the hearing, he has received nothing in the way of remuneration. Except for the claim that the work was not done under his license, it is so found. He also claims that in the instant case he was not acting as a contractor for the project. His reasoning here is not supported by the facts. His relationship with the other developers was based on the fact that he obtained the option to purchase the land; he was to put in the utilities; and he was to build the homes and construct the walk over to the beach and the seawall. He also was the one who obtained all permits and who entered into the contract for trimming with Southern Landscaping. It is found, therefore, that he was, in fact, the general contractor for this project and ultimately responsible for all actions taken under his certificate. Mr. Miller cites in his defense that as he understands the law, mangroves can be trimmed without a permit between October and March, up to 25% of the lateral growth, and in his opinion, the trimming did not constitute more than that allowable 25%. This is clearly not so, as evaluation of the Petitioner's photographs, taken near the time in question, which Respondent agrees fairly represents the site at the time, clearly indicates that more than 25% of the lateral growth of the trees' foliage was taken off. It should be noted, however, that a photograph taken some substantial time after the cutting shows that the trimmed area is filling in again and the trees are not dead. This does not mean there was no damage, however. Mr. Easely, the Director of Forestry, whose expertise indicates a reliable opinion, opined that the mangroves are not as healthy as they should be. Once cut, they are going through a period of shock and are branching out from reserve buds developed by the tree for emergency situations such as fire and damage. The tree, once in this condition, has a much shorter life span. Though new trees may, and probably will come in, there is a loss of habitat in the a rea as a result of the trimming, of some 30 to 40 years. In any case, minimization of damage does not excuse or justify prohibited trimming.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that Respondent, Frank W. Miller's certification as a General contractor be suspended for three years, with the execution of the last two years of the suspension stayed under such terms and conditions as prescribed by the Construction Industry Licensing Board, and that he pay an administrative fine of $5,000.00. RECOMMENDED this 8th day of April, 1991, in Tallahassee, Florida. ARNOLD H. POLLOCK, 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 8th day of April, 1991. COPIES FURNISHED: Robert B. Jurand, Esquire Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Frank W. Miller 20 Dover Drive Englewood, Florida 34223 Jack McRay General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Daniel O'Brien Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32202
Findings Of Fact Findings on general matters The Respondent was certified by the Criminal Justice Standards and Training Commission on June 15, 1982, and issued certificate number 02-31243. The Respondent was employed as a law enforcement officer by the Riviera Beach Police Department from March 29, 1982, to July 31, 1988. He was re-employed by that police department on March 11, 1991, and was so employed as of the date of the formal hearing. At the time of all of the events described in the findings of fact which follow, the Respondent was a certified law enforcement officer. Findings regarding the Mangonia Park incident During the evening hours of May 17, 1987, the Respondent, while off duty, unarmed, and dressed in civilian clothes, ventured into the town limits of the Town of Mangonia Park where he became involved in a fracas with a uniformed, armed, on-duty police officer of that town, Officer James C. Carr. The fracas had its inception shortly after the Respondent stopped his automobile in the outside lane of a city street that had three lanes in each direction in order to watch what Officer Carr and another Mangonia Park police officer (Officer Combs) were doing with a young black male civilian they had just stopped in the median strip of the same street. Officer Carr shouted to the Respondent that the latter should move his car. The Respondent took no action in response to that directive from Officer Carr. Annoyed by the lack of response, Officer Carr began to walk towards the Respondent's automobile as he repeated his directive to the Respondent using coarse, vulgar, confrontational words which included what are commonly referred to as "swear" words, as well as references to the Respondent's race, which is black. 2/ Officer Combs also walked towards the Respondent's automobile. The Respondent protested the manner in which Officer Carr was speaking to him and also offered the mistaken 3/ observation that his automobile was in the City of West Palm Beach, outside of Officer Carr's jurisdiction. Annoyed by the Respondent's comments and his continued failure to leave as directed, Officer Carr continued his invective. Annoyed by Officer Carr's abusive language, the Respondent addressed Officer Carr in a coarse and vulgar manner as he began to try to get out of his automobile. Officer Carr interrupted the Respondent's efforts to exit the automobile by pushing against the automobile door, thereby catching the Respondent's foot between the door and the side of the automobile. The Respondent continued to address Officer Carr in a coarse and vulgar manner and continued to struggle to get out of his automobile. Officer Carr continued to prevent his exit. Momentarily the Respondent was successful in exiting the automobile and he and Officer Carr stood face to face shouting at each other. Officer Carr made at least one verbal threat to do physical violence to the Respondent, threatened to throw the Respondent in jail, and also made threatening gestures with a baton towards the Respondent. The Respondent asked if he was under arrest and told Officer Carr not to touch him if he was not under arrest. In response to Officer Carr's further threatening gestures with the baton, the Respondent said to Officer Carr: "Don't hit me with that baton, okay? If you hit me with that baton and I'm not under arrest, I'm going to blow your brains out!" The Respondent did not take any aggressive physical action towards either Officer Carr or Officer Combs. At about this point, Officer Combs stepped in between Officer Carr and the Respondent in an attempt to keep things from getting worse. At about the same time, other off-duty police officers arrived on the scene and joined in Officer Combs' efforts. After Officer Carr and the Respondent had cooled down, it was agreed by all concerned that it was just an unfortunate misunderstanding and the participants apologized to each other. Findings regarding the Lt. Wiesen incident On November 20, 1987, the Respondent got into an argument with Lt. Steven Wiesen, one of his supervisors, regarding the latter's announced intention to recommend that the Respondent be given a suspension for abuse of sick time. The Respondent felt that he was being wrongly accused and continued to argue with Lt. Wiesen about the matter. The argument escalated to the point that Lt. Wiesen decided to go see a superior officer about the matter. As Lt. Wiesen and the Respondent were walking up the stairs to the Assistant Chief's office, the Respondent said to Lt. Wiesen words to the effect of: "This is the kind of shit that, like the post office, you know, makes somebody want to come to work and kill everybody." 4/ Lt. Wiesen's response to that comment was to ask if the Respondent was threatening him. The Respondent answered, "I don't make threats." At the time of these comments the Respondent was walking in front of Lt. Wiesen. The Respondent did not take any aggressive physical action towards Lt. Wiesen. The Respondent and Lt. Wiesen both told the Assistant Chief their respective versions of what they were arguing about and the Assistant Chief told them to both put it in writing. Findings regarding the Chief Walker incident During the evening hours of May 5, 1988, the Respondent, while off duty, unarmed, and dressed in civilian clothes, attended a meeting of the Civil Service Board at the Riviera Beach City Hall. The subject of the meeting was whether the decision of then Police Chief Frank Walker to demote the Respondent from Sergeant to Patrolman should be upheld or reversed. The Respondent's parents also attended the meeting. At the conclusion of the meeting the Civil Service Board voted to uphold the Respondent's demotion. The Respondent and his parents all felt that the Respondent had been treated unfairly by both the Civil Service Board and by Chief Walker. Shortly after the conclusion of the Civil Service Board meeting, the Respondent's mother approached Chief Walker and began telling him how she felt about the matter. She was very upset and was crying. The Respondent approached his mother and told her not to talk to the Chief any more and to come along home. He also said words to her to the effect of, "He's going to end up getting a bullet put in his head anyway." Chief Walker apparently heard part of what the Respondent had said to his mother and asked the Respondent what he had said. The Respondent replied: "I said, sir, it is my opinion that if you continue to treat people the way you do, somebody's going to put a bullet in your head." Immediately following that statement, the Chief walked away in one direction and the Respondent and his mother walked away in another. The Respondent did not take any aggressive physical action towards Chief Walker.
Recommendation On the basis of all of the foregoing, it is RECOMMENDED that the Criminal Justice Standards and Training Commission enter a Final Order in this case dismissing all charges in the Administrative Complaint. DONE AND ENTERED this 28th day of December, 1995, at Tallahassee, Leon County, Florida. MICHAEL M. PARRISH, 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 28th day of December, 1995.
The Issue Whether Petitioner, Gateway Farms, LLC, is entitled to payment from Landscape Service Professionals, Inc., and the Gray Insurance Company, as Surety, pursuant to sections 604.15 through 604.34, Florida Statutes (2015), for the purchase of trees; and, if so, in what amount.
Findings Of Fact The Parties Gateway is a producer and seller of agricultural products, including slash pine trees. Gateway operates tree farms on 200 acres in five different locations in Columbia, Alachua, and Suwannee Counties. David Hajos is the owner and principal operator of Gateway. Mr. Hajos has 17 years of experience in growing, harvesting, and selling pine and other species of trees in Florida. Respondent Landscape is a Florida licensed dealer in agricultural products, pursuant to chapter 604. Landscape is a full-service landscape business located in Tamarac, Florida. Sandy Benton has been the president of Landscape for 18 years. Respondent, Insurance Company, filed a denial of the claim and was represented at hearing by Landscape’s counsel. Gateway has been doing business with Landscape for many years, with no indication of prior problems relating to the quality of trees provided. Lynn Griffith, Landscape’s plant and soil expert, considers Gateway to be a competent and professional grower. The Setting At all relevant times, Landscape was a contractor responsible for installing landscaping at the Palm Beach County Solid Waste Authority (SWA) site on Jog Road in Palm Beach County, Florida. Pursuant to orders placed by Landscape, Gateway sold a total of 148 slash pines for use at the SWA site. The invoices for those pines are dated January 22 and 23, and February 9 and 16, 2015. Upon their arrival at the site, authorized personnel of Landscape received, inspected, and accepted the 148 slash pine trees. No problems or concerns were expressed regarding the delivery or condition of the slash pines. The Dispute Giving Rise to this Proceeding Between 20 and 30 of the trees ordered from Gateway were intended as replacement trees for the approximately 150 slash pines provided by six other vendors that had been planted by Landscape, and then died. When the dead trees were removed by Landscape, pine beetles were observed infesting the trees. Within several weeks of planting, 58 of the slash pines purchased from Gateway began to show signs of decline, resulting in their eventual death. Landscape consulted with the Palm Beach County Extension Service and industry professionals as to the cause of the death and decline of the slash pine trees, who undertook an investigation into the same. Slash pine trees are very sensitive and can be easily stressed. Stress can be caused by a variety of factors including: transplanting; harsh handling; bark exposure to sunlight, including superficial wounds to the bark; too much or too little water; or planting too deeply. The stress will cause a tree to emit chemicals that attract beetles, which inhabit the trees and may kill a stressed tree within a week or two of the infestation. In March 2015, Lynn Griffith, an agricultural consultant, conducted an SWA site visit. Mr. Griffith noted that a majority of the planted pines were healthy, but there were some that were not doing well; some had holes in them indicative of a pine beetle infestation. In his report dated March 12, 2015, Mr. Griffith opined on the impact of the ambrosia (pine) beetle infestation on the slash pines: The quantities of boreholes in some of the dead or declining pines would lead me to conclude that borers could be a primary cause of death, but in other cases the number of holes was low, indicating the pine decline was initiated by other factors. In an e-mail dated April 24, 2015, Ms. Benton advised Gateway (and JWD Trees, another supplier of slash pines to the SWA site) that the cause of the death and decline of the slash pine trees were because the two suppliers failed to properly prepare them in the nursery, and had sold them to Landscape with root systems inadequate to support the normal performance of the plant. At hearing, Ms. Benton’s opinion regarding the cause of death of the pines was echoed by John Harris, accepted as an expert in landscape economics and arborism. Mr. Harris’s opinion centered on only one possible explanation for the trees’ demise: a failure to have an adequate root system or an inability of the roots to generate new growth. Typically, this is caused by improper “hardening off” of the root system by the grower. However, on cross-examination, Mr. Harris acknowledged that while pine beetles typically infest stressed trees, if the beetle population builds up enough in an area they will attack otherwise healthy trees. At hearing, Mr. Hajos testified that the pine trees he supplied to Landscape had been properly hardened off for a period of six weeks: Hardened off is a process when you dig a tree and you hold it until it starts to regenerate new roots, so instead of just digging it up and selling it we dig it up and hold it under optimal irrigation and nursery conditions before we ship the tree. Mr. Hajos further testified that any trees that are going to die due to the stress of being dug out of the ground will die during the hardening off process. Mr. Hajos attributed the death of the Gateway trees to several factors, including stress caused by improper lifting of the trees during loading and unloading, stress caused by a delay in planting the trees after they arrived at the SWA site, and the pre-existing pine beetle infestation. Mr. Hajos examined a photograph received in evidence and explained that it showed a tree being improperly lifted by Landscape personnel during unloading. The photograph showed the strap around the tree trunk doing the primary lifting. The result is that rather than distributing the pressure between the trunk and the strap on the root ball, the root ball will be loosened, which will stress the tree. Mr. Hajos testified that he was aware that the Gateway trees that had been delivered to the SWA site were left on the ground for days before being planted. This testimony was corroborated by Landscape’s Daily Job Report log which reflected the delivery of the first load of Gateway pines to the SWA site on January 23 and 24, 2015, but that planting of those trees did not begin until January 29, 2015. On one occasion, a Landscape truck that had picked up trees from Gateway, broke down in Ocala on its return trip to Palm Beach County and had to return to the Gateway site in High Springs. There, the trees were unloaded, and then reloaded onto a different truck where they were delivered two days later to the SWA job site. This inordinate delay and additional loading and unloading further stressed the trees. Once Landscape became aware that it had a beetle infestation at the SWA site, it began a preventative spray program. However, once a pine beetle has entered the bark of a pine tree preventative spraying will be ineffective at eradicating the pest. Newly planted pine trees at the SWA site were not sprayed on the day of planting, thereby providing the pine beetles an opportunity to infest the new trees. Guy Michaud was Landscape’s job foreman at the SWA site. Mr. Michaud has been in the business of planting trees since 1983, and has worked for Landscape for 14 years. Mr. Michaud could not testify with certainty that the Gateway trees died of inadequate roots, as opposed to a beetle infestation. None of the other species of trees sold by Gateway for use at the SWA site experienced problems. Based on the totality of the evidence, it is more likely than not that a combination of factors contributed to the SWA slash pine deterioration, including delays in planting the trees after delivery, rough handling, and the beetles. None of these causes are attributable to the actions of Gateway. Likewise, the greater weight of the evidence does not support a conclusion that the trees sold by Gateway to Landscape were non- viable nursery stock. Subsequent to filing its claim in the amount of $13,462.30 with the Department, Gateway received a payment of $5,528.84 from Landscape. Thus, the unpaid balance due Gateway for the 58 slash pines is $7,933.46. Gateway is entitled to payment in the amount of $7,933.46 for the slash pine trees it provided to Landscape. Besides the amount set forth above, Gateway claims the sum of $50.00 paid for the filing of the claim against Landscape and its bond. The total sum owed to Gateway by Landscape is $7,983.46.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Department of Agriculture and Consumer Services approving the claim of Gateway Farms, LLC, against Landscape Professional Services, Inc., in the total amount of $7,983.46 ($7,933.46 plus $50 filing fee); and if Landscape Professionals Services, Inc., fails to timely pay Gateway Farms, LLC, as ordered, that Respondent, The Gray Insurance Company, as Surety, be ordered to pay the Department of Agriculture and Consumer Services as required by section 604.21, Florida Statutes, and the Department reimburse the Petitioner as set out in section 604.21, Florida Statutes. DONE AND ENTERED this 18th day of March, 2016, in Tallahassee, Leon County, Florida. S W. DAVID WATKINS 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 March, 2016.
The Issue Whether Respondent committed the violations alleged in the respective Administrative Complaints, and, if so, whether Petitioner should impose against Respondent an administrative fine, penalty, and survey fee.
Findings Of Fact DOAH Case No. 13-2011: Failure to Properly Train, Supervise, and Perform CPR Pine Tree Manor is licensed by the Agency for Health Care Administration to operate a 24-bed assisted living facility. The facility's license number is 8317, and it expires on November 13, 2014. On February 12, 2013, the date of the incident that provides the basis for the instant action, Aurelia Cristobal was employed as a staff member at the facility operated by Pine Tree Manor. Spanish is Ms. Cristobal's native language, and her ability to speak English is very limited. Brent Sparks, the owner and administrator at Pine Tree Manor, acknowledged, when interviewed as part of the post-incident investigation, that Ms. Cristobal struggles at times with English, especially when under stress. Mr. Sparks was aware of Ms. Cristobal's limitations with English prior to February 12, 2013. Within a few days of B.Y.'s death, Ms. Cristobal left the United States and is believed to be currently living in Mexico. Ms. Cristobal did not testify during the final hearing. For the period June 15, 2011, through June 15, 2013, Ms. Cristobal was certified by the American Safety & Health Institute in the areas of automated external defibrillation (AED), cardiopulmonary resuscitation (CPR), and basic first aid. In the spring of 2011, Ms. Cristobal received training from Pine Tree Manor in the areas of facility emergency procedures and do not resuscitate (DNR) orders. Pine Tree Manor's written emergency procedures provide, in part, as follows: In all emergencies, it is important to remain calm and display a sense of control. Upsetting our residents will only induce undue stress. DIAL "911" EMERGENCY in the following cases: A medical emergency such as serious injuries or life threatening incidences. Fires Bodily harm to staff or residents such as terrorism, robbery, inclement weather. Call the administrator if there is any question concerning injury or illness, a resident is missing, security of facility is in doubt, or inspectors enter the facility. In the case of any significant changes or emergency, call the family, guardian and a health care provider. Also, contact the administrator. In cases of non-emergency need for transportation to the hospital or emergency room, call SUNSTAR AMBULANCE SERVICE @ 530-1234. In all cases, use common sense and remain calm, and remember to contact the administrator if in doubt. Pine Tree Manor's policy regarding DNR orders provides that: In the event a resident with a signed DNR experiences cardiopulmonary arrest, our policy is for staff trained in CPR/AED to withhold resuscitative treatment. Staff will report to the administrator immediately and in turn notify [the] resident's medical providers and resident representative. For example, staff on duty shall call 911 to report the condition, or if on Hospice [place] a call to (727) 586-4432, the Lavender Team Patient Leader. B.Y. became a resident of Pine Tree Manor on or about December 23, 2010. B.Y. did not execute a DNR directive. On February 12, 2013, between the hours of approximately 5:00 p.m. and 7:00 p.m., Ms. Cristobal was the only employee on site at Pine Tree Manor. According to J.M., who on February 12, 2013, was a resident at Pine Tree Manor, B.Y. entered a common area of the facility where J.M. and other residents were located. J.M. advised that B.Y. sat on the sofa, and started watching television. While on the sofa, B.Y. stopped breathing. The evidence is inconclusive as to how long B.Y. was incapacitated before others learned of her condition. Although it is not clear from the testimony how Ms. Cristobal was informed of B.Y.'s peril, she did, at some point, learn that B.Y. was incapacitated and was experiencing a medical emergency. After learning of B.Y.'s situation, Ms. Cristobal, according to J.M., became nervous and "didn't know what to do." In fact, Ms. Cristobal was so nervous that she did not call 911, she did not check B.Y. for a pulse, and she did not perform CPR on B.Y. Ms. Cristobal did, however, make several attempts to contact Mr. Sparks. Ms. Cristobal eventually reached Mr. Sparks and advised him of the situation with B.Y. The evidence does not reveal how long B.Y. remained incapacitated before Ms. Cristobal was able to speak with Mr. Sparks. When Mr. Sparks received the call from Ms. Cristobal, he was at his residence in Hillsborough County. Pine Tree Manor is located in Pinellas County. Because Mr. Sparks was in Hillsborough County when he received the call from Ms. Cristobal, he was not able to call 911 and be immediately connected to an emergency operator in Pinellas County. Understanding this limitation, Mr. Sparks called the non-emergency number for the Pinellas County Sheriff's office, who, in turn, contacted the 911 operator and informed them of the emergency. In the course of discussing the emergency situation with Ms. Cristobal, Mr. Sparks learned that she had not called 911. Knowing the emergency nature of the situation and the fact that he could not call Pinellas County 911 directly, Mr. Sparks should have directed Ms. Cristobal to call 911, since she was located in Pinellas County, but he did not. Mr. Sparks should have also instructed Ms. Cristobal to start CPR on B.Y., but he did not. According to the Pinellas County Emergency Medical Services (EMS) Patient Care Report for B.Y., the 911 call was received by the 911 dispatcher at 6:11 p.m. and an EMS unit was dispatched to Pine Tree Manor at 6:12 p.m. The EMS unit arrived at the facility at 6:15 p.m. and commenced treating B.Y. at 6:16 p.m. EMS personnel worked for nearly 30 minutes to revive B.Y., but their efforts were unsuccessful. Richard Sherman (EMT Sherman) is a firefighter and paramedic for the Pinellas Suncoast Fire District. EMT Sherman was the first paramedic to arrive at Pine Tree Manor on the day in question. Upon arrival at the facility, EMT Sherman attempted to enter through the facility's main door, but could not gain immediate entry because the door was locked. EMT Sherman rang the doorbell and knocked on the door in an attempt to gain entry into the facility. Resident J.M. opened the door, and EMT Sherman entered the facility. Upon entry, EMT Sherman noticed that B.Y. was unresponsive on the sofa. He also observed at the same time that there were several residents in B.Y.'s immediate area and that there was no staff present. When EMT Sherman arrived, Ms. Cristobal was in another part of the facility assisting a resident who had become upset because the resident was having difficulty satisfying her toileting needs. Approximately a minute after EMT Sherman started resuscitation efforts on B.Y., Ms. Cristobal appeared in the area where B.Y. was located. Because Ms. Cristobal was wearing scrubs, EMT Sherman correctly identified her as a facility employee. EMT Sherman asked Ms. Cristobal if she knew anything about B.Y. and the circumstances surrounding her collapse. Ms. Cristobal did not respond to EMT Sherman's questions. EMT Sherman testified that Ms. Cristobal, after not responding to his questions, simply "looked at [him] and then turned and walked away" towards the main doors of the facility. While continuing to attempt to resuscitate B.Y., EMT Sherman noticed that Ms. Cristobal appeared to be locking the doors that he had just entered. EMT Sherman instructed Ms. Cristobal several times to not lock the doors because more emergency personnel would soon be arriving. Apparently not understanding EMT Sherman's directives, Mr. Cristobal locked the doors. A few minutes later, district fire chief John Mortellite arrived at the facility. EMT Sherman, while continuing to work on B.Y., heard District Chief Mortellite banging on the locked main doors in an effort to gain entry to the facility. A resident eventually unlocked the doors, and District Chief Mortellite entered the building. When asked why Ms. Cristobal would call him in an emergency situation and not 911, Mr. Sparks explained that it was Ms. Cristobal's practice to always call him in an emergency and that he would, in turn, manage the situation. Mr. Sparks, by allowing Ms. Cristobal "to always call him" in emergency situations instead of 911, created an alternative practice that was directly contrary to the facility's written policy which clearly directs employees to "DIAL '911'" when confronted with a medical emergency. Ms. Cristobal was, therefore, not properly trained. Mr. Sparks, by establishing and, indeed, encouraging a practice that shielded Ms. Cristobal from directly communicating with 911, placed B.Y. in a position where there was an unacceptable delay, though not precisely quantifiable, in contacting emergency personnel on her behalf. In a life or death situation such as that experienced by B.Y., every second matters because, as noted by EMT Sherman, "the longer the delay [in receiving medical treatment] the less probability of a positive outcome." When EMT Sherman arrived at Pine Tree Manor, he was completely unaware of the fact that the only employee on site spoke little, if any English. It is, therefore, reasonable to infer that Mr. Sparks failed to inform either the Pinellas County Sheriff's Office or the 911 operator of Ms. Cristobal's limitations with the English language. By Ms. Cristobal's not calling 911, and Mr. Sparks' not disclosing to the 911 operator that the only employee on site had limited English language skills, decedent B.Y. was placed in the unenviable position of having EMT Sherman's attention divided between resuscitation efforts and worrying about whether Ms. Cristobal was able to comply with his instructions. EMT Sherman testified that Pinellas County EMS, including 911 operators, has protocols in place for dealing with individuals that may not speak English. Had either Mr. Sparks disclosed to the 911 operator Ms. Cristobal's language limitations or had Ms. Cristobal herself called 911, protocols could have been implemented by emergency personnel that would have triggered certain safeguards designed to ensure that Ms. Cristobal's language limitations did not interfere with the delivery of emergency services to B.Y. DOAH Case No. 13-2397: Failure to Remain Generally Aware of the Whereabouts of Resident Most recently, R.D., on September 27, 2010, became a resident of Pine Tree Manor. A demographic data information survey was prepared as part of R.D.'s new resident intake process. R.D.'s intake data showed that he was independent in the areas of ambulation, bathing, dressing, toileting, eating, and transferring. R.D. was identified as needing supervision when performing tasks related to personal grooming. It was also noted that R.D. suffered from anxiety and panic attacks. According to R.D.'s brother Tom, R.D. was under the care of a psychiatrist for many years and "suffered from debilitating panic attacks." When suffering a panic attack, R.D. would often lay on the ground or floor, most often in a fetal position, and remain in this position until help arrived. As a part of the new resident intake process, R.D. was assessed for his risk of elopement. The assessment revealed that R.D. was not at risk for elopement and that he was free to "come and go [from the facility] as he pleases" and that he needed to "sign out" whenever leaving the facility. By correspondence dated March 14, 2011, the administration of Pine Tree Manor reminded R.D. that he needed to adhere to the facility's resident sign-out procedure whenever leaving from and returning to the facility. Approximately ten months after reminding R.D. of the facility's sign-out procedure, Mr. Sparks, on January 2, 2012, updated R.D.'s risk assessment form and again noted thereon that R.D. "may come and go as he pleases" and he "[n]eeds to remember to sign out" when leaving the facility. On May 23, 2012, R.D. was evaluated by a physician and it was noted, in part, that R.D. could function independently in the areas of ambulation, bathing, dressing, eating, grooming, toileting, and transferring. As for certain self-care tasks, the evaluating physician noted that R.D. needed assistance with preparing his meals, shopping, and handling his personal and financial affairs. It was also noted that R.D. needed daily oversight with respect to observing his well-being and whereabouts and reminding him about important tasks. The evaluating physician also noted that R.D. needed help with taking his medication.1/ The evaluation was acknowledged by Mr. Sparks as having been received on May 25, 2012. R.D.'s most recent itemization of his medications shows that on October 10, 2012, he was prescribed Clonazepam and Buspirone. The Clonazepam was administered three times a day at 8:00 a.m., noon, and 8:00 p.m. The Buspirone was administered four times a day at 8:00 a.m., noon, 5:00 p.m., and 8:00 p.m. These medications are often prescribed for anxiety, however, R.D.'s medications listing form does not expressly denote why the drugs were prescribed. At 7:58 a.m., on November 10, 2012, an ambulance from the Pinellas County EMS was dispatched to Pine Tree Manor. When the EMS unit arrived at 8:00 a.m., R.D. was found "on the ground or floor" and was complaining of feeling anxious. While being treated by EMS, R.D. took his 8:00 a.m. dose of Clonazepam and was transported to "Largo Med." Less than 24 hours later, EMS, at 4:29 a.m., on November 11, 2012, was dispatched to 13098 Walsingham Road, because R.D. was again complaining of feeling anxious. This location is apparently near Pine Tree Manor, as the EMS Patient Care Report for this service call notes that R.D. "walked to [the] store." Following the evaluation by EMS, R.D. was again transported to "Largo Med." At 12:24 p.m., on November 18, 2012, EMS was dispatched to a location near Pine Tree Manor where R.D. was found "lying supine on [the] sidewalk." According to the EMS report, R.D. advised that he became lightheaded and fell to the ground. R.D. did not complain of any other symptoms and was transported to a medical facility in Largo for further evaluation. At 1:27 p.m., on November 25, 2012, EMS was dispatched to a 7-11 store near Pine Tree Manor. Upon arrival at the store, EMS personnel found R.D. and, when questioned, he advised that he was again feeling anxious. Per R.D.'s specific request, as noted on the EMS report, he was transferred to St. Anthony's Hospital in St. Petersburg. On November 28, 2012, Mr. Sparks made an entry into R.D.'s file and noted that a neurosurgeon evaluated R.D.'s shunt on that date in an attempt to determine if a malfunction was the cause of R.D.'s panic attacks. Mr. Sparks noted in the record that the doctor advised that the shunt was working properly and that the shunt was ruled out as the "cause of [R.D.'s] panic attacks." As of November 28, 2012, Mr. Sparks was aware that R.D. had recently complained of experiencing panic attacks and that the cause of the same had not yet been determined. It was not confirmed, although it was certainly believed by Mr. Sparks, that R.D. was manipulating medical personnel at local treatment facilities for the purpose of securing medication beyond that prescribed by his regular treating physicians. This belief by Mr. Sparks is reasonable especially in light of R.D.'s request to EMS personnel on November 25, 2012, that he was to be transported to a medical facility other than "Largo Med" for treatment related to his feelings of anxiety.2/ R.D.'s medication record for December 4, 2012, shows that he was given his prescribed medication for the 8:00 a.m. dispensing time. Soon after receiving his medication, R.D. left Pine Tree Manor for the purpose of visiting his local congressman's office. According to the survey notes from the investigation related hereto, the congressman's office is located approximately two miles from Pine Tree Manor. Although it cannot be confirmed, it reasonably appears that R.D. walked to the congressman's office. R.D. did not sign out of the facility when he left Pine Tree Manor on the morning of December 4, 2012. R.D. did, however, inform facility staff that he was going to the congressman's office to discuss an issue.3/ Security video from the building where the congressman's office is located established that R.D. arrived at the congressman's office at 9:50 a.m. At approximately 10:45 a.m., a representative from the congressman's office called Pine Tree Manor and informed them that R.D. was ready to return to the facility. The person receiving the message from the congressman's office contacted Mr. Sparks and informed him that R.D. was requesting a ride back to Pine Tree Manor from the congressman's office. Mr. Sparks was assisting another resident at a local hospital when he received the request to transport R.D. and was, therefore, unable to transport R.D. from the congressman's office. Pine Tree Manor had no obligation to provide transportation services to R.D. Surveillance video from the building where the congressman's office is located confirmed that R.D. exited the building on December 4, 2012, at approximately 10:50 a.m. R.D.'s body was found on December 12, 2012. It is not known what happened to R.D. between the time he left the congressman's office and when his body was eventually discovered.4/ When Mr. Sparks returned to Pine Tree Manor on December 4, 2012, he was advised by staff that R.D. had not returned from the congressman's office. According to the posted work schedule for December 4, 2012, Mr. Sparks worked from 7:00 a.m. to 5:00 p.m. When Mr. Sparks left Pine Tree Manor on December 4, 2012, R.D. had not returned. Mr. Sparks, upon leaving the facility for the day, instructed staff (Aurelia Cristobal) to call him when R.D. returned. Ms. Cristobal's shift ended at 8:00 p.m. Pine Tree Manor employee Laura Munoz worked from 7:00 p.m. on December 4, 2012, to 7:00 a.m. on December 5, 2012. Ms. Munoz was not responsible for assisting R.D. with his medication, so it is unlikely that she would have known that R.D. missed receiving his medication prior to her arrival at work. Because Mr. Sparks left Pine Tree Manor on December 4, 2012, before Ms. Munoz arrived for work, he called Ms. Munoz after her shift started (precise time unknown) and requested that she call him upon R.D.'s return. There were no instructions given to Ms. Munoz by Mr. Sparks as to what she should do if R.D. did not return by some time certain. On December 4, 2012, Mr. Sparks knew that R.D. had never spent the night away from Pine Tree Manor without someone at the facility knowing R.D.'s whereabouts and that R.D. had never gone unaccounted for a period greater than 12 hours. On December 5, 2012, Mr. Sparks' scheduled work time was from 7:00 a.m. to 5:00 p.m. Prior to reporting to the facility on the morning of December 5, 2012, Mr. Sparks learned that R.D. had not returned to his room during the night shift. The exact time is not known when Mr. Sparks acquired this information, but it was likely sometime around 6:30 a.m. After learning that R.D. was still unaccounted for, Mr. Sparks immediately began canvassing the area near Pine Tree Manor. Around this same time, Mr. Sparks contacted R.D.'s brother and apprised him of the situation. At approximately noon on December 5, 2012, Mr. Sparks contacted the Pinellas County Sheriff's Office and reported R.D. missing. Pine Tree Manor has an elopement and missing residents policy that provides, in part, as follows: Residents may come and go as they please and shall not be detained unless family/resident representative and administrator agree supervision is required. A resident leaving the facility should either sign out by the front door or inform a staff member of their departure and provide an estimated time of return. The staff person should sign the resident out and notify other staff on duty. . . . If a resident . . . is deemed missing, staff shall immediately search the entire facility inside and around the facility grounds. . . . Whenever a resident is not found within the facility or its premises, the Administrator will: Notify the resident's representative. Notify the County Sheriff's Department by calling 911. Provide staff and searching parties with information and photo I. D. Instruct the staff to search inside the facility and the premises, the adjacent residential properties to the facility, up and down 131st Street, 102nd Avenue and the cross streets.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Agency for Health Care Administration: Enter in Agency Case No. 2013002572 (DOAH Case No. 13-2397) a final order finding that Respondent, Pine Tree Manor, Inc., d/b/a/ Pine Tree Manor, committed a Class II violation and assessing an administrative fine of $5,000.00 and a survey fee of $500.00. Enter in Agency Case No. 2013004620 (DOAH Case No. 13-2011) a final order finding that Respondent, Pine Tree Manor, Inc., d/b/a/ Pine Tree Manor, committed a Class I violation and assessing an administrative fine of $8,000.00. It is also RECOMMENDED that the final order not revoke Respondent's license to operate an assisted living facility in the State of Florida, but, instead, suspend Respondent's license for a period of 60 days.7/ DONE AND ENTERED this 5th day of December, 2013, in Tallahassee, Leon County, Florida. S LINZIE F. BOGAN 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 5th day of December, 2013.
Findings Of Fact The dredge/fill project sought to be permitted involves a proposed residential lot located on Lake Padgett in Pasco County. The tract is also adjacent to a canal dug by the Applicant and his father. The Applicant, Michael Millen, acquired this property from his father, Otis Millen, who continues to own other property in this area. Petitioner is an adjoining landowner, and also acquired his property from Otis Millen. DER prematurely issued the proposed permit 1/ on August 9, 1984. If reissued, this permit would allow the Applicant to develop a residential lot by filling a portion of a cypress swamp and creating compensating wetland elsewhere on his property. Additionally, the Applicant agrees to dedicate a three acre "conservation easement" and to install a culvert to improve drainage. The advantages of this project include the creation of a homesite where none is available now, acquisition by the State of three acres of dedicated wetland (conservation easement) and improved drainage through the culvert installation. There would be no net loss in cypress swamp area. The disadvantages include temporary turbidity in surrounding waters and some tree removal in the construction area. The Applicant would replace any trees removed through replanting. The Applicant also seeks permits to build a "summer kitchen" over jurisdictional wetlands and to fill the lakefront area with white sand. These "add-on" permit requests are not properly a part of this proceeding, however, and were not contemplated in the application at issue here. DER's expert witness gave only limited testimony on their feasibility during the rebuttal phase of this hearing. Petitioner has raised numerous objections to all the proposed projects, but principally to the one at issue here. He was not notified of DER's intent to grant the dredge and fill permit, and became aware of the project only after he observed construction activity. It was determined that DER had failed to notify him through an oversight of that agency or the Applicant. Petitioner points out that lot development is not being done in accordance with the (proposed) permit. He noted that trees have been cut down, fill was dumped in the canal and work on canal banks was taking place, all in contravention of permit conditions. Petitioner believes DER has acted improperly in tolerating the Applicant's unpermitted construction activity. To support this charge, he called as a witness a neighbor who had placed white sand on his lakefront property, but was required to remove it by DER enforcement personnel. The Applicant, on the other hand, has placed white sand on his beachfront property without a permit, and DER is assisting him in obtaining an after the-fact permit. Petitioner proved, through a series of aerial photographs, and the testimony of both expert and lay witnesses, that the canal which separates his lot from the Millen properties was constructed between 1976 and 1977. DER had jurisdiction at that time, 2/ but no permit was ever sought or obtained. The canal was dug as a "joint venture" of the Applicant and his father. It connects Lake Padgett with a drainage pond several hundred feet behind the lake. This canal has changed area drainage causing one nearby resident to experience periodic property flooding as a result. Prior to the canal's construction, a small drainage ditch with an earthen or cement dam did exist in the general area. However, the canal construction removed the dam and greatly enlarged the size and capacity of the previous ditch. Expert interpretation of aerial photographs revealed that a substantial number of mature cypress trees were removed in conjunction with the Millens' canal project. Some cypress trees were also cut for the recent (unpermitted) construction of the "summer kitchen" by the Applicant. He also constructed a dock which was later determined to be exempt by DER. Again, the Applicant had not obtained DER approval for the dock and had, in fact, been advised to stop construction until a determination of permitting requirements, if any, was made. Petitioner attempted to show a conflict of interest within DER. However, the fact that one DER field representative knew Otis Millen did not demonstrate such a conflict. Rather, DER's enforcement policies have been lax or inconsistent primarily due to a shortage of field personnel.
Recommendation From the foregoing, it is RECOMMENDED: That the Department of Environmental Regulation reissue Permit No. 510852383 to Michael A. Millen. DONE and ENTERED this 24th day of September, 1985 in Tallahassee, Florida. R. T. CARPENTER, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of September, 1985.
