The Issue Whether the Petitioner, Fletcher Armour, should have been suspended by the Respondent, City of Clearwater, for a three-day period.
Findings Of Fact The Petitioner is an employee of the City of Clearwater and was at the time pertinent to this hearing a meter reader for the city. He was suspended for a period of three (3) days beginning July 31, 1979, and ending August 2, 1979, for insubordination and a serious breach of discipline. In February, 1979, Petitioner Armour and his superior, Fred W. Lewis, Accounts Supervisor, discussed the Petitioner's planned vacation. The Petitioner requested six (6) consecutive days: June 28 and 29, 1979, for religious reasons, plus the following four (4) days. Although tentative written approval was given by Lewis, he warned the Petitioner that if a meter reader with seniority requested the same four (4) "non-religious" vacation days Lewis would have to accede to the request for the reason that there is a seniority policy in the Utilities Department of the City of Clearwater, and further that the department could not properly function with two (2) meter readers on vacation at the same time. Lewis told the Petitioner that the two (2) vacation days requested for religious purposes, June 28 and 29, would be granted regardless of seniority. Subsequent to this first meeting, a Mr. Henderson, a meter reader with seniority over Petitioner Armour, requested the same four (4) days desired by the Petitioner. To resolve this conflict of vacation schedules, Lewis called a meeting during early June, 1979, at which all meter readers were present, including Kim Kyler, a witness for Respondent at the hearing. According to the testimony of Lewis and Kyler, Lewis asked Petitioner Armour during the meeting what days he wanted to take off. Petitioner responded by stating he would take his first two (2) vacation days (June 28 and 29), but not the last four (4) days, and that he would postpone taking these four (4) days until sometime in December when he had two (2) weeks. He was then told that he was not entitled to two (2) weeks until after January 1, and therefore could not take the requested four (4) days in December. Lewis thereupon documented the vacation schedules of Petitioner Armour and Henderson accordingly, giving Henderson the last four (4) days he desired and had theretofore requested. Witness Kyler corroborated the testimony of Lewis. Petitioner Armour took off the four (4) days following the two (2) days leave granted that he had requested in February but was denied in June.
Recommendation Based upon the foregoing Findings and Conclusions of Law, the Hearing Officer recommends that the three (3) days suspension of the Petitioner, Fletcher Armour, by the Respondent, City of Clearwater, be sustained. DONE and ORDERED this 10th day of January, 1980, in Tallahassee, Leon County, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Rick Griesinger, Esquire Assistant City Attorney City of Clearwater Post Office Box 4748 Clearwater, Florida 33518 Mr. Fletcher Armour 535 Fairwood Avenue, #230 Post Office Box 794 Clearwater, Florida 33518
Findings Of Fact Donald C. Geeck was employed the City of Clearwater Utilities Department as a Customer Service Supervisor on September 26, 1983, and had been so employed since October, 1981. Prior thereto he was employed by the Clearwater Police Department. On September 26, 1983, around 8:00 a.m. Geeck called the Utilities office to report he had overslept and would be in shortly. His workday started around 8:30 a.m. and he would have been a few minutes late. When he had not arrived by 10:00 a.m., Tamera Denman, a Customer Service Representative supervised by Geeck, called Geeck to find out if he had gone back to sleep. Geeck answered the phone and told Denman he was not feeling well and would probably not be in. Around 12:15 p.m. Geeck called the office to advise he would not be in that day (Monday) and maybe not on Tuesday, September 27, 1983. Fred Lewis is Assistant Account Supervisor in the Clearwater Utilities Department and the immediate supervisor of Geeck. Lewis has been employed by the City for some 28 years. Lewis was not satisfied with Geeck's performance of duty since the latter was transferred to the Utilities Department and had counseled Geeck several times. At Geeck's annual evaluation defects in Oeeck's performance were pointed out by Lewis in a meeting of Geeck, Lewis, and Mehring, Utilities Accounts Supervisor. Lewis smelled alcohol on Geeck's breath on several occasions in the office and this, plus frequent use of sick leave, led Lewis to conclude Geeck had a drinking problem. Robert Brumback is Assistant Director, Utilities Department, Clearwater, and the supervisor of Mehring. He had smelled alcohol on Geeck's breath once in the office and had cautioned Geeck that Customer Service Representatives had to be careful of their appearance, as they were in daily contact with customers. When Lewis returned from lunch around 12:30 p.m., September 26, he was advised of Geeck's recent call that he would not be in that day, and maybe not the following day. Lewis was aware of the other phone calls that had been made that morning. Around 12:45 p.m. Lewis dialed Geeck's number to inquire about his condition but received no answer after waiting for the phone to ring seven times. Shortly thereafter Lewis and Brumback went out on a high bill complaint and, before leaving, Lewis informed Brumback of Geeck's absence; of the phone calls during which Geeck stated he wasn't feeling well and would not come to work that day and maybe not the next day; of his phone call to Geeck's residence and no answer; of the fact that similar incidents had occurred in the past; and that he suspected Geeck's claim of sickness was spurious and the result of Geeck's drinking problem. He requested Brumback stop by the Eagle's Club, a private club frequented by Geeck, on their return to the office. Brumback agreed, and in route back to the office they pulled into the Eagle's Club parking lot where Geeck's car was seen. Brumback and Lewis went to the door but could not get in without a member's card. After a short wait a member came out and Lewis stepped into the doorway, from where he saw Geeck at the bar. Geeck also saw Lewis and came to the door. He then saw Brumback and came outside. When Geeck approached Brumback, he said words to the effect "I must be in a lot of trouble. I'm supposed to be home sick and you found me here drinking and rolling quarters." When asked if he had a drinking problem, Geeck replied "I guess I do." Brumback told Geeck to report to his office the following day. Brumback and Lewis then departed and returned to the office. Geeck's version of the events of September 26 coincide with those above-recited; however, Geeck contends he mentioned he was not feeling well only on the phone call made to him at 10:00 a.m. by Denman. When he called in at 8:00 a.m., he intended to come to work but went back to sleep until he was awakened by Denman's phone call at 10:00 a.m. Shortly after he called Lewis' office at 12:30 p.m., he received a call from the manager of the Eagle's Club that he needed the checkbook and some change. Geeck is secretary of the Eagle's Club, had the checkbook and the only key to the vending machine. Geeck drove the five minutes from his home to the Eagle's Club, took checks to the manager, and opened the vending machines. When he sat at the bar to roll quarters, the bartender placed a drink in front of him. He had taken only a couple of sips when he saw Lewis at the door and came out and then saw Brumback. He definitely recalled saying I guess you caught me; I'm supposed to be home sick, or words to that effect. Geeck further testified that on the evening of September 25 (Sunday) he had called Bingo but did not feel well, left the Bingo hall early, and returned home around 8:30 p.m. No explanation was offered why, if he went to bed at 8:30 p.m., he would oversleep the following morning and go back to sleep after calling the office to advise he had overslept and would be in shortly. Respondent presented evidence that Lewis was unsatisfied with Geeck's performance of duty and with his suspected drinking problem and wanted to get rid of Geeck as an employee under his direct supervision. However, the evidence was unrebutted that Brumback was the one who made the determination to, and did, recommend Respondent's dismissal. Brumback testified that when Geeck called in (or was called) and stated he was not feeling well and would not come to work on September 26, he considered Geeck to be on sick leave. When he subsequently found Geeck at the Eagle's Club working and having a drink, he concluded that Geeck had falsified the report of his sickness and thereby knowingly made a false claim or misrepresentation in order to obtain sickness benefits. Geeck was the supervisor of eight Customer Service Representatives and, as supervisor, Brumback expected Geeck to set a good example and not falsify a report. For this reason he, and he alone, recommended dismissal. The policy of the Utilities Department is to consider people on sick leave when they call in to say they are sick, and filling out the paperwork to document this time is accomplished after the employee returns to work. In Geeck's situation, he had neither sick leave nor annual leave remaining to which he could charge his absence on September 26. That day would, perforce, be a day for which he could not be paid. His absence would be excusable if he was sick.
Findings Of Fact The Petitioner in this action is the City of Clearwater, Florida, a municipality in the State of Florida which provides governmental services to the citizens within that community, to include police protection. It has among other powers, the power to hire and dismiss employees and in keeping with that authority, the City has enacted Ordinance No. 1831, pursuant to Chapter 21153, Special Laws of Florida, 1941. This ordinance deals with a career civil service system for employees of the City of Clearwater and it sets forth the rights which an employee would have if that employee had been accused of misconduct. A subunit within the City of Clearwater is the Clearwater Police Department which has rules and regulations which would apply to the employees within that Department. This case concerns charges placed by the Petitioner, City of Clearwater, against the Respondent, Danny Fivecoat, who held the position of Sergeant in the Clearwater Police Department on July 25, 1980. Those charges placed under the terms and conditions of a "Termination Dismissal Notice" which may be found as Joint Exhibit No. 3, admitted into evidence, set forth the accusations as alluded to in the Issues statement of this Recommended Order. The termination and dismissal notice was placed against the Respondent on December 15, 1980, when he was relieved as a police officer and dismissed from employment with the City of Clearwater. This action was taken in keeping with the authority of City of Clearwater Ordinance No. 1831 and pursuant to Rule 14, Section 6, Civil Service Rules of Clearwater, Florida. Subsequently, the Respondent attempted to explain and answer the charges and specification placed against him, but the explanation and answer were found to be insufficient by the appointing authority, City Manager, City of Clearwater, Florida, and pursuant to the terms and conditions of City of Clearwater Ordinance No. 1831, Section 2-38, the Respondent requested a formal hearing to be held before the Division of Administrative Hearings. That formal hearing was held in keeping with the terms of the aforementioned ordinance and the agreement between the City of Clearwater and the Division of Administrative Hearings to provide a Hearing Officer for these matters. See also Subsection 120.65(6), Florida Statutes. The hearing in this cause was conducted on March 25, 1981. In July, 1980, while employed as a sergeant in the Clearwater Police Department, the Respondent was assigned as supervisor of a TAC unit. Within that unit were five (5) or six (6) subordinate officers to the Respondent. One of the duties of the TAC unit in July, 1980, concerned an effort to ascertain the identity of a person or persons who were suspected of committing the felony offenses of burglary and arson at a commercial premises now known as Gulf Branch Saloon and formerly known as Bobby Sands 60. This bar was located on State Road 60 within the corporate limits of the City of Clearwater, Florida. To apprehend the offenders, Fivecoat established a surveillance network in the area of the bar location. The rough details of that network may be seen as Employee's Exhibit No. 6, admitted into evidence, which is a sketch, not to scale, depicting surveillance locations in July, 1980, and in particular, on July 25, through July 27, 1980. The numbers 1, 2 and 3 depict surveillance points of members of the TAC unit who were on foot. The word van indicates the location of the command post of the surveillance unit and in addition, there were two unmarked automobiles that were east and west of the location of the bar. These locations are not depicted with any particularity. The primary surveillance was being conducted by the three individuals shown by the numbers on Employee's Exhibit No. 6, with the idea being that from the three locations, the entire bar area could be surveilled. The van served as a command post and a rallying point for the officers on the surveillance team and was used as a location for taking breaks and meals while on the surveillance assignment. Those persons in the outlying surveillance posts would come to the van to take breaks and to have their meals after being relieved by Respondent and an Officer Adamson. Officer Adamson was assigned to drive the van and to assist Sergeant Fivecoat. The van itself was not equipped as a police unit per se, it was unmarked and did not have police emergency lights or sirens or communications equipment and was not designed for pursuit responsibility, although it had been used as mobile surveillance and on occasion, Officer Adamson had attempted to use it as a pursuit vehicle. The Respondent did not find it to be an appropriate pursuit vehicle, he did, however, feel that it could be used as mobile surveillance and as an apparatus for blocking suspects who were fleeing a scene of a crime in an automobile. The van had two front seats and other additional seating that had been placed there by arrangement of members of the TAC unit and it contained bicycles to be utilized for transportation in the area of a surveillance setting. The van was not primarily used for the surveillance, but it did allow a view of the west side of the subject bar and this observation was principally the assignment of Officer Adamson. On the evening of July 25, 1980, prior to setting up the surveillance operation alluded to herein, the Respondent and members of his unit went to a local restaurant in Clearwater, Florida, to have dinner and to discuss the plans of operation for that evening. While at the restaurant, the Respondent and one Kim Dubois, an employee in the State Attorney's Office which has jurisdiction in Clearwater, Florida, engaged in a conversation through which the woman Dubois determined that the surveillance activities were ongoing, specifically that the Respondent could be found in the parking lot of the Western Sizzler on State Road 60 later on that evening. In the course of this conversation, Fivecoat let it be known that it would be acceptable for Dubois to come to the stakeout and carry on a conversation while the surveillance was ongoing. Between 2:45 A.M. and 3:00 A.M., on July 26, 1980, Kim Dubois and one Diana Scanlan, another employee of the same State Attorney's Office, went to the location of the van in the Western Sizzler parking lot. At that time, the surveillance operations had been underway for a period of approximately an hour and forty-five minutes. The two women sat in their automobile and talked to Sergeant Fivecoat and Officer Adamson who were seated in the van. Fivecoat was on the passenger side of the van. At times the women were outside their car talking to the officers who remained in the van. Other officers who were on the surveillance team came to the van while the women were present and Officers other than Adamson and Fivecoat entered into conversation with the women. The two women remained in the area of the van engaging in a conversation until around 5:00 to 5:30 A.M., at which point they left the area of the surveillance and the members of the surveillance team left shortly thereafter. Nothing other than the conversation between the women and Respondent and other members of his team took place and no burglary or other incident occurred which required police intervention. Neither Fivecoat nor other members of his team asked the women to leave the area of their surveillance. While these events were going on, cars were operating on State Road 60 and at times, other persons were in the parking lot of the Western Sizzler eating establishment. None of the officers were wearing police uniforms on this occasion nor were they in uniform on the night of July 26, 1980, in the early morning hours of July 27, 1980. Again, in the early morning hours, around 2:45 to 3:00 A.M., July 27, 1980, the women came to the location of the van in the parking lot of the Western Sizzler where the Respondent and Officer Adamson were located. The surveillance team members were located in approximately the same positions as depicted in Employee's Exhibit No. 6. Initially, the women sat in their car and talked to the Respondent and Officer Adamson who were seated in the van, until the police officers ran out of soft drinks and the women departed and brought soft drinks back to the police officers in the van. The drinks were given to the officers and the women were allowed in the van, into the back part of that vehicle. While they were inside, the side cargo door remained open and no other matters transpired between the women and the police officers other than conversation between them. Sergeant Fivecoat never indicated that the women should not be in the van and the women were lead to believe that it was acceptable for them to be inside. The women remained in the van for approximately an hour and left the scene of the surveillance around 5:00 to 5:30 A.M. and the Respondent and members of his team concluded the surveillance shortly thereafter. Again, the pattern of traffic on State Road 60 and in the Western Sizzler parking lot was essentially the same as the evening and morning before and no criminal violation occurred which required the action of the police officers in the TAC unit. Had such activity occurred as was the expectation of sergeant Fivecoat, the members of the TAC team outside the van proper would have been primarily responsible for enforcement and he and Adamson were mostly responsible for relieving those officers during breaks. Nonetheless, Sergeant Fivecoat was the overall supervisor and responsible for the surveillance operation in question. On the second night and morning, other officers came to the van and entered into conversation with the women. On the second morning and evening, neither Sergeant Fivecoat nor any members of the TAC unit asked the women to leave the area of the surveillance. Sergeant Fivecoat knew that the presence of the two women at the TAC command post was in violation of the prohibition against their presence as set out in Rule 23, Rules and Regulations of the City of Clearwater Police Department.
Recommendation The Respondent's Composite Exhibit No. 5, admitted into evidence, is a compilation of fitness reports and other items related to the Respondent's performance as a police officer. These items are taken from the personnel file of the Respondent as administered by the Petitioner. With the exception of the incident occurring in June, 1977, related to a liaison of a sexual nature between the Respondent and a female which occurred in the months of March or April, 1977, for which the Respondent was given a ten-day suspension, the Respondent has not been disciplined in the past and has an acceptable record. The details of the other disciplinary action may be found in the Petitioner's Exhibit No. 1, admitted into evidence. The actions of Sergeant Fivecoat, as set forth in this Recommended Order, related to the incident involving the two civilian females is reprehensible and having occurred with the knowledge of Sergeant Fivecoat that he was committing a violation is inexcusable. Nonetheless, it is not of such magnitude that it would warrant the ultimate imposition of the penalty of dismissal as would be contended for by the City Manager, City of Clearwater. Likewise, the recommendation of demotion from Sergeant to patrolman and a five (5) day suspension as made by the interim Police Chief would seem too lenient. Under the circumstances, the recommendation herein would be that Sergeant Danny J. Fivecoat be reduced in grade to patrolman and be suspended for a period of thirty (30) days to run from the entry of a final order in this cause. 1/ DONE and ENTERED this 17th day of April, 1981, in Tallahassee, Florida. CHARLES C. ADAMS, 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 17th day of April, 1981.
Findings Of Fact The following findings are based on the uncontested facts alleged in Petitioner's Motion For Summary Recommended Order and from the Final Orders issued in Bayshore Homeowners Association v. Department of Environmental Regulation and Grove Isle, Inc., Case Nos. 79-2186, 79-2324 and 79-2354. On December 29, 1980 DER entered a Final Order on the application of Petitioner for a 90 slip marina in Biscayne Bay, Florida. The Order denied the permit because Grove Isle had not demonstrated that the project is "affirmatively in the public interest" and because the applicant had not demonstrated that it "can meet ambient water quality standards within the project area itself." In the Recommended Order on Remand the Hearing Officer had defined "existing ambient waters" to be the area in the cove between Grove Isle and the Miami mainland. The Final Order rejected that concept and held if any waters others than those contained within the immediate project site were to be considered as ambient, Petitioner must request a mixing zone as part of its application. See Section 17-4.242, (1)(a)2.b. and Section 17-4.244, Florida Administrative Code. By a letter received at the Department of Environmental Regulation on May 20, 1981, Grove Isle reapplied for the boat dock permit which was the subject of the foregoing proceedings. Petitioner's application, which was in the form of a letter from counsel, stated: May 18, 1981 Mr. Larry O'Donnell Department of Environmental Regulation Post Office Box 3858 West Palm Beach, Florida 33402 RE: GROVE ISLE - Application for Boat Dock Dear Mr. O'Donnell: On behalf of Grove Isle, LTD, I am reapplying for the boat dock permit previously applied for by Grove Isle, LTD. Please consider this a short-form application. Your office designated a previous file number, DF 13-7956, to this matter. In conjunction with that application I am applying for a mixing zone, pursuant to Rule 17-4.244, for both the construction and operation of this marina. Please refer to your file on the previous application and incorporate said documents into this reapplication. I am submitting with this application: A scale drawing (one inch = 100') of the proposed facility. (which you have) A certified survey of the proposed mixing zone. (one inch = 100') An application fee of $20.00 A copy of the Final Order issued by Jacob D. Varn, former secretary of DER, on the previous application. A copy of the Notice of Intent previously issued for this project, dated 9/23/79. (which you have) As you will note from reading Mr. Varn's Final Order, he concluded that issuance of this permit was not appropriate inasmuch as the applicant had not applied for nor received a designated mixing zone. We do not necessarily agree with this order and have, in fact, appealed this decision to the First District Court of Appeal. However, in an attempt to keep this matter from becoming any more complicated, we have decided to reapply for the permit and to apply for a mixing zone. We do not concede that a mixing zone should be required for this project or that the facility will result in the release of any pollutants so as to significantly degrade ambient water quality. However, should this project, through its construction or operation, result in the release of any pollutants, I believe they would be limited to: Bottom sediments placed in suspension by the installation of the concrete piles used to support the docking facility during construction; Minimal amounts of oil and grease which may escape from the various vessels moored to the docks; The constituants of anti-fouling paint which may be applied to the hulls of the various vessels moored at the docks. Turbidity will be controlled by the use of curtains during construction. If lowered water quality occurs at all in this project it would only occur within the designated mixing zone, as per Rule 17-4.242 (2)(b) F.A.C. Please advise me should additional information be needed to process this re-application. Yours truly, /s/ KENNETH G. OERTEL On June 19, 1981, DER sent a "completeness summary letter" to Petitioner which requested the following information: Your project is in Outstanding Florida Waters. Please provide the following items demonstrating compliance with Section 17-4.242, Florida Administrative Code. Please demonstrate that this project is clearly in the public interest and that this project will not result in the degradation of ambient water quality beyond the 30 day construction period. Petitioner responded by letter dated June 22, 1981 and which was received at DER on June 25, 1981. Petitioner said in pertinent part: Dear Mr. Duke: If you would check your previous file no. DF-13-7956, I believe you will find all the information you have requested has previously been provided to your office either in that permit file or through the administrative hearings held in pursuit of this application. I think it would be more fruitful if you would communicate with Al Clark, Attorney for DER, with regard to the status of this application. As I do not wish to speak on behalf of Mr. Clark, I believe you should confirm the status of this application with him, particularly in view of our attempt to comply with Secretary Varn's Final Order which suggests the application for this mixing zone. The record reflects no further correspondence between the parties until September 23, 1981 when the Department entered a Final Order Denying Application for Permit. The Order provided that: This project was reviewed previously (DF 13-7956) and was determined not to be clearly in the public interest pursuant to Section 17-4.242, F.A.C. No further evidence upon resubmittal, has been provided to clearly demonstrate that this project is in the public interest. Furthermore, the requested mixing zone exceeds that allowable pursuant to Section 17-4.244, F.A.C. and can be applied only during the construction period, pursuant to Section 17-4.242, F.A.C. During the operation of this facility ambient water quality is expected to be degraded in violation of Section 17-4.242, F.A.C. This order was entered ninety-one days after DER received Petitioner's June 22, 1981 letter.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Department of Environmental Regulation issue the permit applied for by Petitioner, Grove Isle, Ltd. on May 20, 1981 subject to the conditions contained in the Notice of Intent To Issue Permit dated October 23, 1979 which is a part of the record in Bayshore Homeowners Association et al., v. State of Florida Department of Environmental Regulation and Grove Isle, Inc., Case Nos. 79-2186, 79-2324 and 79-2354. DONE and RECOMMENDED this 12th day of February, 1982, in Tallahassee, Florida. MICHAEL P. DODSON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of February, 1982.
The Issue The issue in this case is whether just cause exists for the termination of the Respondent's employment by the Petitioner.
Findings Of Fact At all times material to this case, Gary Ellerson was employed as a Police Aide II by the City of Clearwater Police Department (Department). The position held by Mr. Ellerson is classified as a permanent part- time and is subject to the City of Clearwater Civil Service Rules. At some time during his employment with the Department, Mr. Ellerson has also worked for the "NuCops" program, a part of the federally-funded "Americorps" project. One of Mr. Ellerson's NuCops assignments was to provide assistance to a regularly scheduled Boy Scout meeting. Although on one occasion the Department funded Mr. Ellerson's attendance at a NuCops training program, the NuCops program is not funded or operated by the Department. At some point immediately prior to April 1, 1995, Mr. Ellerson sought permission from Lt. Frank Daly, a superior, to work as a Police Aide with the Boy Scouts on April 1, 1995. Lt. Daly approved the request, contingent on the further approval of Police Aide Lead Worker Chris Corino and Police Sergeant Heinz. Based on Lt. Daly's approval, Mr. Ellerson obtained the approval of Mr. Corino and Mr. Heinz. Mr. Ellerson did not advise Lt. Daly that the April 1 Boy Scout meeting was part of his regularly assigned NuCops duties. Lt. Daly testified that had Mr. Ellerson identified the Boy Scout meeting as part of his NuCops assignment, the request to include it on Mr. Ellerson's Department time sheet would not have been approved. According to a review of the time sheets submitted to the Department and to the NuCops program by Mr. Ellerson for April 1, 1995, Mr. Ellerson reported working the same hours to both employers. According to a review of the time sheets submitted to the Department and to the NuCops program by Mr. Ellerson for April 4, 1995, Mr. Ellerson reported working the same hours to both employers. According to a review of the time sheets submitted to the Department and to the NuCops program by Mr. Ellerson for April 10, 1995, Mr. Ellerson reported working the same hours to both employers. There is no evidence that Mr. Ellerson sought or received the Department's permission to include the April 4 and 10 Boy Scout meetings on his Department time sheets. There is no evidence that Mr. Ellerson worked for the Department during the hours reported on the time sheets for the dates cited herein. On the three relevant dates, Mr. Ellerson attended a meeting of Boy Scouts, a duty of his employment with the NuCops program. Department time sheets contain a signature line where the employee attests to the truth and correctness of the hours reported. Mr. Ellerson signed the statement on the relevant time sheets. The Department conducted an investigation of the erroneous time sheets. During the investigation, Mr. Ellerson asserted that he listed "training" hours and "studying" hours separately. Review of the time sheets fails to support the assertion. There is no evidence that Mr. Ellerson had differentiated such hours on prior time sheets. The Petitioner asserts that after the April 1 incident, Mr. Ellerson was told by Police Aide Lead Worker Chris Corino not to include the NuCops/Boy Scout time on his Department time sheets and that Mr. Ellerson failed to follow the directive. Mr. Corino did not testify at the hearing. Mr. Ellerson denies he was told by Mr. Corino that his time sheet was improper. Because there is no non-hearsay evidence which could establish that Mr. Ellerson was specifically told not to include the Boy Scout program on his Department time sheets, the assertion is rejected. Mr. Ellerson has been previously disciplined by the Department for failure to obey orders (resulting in a written reprimand) and for tardiness and absence from duties (resulting in a one day suspension.) The evidence establishes that based on the facts of this case, the appropriate disciplinary action is termination of employment.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the City of Clearwater Civil Service Review Board enter a Final Order terminating the employment of Gary Ellerson. DONE and ENTERED this 8th day of April, 1996 in Tallahassee, Florida. WILLIAM F. QUATTLEBAUM 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, 1996. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-4250 To comply with the requirements of Section 120.59(2), Florida Statutes, the following constitute rulings on proposed findings of facts submitted by the parties. Petitioner The Petitioner's proposed findings of fact are accepted as modified and incorporated in the Recommended Order. Respondent The Respondent did not file a proposed recommended order. COPIES FURNISHED: H. Michael Laursen Human Resource Director City of Clearwater Post Office Box 4748 Clearwater, Florida 34618-4748 Leslie K. Dougall-Sides, Esquire City of Clearwater Post Office Box 4748 Clearwater, Florida 34618-4748 Mr. Johnny Long, Representative c/o Mr. Gary Ellerson (address of record)
The Issue The issue is whether Respondent should be terminated from employment with the City of Clearwater (City) for violating City policies as alleged in the City's Termination and Dismissal Notice (Notice) dated July 16, 2015.
Findings Of Fact On February 2, 2009, Mr. Bennett was hired by the Clearwater public utilities department as a water distribution technician I. In April 2015, Mr. Bennett was promoted to a public utilities technician II (Tech II). As a Tech II, Mr. Bennett’s job description included: repairing water leaks, testing backflows, keeping water flowing, and providing services to customers. Additionally, as a Tech II, Mr. Bennett could be called upon by the public water department to respond to after- hours emergency calls, including nights and weekends. On Sunday, April 26, 2015, Mr. Bennett was on-call for the public water department. A city customer called and reported a water leak at his residence. Mr. Bennett was dispatched to the customer’s residence. Mr. Bennett met the customer and cleared the area around the water meter. Mr. Bennett located the water leak outside the water meter box. Mr. Bennett told the customer that a plumber would charge anywhere from $100 to $1,000 to repair the leak because the service call was on a weekend. Mr. Bennett told the customer he would repair the leak for $300. Further, Mr. Bennett provided the customer with a cell phone number so that if the repair was not satisfactory or there was more work to be done, the customer could contact Mr. Bennett. Mr. Bennett repaired the leak using plumbing supplies from the public utility department truck. After the work was completed, the customer gave Mr. Bennett a personal check for $300. There is no dispute that Mr. Bennett cashed the check on April 27, 2015. After several days the customer texted Mr. Bennett that the cost for the repair was too high. Mr. Bennett did not respond to the text. Mr. Bennett completed a “City of Clearwater Water Leak Service Order” on the repair. The work order reflected that Mr. Bennett received the service call at 7:25 p.m., and he returned home at 9:10 p.m. Mr. Bennett recorded that he found a water leak "in box @ customer's side, repaired leak." Several weeks later, when the customer received his next city water bill, he called the city customer service center to complain. The customer expressed that, after checking with friends and looking at the cost of plumbing parts, the $300 he paid Mr. Bennett was too high for the repair. The customer provided a copy of his cancelled check to the service center. The Clearwater public utilities department does not charge customers for repairs. There is a city policy that the city will repair water leaks within the meter box, but that water leaks outside the meter box are the responsibility of the customer. Following the complaint, the city conducted an investigation into the customer’s water leak repair. Glenn Daniel, Mr. Bennett's supervisor, went to the customer’s residence to examine the area around the water meter. Mr. Daniel observed several new plumbing parts installed outside the meter box. Based on the type and condition of the newly installed pipes, Mr. Daniels determined that the new pipes were from the City's inventory. Mr. Bennett admitted that he made the repair to the water pipe. He proceeded to testify that he felt “funny” about taking and cashing the $300 check. Mr. Bennett claimed he returned the $300, in cash at 2 a.m. the next morning, by placing the cash under the customer’s doormat. Mr. Bennett failed to contact the customer to tell him the money was there. When the customer was asked to look for the money, it was not under the doormat. Mr. Bennett's testimony lacks candor and is not credible. Mr. Bennett also claimed that the telephone number the customer used to text him was not his telephone number. Sergeant Ramon Cosme, of the Clearwater police department, conducted an investigation of the alleged theft of city property. In the course of his investigation, Sergeant Cosme identified the telephone number as being associated to Mr. Bennett. Mr. Bennett was paid by the City for the overtime he worked on Sunday, April 26, 2015. The City has adopted a Performance and Behavior Management Program (PBMP) manual that applies to all employees and contains Citywide, Integrity, and Departmental standards of conduct. Also, pursuant to the Code of Ordinances (Code), the Civil Service Board has adopted a set of rules and regulations that apply to all positions in civil service, including Mr. Bennett's position. Among other things, those regulations set forth additional grounds for disciplining an employee. Each employee is required to review the policies and procedures documents and to acknowledge the understanding of those policies. Mr. Bennett acknowledged being advised about those policies during his employment with the City. Civil Service Board regulations allow an employee to present the circumstances which led to his discipline and other mitigating evidence. See Ch. 13, § 8, Rules and Regs. Pursuant to that regulation, Mr. Bennett requested a disciplinary determination meeting with the Department of Human Resources, which was conducted on July 10, 2015. Mr. Bennett attended the meeting with his union representative. After considering Mr. Bennett's explanation, David Porter,2/ on behalf of the Public Utilities Department, recommended that Mr. Bennett’s employment be terminated. On July 16, 2015, the City Manager notified Mr. Bennett that his employment was being terminated effective the following day, July 17, 2015. The evidence shows that Mr. Bennett repaired a water meter leak on the customer’s side of the meter by using city property, and he accepted $300 for the repair.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Civil Service Board of the City of Clearwater enter a final order terminating Mr. Bennett’s employment. DONE AND ENTERED this 13th day of April, 2016, in Tallahassee, Leon County, Florida. S LYNNE A. QUIMBY-PENNOCK 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 13th day of April, 2016.
The Issue The basic issue in this case is whether the Petitioner is entitled to the issuance of an individual construction permit for a proposed stormwater management system intended to serve Phase II of the Petitioner's land development project.
Findings Of Fact Based on the admissions and stipulations of the parties, on the exhibits received in evidence, on the testimony of the witnesses at the hearing, and on the matters officially recognized, I make the following findings of fact. On October 8, 1985, the applicant filed a notice of intent to utilize a general permit for the construction of a new stormwater discharge facility. This request was denied by the Department of Environmental Regulation by letter of November 7, 1985. Subsequently, on November 21, 1985, the applicant filed an individual construction permit application, which was later supplemented with additional information which was requested by the Department. This original application was the subject of an April 9, 1986, notice of an intent to deny. The basis for proposed denial was that the discharge elevation from the proposed stormwater management system was too low in relation to predicted stage elevations of Little Lake Santa Fe and Lake Santa Fe and thus efficient operation of the stormwater management system would be prohibited when the discharge elevation was lower than the elevation of the lakes. In response to the Department's concerns and suggestions, the applicant modified its application on August 26, 1986, and submitted the modification to the Department and provided a copy to SFLDA. Upon review of the August 26, 1986, modifications to the application, the Department changed its position and at the time of the hearing in this case, the Department proposed to grant the application, as modified. The proposed stormwater management system is designed to serve all of Phase II of the Santa Fe Pass development, which consists of approximately 20 acres. Phase II contains an access road, tennis and racquet ball facilities, 50 cabanas or villas (constructed as duplexes) which will serve as overnight accommodations for a private club, a restaurant and other common buildings for recreational use, and a dry boat storage facility. These light intensity uses proposed for Phase II should result in relatively low concentrations of pollutants in the stormwater runoff. The impervious surface resulting from the construction of Phase II will involve less than 5% of the overall surface area contained in this phase of the development. In addition to serving Phase II, the proposed stormwater management system will also treat approximately 26,000 cubic feet of runoff generated from 43 acres of the Phase I residential development in a basin to be constructed in the northwest corner of Phase II. This Phase I acreage contains infrastructure and a few residential units but many of the one-acre, single-family lots have yet to be constructed. The treatment of runoff from this Phase I acreage is not required pursuant to Chapter 17-25, F.A.C. The construction of the holding facility will have the effect of improving stormwater runoff which currently discharges directly through a swale into Santa Fe Lake. This proposed improvement to the existing system is the result of an agreement between the developer and Alachua County. There are basically four types of treatment being provided in the proposed stormwater management system: Runoff from the tennis/racquet ball facility will be provided in the detention/filtration basin; The first 1 1/2 inches of runoff from the roadway which provides access to the project will be retained in eight-foot gravel shoulders underlain with sand; Retention basins will also be constructed in association with each of the overnight residential structures with treatment being provided by infiltration of runoff generated from the roofs of these structures; and One and one-half inches of runoff from 4.56 acres of Phase II will be treated (via extended settling biological uptake and adsorption) within a wet detention facility consisting of a man-made lake and a natural wetland/transitional area. Every aspect of the proposed stormwater management system exceeds the Department's design and performance criteria, and the evidence clearly establishes that the facilities comply with the best management practices and performance standards outlined in Chapter 17-25, F.A.C. The recreational facilities, roads, and residential units are treated by facilities which will provide adequate detention with filtration volumes or retention volumes. Section 17-25.04(5), F.A.C., specifies that an applicant must provide treatment for the first 1/2 inch of runoff or runoff from the first 1 inch of rainfall. In the instant case, the storage volume is increased by 50% because the receiving waters are designated Outstanding Florida Waters. Thus, runoff from the first 1 1/2 inch of rainfall from the tennis/racquet ball courts must be detained and filtered before being discharged to Lake Santa Fe. The required treatment will be provided in the proposed compensation basin and additional treatment will be provided in a 150-foot swale which will convey these treated waters to Santa Fe Lake. Similarly, in the case of the road surfaces and impervious roofs, the system is designed to collect and retain 1 1/2 inches of runoff from these facilities and treat that water through percolation into the soils before it moves laterally to the lake. The wet detention system is an innovative equivalent treatment proposal authorized in the equivalent treatment provisions in Section 17-25.04(5), F.A.C., and the design criteria for the proposed system has been promulgated by the Department based on the successful experiences of the South Florida Water Management District, which has for a number of years successfully permitted wet detention facilities. The proposed man-made lake has been properly sized and designed so as to maximize the physical, biological, and chemical processes which result from detaining stormwater runoff and promoting contact between the runoff and natural substrates. In the instant case, the man-made lake will provide the first form of treatment. It will then discharge at a specified elevation into a 19,000 square foot wetland/transitional area where natural polishing filtration functions will be performed by existing macrophytes and vegetation before being discharged through a control structure to Little Lake Santa Fe. In order to insure no threat of water quality degradation in the use of wet detention systems, the Department has promulgated policies and design criteria which require a doubling of the storage volumes which would otherwise be required should a more traditional retention or detention with filtration approach be utilized. For purposes of the instant case, this doubling results in the applicant treating 1 1/2 inches of runoff before it allows discharge into Little Lake Santa Fe, and that storage volume is twice (.75 inches) that which would otherwise be required even with the additional 50% treatment required for waters discharging into Outstanding Florida Waters. By employing the wet detention equivalent treatment approach and raising the control discharge elevation to 141.25 feet, the applicant has satisfactorily addressed the concerns that were previously expressed by the Department's original proposed agency action. The Petitioner's proposal, as modified, complies with all Department permitting criteria and there are no constraints or limitations which would preclude the system from operating as designed. The design for this system includes ample considerations for sediment, turbidity, and erosion controls during the construction phase of this project, and the operation and maintenance schedule will ensure continuing compliance with Department criteria. The design is sound, as demonstrated by the fact that analogous facilities have functioned as claimed. The biological and chemical interaction of the runoff with macrophytes contained in the littoral zones of the man-made lake and in the wetland/transitional polishing area will provide valuable nutrient assimilation and uptake. These natural treatment processes ensure that water quality standards will be satisfied and that no adverse water quality degradation will occur with respect to the receiving waters. The concentrations of pollutants in the waters discharged from the stormwater management facility would not exceed Class III water quality standards and would, in fact, be better than the ambient water quality documented in Little Lake Santa Fe and Lake Santa Fe. Even though the proposal, as modified, meets all of the Department permitting criteria, the proposal would be even better if the following changes were made to it. The oil skimmer device should be metal rather than wood. The littoral zone planting should be at 1 1/2 foot centers for the limited area east of the man-made lake where it connects to the natural wetland/transitional area. Reasonable storm event related monitoring should be conducted for one year following the completion of construction of the impervious surfaces specified in the application. Parameters to be tested should include suspended solids, turbidity, pH, conductivity, dissolved oxygen, nutrients, lead, zinc, and hydrocarbons. Samples (time weighted composite) should be collected at the outfall structure while the system is operating following four storm events during the year. The applicant does not object to making the changes described in this paragraph. The SFLDA's concerns were limited largely to the prospects of a washout due to an extraordinary storm event and doubts it possesses relative to the maintenance required for the system. There was no evidence presented, however, which indicate that a washout or severe disruption to the management system would occur except in extremely rare circumstances such as those attending a 100-year storm. The Department's rules and permitting criteria governing stormwater management systems do not, however, require an applicant to prevent discharges from stormwater management systems during extraordinary events, such as a 100-year storm. The applicant has, in this case, provided the necessary reasonable assurances that this facility will function as designed. The maintenance schedule presented by the applicant is facially sound, and the experts agreed that maintenance of the wet detention system would be minimal. The maintenance and operational features of this proposal are important; however, they are straightforward and the property owners association, which shoulders the burden of compliance, is properly equipped with the powers and authorities to insure successful implementation.
Recommendation Based on all of the foregoing, it is recommended that the Department of Environmental Regulation issue the requested stormwater discharge construction permit with the Department's standard permit conditions and with special conditions requiring the changes described in paragraph 7 of the findings of fact, above. DONE AND ENTERED this 24th of November 1986 at Tallahassee, Florida. MICHAEL M. PARRISH, 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 24th day of November 1986. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 86-1445 The following are my specific rulings on each of the findings of fact proposed by the parties. Findings proposed by Petitioner and Respondent Paragraphs 1, 2, and 3: Accepted in substance with some unnecessary details deleted. Paragraph 4: Accepted. Paragraphs 5, 6, and 7: (There are no paragraphs 5, 6, and 7 in the proposed findings submitted by the Petitioner and Respondent.) Paragraphs 8, 9, and 10: Accepted. Paragraphs 11 and 12: Accepted in substance with some unnecessary details and editorial remarks deleted. Paragraph 13: The first sentence of this paragraph is rejected as constituting argument rather than proposed findings. The remainder of the paragraph is accepted in substance. Findings proposed by Intervenor Paragraphs 1, 2, and 3: Accepted in substance with some unnecessary details omitted. Paragraph 4: Rejected as subordinate, unnecessary details (much of the material from this paragraph has been included in the introductory portion of this Recommended Order.) Paragraphs 5, 6, the seven unnumbered paragraphs following paragraph 6, and 7: Accepted in substance. Paragraph 8: Rejected as constituting primarily summaries of conflicting evidence and argument rather than proposed findings of fact. Further, portions of this paragraph are contrary to the greater weight of the evidence. Paragraph 9: Rejected as irrelevant. Paragraph 10: Rejected as irrelevant or as subordinate unnecessary details. Paragraph 11: Rejected as constituting a summary of testimony rather than proposed findings of fact. Also rejected as being inconsistent with the greater weight of the evidence. Paragraph 12: Rejected as irrelevant or as subordinate unnecessary details. Paragraphs 13 and 14: First sentence rejected as unnecessary commentary about the record. The remainder is for the most part accepted in substance with deletion of some unnecessary details and with modification of some details in the interest of accuracy and clarity. COPIES FURNISHED: Frank E. Matthews, Esquire Kathleen Blizzard, Esquire HOPPING BOYD GREEN & SAMS Post Office Box 6526 Tallahassee, Florida 32314 Bradford L. Thomas, Esquire Assistant General Counsel 2600 Blair Stone Road Tallahassee, Florida 32301 Timothy Keyser, Esquire Post Office Box 92 Interlachen, Florida 32048 Victoria Tschinkel, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301
Findings Of Fact Respondent, Lois Green, is a resident of Florida and owns the property known as the Nichols Post Office located on Highway 676 in Nichols, Polk County, Florida. There is one employee stationed at the post office and members of the public use the post office for U.S. mail purposes. On October 11, 1990, Petitioner advised Respondent that the source of water that she used to supply the post office building did not comply with the requirements of the Florida Administrative Code. Thereafter, on September 23, 1991, Petitioner issued an Administrative Complaint to Respondent, advising of Petitioner's notice of intent to assess a fine of $100.00 per day until the corrections were made or for 30 days, whichever occurred first. At the hearing, Petitioner orally amended paragraph 4 of the Administrative Complaint to change the reference "December 22, 1989" to "October 4, 1990." Following service of the Administrative Complaint on Respondent and for 30 days thereafter, the water source for the post office building was a well located behind the post office on Respondent's property. In approximately December of 1991, Respondent disconnected the well which was presently serving the post office and connected to another well located adjacent to the property which supplied a residential home. The well which provided water to the post office was originally drilled as an irrigation well. The well head was located approximately 50 ft. to the closest septic tank and restroom pipe outlets. That well had no raw sample taps or a pressure tank with an inlet or outlet. Additionally, there was no surface protection pad nor were quarterly bacteriological samples taken to measure the water quality samples. Finally, the well was not approved by Petitioner prior to placing it into use by Respondent. Sometime subsequent to 30 days after Petitioner issued the Administrative Complaint to Respondent, Respondent abandoned the well without notifying the Petitioner and connected to a residential well which also contravenes the setback requirements contained in Chapter 17, Florida Administrative Code. Specifically, that well is approximately 30 ft. from the on-site sewage disposal system (septic tank) and is in violation of Rule 17- 555.302, Florida Administrative Code, formerly Rule 17-22.615(2), Florida Administrative Code. Petitioner's agent, Mark Fallah, during times material, was employed in Petitioner's Code Enforcement Section and was charged with investigating the problems surrounding Respondent's supply of water to the Nichols Post Office. Throughout the course of employee Fallah's involvement with the investigation of this matter, there have been several proposals and counter-proposals which have been exchanged by and between Petitioner and Respondent. Petitioner's agent Fallah attempted to see if a variance could be obtained whereby Respondent could continue to use the then existing well despite the fact, however, that it was in violation of the setback requirements. Additionally, Fallah attempted to get Respondent to make certain minor changes and modifications to the existing well which were not successful. Throughout the course of the parties negotiations in an effort to resolve this matter, there has been certain concessions made by both sides; however, the well which supplies the post office is a water system which is noncompliant with applicable statutory and rule requirements. Petitioner, through its employee Fallah, checked with a local well drilling company, Dunham Well Drilling Company, to obtain an estimate for a well. That company gave an estimate of approximately $2,000.00 to $3,500.00 to install a water supply system to the post office which would comply with Petitioner's requirements.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: Petitioner enter a Final Order imposing an administrative fine against Respondent in the total amount of $3,000.00 of which amount $2,500.00 shall be suspended pending Respondent's initiation of a plan to construct and install a water well system to provide the Nichols Post Office which complies with Petitioner's requirements enunciated in Chapters 403 and 381, Florida Statutes and Rule Chapter 17, Florida Administrative Code. In the event that Respondent fails to initiate a plan of correction and complete the installation of the well within sixty (60) days of the date of Petitioner's entry of its Final Order, then Petitioner shall be authorized to impose the full administrative penalty of $3,000.00 without further administrative proceedings. Respondent shall submit to Petitioner the five hundred dollar ($500.00) administrative fine within thirty (30) days from the entry of Petitioner's Final Order. DONE and ENTERED this 22 day of April, 1992, in Tallahassee, Leon County, Florida. JAMES E. BRADWELL 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 day of April, 1992. COPIES FURNISHED: Raymond R. Deckert, Esquire Asst District Legal Counsel HRS District VI Legal Office 4000 W Dr Martin Luther King Jr Blvd Tampa, Fl 33614 Mygnon Evans, Esquire 5600 US Highway 98 N Lakeland, Fl 33809 Richard S. Power Agency Clerk Dept of Health and Rehabilitative Services 1323 Winewood Blvd Tallahassee, Fl 32399 0700 John Slye, Esquire General Counsel Dept of Health and Rehabilitative Services 1323 Winewood Blvd Tallahassee, Fl 32399 0700
Findings Of Fact Respondent, Studebaker's Restaurant (Respondent), owns a 50's theme bar in Clearwater which offers entertainment and dancing and serves alcoholic beverages and food. Studebaker's has a nationwide policy, also followed at the Clearwater establishment, of restricting admittance to persons aged 23 and older. In the same building housing the Clearwater Studebaker's, Respondent also owns and operates a theme bar called the Palm Beach Club which is under common management and which is operated like Studebaker's except that the theme and music is contemporary and anyone who has attained the legal drinking age is allowed admittance. Petitioner, Ronald M. McElrath, is the coordinator for the Community Relations Board established under Chapter 99 of the City of Clearwater Code. He is approximately 38 years of age. In May or June 1985, McElrath witnessed an employee of the Clearwater Studebaker's refusing admission to a female on the basis that she was not at least 23 years of age. Investigating further, McElrath verified through the manager of the Clearwater Studebaker's that Respondent did have a policy restricting admission to the Clearwater Studebaker's to persons at least 23 years of age. Based on McElrath's knowledge and information, McElrath and the Community Relations Board attempted to conciliate with Respondent the alleged conflict between Respondent's age policy at the Clearwater Studebaker's and Chapter 99 of the City of Clearwater Code. By November 13, 1985, McElrath and the Community Relations Board concluded that their attempts at conciliation would not be successful, and the Community Relations Board filed a charge of discrimination against Respondent. That charge of discrimination was referred to the Division of Administrative Hearings and assigned Case No. 85-3513. On or about February 11, 1986, Case No. 85-3513 was dismissed and the file closed based upon the Community Relations Board's report that it was withdrawing its petition in the case and that an individual other than the Community Relations Board would file a separate petition as Charging Party. Actually, on or about January 9, 1986, McElrath, in his capacity as coordinator for the Community Relations Board, had filed a Supplemental Charge Of Discrimination against Respondent on the same alleged facts that formed the basis of Case No. 85-3513. McElrath's Supplemental Charge Of Discrimination was referred to the Division of Administrative Hearings on or about February 4, 1986, resulting in this case. McElrath has never attempted to file any other complaint under Chapter 99 of the City of Clearwater Code in his capacity as coordinator for the Community Relations Board. Because no further investigation was necessary and no further attempts to conciliate were reasonably likely to succeed, McElrath made no further investigation and made no further attempts to conciliate with Respondent after filing the Supplemental Charge Of Discrimination. Before filing of the Supplemental Charge Of Discrimination in this case, McElrath did not make a formal probable cause determination and did not serve notice of determination of probable cause on the Respondent. Respondent and its management has a commendable and appropriately implemented policy of being a responsible seller of alcoholic beverages for consumption on the premises. However, contrary to Respondent's assertions in this case, the policy of allowing only persons 23 years of age and older in the Clearwater Studebaker's is not significantly motivated by a desire to reduce alcohol-related traffic accidents. The primary motivation for the age limit is to establish and maintain an economically successful theme bar. Any contribution towards reducing alcohol related traffic accidents is an after thought rationalization. This was proven by Respondent's willingness to divert patrons younger than 23 next door to its Palm Beach Club where Respondent willingly serves them alcoholic beverages for consumption on the premises.
Findings Of Fact On March 12, 1985, Applicant filed a request with the Department for a permit to construct a marina in a manmade basin (Captain's Cove) located on Lower Matecumbe Key, Monroe County, Florida. The permit sought by the Applicant, as modified, would allow it to construct a 52-slip docking facility consisting of two 5' x 248' docks, each with fourteen 3' x 40' finger piers and twelve associated mooring piles; and, approximately 590 linear feet of riprap revertment requiring the disposition of approximately 300 cubic yards of rock boulders landward and waterward of mean high water (MHW). All docks and finger piers would be constructed of prestressed concrete supported by concrete piles; mooring piles would be pressure treated wood. The Applicant proposes to organize the facility as a condominium development; however, live-aboard use will be prohibited. A manager's quarters, office, restrooms and a parking area will be provided on the adjacent uplands. The Department's October 3, 1985, notice of intent to issue, proposed to issue the requested permit subject to the following condition: The permittee is hereby advised that Florida law states: "No person shall commence any excavation, construction, or other activ- ity involving the use of sovereign or other lands of the state, title to which is vested in the Board of Trustees of the Internal Improvement Trust Fund or the Department of Natural Resources under Chapter 253, until such person has received from the Board of Trustees of the Internal Improvement Trust Fund the required lease, license, easement, or other form of consent authorizing the proposed use." If such work is done without consent, a fine for each offense in an amount of up to $10,000 may be imposed. Turbidity screens shall be utilized and properly maintained during the permitted construction and shall remain in place until any generated turbidity subsides. Only non-commercial, recreational boats shall be allowed to use the proposed marina. The applicant shall incorporate this condition into the condominium document for the proposed marina and supply the Department with a copy of the document prior to any sales of the condominium. No live-aboard boats shall be allowed in the marina. This condition shall also be placed in the condominium document. A portable sewage pumpout wagon shall be provided at the marina. Pumpout effluent shall be properly disposed of by methods acceptable to the department; these methods and locations shall be approved by the department prior to construction. A supply of oil absorbent materials, designed to clean up small oil spills, shall be maintained at the marina office. At least sixty (60) days prior to construction, the applicant shall submit to the Punta Gorda DER office for review, a detailed list of equip- ment to be permanently maintained on site. This list of equipment shall be modified as necessary and approved by the department prior to construction. The uplands on the permittee's property shall be graded to direct stormwater away from the edge of the boat basin. No fuel facilities nor storage shall be allowed at the project. Only clean rock boulders free from attached sediments or other deleterious compounds, and of a minimum diameter of 2' or greater shall be installed as riprap. 1O. The Marathon Department of Environmen- tal Regulation office shall be notified 48 hours prior to commencement of work. "IDLE SPEED-NO WAKE" signs shall be placed at conspicuous locations at the docking facility with additional language that "this precaution exists throughout the length of the canal channel during ingress and egress". At least two trash receptacles shall be provided on each of the two main walkway piers: these receptacles shall be routinely maintained and emptied. Prior to dockage use by boats, marker buoys shall be established around all vege- tated shallow zones within the limits of the submerged property limits with signs advising boaters of "SHALLOW WATERS-NO ENTRY". Prior to construction, the applicant and the Mara- thon DER office shall meet to discuss accept- able locations for these markers. The project shall comply with applic- able State Water Quality Standards, namely: 17-3.051 - Minimum Criteria for All Waters at All Times and All Places. 17-3.061 - Surface Waters: General Criteria 17-3.121 - Criteria - Class III Waters - Recreation, Propagation and Management of Fish and Wildlife: Surface Waters. The Applicant has agreed to comply with all conditions established by the Department. The Marina Site Captain's Cove is a manmade navigable lagoon with access to Florida Bay through a 2,500' long by 100' wide canal located opposite the project site. The waters of Captain's Cove and the canal are designated Class III surface waters, and those of Florida Bay as Outstanding Florida Waters. The controlling depth for access to the proposed marina is found at the mouth of the canal, where Florida Bay is approximately 6' mean low water (MLW). Depths within the canal are typically 1' or 2' deeper than the controlling depth at the mouth. Captain's Cove is roughly rectangular in shape. It measures 1,400' northeast to southwest, and up to 500' northwest to southeast. In the vicinity of the Applicant's property, which is located in the northeast fifth of the cove, the cove measures 350' wide. The bottom depth of the cove is variable. The southwestern four-fifths of the cove was typically dredged to a depth of 25' MLW. Within the northeast fifth of the cove (the basin), a gradation in depths is experienced. The northwest portion of the basin, located outside the project site, is typically 5' - 6' MLW, and heavily vegetated by sea grasses (turtle grass, manatee grass, and Cuban shoalweed). The southeast portion of the basin, which abuts the Applicant's property, consists of a shallow shelf 10' - 20' in width. Beyond this shelf, the bottom drops off steeply to a depth of 20' MLW. The shelf abutting the Applicant's property is sparsely vegetated with mangroves, and provides limited habitat for aquatic fauna such as domingo mussels and paper oysters. Replacement of these mangroves and other shoreline vegetation with riprap would not significantly affect the biological balance within the cove and would provide suitable habitat for existing species. The waters within the cove are quite clear, and meet the Department's water quality standards except for a thin layer at the deepest part of the cove where dissolved oxygen violations were noted. The proposed marina is, however, to be located in the northeast fifth of the cove, opposite the access canal, where the waters are more shallow and water circulation more prevelant. As sited, the proposed marina will not exacerbate or contribute to a violation of the Department's water quality criteria. Areas of Concern During construction of the marina elevated turbidity may be expected by disruption of the basin sediments caused by installation of the facility's pilings. This can be adequately controlled, however, by the use of turbidity curtains during construction. Shading of the benthic environment is a long term impact associated with marinas. Since the boat slips will be located in the deeper 20' MLW depth of the basin, where seagrasses are not present, sunlight will be permitted to reach the productive areas of the basin lying at 5' - 6' MLW and no adverse impact from shading will be experienced. Boats by their very existence and operation present potential negative short term and long term impacts to the environment. Potential damage to the seagrass beds in the northwest portion of the basin will be eliminated or minimized by the planned installation of buoys and/or signs prohibiting navigation in that area. Potential damage from wave action generated by boat operation will be eliminated or minimized by designating and posting the marina and access channel as an "idle speed-no wake" zone.[footnote 1] [footnote 1: Intervenors raised some concern regarding possible impact to the Florida manatee. While manatee have been sighted in the access channel, their occurrence is infrequent. Marking the shallow areas and designating the area as an "idle speed-no wake" zone will provide reasonable assurances that the manatee will not be adversely affected by the proposed marina.] The fueling of boats, hull maintenance, boat cleaning (detergents), and sewage discharge are additional pollution sources associated with marinas. While the proposed marina will have no fueling facilities and no live-aboards will be allowed at the marina, additional conditions must be attached to the permit to eliminate or minimize potential impacts from these potential pollution sources. In addition to the conditions established by the Department, the following conditions are necessary: All craft docked at the marina shall be prohibited from pumping sewage into the waters of the cove. Use of the boat slips shall be limited to those person(s) who own the slip. Leasing of boat slips shall be prohibited. Living aboard any boat docked at the marina is prohibited at all times.[footnote 2] [footnote 2: During hearing some concern was raised regarding the definition of live- aboard. The Department's intent in specifying no live-aboards was that no person(s) stay overnight on any boat moored at the marina. The purpose of this condition is to clarify that intent.] No boat cleaning, hull maintenance, nor fish cleaning shall be allowed at the permitted facility. Limiting use of the boat slips to owners will provide reasonable assurances that the conditions imposed on the requested permit will be complied with. Prohibiting live- aboards, the pumping of sewage, fish cleaning, boat cleaning and hull maintenance, will provide reasonable assurances that Department standards for bacteriological and water quality will not be violated.
