The Issue The threshold issue in this case is whether Petitioner knowingly and voluntarily waived all claims, including claims for employment discrimination, against Respondent, his former employer. If he did not, then the question is whether Respondent unlawfully discriminated against Petitioner on the basis of his alleged disability when it terminated his employment.
Findings Of Fact A. Background Facts Petitioner Waldemar Casanova ("Casanova") is a high school graduate who has completed four years of college level courses in the field of business administration. As of the final hearing, he had worked in the airline industry for more than 30 years. In 1987, Casanova began working for Respondent Worldwide Flight Services ("Worldwide"), a ground handling services organization that specializes in, among other things, providing customized cargo, ramp, passenger, and technical services to various passenger and cargo airlines. Casanova was stationed in New York City for about 12 years, providing services to Worldwide's client, American Airlines, at the John Kennedy and LaGuardia Airports. In 1999, Casanova transferred to Florida, where he continued to work in furtherance of a contract between Worldwide and American Airlines to provide passenger services at the Fort Lauderdale Airport. Casanova initially was assigned to work as a Ramp Supervisor, in which position he was responsible for overseeing passenger baggage services. Thereafter, in the spring of 2002, Casanova was assigned to work as a Cabin Services Supervisor, in which position he was responsible for overseeing the cleaning and servicing of aircraft.1 Facts Relating to Casanova's Hernia Surgery In June 2002, Casanova underwent hernia surgery. He took a leave of absence from work to recover. A couple of months later, Casanova's doctor certified that Casanova could return to "light" work duties on September 3, 2002. The doctor's certificate specified that, upon his return to work, Casanova should not lift more than 10 pounds. To accommodate this restriction, when Casanova returned to work in September 2002, Worldwide reassigned him, temporarily, to its administrative office, where Casanova was responsible for reviewing attendance records. Cancellation of the Contract Between American Airlines and Worldwide and the Consequences Thereof On Casanova's Employment with Worldwide. Effective September 15, 2002, American Airlines canceled its ramp-handling/cabin services contract with Worldwide at the Fort Lauderdale Airport. As a result, Worldwide laid off approximately 33 employees in September and October 2002, including Casanova and five or six other supervisors who, like Casanova, were employed in connection with the American Airlines contract. By letter dated September 18, 2002, Worldwide informed Casanova that he was being laid off. In that letter, Worldwide offered Casanova a lump sum severance payment equaling 13 weeks of pay at his base salary in exchange for, and subject to, Casanova's execution of a Severance Agreement and General Release ("Agreement"). The Agreement was enclosed with the September 18, 2002 letter. The release contained in the Agreement provided, in pertinent part: I agree . . . to release Worldwide . . . from any and all claims for relief of any kind, whether known to me or unknown, which in any way arise out of or relate to my employment or the termination of my employment at Worldwide Flight Services, concerning events occurring at any time up to the date of this Agreement, including, but not limited to, any and all claims of discrimination of any kind. This settlement and waiver includes all such claims, whether under any applicable federal law, including but not limited to the Age Discrimination in Employment Act, Title VII of the Civil Rights Act of 1964, Americans with Disabilities Act, Equal Pay Act and Employee Retirement Income Security Act, Older Worker Benefit Protection Act, or under any applicable state or local laws I further agree not to file a claim or suit of any kind against Worldwide Flight Services et al. . . . I further agree not to bring, continue, or maintain any legal proceedings of any nature whatsoever against Worldwide Flight Services et al. before any court, administrative agency, arbitrator or any other tribunal or forum by reason of any such claims, demands, liabilities and/or causes of action, arising out of, relating to or resulting from my employment or termination from employment . . . . In the September 18, 2002, letter, Worldwide also advised Casanova that the decision whether to accept the terms and conditions of the Agreement was completely voluntary, that he should consult with an attorney of his choice before signing the Agreement, and that he could take up to 45 days to consider the Agreement. In addition, Worldwide advised Casanova that, if he had any questions concerning his separation package, he could consult either with Alvin Brown, a human resources representative at Worldwide's corporate headquarters, or Barry Simpson, then General Manager at Worldwide's Fort Lauderdale station. Casanova signed and dated the Agreement on October 2, 2002.2 He then returned the instrument to Worldwide, where Barry Simpson executed the Agreement on the company's behalf, also on October 2. By the terms of the Agreement, Casanova was afforded a period of up to seven days after execution of the Agreement to revoke the acceptance of its terms. At no time during the seven-day revocation period did Casanova notify Worldwide that he wanted to revoke his acceptance of the Agreement. After the expiration of the seven-day revocation period, and in accordance with the terms of the Agreement, Casanova received a lump sum payment of $8,091.20 by check dated October 26, 2002, which sum constituted 13 weeks of severance at Casanova's base salary.3 Since his receipt of this payment, Casanova has neither tendered back nor attempted to tender back the severance payment to Worldwide. At hearing, Casanova admitted that he had understood fully the language and effect of the Agreement, including the release of all claims, and that he knowingly and voluntarily had accepted the terms of the Agreement as well as the benefits provided to him thereunder.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the FCHR enter a final order dismissing with prejudice Casanova's Petition for Relief because, for valuable consideration, Casanova knowingly and voluntarily released Worldwide of and from any claims arising out of his employment with Worldwide. Alternatively, the final order should declare that Worldwide is not liable to Casanova because (a) he is not a handicapped individual and (b) even if he were a handicapped individual, Worldwide has articulated a legitimate, non-discriminatory reason for Casanova's discharge, which Casanova failed to prove was a pretext for discrimination. DONE AND ENTERED this 4th day of February, 2005, 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 4th day of February, 2005.
The Issue Whether the Motions for Rule Challenge Proceedings (referred to as Petition(s)) filed in each of the above-cited cases meet the requirements both in form and substance, pursuant to Subsection 120.56(4)(a), Florida Statutes (2004); Whether Respondent, Florida Commission on Human Relations (FCHR), has inherent authority to reconsider a Final Order it has issued; and Whether FCHR should adopt a rule which would permit the granting of a motion to reconsider a Final Order.
The Issue Whether the Agency’s intended action to deny Petitioner’s application for exemption from disqualification from employment is an abuse of discretion, pursuant to section 435.07, Florida Statutes (2014).1/
Findings Of Fact Petitioner desires to return to work as Human Resources Director for Eagle Medical Services (Eagle Medical), a direct- service provider to clients in Florida’s Medicaid Waiver Program for the Developmentally Disabled. Petitioner was hired by Eagle Medical in 2007 as an office assistant performing secretarial duties, but was promoted to Human Resources Director in 2009. Petitioner left Eagle Medical in 2011. Petitioner has a lengthy criminal history. In 1991, Petitioner pled guilty to prostitution, and was sentenced to 60 days in the Marion County jail. Petitioner was 29 years old at the time of the conviction. In 2006, at age 44, Petitioner pled guilty to Petit Theft with Two or More Prior Convictions (a felony), and was sentenced to serve one year and one day in the Department of Corrections, to be served concurrently with any active sentence being served at the time. Between the 1991 prostitution conviction and the 2006 petit theft conviction, Petitioner had a number of convictions for non-disqualifying offenses. In 2000, Petitioner was arrested twice for driving with a suspended or revoked license. In 2005, Petitioner was again arrested twice for driving with a suspended or revoked license, and on three charges of petit theft. In 2006, Petitioner was charged with petit theft (retail), as well as resisting detainment by a retail merchant. In this interim period, Petitioner was sentenced to serve 420 days in the Marion County jail and pay at least $1,200 in court costs and fines. Petitioner’s 2006 sentence required her to perform 20 hours of community service, complete a Shoplifter’s Anonymous course, and serve 12 months on probation through Salvation Army Corrections. Petitioner served her time in the Lowell State Correctional Facility from November 29, 2006, to July 20, 2007. However, Petitioner did not satisfy all conditions of the judgment until March 31, 2011. Petitioner testified, credibly, that her significant criminal history began after the tragic death of her two children, ages one and three, in 1985. Petitioner turned to alcohol and drugs, including crack cocaine, to dull the pain of her loss, rather than dealing with it through professional grief counseling and treatment. Petitioner testified that she “wanted to die” during this period in her life. Petitioner supported her habit through retail theft, after a single failed attempt at prostituting herself. Clarence Lewis, the agency’s Central Region Operations Manager, testified that the main reasons the Agency is denying Petitioner’s request for exemption are (1) the lengthy history of Petitioner’s criminal activity, and (2) a lack of detail in Petitioner’s application regarding her post-conviction treatment, education, training, and work history. Petitioner’s exemption questionnaire is not detailed. In the questionnaire, Petitioner stated generally that, during her incarceration, she “utilized available resources to obtain rehabilitation for emotional, psychological & substance abuse.” With regard to her work history for the past three years, Petitioner listed a number of employers without details on the type of work or length of employment. With regard to her education and training, Petitioner listed four institutions without dates of attendance or dates she completed the noted certificate or license. Petitioner stated that she received counseling “on the inside” through many programs, but mainly credits her faith for her true reform. Petitioner’s exemption packet and testimony received at the final hearing established Petitioner’s pursuit of treatment, education, and training, both during and after her confinement, as well as her subsequent community involvement and work history. In 2006, Petitioner completed a “Christian 12 Step Recovery Course,” a ten-week Personal Development Life Management Skills Course, and an Anger Management class. Petitioner was baptized while incarcerated in February 2007, and completed a Peacemakers’ class, a bible study on “Breaking Strongholds and Bondages,” and a discipleship class through the facility chaplain in March and April 2007. Petitioner’s testimony regarding her faith was sincere, credible, and convincing. Petitioner received six months of psychiatric treatment while incarcerated. In June 2007, Petitioner completed an Anger Resolution Seminar “focusing on identifying the causes of anger and how to successfully resolve them.” She also completed 72 hours of transition training in July 2007 prior to her release. Upon her release, Petitioner enrolled in Alcoholics Anonymous and Narcotics Anonymous and attended meetings for approximately two years. Petitioner testified that she still regularly attends meetings with an organization known as 12 Steps with the Bible. In April 2008, Petitioner completed a Targeted Aggression Control Training program administered by Professional Education Services, Inc. In August 2009, Petitioner completed a specific behavior training program focused on responding to target behaviors and providing replacement behaviors. Jena Woodyard is the owner of Eagle Medical, which provides both onsite educational services and Adult Day Treatment (ADT) to persons with disabilities. Ms. Woodyard hired Petitioner as an office assistant in September 2007. Petitioner completed a battery of training programs in October 2007, including Introduction to Developmental Disabilities, Person-Centered Service Delivery, Consumer Choice and HIPA, Health and Safety, Abuse/Neglect/Exploitation, and Zero Tolerance. Shortly after hiring Petitioner, Ms. Woodyard promoted Petitioner to Director of ADT. Ms. Woodyard testified, credibly, that she chose to promote Petitioner to a position of direct service to clients because of Petitioner’s compassion with and dedication to the clients, her acumen as a coordinator of services, and her dedication to the agency’s success and compliance with all requirements. Petitioner applied for an exemption from disqualification in 2008. She was denied because she did not meet the statutory prerequisites, which require an applicant to pay all court-ordered fees and wait three years from the date he or she is released from confinement or supervision prior to applying for an exemption. See § 435.07(1)(a) and (b), Fla. Stat. Despite Petitioner’s failure to obtain an exemption from disqualification, Ms. Woodyard retained Petitioner as an employee at Eagle Medical. However, in 2009, she moved Petitioner to the position of Human Resources Director. Petitioner’s office was located in an administrative area of the offices separated from the classrooms and ADT areas. In early 2011, Eagle Management rented a building adjacent to the main building and moved Petitioner’s office to the adjacent building. Ms. Woodyard terminated Petitioner’s employment in 2011 only out of concern for the agency’s compliance with state regulations. Ms. Woodyard desires to re-employ Petitioner as Human Resources Director. If Petitioner obtains an exemption, Ms. Woodyard would like to hire Petitioner in a direct-service position. Kathleen Bellamy is an employee of Eagle Medical and worked with Petitioner from 2009 to 2011. Ms. Bellamy testified that Petitioner is extremely compassionate and caters to the clients’ best interests in coordinating services. Courtnee Colson submitted a letter of reference to the Agency which is included in Petitioner’s exemption packet. Ms. Colson was also Petitioner’s co-worker at Eagle Medical. In her letter, Ms. Colson extolled Petitioner’s leadership skills, explaining that Petitioner had oversight of 70 employees and disabled adults. Sandra Woodson is another of Petitioner’s former co- workers at Eagle Medical, and submitted a letter of reference on Petitioner’s behalf. Ms. Woodson began working with Petitioner in 2007 and described her as prompt, eager to learn, and quick to master new job tasks. Ms. Woodson also rented a home to Petitioner for over three years, beginning in 2009. In her letter, Ms. Woodson described Petitioner as responsible (always paid her rent on time), and welcomed by the neighbors. Petitioner supervised Shaquila Green at Eagle Medical. Ms. Green testified that she valued Petitioner’s advice and guidance, and described Petitioner as exceptionally hardworking. Ms. Green was aware of Petitioner’s criminal background and testified Petitioner uses her past experiences to help others and keep them from choosing the “wrong path.” In addition to working with Petitioner, Ms. Green has observed Petitioner, and participated with her, in volunteer work through Petitioner’s church. Ms. Green is impressed with Petitioner’s strong desire to help other people. Petitioner is a lay minister in her church. She is active in a number of community service programs through the church, including the DATA program, which provides re-entry services to persons released from correctional institutions, and an outreach program facilitating alternatives for youth whose parents are incarcerated. Petitioner’s primary community service project is coordinating services to residents of the Parkside Gardens Apartments, a low-income housing development. Petitioner spearheads the church’s services to that community, including teaching employment skills, coordinating after school programs, organizing job fairs, preparing and serving weekly meals, and providing HIV education and counseling, among others. Steven Westgate is a community volunteer who met Petitioner through various charitable activities. He has volunteered with Petitioner in providing and serving meals to the residents at Parkside Gardens. Mr. Westgate has known Petitioner for approximately twelve years, and described her as reliable, honest, and trustworthy. Ms. Woodyard testified that her company “picked up” Parkside Gardens, which the undersigned infers to mean the agency began serving qualified residents of that property.2/ Ms. Woodyard was impressed with Petitioner’s dedication and “found the resources” to pay Petitioner for her service to the residents and made her Program Director of what Ms. Woodyard termed “the community side” of the business. Petitioner worked in this capacity in 2010 and 2011. Petitioner obtained her GED on January 13, 2011. Petitioner received her Nursing Assistant certification from the Department of Education on April 15, 2014. Petitioner completed a one-year training course in bloodborne pathogens, infection control, and HIV in August 2014. Petitioner became a volunteer with the Department of Corrections in September 2014. Petitioner has no criminal history subsequent to her 2006 disqualifying offense. After leaving Eagle Management in September 2011, Petitioner obtained seasonal work at Harvey’s Groves packing holiday gift baskets. In 2012-2013, Petitioner worked part-time as an agent for Telecom Services, and on the production line at Signature Brands Cake Factory. In January 2015, Petitioner began working as Office Manager for Ardelle Moving and Delivery. On the date of the hearing, Petitioner was providing human resource services for her brother’s new business, WingKing, the grand opening of which was planned shortly after the hearing date. Petitioner was working closely with a local workforce agency to employ some qualified former felons at the establishment. At the final hearing, Petitioner made no excuses for her past criminal activities, and frankly accepted full responsibility for her actions. Petitioner expressed genuine remorse for her past. Petitioner’s testimony was credible and convincing. Petitioner’s personal insight is remarkable; she has dealt with her demons and turned her sorrow into a guiding light for others. In her exemption packet, Petitioner did not include letters of recommendation from Ms. Woodyard, Ms. Green, Ms. Bellamy, or Mr. Westgate. Thus, the Agency did not have the testimony of those individuals when it made its initial decision to deny Petitioner’s request for exemption. The undersigned finds that the Agency would have been better served with the information provided by those witnesses. The witnesses, Petitioner’s testimony, and Petitioner’s exemption packet, together, provide great detail regarding Petitioner’s pursuit of counseling, education, training, community service, and employment subsequent to her disqualifying offense in 2006. Eight years have elapsed since Petitioner’s most recent disqualifying offense, during which time Petitioner has had a clean record, recovered from the loss of her children, sought treatment for drug and alcohol abuse, proven herself an invaluable employee, and dedicated her time to serving others in the community. Mr. Lewis testified that the population served by the Agency is extremely vulnerable, including some clients who cannot speak or fend for themselves. Mr. Lewis represented that Petitioner poses a risk to this population due to her lengthy criminal history and no indication that she has sought counseling for impulse control. To the contrary, the undersigned finds Petitioner presents no danger to the vulnerable adult population served by the Agency. Petitioner has proven by clear and convincing evidence that she is rehabilitated from her disqualifying offenses.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered granting Petitioner’s request for exemption from disqualification. DONE AND ENTERED this 9th day of March, 2015, in Tallahassee, Leon County, Florida. S SUZANNE VAN WYK 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 9th day of March, 2015.
The Issue The issues in this case are whether Respondent discriminated against Petitioner on the basis of her sex or national origin in violation of 42 USCA Section 3604(a)(8) ("Section 8") and Sections 760.20(1)-(3), Florida Statutes (1997), by allegedly refusing to rent an apartment to Petitioner and by allegedly not renewing Petitioner's lease when it expired. (All chapter and section references are to Florida Statutes (1997) unless otherwise stated.)
Findings Of Fact Petitioner is a member of a protected class. Petitioner is a Hispanic female. Respondent rents dwelling units to the public at Ravens Crossing Apartments ("Ravens"). Ravens is located at 825 Ravens Circle, Altamonte Springs, Florida. Concord Management is located at 2200 Lucien Way, Suite 410, Maitland, Florida. Sometime in May 1996, Respondent applied for an apartment at Ravens. Respondent rejected the application. Petitioner subsequently returned to Ravens and submitted another application for an apartment. Respondent accepted the second application. Petitioner signed a written lease agreement with Respondent for the period August 1, 1996, through June 30, 1997. The written lease prohibited any additions or improvements to the lease premises without the "prior written consent of the manager." During the term of the lease, Petitioner violated the lease. Petitioner constructed an entry gate around the front of her apartment. Petitioner did not obtain the prior written consent of Respondent to construct the entry gate. Respondent never authorized or approved the gate. Petitioner constructed the entry gate to keep neighbors away from her front door. Petitioner testified that: from February 2, 1997, through April 29, 1997, a female neighbor named "Virginia" repeatedly knocked on Petitioner's front door for no reason; and another neighbor named "Robert" began knocking on her door on June 24, 1997, for no reason. Petitioner confronted both Virginia and Robert without result. Petitioner filed complaints with the Altamonte Springs Police Department on three different occasions. When the police department first investigated the matter, Petitioner identified two vehicles that Petitioner said belonged to the two neighbors who had been knocking on Petitioner's door. The investigating officer requested dispatch to identify the vehicle owners from the license plate of each vehicle. The owners of the vehicles were identified as Caucasion blond male and female. Petitioner had previously described the individuals who knocked on her door as a black female and a white male with balding, reddish hair. Petitioner testified that other neighbors repeatedly knocked on her door for no reason. One of those neighbors was identified by Petitioner as "Mrs. Toppel." Mrs. Toppel is a very old woman with emphysema. She weighs approximately 80 pounds and is barely able to walk. Petitioner occupied her apartment until her lease expired on June 30, 1997. Respondent gave timely notice to Petitioner that her lease would not be renewed. Petitioner vacated the premises and moved to Hollywood, Florida. On September 4, 1997, Petitioner filed her initial Complaint of Discrimination with the Commission. The Complaint alleged that Respondent discriminated against Petitioner by denying her application for an apartment in May 1996, by fostering harassment of Petitioner by her neighbors, and by failing to renew Petitioner's lease. The Commission investigated the Complaint. On June 26, 1998, the Commission determined there was "No Reasonable Cause" to support allegations of discrimination. On July 20, 1998, Petitioner filed a Petition for Relief. The Petition contained the same allegations as those in the Complaint. The Commission referred the matter to the Division of Administrative Hearings. The undersigned conducted a hearing on December 1, 1998. Petitioner presented her case and rested. Respondent cross-examined Petitioner and Petitioner's witness.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission enter a Final Order dismissing Petitioner's Petition For Relief for failure to establish a prima facie case of discrimination. DONE AND ENTERED this 3rd day of February, 1999, in Tallahassee, Florida. DANIEL MANRY 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 3rd day of February, 1999. COPIES FURNISHED: Bill McCabe, Esquire Shepherd, McCabe and Colley Suite 200 1450 State Road 434 West Longwood, Florida 32750 Lydia Cortes Apartment 21 1400 North 17th Avenue Hollywood, Florida 33020 Sharon Moultry, Clerk Human Relations Commission Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149 Dana Baird, General Counsel Human Relations Commision 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149
The Issue The issue is whether the proposed change to the Bonita Bay Development of Regional Impact to allow residential development within 330 feet of an active bald eagle's nest in an area that had been set aside for preservation should be approved.
Findings Of Fact Parties Bonita Bay Properties, Inc., is the developer of the Bonita Bay DRI. SWF Properties of Southwest Florida, Inc., is the owner of the Bonita Bay DRI. The City is an incorporated municipality in Southwest Lee County. Relevant History of the Bonita Bay DRI The Bonita Bay DRI includes 2,422 acres in the City, near the Lee County/Collier County border. The City approved the original development order for the Bonita Bay DRI in November 1981. The DRI, as originally approved, included 8,250 multi-family units, 990 single-family units, 125 marina slips, 360,000 square feet of office space, 850,000 square feet of commercial space, 175 hotel rooms, and a 200-room conference center. The DRI development order has been amended on four prior occasions. The most significant of the amendments was the third amendment, which occurred in 1993. The 1993 amendment added a golf course, reduced the density of the DRI to 6,000 residential units, and reduced the commercial intensity of the DRI to 700,000 square feet. After the 1993 amendment, and currently, the Bonita Bay DRI includes approximately 588 acres of preservation areas, which is approximately 24.3 percent of the acreage in the DRI. The 1993 amendment also included conditions intended to protect a bald eagle's nest within the DRI known as nest LE-005. The conditions included the establishment of "primary protection zones" and "secondary protection zones" relative to the golf course and residential development in the vicinity of the nest. All activities in the protection zones were required to comply with a bald eagle management plan (BEMP) prepared by Petitioners and approved by the U.S. Fish and Wildlife Service (USFWS). For the golf course, the primary protection zone was a radius of 750 feet from the nest, and the secondary protection zone was an additional 750 feet beyond the primary protection zone. For residential development, the primary protection zone was a radius of 1,000 feet from the nest, and the secondary protection zone was an additional 500 feet beyond the primary protection zone. The protection zones and the original BEMP were approved in a 1993 Biological Opinion issued by USFWS under Section 7 of the Endangered Species Act (ESA). The protection zones were based upon the 1987 habitat management guidelines adopted by USFWS for the southeast United States. The BEMP was modified in 1997 to reduce the primary protection zone for residential development to the south of the nest to 850 feet. USFWS approved the modification. Recent Regulatory Developments Regarding Bald Eagles In 2006, USFWS proposed bald eagle management guidelines to be applied throughout the United States (hereafter "the national guidelines"). The national guidelines were implemented in July 2007, concurrent with the formal announcement that the bald eagle had recovered and that it would be removed from the list of species protected under the ESA. The rule "de-listing" the bald eagle under the ESA took effect on August 8, 2007. The national guidelines are "recommendations based on several decades of behavioral observations, science and conservation measures to avoid or minimize adverse impacts to bald eagles." USFWS "strongly encourages adherence to these [national] guidelines to ensure that bald . . . eagle populations will continue to be sustained." The national guidelines recommended a single buffer zone around active eagle nests, rather than the primary and secondary protection zones recommended in the 1987 regional guidelines. The width of the buffer zone recommended in the national guidelines depends on the nature of the use and its visibility from the nest. For most activities that will be visible from the nest, the recommended buffer zone is 660 feet. For activities that will not be visible from the nest, the recommended buffer zone can be as little as 330 feet. When the bald eagle was listed under the ESA, the recommended protection zones were larger. For example, the 1987 regional guidelines recommended against most activities within a 750-foot primary protection zone and included seasonal restrictions on activities within a 1,500-foot secondary protection zone. The recommended buffer zone widths in the national guidelines are flexible. USFWS can approve reduced buffer zones based upon "special circumstances" that "diminish the likelihood of bald eagle disturbance." That is effectively what happened in this case because, as discussed below, USFWS approved a 330-foot buffer around nest LE-005, even though a 660-foot buffer was recommended under the national guidelines. The Florida Fish and Wildlife Conservation Commission (FWCC) is in the process of developing a State Bald Eagle Management Plan, patterned after the national guidelines. The goal of the State plan is "to maintain a stable or increasing population of bald eagles throughout Florida in perpetuity." The most recent draft of the FWCC plan received into evidence, "Draft 4" dated December 21, 2007,3/ includes buffer zone guidelines similar to those in the national guidelines–- 660 feet for activities visible from the nest and 330 feet for activities not visible from the nest. The Proposed Change (1) Generally The proposed change will revise the BEMP adopted in 1993 for nest LE-005 by reducing the buffer around the nest to 330 feet. The reduced buffer will enable Petitioners to construct 15 single-family residences in the vicinity of the nest, along with a road to serve the residences and an expanded stormwater pond. The rationale for the proposed change was explained as follows in the Notice of Proposed Change (NOPC) submitted by Petitioners: The proposed change is to the [BEMP] only. The third amendment to the Bonita Bay DRI [development order] incorporated an Eagle Management Plan. The [BEMP] was based upon the level of understanding at that time. There was limited knowledge about the habitats of eagles and what was needed to assure their recovery. The agencies acted with an abundance of caution. Since that time, there has been extensive study. Based on the recovery of the species and the additional study, it has been determined that a radius of 330 feet is appropriate and adequate to protect the bird. This application is a request to amend the [BEMP] consistent with today's standards. The request does not open up any new areas for development; it simply permits the development of an area previously approved for residential development. The property impacted by the proposed change is a 23-acre parcel in the northwest corner of the Bonita Bay DRI, which is referred to in the NOPC as Baywoods Phase II (hereafter "the subject property"). The subject property is roughly triangular in shape. It is surrounded by a marsh/slough area to the north and east, a golf course and existing single-family residences to the south, and undeveloped uplands and marsh to the west. It is the last remaining developable upland parcel in the Baywoods area of the DRI. The residences proposed for the subject property will be compatible in size and design to the existing residences in the adjacent Baywoods area of the DRI. Those residences are detached, one and two-story, single-family units with densely landscaped lots. The subject property is zoned R-3. All types of residential uses are permitted in that zoning category, including high-rise, multi-family, mid-rise, townhouses, zero lot line, duplexes, and single-family. The proposed change meets the requirements of the City's land development code. There are no compatibility or zoning issues with the proposed change. The proposed change is technically a "down-zoning" of the subject property in that it restricts the use of the property to low-density, single-family residences. The proposed change will not result in any net decrease in the total acreage set aside for permanent preservation in the Bonita Bay DRI because the subject property is currently zoned for residential development. Technically, the proposed change will increase the acreage set aside for permanent preservation through the placement of a conservation easement on the revised buffer zone around nest LE-005. However, as a practical matter, the proposed change is an "up zoning" in that it authorizes development in an area that none can presently occur due to the existing eagle protection zones, and it reduces the area within the DRI that is protected from present development by reducing the size of the buffer zone around the nest. (2) Review by the City In July 2006, Petitioners submitted a NOPC to the City and the Southwest Florida Regional Planning Council in accordance with Section 380.06(19), Florida Statutes. On or about February 15, 2007, the City staff4/ prepared a report recommending approval of the NOPC, subject to various conditions that were unacceptable to Petitioners. The conditions included the elimination of five of the proposed residences in order to reduce the visual impacts associated with the proposed development and to create a "fly zone" for the eagles to the northwest of the nest. The conditions also incorporated the "best management practices" recommended by the City's Eagle Technical Advisory Committee (ETAC), which included phasing and other restrictions on construction of the proposed residences. On April 6, 2007, the City's Board for Land Use Hearings and Zoning Board of Appeals (Board) held a seven-hour quasi-judicial hearing on the NOPC. The hearing included "[a] lengthy Applicant presentation . . . followed by Staff's presentation" and public comment. Petitioners had a full and complete opportunity to present evidence in support of the proposed change at the Board hearing. The testimony and evidence presented to the Board was, for the most part, the same as that presented at the final hearing in this case. At the conclusion of the hearing, the Board recommended the approval of the NOPC, as proposed by Petitioners. The Board considered, but rejected the City staff's recommendation to eliminate five of the proposed residences and to implement the ETAC recommendations. On June 25, 2007, the City Council held a hearing on the NOPC and rejected, by voice vote, a motion to approve "the advice of the zoning committee, which was basically to approve the development as it's presented "5/ The City Council's denial of the NOPC was memorialized in Resolution No. 07-02, which was rendered on June 27, 2007. The City Council did not, in its voice vote or the Resolution, make any finding or reach any conclusion whether the proposed change required further DRI review, as required by Section 380.06(19)(f)5., Florida Statutes. The "findings of fact" included in the Resolution stated in pertinent part: Bonita Bay Group did not prove entitlement for the [proposed change] by demonstrating compliance with the Bonita Springs Comprehensive Plan, with the conditions referenced in this Resolution and other Bonita Springs Comprehensive Plan Goals, Objectives and Policies. The [proposed change], as conditioned, was not compatible with existing or planned uses in the surrounding area; will adversely affect environmentally critical areas or natural resources, in particular, gopher tortoise and eagle habitat, both species protected by the State of Florida. City Council further found that the proposed development order amendment would have an unfavorable impact upon the environment and natural resources of the area and that this negative impact would override the positive value of the [proposed change]. The proposed use is not appropriate at the subject location in the DRI. The recommended conditions considered for the eagle management plan, gopher tortoises and other applicable regulations did not provide sufficient safeguards to the public interest. . . . Potential Impacts on Nest LE-005 Nest LE-005 is located in a live pine tree within an undeveloped area of pine flatwoods on the subject property. The nest-tree is located just to the west of a marsh/slough area that flows into Estero Bay. The eagles using nest LE-005 do not forage in the area immediately around the nest-tree. They primarily forage in Estero Bay, which is to the northwest of the subject property. Nest LE-005 is one of only two remaining bald eagle's nests in the City. The nest was first documented by the Florida Game and Freshwater Fish Commission (the predecessor to FWCC) in 1977, which is four years prior to approval of the original development order for the Bonita Bay DRI and prior to any construction in the DRI. The nest has been continuously occupied for the past years, except for two short periods in which the eagles were displaced by great horned owls. The nest has produced eaglets over the period that it has been monitored. The eagles have continued to return to the nest despite the ongoing development in the Bonita Bay DRI over the past 25 years. The development has not disrupted the eagles from using the nest or successfully fledging eaglets. It is likely that the existing protection zones around nest LE-005 have helped to protect the eagles and the nest. However, it is also clear that the eagles have adapted to the development in the DRI and the associated human activities. The eagles have been observed flying near the high- rise condominiums to the west of the subject property, resting and perching on roofs of residences in the areas, and resting on the golf course to the south of the subject property. The existing protection zones around the nest LE-005 are not encumbered by a conservation easement, but the area cannot be developed so long as the nest remains "active." If the nest is no longer active (i.e., not used by eagles for five years), then, under the 1993 amendment to the DRI development order, Petitioners "may proceed with development of the property within the primary and secondary zones in accordance with the approved plan of development for that area." In April 2006, prior to submittal of the NOPC, Petitioners met with USFWS and ETAC regarding proposed revisions to the existing BEMP for the subject property. USFWS and ETAC recommended changes to a draft revised BEMP prepared by Petitioners' consultants. Some of the changes were incorporated into a revised BEMP that was submitted to USFWS for its formal review. On October 16, 2006, USWFS issued a letter amending its 1993 Biological Opinion concerning nest LE-005. The letter does not specifically state that the revised BEMP proposed by Petitioners is "approved," but that is clearly the effect of the letter. Indeed, the more persuasive evidence establishes that Petitioners need no additional authorization from USFWS (or FWCC6/) in order to proceed with the proposed development in accordance with the revised BEMP. The October 2006 letter adopts the conservation measures proposed in the revised BEMP, including a 330-foot buffer area that would be protected in perpetuity through a conservation easement; preservation of the vegetative canopy in the area; limitations on the right-of-way for the road; landscaping for the residential lots to enhance the vegetative buffer; a two-story limitation on the height of the residences; limits on the timing of construction; limits on exterior lighting; installation of a fence and signage along the perimeter of the buffer zone; and a $35,000 donation to the Wildlife Foundation of Florida to support monitoring of bald eagles in Lee County. The portion of the buffer zone that will be encumbered by a conservation easement is approximately 5.1 acres in a semi-circle shape with a 330-foot radius around the west side of nest LE-005. The area to the east of the nest is a wetland preserve that is already protected from development. The proposed residences will be visible from the nest, but the visual impacts of the residences will be minimized through extensive landscaping. All but one of the proposed residences will be at least 400 feet from the nest. Currently, the closest development to the nest is the golf course, which is 850 feet to the southwest and east of the nest. The closest residences to the nest are approximately 900 feet to the south in Baywoods Phase I. There is no credible evidence that the proposed development will cause the abandonment of nest LE-005. The City admitted in a discovery response that it could produce no bona fide opinion from a biologist or other qualified expert that the proposed development would cause the nest to be abandoned, and the wildlife ecologist presented by the City could only testify that the proposed development "may" and "has the potential to" adversely affect the eagles using the nest. The City is concerned that the proposed 330-foot buffer is not sufficient to protect the eagles using nest LE-005. That concern is based, in large part, upon the premise that all eagles "do better" with a larger protection zone than a smaller one. The preponderance of the evidence is contrary to this premise. For example, a 2004 study presented by the City found no difference in nesting success of eagles in rural and suburban areas,7/ and a 2007 analysis of the active eagle's nests in Lee County showed that there was no correlation between the distance of a nest from development and the success of the nest. The more persuasive evidence establishes that eagles are able to adapt and acclimate to human activities in order to take advantage of suitable habitat, and that is what has happened with the eagles using nest LE-005. The eagles were using the nest before construction began in the Bonita Bay DRI; they have continued to use the nest as the project has developed around them over the past 25 years; and they have been observed flying over residences and in close proximity to high-rise buildings in the DRI and perching on roofs of residences within the DRI. Likewise, the more persuasive evidence establishes that the reduction in the size of the buffer around nest LE-005 will not adversely impact the nest. Adequate protections are included in the revised BEMP, which has been approved by USFWS. The proposed roadway serving the residences will not adversely impact the eagles using nest LE-005. Eagles' nests are known to co-exist with far more heavily used traffic corridors, such as interstate highways. The proposed residences will not disturb the flight paths of the eagles from nest LE-005. The eagles do not have a preferred flight path; they have been observed flying to and from the next in all directions, and they will have no problem flying over the proposed residences. Potential Impacts on Gopher Tortoises The subject property includes gopher tortoise habitat. A November 2006 survey identified 62 active gopher tortoise burrows and 12 inactive burrows on the subject property. In 1993, FWCC issued a permit authorizing Petitioners to "take" gopher tortoises, their eggs and their burrows where such taking is incidental to development activities. As a condition of the permit, Petitioners paid a mitigation fee of $208,895.90 to FWCC as "seed money" for the Hickey Creek Mitigation Park in Lee County. FWCC confirmed in a September 2006 letter that the 1993 permit remains in effect. Notwithstanding the incidental take authorization in the FWCC permit, Petitioners intend to relocate the gopher tortoises on-site in order to comply with the City's requirements. The tortoises will be relocated to the 5.1-acre portion of the subject property around nest LE-005 that will be protected by a conservation easement and to an 11.64-acre site immediately to the west of the subject property. The relocation areas will be maintained and managed in accordance with a relocation and management plan in order to enhance the habitat for the gopher tortoises. No concerns with the gopher tortoise relocation and management plan were raised in the City's staff report on the proposed change. The wildlife ecology expert presented by the City expressed a concern that the relocation plan is "putting tortoises into a much smaller area," but she also acknowledged that the relocation plan is consistent with the City's gopher tortoise regulations and that Petitioners did what they were required to do in relation to gopher tortoises. Consistency with the City's Comprehensive Plan The resolution through which the City denied the proposed change stated that Petitioners failed to demonstrate "compliance with the Bonita Springs Comprehensive Plan " The only comprehensive plan provisions specifically cited in the Resolution in support of that conclusion were Objective 7.6 and Policy 7.6.1 of the Conservation/Coastal Management Element of the plan.8/ The City identified several additional provisions of the plan at the final hearing and in its PRO that it contends the proposed change is inconsistent with, namely Policy 7.2.4 and Objective 7.3. The City does not contend that the proposed change is inconsistent with any provision of the Future Land Use Element of the plan. Policy 7.2.4 Policy 7.2.4 provides: The City shall encourage the protection of viable tracts of sensitive or high-quality natural plant communities within developments. According to the City, this provision is implicated because the subject property contains "high-quality habitat," in that it does not contain significant exotic vegetation, and it supports a diversity of wildlife species, including gopher tortoises and eagles. A vegetative survey of the subject property was performed in 2006. The survey found that the majority of the subject property consists of disturbed scrubby pine flatwoods, disturbed pine flatwoods, and disturbed palmetto prairies. No protected plant species were located on the subject property. There is no persuasive evidence as to the existence of any "high-quality natural plant communities" on the subject property apart from the existence of nest LE-005. The proposed development would result in the removal of vegetation on the subject property to make way for the proposed residences, the road serving the proposed residence, and an expanded stormwater management pond. The wildlife ecologist presented by the City was unable to testify how much of the subject property would have to be set aside for permanent preservation to comply with Policy 7.2.4, as interpreted by the City. She simply testified that it would have to be "[m]ore than the current proposal." The proposed change will place a conservation easement on approximately 5.1 acres surrounding the tree in which nest LE-005 is located. The eagles using the nest are likely to find the closest suitable tree in the event that the current nest-tree dies or falls. There are other mature pine trees within the 5.1 acres surrounding the current nest-tree that would be suitable for an eagle's nest. Thus, to the extent that the nest-tree and the surrounding pine trees are considered to be a "high-quality natural plant communit[y]" for purposes of Policy 7.2.4, the proposed change includes adequate protection of that community. Therefore, the proposed change is consistent with Policy 7.2.4. Objective 7.3 Objective 7.3 provides: Wildlife -- The City shall continue to maintain and enhance the fish and wildlife diversity and distribution within the City for the benefit of a balanced ecosystem. According to the City, the proposed change is inconsistent with this objective because the proposed change will result in a significant modification of the habitat currently being used by the diverse wildlife on the subject property. A wildlife survey of the subject property was performed in 2006. The only protected species identified in the survey, other than the eagles, were the American alligator, gopher tortoises, and two types of heron. The alligator and heron were observed in the existing stormwater pond on the southern edge of the subject property. The pond will be expanded as part of the proposed development, which will provide increased habitat for these species. The gopher tortoises were observed throughout the subject property, including areas that are proposed for development. The gopher tortoises found in the areas proposed for development will be relocated, as discussed above. The existing eagle's nest, and the surrounding 5.1 acres, will be protected in perpetuity through a conservation easement, as discussed above. The proposed change includes adequate protections for the eagle, gopher tortoises, and other wildlife species located on the subject property, and will not adversely impact the diversity or distribution of those species. Therefore, the proposed change is consistent with Objective 7.3. Objective 7.6 and Policy 7.6.1 Objective 7.6 provides: Southern Bald Eagles -- The City shall use its bald eagle habitat regulations to protect Southern bald eagle nesting sites and request the County to monitor Southern bald eagle nesting activities. Policy 7.6.1 provides: The City shall maintain a policy of negotiations with owners of land surrounding eagle nests to provide an optimal management plan within which all development within critical eagle nesting habitat and buffer areas must be consistent. The management plans shall address at a minimum: A description of the land around the critical eagle nesting habitat, including locations of nest tree(s) and perch tree(s), vegetation types, and a description of the type and density of understory and canopy vegetation; A history and behavior patterns of the eagle pair; An aerial map and a map at the scale of the development which shows the location of the eagle's nest and other critical eagle nesting habitat features as well a the proposed development; The size and shape of the buffer area; Measures to reduce potential adverse impacts of the development on the nesting bald eagles; A critical eagle nesting habitat management plan, which shall include techniques to maintain viable nesting habitat. These techniques may include controlled burning, planting, or removal of vegetation, invasive exotic species control, maintaining hydrologic regimes, and monitoring; Deed restrictions, protective covenants, easements, or other legal mechanisms, ensuring that the approved management plan will be implemented and followed. A commitment to educate future owners, tenants, or other users about the specific requirements of the approved eagle management plan and the state and federal eagle protection laws. The eagle technical advisory committee will consider the guidelines promulgated by the FFWCC and the U.S. Fish and Wildlife Service in the review of management plans and may request assistance from these agencies whenever necessary. The revised BEMP addresses each of the items listed in Policy 7.6.1, which are identified in the policy as "minimum" requirements. The revised BEMP also includes additional elements, including fencing along the perimeter of the buffer zone and a monetary donation to support eagle monitoring in Lee County. The City contends that the proposed change is inconsistent with this objective and policy because the revised BEMP is not "an optimal management plan," because the 330-foot buffer is smaller than the buffer zone recommended by the national guidelines and because the project could be redesigned by reducing the size of the stormwater pond. The more persuasive evidence establishes that the revised BEMP is the optimal plan for the development, as proposed, which is the appropriate inquiry under Policy 7.6.1. The revised BEMP has been approved by USFWS and FWCC, and as discussed above, includes adequate protections for nest LE-005 and the eagles using the nest. Therefore, the proposed change is consistent with Objective 7.6 and Policy 7.6.1. Ultimate Findings The proposed change is not a substantial deviation from the original development order for the Bonita Bay DRI. The proposed change meets the conditions of Section 380.06(19)(e)2.j., Florida Statutes, in that it is a change that modifies the boundaries and configuration of the protection areas around nest LE-005 based upon science-based refinements concerning bald eagle habitat protection. The more persuasive evidence establishes that the proposed change will not adversely affect nest LE-005 and that the revised BEMP includes adequate protections for the nest and the eagles using the nest. On these issues, the opinions of the wildlife ecologists presented by Petitioners were more persuasive than the opinions of the wildlife ecologists presented by the City.9/ The more persuasive evidence establishes that the proposed change is consistent with the City's comprehensive plan. The revised BEMP protects the environmentally sensitive plant communities on the subject property, consistent with Policy 7.2.4; protects and maintains the diverse wildlife on the subject property, consistent with Objective 7.3; and provides adequate safeguards to protect nest LE-005 from the impacts of the proposed development, consistent with Objective 7.6 and Policy 7.6.1.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that FLWAC enter a final order approving the proposed change to the Bonita Bay DRI. DONE AND ENTERED this 17th day of April, 2008, in Tallahassee, Leon County, Florida. S T. KENT WETHERELL, II 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 17th day of April, 2008.
The Issue The issues in these consolidated cases are: Whether The Buxton Group, Incorporated, and Kavin P. Buxton (hereinafter jointly referred to as "Buxton") committed fraud, deceit, negligence, or misconduct, and, if so, whether the Department of Agriculture and Consumer Services (the "Department") may deny the issuance of or revoke various licenses held by Buxton--DOAH Case No. 10-2197; and Whether administrative denial of Buxton's existing Class "G" license is warranted--DOAH Case No. 10-2198.
Findings Of Fact The Department is the state agency responsible for, inter alia, the issuance and monitoring of various licenses related to the field of private security. It is the Department's responsibility to take disciplinary action against any licensee who violates statutes or rules relating to the licenses issued by the Department. Buxton has held, now holds, or has applied for the following licenses which are issued by the Department: D9414758: A security officer's license which has an expiration date of August 30, 2010; DI9900012: An instructor's license for which Buxton applied for, but was denied renewal; B9400126: A license to operate a security agency. Buxton's license has expired and there is an administrative action pending against it; G9402513: A statewide firearms license. Buxton's license has expired, and his request for renewal has been denied by the Department; A9700094: A private investigative agency license, effective May 19, 2008; and MB9500099: A license to manage a security agency. Buxton's license has expired, and there is an administrative action pending. The basis of the Department's disciplinary actions against Buxton's licenses (and the reason the Department has denied applications for renewals) is an incident occurring on March 27, 2008, in Pinellas Park, Florida. Buxton was on that date working as a security guard for Dew Cadillac, a new and used car dealership. At approximately 5:05 a.m., Buxton was returning to the dealership after taking a coffee break off-site. He was driving his personal automobile down an unpaved track of land on the east side of the dealership. He turned unto an unpaved area at the northern end of the lot at which time he noticed movement around an employee's pick-up truck which was parked in the car lot. It appeared a window of the truck had been broken, and there was glass lying around the outside of the vehicle. Buxton approached the vehicle and found a person (later identified as Mark Lobban) "rummaging around" in the cab of the truck. Buxton noted that two windows had been smashed, and there was a dent in the passenger side door. Buxton ordered Lobban to exit the vehicle. When Lobban came out of the truck, his eyes indicated a drugged or intoxicated state, and he reached his hand into his shirt along the front waistline of his pants. When Buxton saw that movement, he drew his weapon, a Springfield Armory XP 9mm semi-automatic handgun, for which he held a current permit to carry. Lobban took his hand out of his shirt and stated that he was looking for his cousin. Buxton ordered Lobban to the ground and began to dial 9-1-1 as he kept an eye on Lobban. Just as Buxton finished dialing 9-1-1, Lobban allegedly lunged at Buxton, then took off running. Lobban ran behind some Hummer vehicles parked nearby. Buxton says that as Lobban ran, he again reached his hand into his shirt near his waistline. That placed Buxton in fear that Lobban may have a gun, so Buxton ran to another row of Hummers for protection and began firing shots toward Lobban from his own handgun. Lobban then ran past the row of Hummers and appeared to be exiting the premises. Buxton followed Lobban and later recounted in his Firearms Incident Report, that he ran toward Lobban "to insure that the suspect was actually exiting the property. At this point, I felt he was possibly running away. I followed further in an attempt to maintain sight of the suspect." Lobban approached a hedgerow located at the west side of the dealership, attempted to jump over it, but caught his leg and fell over the hedges. By this time, Buxton had cleared the last line of parked vehicles and, thus, had no more cover. When Lobban stood up on the other side of the hedgerow, he turned to face Buxton. Buxton wrote in his report, "Fearing he had drawn a weapon behind the hedge, I fired another round, at which time the suspect turned and fled east, through the wooded area adjacent to the property." Lobban did not at any time display or fire a weapon at Buxton. Buxton returned to his cell phone which he had dropped when first apprehending Lobban. The 911 operator was just calling him back at that moment. Buxton was put through to PPPD and, within minutes, the first officer, Scott Martin, arrived at the dealership. Martin had ensured that a police perimeter was established around the dealership concurrent with his arrival. When Scott got to the dealership, he found Buxton and was briefed as to what had transpired. A brief search of the premises was commenced pending arrival of the PPPD K-9 unit. While awaiting their arrival, Buxton spotted Lobban hiding under a vehicle in the dealership's service area. Lobban was apprehended by Scott and placed in a police cruiser. Scott determined that Lobban was impaired, probably by alcohol, and was essentially incoherent. Scott did an "article search" of the premises to see if any items belonging to Lobban could be found. A cell phone and wallet were recovered, but there was no sign of a firearm. The search did not concentrate on a firearm specifically, but the search was intended to find any item that Lobban had handled. The K-9 unit was able to trace Lobban's scent through the Hummers, across the hedgerow and back to the service area. The search concentrated on the areas where Lobban had been known to have crossed. No search was done of the wooded area behind the hedge, because the tracking dogs did not point to that area as having been traveled by Lobban. Scott reported in to his headquarters after hearing Buxton's explanation of the events that transpired. The discharge of a weapon in that scenario seemed unwarranted to Scott, so he reported it to his supervisor. Within minutes, Detective Doswell arrived at the dealership to further investigate the situation. Doswell arrived to find Lobban already in custody and Buxton standing in the parking lot with another security guard. Buxton told Scott he had fired four shots at Lobban initially and then two more shots after Lobban jumped the hedge. However, there were five shell casings found in the first location and only one near the hedgerow. The events concerned Doswell enough that he asked Buxton to come into headquarters and make a statement about what had occurred. Buxton initially agreed to do so. After a few minutes, however, he handed his cell phone to Doswell so that Doswell could talk to Buxton's attorney. Doswell and the attorney set up a meeting for later that same day, a Thursday. The attorney later called Doswell and said he and Buxton could not come in until the next day (Friday), so the meeting was rescheduled for that day. On Friday, March 28, 2010, Buxton and his attorney arrived at the PPPD headquarters. Doswell informed Buxton that he was investigating the event as a probable illegal discharge of a firearm and that criminal charges could be filed. Buxton was not read his Miranda rights at that time however, in that no charges had yet been filed. At some point, Doswell determined that Buxton had been involved in another incident relating to the discharge of his firearm while on duty. In that case, Buxton was working at a bowling alley when a group of kids attempted to "jump him." One kid spit on Buxton and during the brief confrontation, Buxton pulled his firearm. Buxton discharged his gun, firing into the ceiling of the establishment (because, said Buxton, someone hit his arm just as he was shooting. Buxton did not say what he was aiming at when he fired.). After interviewing Buxton and his attorney, Doswell revisited Dew Cadillac and did some further investigation. Fragments of bullets from Buxton's firearm had been recovered from the tires of two Hummers on the car lot. In order to obtain licenses which allow a person to use a firearm in conducting their authorized activities, a person must undergo a background check and certain training and education. The Class "D" license held by Buxton required 40 hours of training (which can be dispensed with if the applicant has prior corrections or law enforcement experience). The training necessarily included instruction from the Firearm Instructor's Training Manual (the "Manual"). The Manual specifically warns against the unauthorized use of deadly force, i.e., discharging a firearm at an individual. The Manual stresses the need to retreat and disengage, rather than entering into a situation that might require using the firearm. Several examples are set out in the Manual to provide applicants guidance about how to avoid using deadly force. Two of those examples follow: Situation #1: You are guarding a liquor store and are advised by a customer that there is an armed robbery in progress. You look around the corner and see a man rushing out the front door with a firearm in his hand. Instructor Discussion: Instead of immediately looking around the corner, call the police first. The suspect could turn around and see you as you look around the corner, thus, increasing the probability of armed conflict. The man is running away from you, and there is no threat of death or great bodily injury. Don't shoot. Situation #2: You have been advised that a burglary has occurred at a warehouse you are guarding. The suspects were observed leaving the scene in a blue, 1972 Dodge. Later that night, while patrolling the grounds in a well-marked security vehicle, you observe the suspects' vehicle traveling through the parking lot at a high rate of speed with the headlights off. You see a flash come from the driver's side of the suspect's vehicle and, almost simultaneously, the front windshield of your patrol car cracks. The suspect vehicle continues through the parking lot at a high rate of speed. Instructor Discussion: Don't shoot. Record the license number and description of the vehicle and suspects if it is possible to do so from a covered position. Pursuit could result in serious injury to you or to innocent bystanders who may get in the way. Call for police as soon as possible. According to the expert testimony at final hearing (which was not rebutted or contradicted by Buxton), each of the above-described situations is more egregious than the one Buxton encountered at Dew Cadillac. It is clear that discharge of a firearm in Buxton's situation would be contrary to the guidance provided in the training materials. Each of the facts stated herein are based upon the testimony of live witnesses and written statements from police and investigative reports. Each of the witnesses appeared knowledgeable about his area of testimony, and each was credible. Buxton provided no evidence to contest or rebut any of the evidence.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Department of Agriculture and Consumer Services denying Buxton's licensure application for License No. G9402513 and taking such action as the Department deems appropriate as to each of Buxton's other licenses issued by the Department. DONE AND ENTERED this 10th day of September, 2010, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN 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 10th day of September, 2010. COPIES FURNISHED: Honorable Charles H. Bronson Commissioner of Agriculture Department of Agriculture and Consumer Services The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0810 Richard D. Tritschler, General Counsel Department of Agriculture and Consumer Services 407 South Calhoun Street, Suite 520 Tallahassee, Florida 32399-0800 Christopher E. Green, Chief Bureau of License and Bond Division of Marketing Department of Agriculture and Consumer Services 407 South Calhoun Street, Mail Stop 38 Tallahassee, Florida 32399-0800 Tracy Sumner, Esquire Department of Agriculture and Consumer Services Post Office Box 3168 Tallahassee, Florida 32315-3168 Kavin P. Buxton Post Office Box 13644 St. Petersburg, Florida 33733
