Findings Of Fact Urbanek owns land in and adjacent to Town Lots 93 and 94, Highland Beach, in Section 28, Township 46 South, Range 43 East, Palm Beach County, Florida. The real estate in question is located on the eastern shore of the Intra-Coastal Waterway approximately 2,000 feet south of the mouth of the C-15 Canal. Urbanek seeks a permit under Chapters 403 and 253, Florida Statutes, and water quality certification under Public Law 92-500, to dredge approximately 24,500 square feet of shoreline and shallow nearshore area, while installing approximately 240 linear feet of bulkhead and ten mooring piles, and constructing a marginal dock and piers for the use of future residents. The application also includes filling approximately 60,000 square feet of tidally connected ditches and wetlands to allow the construction of a high density residential development. On January 19, 1976, DER received a short form application for a permit from Urbanek pursuant to Subsection 17-4.28 (4)(a), Florida Administrative Code. On March 10, 1976, Urbanek received from DER a request for additional information. This occurred 51 days after Urbanek's original application for permit. Urbanek forwarded the requested additional information to DER on April 22, 1976, and April 30, 1976. On May 12, 1976, DER notified Urbanek that the project must be submitted using standard permitting procedures along with the incorporation of certain recommendations made by DER's field inspector. On June 9, 1976, Urbanek was notified by DER that his application had been forwarded to Tallahassee with a recommendation for denial on two grounds. First, that the application did not meet the criteria for short form applications and second, that the proposed project would eliminate valuable submerged and wetland habitats. On July 27, 1976, Urbanek was notified by DER's Tallahassee office that his application was received on January 1976, and that the application was incomplete. The notification requested additional information. On September 22, 1976, DER notified Urbanek that processing of his application was discontinued because required data was not sent by Urbanek to DER. Urbanek was further advised that processing of the application," would be continued upon receipt of the necessary information. On January 20, 1977, Urbanek submitted another modified permit application to DER. On February 28, 1977, DER sent Urbanek notice of receipt of the application once again requesting additional information be submitted. On March 4, 1977, Urbanek forwarded the requested information to DER. On April 1, -1977, DER forwarded to Urbanek its notice of intent to deny and the proposed order of denial of the permit application. On April 15, 1977, Urbanek petitioned DER for a hearing pursuant to the provisions of Section 120.57, Florida Statutes. The area of the project, prior to the turn of the century, was a fresh water wetland. However, salt water intrusion from the permanent opening of the Boca Inlet in south Palm Beach County in the early 1900's paved the way for colonization of mangroves in the Spanish River Basin, now the Intra-Coastal Waterway. As the human population increased in Palm Beach County, the mangroves were destroyed in order to afford living spaces. As a result, approximately 77 percent of the mangroves in Palm Beach County have been removed. One of the last remaining mangrove areas in southern Palm Beach County is located on a strip of land which borders the eastern side of the Intra-Coastal Waterway. The applicant's project site represents a portion of that strip. The project site fronts 230 feet-of the Intra-Coastal Waterway and extends approximately 670 feet eastward to State Road A1A. The property is intersected by three mosquito control ditches which run perpendicular to the Intra-Coastal Waterway but do not connect with it, and by six lateral ditches which extend from north to south and adjoin the property to the south. The project site is thus divided into eighteen parcels of land or "islands" and a fringing shoreline area. A survey conducted on October 13, 1977, and October 18, 1977, revealed the emergent areas between the ditches to be vegetated by mostly white mangroves, with canopies ranging from fifteen to forty-five feet in height. Numerous white and red mangrove seedlings plus a few scattered black mangrove seedlings indicate that the area may be changing from a predominantly white mangrove to a mixed mangrove community throughout the project site. Batis and Sesuvium were found and Australian Pines and Brazilian Pepper were observed only in areas where spoil from dredging activities was placed on the emergent area. There are approximately seven to eight thousand trees, including seedlings, in the project area. The mangrove system at the project site was characterized as a very productive system by Dr. G. Alex Marsh, an expert in Estuarine Ecology, who testified for DER. Dr. Arnold Banner of the United States Fish and Wildlife Service concurred with Dr. Marsh that the eradication of the productive system would result in the removal of a significant source of food and habitat. The evidence shows that a wetland habitat such as the project site affords approximately 535 pounds of fishing products per year with a dollar value of $8,000 per acre to the public. Petitioner argues that it would be in the public interest to bulkhead and fill the subject property because rodents would be eliminated, trash and debris would no longer collect on the property and that further erosion of the property would be prevented. However, Urbanek has failed to establish with substantial competent evidence that there actually exists a rodent problem on the subject property. The evidence does establish that trash and debris collect among the root system of the vegetation and that severe erosion has occurred on the property from wave action created by vessels moving through the Intra- Coastal Waterway. Urbanek has failed to establish with substantial competent evidence that the proposed project will not degrade water quality, cause violation of water quality standards or criteria or cause pollution. In fact, no evidence was submitted whatsoever by Urbanek which would tend to prove any of these three preconditions to the granting of the requested permit. Nonetheless, DER's failure to act on the permit application within the time limits prescribed by Subsection 120.60 (2), Florida Statutes, as amended in 1976, mandates the issuance of the requested permit.
The Issue The issue in this case is whether Petitioner should be granted an exemption from disqualification from employment with a private contractor providing adult day training to developmentally disabled clients of Respondent.
Findings Of Fact From April 2016 to October 2016, Petitioner Bertha Delaney ("Delaney") was employed by Cypress Place, Inc. ("Cypress"), a private, nonprofit corporation that provides services to developmentally disabled clients, and operates under the regulatory jurisdiction, of Respondent Agency for Persons with Disabilities ("APD"). Delaney was hired by Cypress as a receptionist, and her responsibilities included answering the phones, handling clerical tasks such as maintaining attendance sheets and filing, and assisting other employees as needed. Cypress operates an adult day training program, which offers "adult day training services" to APD clients. Such services include "training services that take place in a nonresidential setting, separate from the home or facility in which the client resides, and are intended to support the participation of clients in daily, meaningful, and valued routines of the community. Such training may be provided in work-like settings that do not meet the definition of supported employment." § 393.063(1), Fla. Stat. There is no persuasive evidence showing that, during her employment with Cypress, Delaney ever had face-to-face contact with a client while performing adult day training services. She was not, therefore, a "direct service provider" as that term is defined in section 393.063(13), Florida Statutes. Delaney did, however, have incidental, in-person interactions with clients, the evidence establishes, occasionally assisting clients in need of immediate help. Thus, although Delaney did not provide training services to clients, she provided some services in the broader sense of "helpful acts." In early August of 2016, an incident involving a client occurred at Cypress's facility, which the Department of Children and Families ("DCF") investigated. In the course of the investigation, the DCF investigator interviewed Delaney and learned that, because the subject client had appeared to be limping on the day in question, Delaney had helped the client walk from the bus to the building. At the time, Delaney had not yet undergone level 2 background screening because Cypress had not instructed her to do so. Rather, in or around April 2016, when she was hired, Cypress had required Delaney to go to the police department for a local criminal background check, which she did. Delaney, in fact, did everything that Cypress asked her to do with regard to background screening. Soon after (and perhaps because of) the DCF investigation, Cypress directed Delaney to submit to a level 2 background review, which she did.1/ And so it happened that in late August 2016, a search of Delaney's criminal history was performed, and the results were forwarded to DCF, which administers the background screening process for APD. By letter dated October 3, 2016, DCF notified Delaney that it had discovered her criminal conviction on a charge of grand theft of the third degree, to which she had pleaded no contest on June 13, 2001. This crime is a "disqualifying offense" under the applicable screening standards, which means that Delaney is ineligible to work as a direct service provider without an exemption from such disqualification. DCF advised Delaney that she needed to quit her job at Cypress and obtain an exemption from disqualification if she wanted to resume working there. Delaney promptly resigned her position with Cypress. Delaney then sought an exemption from disqualification from employment, submitting her Request for Exemption to DCF in November 2016. By letter dated March 17, 2017, APD informed Delaney that it intended to deny her request based solely on the ground that Delaney had "not submitted clear and convincing evidence of [her] rehabilitation." In other words, APD determined as a matter of ultimate fact that Delaney was not rehabilitated, which meant (as a matter of law) that the head of the agency had no discretion to grant an exemption.2/ APD did not, as an alternative basis for its proposed agency action, articulate any rationale for denying the exemption notwithstanding a showing of rehabilitation, assuming arguendo that such had been made. Delaney initiated the instant proceeding, hoping to prove her rehabilitation. The undersigned has considered the evidence as it relates to the statutory criteria for assessing rehabilitation, and makes the following findings of fact as a predicate for the ultimate determination. The Circumstances Surrounding the Criminal Incident. In or around September of 2000, Delaney stole cash receipts from her employer, Blockbuster Video, totaling approximately $13,800.00. She was soon arrested and charged with grand theft of the third degree, a felony offense as defined in section 812.014, Florida Statutes. At the time of the offense, Delaney, then 25 years old, was experiencing financial difficulties raising two young daughters. Although married, Delaney managed the household mostly on her own, as her husband, an interstate truck driver, was often on the road. Exercising what she now acknowledges was poor judgment, Delaney stole her employer's funds to ease her personal financial burden. On June 13, 2001, appearing before the Circuit Court in and for the Eleventh Judicial Circuit of Florida, Delaney entered a plea of nolo contendere to the criminal charge, was convicted by plea (adjudication withheld), and was sentenced to two years' probation with orders to make restitution in the amount of $13,778.00 to Blockbuster. Delaney completed her term of probation and complied with all of the other conditions imposed by the court, including the payment of restitution. The Time Period That Has Elapsed since the Incident. The disqualifying offense was committed about 17 years ago. Delaney thus has had ample time to restore her reputation and usefulness to society as a law abiding citizen following her conviction, and to mature into an older, more responsible adult. The Nature of the Harm Caused to the Victim. Delaney did not cause personal injury to any person in the commission of her crime. She was ordered to make restitution to the victim, and did, although the details of this transaction are not available in the record. Therefore, the economic harm caused by Delaney's theft appears to have been minimal. The History of the Applicant since the Incident. Since her conviction, Delaney has completed a training program to become a patient care technician and obtained a license to practice in Florida as a certified nursing assistant. She has held positions in these fields and performed admirably. Delaney lives with her two adult daughters, son-in-law, grandson, and fiancé; her current family situation is stable, both emotionally and financially. Her civil rights have been restored. She has not reoffended or otherwise run afoul of the law. APD severely faults Delaney for a so-called nondisclosure in her response to a question on the exemption request form concerning previous employment. The form asks the applicant to "provide your employment history for the last three years." Delaney answered, in relevant part, by stating: "I have not been employed for the last three (3) years." She followed this statement by describing employment predating "the last three (3) years" and explaining that an ankle injury in May 2013 (which required multiple surgeries to repair), together with the attendant convalescence and rehabilitation, had kept her out of the workforce for a couple of years. APD argues that Delaney lied about her employment history——it is undisputed that she had, in fact, worked (for Cypress) during the three years preceding her request for an exemption——and that this alleged "lie" proves Delaney had known not only that she was required to undergo level 2 background screening before taking the job with Cypress, but also that such screening would reveal her disqualifying criminal conviction, and that, therefore, to avoid detection, she had worked without being screened, in knowing violation of law. Put aside for the moment the issue of fact regarding whether Delaney "lied" about her employment history. APD's argument (that this "lie" is proof of Delaney's knowing violation of the background screening law) is illogical. For even if (as a matter of fact3/) Delany were required to be screened, and even if (as a matter of law4/) the background screening statutes were personally violable by an applicant or employee, Delaney's allegedly fraudulent answer to the employment history question does not rationally lead to the conclusion that she knew either of these premises to be true. Moreover, as discussed in endnote 1, it is unacceptable for an agency to rely upon an applicant's alleged violation of a regulatory statute as grounds to deny an exemption request where such alleged violation has never been proved in an enforcement proceeding. This is because any person charged with committing a disciplinable offense must be served with an administrative complaint and afforded clear notice of the right to a hearing, at which, if timely requested, the agency must prove the alleged wrongdoing by clear and convincing evidence. APD wants to skip all that and just have the undersigned find here, for the first time, that Delaney clearly violated section 393.0655 by working at Cypress for at least six months without being screened. See Resp.'s PRO at 9. That's not happening. The only relevant finding in this regard, which the undersigned makes, is that Delaney has never been found to have violated section 393.0655 by working at Cypress for at least six months without being screened. As for the alleged "lie," APD's position that Delaney's response to the employment history question was knowingly and intentionally false (by omitting reference to Cypress) does not make sense, because DCF already knew (from investigating an unrelated matter) that Delaney had worked for Cypress, and Delaney knew that DCF was aware of this fact when she filled out the form. That cat was out of the bag. At hearing, Delaney testified credibly and convincingly that she had not intended to mislead DCF. It is clear that she interpreted the question as asking about her employment during the three years before the job from which she had been disqualified (as opposed to the three years before completing the exemption request form). She misunderstood the question, to be sure, but it was an honest mistake, and the undersigned can appreciate how a person in Delaney's shoes could conclude that the job from which one has recently been disqualified does not "count" towards her employment history for purposes of seeking an exemption from disqualification. Delaney's testimony in this regard is corroborated by the fact that she submitted to DCF, as part of her exemption request package, two letters of recommendation from employees of Cypress, written on Cypress letterhead, attesting to her good character. These letters, taken together, make it clear that Delaney had recently been an employee of Cypress. Obviously, if Delaney had intended, knowingly, to deceive DCF by concealing her employment with Cypress, she would not have provided these letters. APD argues that one of these letters, from Rashard Williams, which is dated October 27, 2016, does not specifically indicate that Delaney ever worked at Cypress——and thus does not bolster Delaney's testimony that she never intended to conceal the fact that she had. To reach this conclusion one must discount the writer's statement that "Ms. Delaney has proven herself to be reliable, trustworthy, and compassionate both as a person and as an employee." If the Williams letter were the only written recommendation from a Cypress employee, however, the undersigned would consider APD's interpretation to be, while certainly not the best or most reasonable, at least plausible in view of Mr. Williams's additional comments about how well Delaney took care of his grandmother in a capacity, apparently, other than as an employee of Cypress. But the companion to the Williams letter, a recommendation from Mark Chmiel dated October 24, 2016, leaves no room for doubt that Delaney was a recent employee of Cypress. A short, two-sentence excerpt suffices to support this finding: "Bertha is an invaluable addition to our agency [i.e., Cypress,] and she has fulfilled the potential of her position far better than anyone before her. Her moral character is beyond reproach and I have no qualms about trusting her with our clients."5/ The letters of recommendation that Delaney furnished DCF refute the notion that she knowingly omitted Cypress from her employment history with the intent to mislead DCF. They prove, instead, that Delaney took for granted DCF's knowledge of her work for Cypress, for she was certain DCF already knew about it. In turn, that foundational assumption (which, in fact, was true) prompted Delaney to provide a history of her employment during the several years leading up to the job with Cypress. The undersigned finds that Delaney is not guilty of knowingly withholding material information from DCF in response to the question about her previous employment. Finally, the undersigned observes that APD, in its preliminary decision-making, impermissibly allowed speculation and conjecture to take the place of facts. In forming its intent to deny Delaney's application, APD took into account the "possibility that Ms. Delaney was trying to protect Cypress Place from demonstrating that they were in violation of the screening laws" as well as the "possibility that Rashard Williams might have tried to hide the fact [sic6/] that there was a violation of the screening requirements by Cypress Place." Resp.'s PRO at 10 (emphasis added). On the basis of this rank speculation, APD conjectured that "Ms. Delaney was willing to collude with [Cypress employees] in order not to spotlight their violation of the licensing law." Resp.'s PRO at 18. APD proved none of this imaginative guesswork. Circumstances Showing Applicant Poses No Danger. Yvonne Ginsberg, the executive director of Cypress, testified in support of Delaney's application. Ms. Ginsberg stated that Delaney was an "excellent" employee and affirmed that she had "no qualms" about Delaney's returning to work at Cypress once an exemption has been secured. The undersigned credits Ms. Ginsberg's testimony as to Delaney's character. In addition, Delaney submitted the written character references of Messrs. Chmiel and Williams, which were discussed above. These documents credibly attest to Delaney's trustworthiness, integrity, and ethical behavior. The undersigned finds without hesitation that Delaney would likely not present a danger in the future if an exemption from disqualification were granted. Ultimate Factual Determination The undersigned has determined, based on clear and convincing evidence, including sufficient persuasive evidence of rehabilitation, that Delaney should not be disqualified from employment because she is, in fact, rehabilitated.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Persons with Disabilities enter a final order granting Bertha Delaney the exemption from disqualification for which she is, in fact, eligible. DONE AND ENTERED this 18th day of August, 2017, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 18th day of August, 2017.
The Issue At issue in these consolidated proceedings is whether certain development orders (permits) issued by Monroe County to the respondents, as owners and Your Local Fence, Inc., as contractor, for the construction of fences in the Big Pine Key Area of Critical County Concern are consistent with the Monroe County comprehensive plan and land development regulations.
Findings Of Fact The parties Respondents, Charles and Kathleen Moorman (Moorman), Nicholas and Jean Hornbacher (Hornbacher), James and Kathryn Daniels (Daniels), and Raymond and Rosemarie McRae (McRae), are the owners of certain real property, described more full infra, that is located within the Big Pine Key Area of Critical County Concern and the Florida Keys Area of Critical State Concern, and upon which they have received development orders (permits) from Monroe County to erect fences. Respondent, Your Local Fence, Inc. (Your Local Fence), is a business owned by Mr. Moorman and is the contractor that applied for the permits on behalf of the Moormans, Hornbachers and Daniels. The McRaes applied for their own permit, and proposed to install the fence themselves. Respondent, 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 implementation 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. 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, and all rules promulgated thereunder. Section 380.031(18) and 380.032(1), Florida Statutes. Here, the Department has filed a timely appeal to the issuance of the subject permits, and contends that construction of the fences authorized by such permits is inconsistent with the Monroe County comprehensive plan and land development regulations. The Moorman permit The 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, and surrounded by, native pine lands; natural habitat for the Key Deer. 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 front 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. The Hornbacher permit The Hornbachers are the owners of Lot 23, Block 3, Eden Pine Colony Subdivision, Big Pine Key, Monroe County, Florida. Such property is located on a cul-de-sac, at the terminus of a dead end street, and is bordered on the north and west by a canal and on the east by a neighbor's fence. On May 20, 1991, Monroe County issued to the Hornbachers, as owners, and your Local Fence, as contractor, building permit No. 9110002807 to construct a fence along the south side of their property. As permitted, the fence would be chainlink construction, 4 feet high, and would extend from their neighbor's fence on the east, around that portion of their property that abuts the cul-de- sac, and then along their southern boundary to the canal. So constructed, the fence would run a total of 90 linear feet. The Daniels permit The Daniels are the owners of Lots 1 and 2, Block 72, Port Pine Heights Subdivision, Big Pine Key, Monroe County, Florida. Such property, when acquired by the Daniels, was bounded on three sides by a 4-foot high chainlink fence and along the rear by a canal. On July 17, 1991, Monroe County issued to the Daniels, as owners, and Your Local Fence, as contractor, building permit No. 9110003165 to construct a fence along the rear portion of their property that abuts the canal. As permitted, the fence would be of chainlink construction, 4 feet high, and run a total of 158 linear feet. The McRae permit The McRaes are the owners of Lot 6, Block 17, Port Pine Heights Subdivision, Big Pine Key, Monroe County, Florida. Such property is bordered on the north and south by vacant lots, and on the west by a canal. On June 12, 1991, Monroe County issued to the McRaes, as owners and contractors, building permit No. 9110002853 to construct a fence along the front, as well as the north and south sides of their property. As permitted, the fence would be of chainlink construction, 4 feet high, and, except for a set back of 29.5 feet, would enclose the front and side property lines of the property. So constructed, the fence would run a total of 157 linear feet. Consistency of the permits 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. Pertinent to this case, Section 9.5-479, Monroe County Land Development Regulations (MCLDR), provides: Purpose: he 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 expectations 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 habita-tion and the survival of the Florida Key Deer; The role and importance of fresh-water 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 plan-ning, 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 publi-cation 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 with-in 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 must be concluded that the subject permits issued by Monroe County for the construction of fences in the Big Pine Key Area of Critical County Concern are not consistent with the Monroe County comprehensive plan and land development regulations. Extra legal action and the applicants voiced rationale for fencing their properties Notwithstanding express knowledge by the Moormans, Hornbachers, Daniels and Your Local Fence, that the subject permits were not effective until expiration of the time within the Department was authorized to appeal their issuance, the Moorman, Hornbacher and Daniels fences were erected by Your Local Fence. However, the McRaes, likewise knowledgeable about the time delay in the effectiveness of their permits, abided by existent law, and deferred erecting their fence pending resolution of this dispute. At hearing, proof was offered by the applicants to explain why they desired to fence their property. Proof was also offered to explain why the Hornbachers and Daniels felt a sense of exigency to erect their fences, and why they prevailed on Your Local Fence to erect such fences in the face of express notice from Mr. Moorman (the principal of Your Local Fence) that the permits were not effective and subject to appeal by the Department. According to the Hornbachers, the purpose for their fence was to keep stray dogs and their "leavings" from the yard, to keep the Key Deer that populate the area from eating their vegetation, and to keep uninvited persons and vehicles from entering their property. The later reason was of particular import to the Hornbachers since they were about to leave for their annual vacation in Michigan, and strangers had entered onto their property during their prior absences. Therefore, to provide their residence with a degree of security, they insisted the fence be installed before they left, and before their permit was effective. According to the Daniels, the purpose for their fence was primarily to provide a secure environment for their children.2 In this regard, the proof demonstrates that the Daniels are both police officers with the City of Key West and work the same shift; that they have three children, ages, 7, 4, and 2, that reside at the home and are cared for by an elderly woman in their absence; and that the canal that abuts their backyard, as well as an existent boatramp, represents a potential hazard to the children's safety. Cognizant of such hazard, which was magnified by one child having already slipped down the boat ramp, the Daniels insisted that the fence be installed, and Your Local Fence acquiesced, before their permit was effective. The Moormans offered no compelling reason for having erected their fence prior to the effective date of their permit, but did espouse its purpose. According to Mr. Moorman, the purpose for their fence was to keep the neighbors' two children from playing under his house where he had installed a hot tub, and to keep the Key Deer that populate the area from entering his property and eating any vegetation he might choose to cultivate. According to the McRaes, who have not yet erected their fence, they desire a fence to prevent neighbors' dogs from leaving "droppings" in their yard, and to keep the Key Deer from eating their plants. While each of the applicants have articulated logical reasons to fence their yards, such reasons are not relevant where, as here, the permits were issued as of right. Rather, with regard to the Big Pine Key Area of Critical County Concern, the erection of fences is strictly prohibited until such time as the plan and regulations are amended to allow such use.3 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 the subject permits. Mr. Moorman's contention is not, however, persuasive. 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.4 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 subject permits is not inconsistent with any position it has previously taken with regard to the propriety of fencing in such area.5 Moreover, neither the applicants 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 fences. Under such circumstances, it cannot be reasonably concluded that the Department misled any applicant so as to bar it from contesting the propriety of the subject permits, and those who chose to erect their fences knowing their permits were not yet effective acted at their peril.6
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 building permit Nos. 9110002231, 9110002807, 9110002853, and 9110003165, and deny the applications of the Moormans, Hornbachers, McRaes, and Daniels, as owners, as well as your Local Fence, as contractor, where pertinent, for such permits. It is further recommended that such final order specify that there are no changes in the subject proposals that would make them eligible to receive the permits as requested. DONE AND ENTERED 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 Division of Administrative Hearings this 30 day of April 1992.
Conclusions This matter came before the Department for entry of a Final Order upon submission of an Order Closing File by Cathy M. Sellers, Administrative Law Judge of the Division of Administrative Hearings, pursuant to Petitioner’s Notice of Voluntary Dismissal with Prejudice, a copy of which is attached, and incorporated by reference, in this Order. The Department hereby adopts the Order Closing File as its Final Order in this matter. Accordingly, it is hereby ORDERED and ADJUDGED that Respondent, Coconut Creek Automotive, LLC d/b/a Coconut Creek Subaru, be granted a license to sell motor vehicles manufactured by Subaru of America, Inc. (SUBA) at 4980 North State Road 7, Coconut Creek, (Broward County), Florida 33073, upon compliance with all applicable requirements of Section 320.27, Florida Statutes, and all applicable Department rules. Filed April 30, 2012 9:03 AM Division of Administrative Hearings DONE AND ORDERED this 30 thday of April, 2012, in Tallahassee, Leon County, Florida. Julie/Baker, Chief Bureau of Issuance Oversight Division of Motorist Services Department of Highway Safety and Motor Vehicles Neil Kirkman Building, Room A338 Tallahassee, Florida 32399 Filed with the Clerk of the Division of Motorist Services this 30¥h day of April, 2012. alini Vinayak, Dealer Wcense Administrator N NOTICE OF APPEAL RIGHTS Judicial review of this order may be had pursuant to section 120.68, Florida Statutes, in the District Court of Appeal for the First District, State of Florida, or in any other district court of appeal of this state in an appellate district where a party resides. In order to initiate such review, one copy of the notice of appeal must be filed with the Department and the other copy of the notice of appeal, together with the filing fee, must be filed with the court within thirty days of the filing date of this order as set out above, pursuant to Rules of Appellate Procedure. JB/jc Copies furnished: J. Gregory Humphries, Esquire Shutts and Bowen, LLP 300 South Orange Avenue, Suite 1000 Orlando, Florida 32801 Ed Appleby Coconut Creek Automotive, LLC 4980 North State Road 7 Coconut Creek, Florida 33073 J. Andrew Bertron, Esquire Nelson, Mullins, Riley, And Scarborough, LLP Suite 202 3600 Maclay Boulevard South Tallahassee, Florida 32312 Eric Scott Adams, Esquire Shutts and Bowen, LLP Suite 300 4301 West Boy Scout Boulevard Tampa, Florida 33607 Cathy M. Sellers Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399 Nalini Vinayak Dealer License Administrator
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
