The Issue Do Driscoll Properties and/or Harbor Course Club, Inc., Respondents, have vested rights to complete the project at issue, a golf driving range? (Case Nos. 84-2868VR and 84-3805VR) If Respondents do not have vested rights, did the application to clear land for the golf driving range comply with the provisions of Chapter 380, Florida Statutes, and in particular with the comprehensive plan and land development regulations for the Florida Keys Area of Critical State Concern? (Case No. 84-2868VR). Is the Department of Community Affairs estopped, or otherwise equitably barred, from preventing the completion of this project? (Case Nos. 84-2868VR and 84-3805VR) Did Driscoll Properties or Harbor Course Club, Inc., violate the provisions of Chapter 380, Florida Statutes? (Case No. 84-3805VR) Did Monroe County violate Chapter 380, Florida Statutes, by issuing a land clearing permit prior to transmitting the Monroe County Board of County Commissioners Resolution 091-1984 to the Department of Community Affairs, the South Florida Regional Planning Council and the Developer? (Case No. 84-3805VR) If there is a violation of Chapter 380, Florida Statutes, what is the proper remedy? (Case No. 84-3805VR)
Findings Of Fact The parties stipulated to the following findings of fact which are incorporated herein: The owner of record of the subject property is Driscoll Properties, a Florida general partnership, 522 Gables International Plaza, 2655 LeJeune Road, Coral Gables, Florida 33134, and the property is located in Section 5, Township 59 South, Range 41 East, North Key Largo, Monroe County, Florida, within a subdivision known as Harbor Course South, Section One. Driscoll Properties, and Harbor Course Club, Inc., submitted to Monroe County an Application for Land Clearing, Permit No. C-14919, for the subject property in order to build a golf driving range. The application was dated March 18, 1983, and received by the County on or about March 24, 1983. Monroe County Application for Land Clearing, Permit No. C-14919 was denied by William Russell, Assistant Director, Monroe County Planning, Building and Zoning on May 20, 1983. The denial of Permit Application for Land Clearing No. C-14919 was appealed by Harbor Course Club, Inc., to the Monroe County Board of Adjustment. The Board of Adjustment denied the appeal on December 14, 1983, by Resolution (of) Administrative Appeal 8-83. The Monroe County Board of Adjustment Resolution No. 8-83, denying the Application for Land Clearing, Permit No. C-14919, was appealed by Harbor Course Club, Inc., to the Monroe County Board of County Commissioners. The Monroe County Board of County Commissioners reversed the decision of the Monroe County Board of Adjustment by adopting Resolution No. 091-1984 on March 23, 1984. The Monroe County Zoning Department was responsible for issuing and rendering Monroe County Board of County Commissioners Resolution 091-1984. On April 25, 1984, Harbor Course Club, Inc., or a person acting on its behalf, applied to and obtained from Monroe County Building and Zoning Department ministerial land clearing permit No. C-14919, which was authorized by Resolution 091-1984. Harbor Course Club, Inc., or an authorized agent, employee or representative, received a letter dated June 12, 1984, enclosing Resolution No. 091-1984 and the minutes from the hearing described in No. 6 above. Harbor Course Club, Inc., or an authorized agent, employee or representative arranged for clearing of the subject property. Land clearing activity on the subject property began on April 30, 1984. Land clearing activity on the subject property was conducted on May 2, 3, 7, 8 and 10, 1984. Land clearing on the subject property was continued on July 19, 20 and 24, 1984, and completed August 2, 1984. At the times in question, the Petitioners maintained an office in Monroe County. At the times in question, Bob Dennis was an environmental specialist in the Petitioners' Monroe County office. The Key Largo woodrat is listed as an endangered species by the U.S. Fish and Wildlife Service pursuant to 50 Code of Federal Regulations, Part 17, Section 17.11(h). The Key Largo woodrat is listed as an endangered species by the Florida Game and Freshwater Fish Commission pursuant to Rule 39-27.03(27). The following findings of fact are made based on the evidence submitted at the hearing, after considering the demeanor and credibility of the witnesses who testified: The subject property consists of approximately 3.6 acres. Harbor Course Club, Inc., seeks to have the subject property developed into a golf driving range for the use of its members. Harbor Course Club, Inc., is a private membership golf club located within the Ocean Reef Development on North Key Largo. Ocean Reef is a residential development with three eighteen hole golf courses consisting of approximately 4000 acres, half of which is developed and half of which has been dedicated to wilderness. The subject property as well as the entire Ocean Reef Development is part of an Area of Critical State Concern previously designated on July 1, 1979 under Section 380.0552, Florida Statutes, and subject to Chapters 27F-B and 27F- 9, Florida Administrative Code. Monroe County has developed a comprehensive plan pursuant to Chapter 163, Florida Statutes, which provides for certain standards and criteria for the issuance of development permits, such as the one applied for in this instance. As it relates to this case, the comprehensive plan is known as the Monroe County Coastal Zone Protection and Conservation Element. Prior to its clearing, the subject property was a high quality, mature tropical hardwood hammock with a closed canopy approximately thirty feet in height, and represented a unique genealogy not found elsewhere in North America outside of the Everglades. There were also several "protected" or "threatened" tree species on the site such as the paradise tree, red berry stopper and thatched palm, and approximately five active Key Largo woodrat nests. The clearing that has taken place has substantially destroyed the tropical hardwood canopy and removed most of the top soil from the area. One strip of hammock remains at the border of the property as well as several tree clumps, but the strip and clumps are too small and narrow to serve as a habitat. Therefore, the area's use as a habitat for woodrats has been destroyed and their nests can no longer be found on site. Trees such as the torchwood which were previously found on the site and which serve as host plants for endangered or threatened species, such as the Schaus swallowtail butterfly, have also been destroyed. This finding is based on the testimony of Mark Robertson, Dr. Art Weiner who was accepted as an expert in biology and Florida Keys ecology, and Numi Goodyear, an expert in zoology and Keys mammalian. The subject property was not selectively cleared, but rather was indiscriminately cleared. This has had a scouring effect on the soil. The evidence does not establish that fill material has been deposited on site. A survey of trees and vegetation on the subject property was submitted by the applicants, but this was not a complete or adequate survey of vegetation on the site. The applicants had no adequate protective plan for the endangered or threatened species, such as the woodrat, and trees on the subject property. Although it was established through the testimony of Melvin R. "Chick" Harbert, who was recognized as an expert in golf facility components, that a golf practice area is an integral part of Professional Golfer's Association approved courses, and that such areas allow golfers to warm up, practice and receive golfing lessons, it has not been established by competent substantial evidence that driving ranges, such as the one applied for in this case, are customarily associated with golf courses such as the ones in Ocean Reef. There is no evidence that professional golf tournaments have, or will be, held at these courses, or that the owners of the courses intend to seek P.G.A. sanctioning of a tournament at their facility. Additionally, Harbert admitted that not every golf course requires a driving range. Finally, Harbert's involvement with the Ocean Reef Development as a professional golf instructor diminishes his credibility as a witness. Even if it had been found that driving ranges are customarily associated with golf courses such as the ones in this case, the testimony of Charles C. Gardner, a partner in Driscoll Properties, and Charles Pattison, Director of Planning, Building and Zoning for Monroe County, establishes that a golf driving range was not shown or located on the subject property on the Master Development Plan Map for the Ocean Reef Development filed with the County in June, 1977. Further, other than the permit from which the appeal in this case was taken, there are no records, maps, authorizations or permits on file with the County which allow or indicate a driving range on the subject property. Therefore, the applicants had no interest in the development of a driving range at this location prior to its designation as an Area of Critical State Concern. To the contrary, Gardner specifically testified that the desire to locate a driving range on the subject property did not arise until 1982 or 1983. Although Permit No. C-14914 was transmitted to Petitioner's Keys Office on May 14, 1984, Monroe County Resolution No. 091-1984 and the development order authorizing issuance of the permit for land clearing were not transmitted to Petitioner until June 21, 1984. On August 3, 1984, Petitioner filed its appeal with the Land and Water Adjudicatory Commission of Resolution No. 091-1984. Bob Dennis, Petitioner's environmental specialist, attended the March 23, 1984 meeting of the Monroe County Board of County Commissioners when Resolution 091-1984 was adopted. He did not participate in the meeting, but simply observed the meeting as part of his normal job duties.
Recommendation Based upon the foregoing, it is recommended that a Final Order be issued denying Respondents Harbor Course Club, Inc. and Driscoll Properties' application for a land clearing permit. Since the clearing has already taken place, there are no changes in the development proposal that would make it eligible for a permit, and it is therefore also recommended that further development permits for the site in question comply with final action to be taken in Case No. 84-3805VR. DONE and ENTERED this 26th day of February, 1986, at Tallahassee Florida. DONALD D. CONN 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 26th day of February, 1986. APPENDIX TO RECOMMENDED ORDER, CASE NO. 84-2868VR Rulings on Petitioner's Proposed Findings of Facts: Adopted in Findings of Fact 1 and 2. Adopted in Finding of Fact 18. Adopted in Findings of Fact 2 and 23. Adopted in part in Finding of Fact 1, but otherwise rejected as irrelevant and unnecessary. Adopted in part in Finding of Fact 19, but otherwise rejected as irrelevant and unnecessary. 6-12. Adopted in part in Finding of Fact 27, but otherwise rejected as irrelevant and unnecessary. Rejected as irrelevant and unnecessary. Adopted in part in Findings of Fact 26 and 27 but otherwise rejected as irrelevant and unnecessary. Adopted in part in Finding of Fact 22, but otherwise rejected as not based on competent, substantial evidence. Adopted in Findings of Fact 16, 17 and 22. Rejected as irrelevant. Rejected as cumulative and unnecessary. 19-20. Adopted in part in Finding of Fact 22, but otherwise rejected as irrelevant and unnecessary. Rejected as irrelevant and unnecessary. Adopted in Finding of Fact 3. Adopted in Finding of Fact 4. Adopted in part in Finding of Fact 5, but otherwise rejected as irrelevant. Adopted in Finding of Fact 6. Adopted in Finding of Fact 29. Rejected since this is actually a conclusion of law. 28-30. Rejected as irrelevant and unnecessary. Adopted in Finding of Fact 28. Rejected since in part this is a conclusion of lawn and is otherwise irrelevant and unnecessary. Rejected as irrelevant and unnecessary. Adopted in Finding of Fact 8. Adopted in Finding of Fact 9, but otherwise rejected as irrelevant and unnecessary. Adopted in part in Finding of Fact 28, but otherwise rejected as irrelevant and unnecessary. Adopted in Finding of Fact 10. Rejected as irrelevant and unnecessary. Adopted in Findings of Fact 11-13. Adopted in Findings of Fact 22, 23. Adopted in part in Finding of Fact 22, but otherwise rejected as irrelevant and unnecessary. 42-45. Rejected as irrelevant and unnecessary. Rulings on Respondents Driscoll Properties, Walter Driscoll and Harbor Course Club, Inc., Proposed Findings of Fact which have been adopted by Respondent Monroe County: 1. Adopted in Finding of Fact 1. 2-3. Adopted in part in Finding of Fact 27, but otherwise rejected as not based on competent, substantial evidence. Rejected as not based on competent, substantial evidence, and otherwise irrelevant and unnecessary. Rejected in Finding of Fact 27. Adopted in Finding of Fact 26. Rejected in Finding of Fact 26. Adopted in Finding of Fact 20. Rejected as not based on competent, substantial evidence, and otherwise irrelevant and unnecessary. Adopted in Finding of Fact 2. 11-13. Adopted in part and rejected in part in Finding of Fact 24. Rejected in Finding of Fact 25. Rejected as irrelevant and unnecessary. Adopted in Finding of Fact 3. Adopted in Finding of Fact 4. Adopted in Findings of Fact 5, 6. Rejected in Findings of Fact 22-25. Adopted in Findings of Fact 8, 28. Adopted in Finding of Fact 11. Adopted in part in Finding of Fact 18 but otherwise rejected in Finding of Fact 23. 23-24. Adopted in Findings of Fact 15, 29. 25. Rejected as irrelevant. 26-27. Adopted in Finding of Fact 28. 28-29. Rejected as not based on competent, substantial evidence and otherwise irrelevant. 30-33. Rejected as not a proper proposed Finding of Fact since this is simply Respondents' summary of rulings and testimony at final hearing. The testimony of Mark Robertson and the deposition of Sandra Hersh has been accepted and considered to the extent they reflect the personal observations, experiences and records of said witnesses. COPIES FURNISHED: Honorable Bob Graham Governor The Capitol Tallahassee, Florida 32301 Honorable Bill Gunter Insurance Commissioner The Capitol Tallahassee, Florida 32301 Honorable Jim Smith Attorney General The Capitol Tallahassee, Florida 32301 Honorable George Firestone Secretary of State The Capitol Tallahassee, Florida 32301 Honorable Gerald Lewis Comptroller The Capitol Tallahassee, Florida 32301 Honorable Ralph Turlington Commissioner of Education The Capitol Tallahassee, Florida 32301 Honorable Doyle Conner Commissioner of Agriculture The Capitol Tallahassee, Florida 32301 Glenn W. Robertson, Secretary Land and Water Adjudicatory Commission Office of the Governor Room 415 Carlton Building Tallahassee, Florida 32301 Susan Vernon, Esquire 310 Fleming Street Key West, Florida 33040 Larry A. Stumpf, Esquire Suite 1000 777 Brickell Avenue Miami, Florida 33131 Sarah E. Nall, Esquire C. Laurence Keesey, Esquire Ross Burnaman, Esquire Department of Community Affairs 2571 Executive Center Circle, East Tallahassee, Florida 32301
The Issue The sole issue to be addressed is whether the Petition to establish the Town Center at Palm Coast Community Development District meets the applicable criteria set forth in Chapter 190, Florida Statutes, and Chapter 42-1, Florida Administrative Code.
Findings Of Fact Overview The Petitioners are seeking the adoption of a rule by the Commission to establish a community development district ("CDD") proposed to consist of approximately 1,600 gross acres located within the boundaries of incorporated areas of Palm Coast. The suggested name for the proposed District is the Town Center at Palm Coast Community Development District. There are no out-parcels within the area to be included in the proposed District. The estimated cost of the infrastructure facilities and services, which are presently expected to be provided to the lands within the District, was included in the Petition. The sole purpose of this proceeding is to consider the establishment of the District as proposed by the Petitioners. Summary of Evidence and Testimony Whether all statements contained within the Petition have been found to be true and correct. Petitioners' Exhibit A was identified for the record as a copy of the Petition and its exhibits as filed with the Commission. Livingston testified that he reviewed the contents of the Petition and approved its findings. Livingston also generally described the exhibits to the Petition. Livingston testified that the Petition and its exhibits are true and correct to the best of his knowledge. Gaylord testified that he assisted in the preparation of portions of the Petition and its exhibits. Gaylord also generally described Exhibits 5 and 6 to the Petition which he or his office had contributed to and stated that they were true and correct to the best of his knowledge. Fishkind testified that he had prepared Exhibit 10 to the Petition, the Statement of Estimated Regulatory Costs (SERC). Fishkind also testified that the SERC submitted as Exhibit 10 to Petitioners' Exhibit A was true and correct to the best of his knowledge. Livingston testified that the consent by the owner of lands to be included within the proposed District is still in full force and effect. The Petition included written consent to establish the District from the owners of one hundred percent (100%) of the real property located within the lands to be included in the proposed District. Londeree testified that he had prepared Exhibits I-1 through I-3 and briefly described each exhibit. Londeree testified that Exhibits I-1 through I-3 were true and correct to the best of his knowledge. Based on the foregoing, the evidence shows that the Petition and its exhibits are true and correct. Whether the establishment of the District is inconsistent with any applicable element or portion of the State Comprehensive Plan or the effective local government comprehensive plan. Londeree reviewed the proposed District in light of the requirements of the State Comprehensive Plan, Chapter 187, Florida Statutes. Londeree also reviewed the proposed District in light of the requirements of the City of Palm Coast Comprehensive Plan. From a planning and economic perspective, three (3) subjects of the State Comprehensive Plan apply directly to the establishment of the proposed District as do the policies supporting those subjects. Subject 16, Land Use, recognizes the importance of locating development in areas that have the fiscal abilities and service capacity to accommodate growth. Section 187.201(16), Florida Statutes. It is relevant because CDDs are designed to provide infrastructure services and facilities in a fiscally responsible manner to the areas which can accommodate development. The evidence shows that the establishment of the Town Center at Palm Coast CDD will not be inconsistent with this goal because the District will have the fiscal capability to provide the specified services and facilities within its boundaries. Subject 18, Public Facilities, relates to (i) protecting investments in existing public facilities; (ii) providing financing for new facilities; (iii) allocating the costs of new public facilities on the basis of the benefits received by future residents; (iv) implementing innovative, but fiscally sound techniques for financing public facilities; and (v) identifying and using stable revenue sources for financing public facilities. Section 187.201(18), Florida Statutes. The evidence shows that the establishment of the Town Center at Palm Coast CDD will further these State Comprehensive Plan Goals and Policies. Subject 21, Governmental Efficiency, provides that governments shall economically and efficiently provide the amount and quality of services required by the public. Section 187.201(21), Florida Statutes. The evidence shows that the proposed CDD will be consistent with this element because the proposed CDD will continue to: (i) cooperate with other levels of Florida government; (ii) be established under uniform general standards as specified in Chapter 190, Florida Statutes; (iii) be professionally managed, financed, and governed by those whose property directly receives the benefits; (iv) not burden the general taxpayer with costs for services or facilities inside the District; and (v) plan and implement cost-efficient solutions for the required public infrastructure and assure delivery of selected services to residents. Based upon the testimony and exhibits in the record, the proposed District will not be inconsistent with any applicable element or portion of the State Comprehensive Plan. In 2000, the City of Palm Coast approved a Comprehensive Plan Amendment bringing the Petitioners' property into compliance with the City's adopted Comprehensive Plan. Based on the evidence in the record, the proposed District will not be inconsistent with any applicable element or portion of the Local Comprehensive Plan, and can be expected to further the goals provided. Whether the area of land within the proposed district is of sufficient size, is sufficiently compact, and is sufficiently contiguous to be developable as one functional interrelated community. Testimony on this criterion was provided by Londeree, Fishkind, and Gaylord. The lands that comprise the proposed District will consist of approximately 1,600 gross acres, located within the borders of incorporated Palm Coast. All of the land in the proposed District is part of a planned community included in the Town Center at Palm Coast Development of Regional Impact (DRI), which is currently under review. "Functional interrelated community" means that the community development plan requires that the residents and property owners will be provided those facilities that are the necessary services for a mixed-use community. These facilities include streets, stormwater ponds, water and sewer service, street lighting, sidewalks, bike paths and associated landscaping. All of these elements will tie the land uses of the community together to provide a unity of design and function for the community. The community facilities that are provided require a long-range development plan that addresses the management, scheduling, funding, construction, and maintenance of the required infrastructure for the growth and development of the community. The size of the District as proposed is approximately 1,600 gross acres. From a planning perspective, this is a sufficient size to accommodate the basic infrastructure facilities and services typical of a functionally interrelated community. The proposed facilities and services require adequate planning, design, financing, construction, and maintenance to provide the community with appropriate infrastructure. Compactness relates to the location in distance between the lands and land uses within a community. The proposed District provides for a cost-effective and efficient design and delivery of the required infrastructure and the future maintenance of same. The Petitioners are developing all the lands within the District as a single master-planned community. All of these lands will be governed by the Town Center at Palm Coast Development of Regional Impact Development Order to be issued by the City of Palm Coast, Flagler County, Florida. The evidence shows that from planning, economics, and engineering perspectives, the area of land to be included in the proposed District is of sufficient size, is sufficiently compact, and is sufficiently contiguous to be developed as a single functionally interrelated community. Whether the proposed district is the best alternative available for delivering community development services and facilities to the area that will be served by the proposed district. It is presently intended that the District will participate in the construction or provision of certain infrastructure improvements as outlined in the Petition. The District will construct certain infrastructure and community facilities which will be needed by the property owners and residents of the project. It is anticipated that the CDD will issue 30-year special assessment bonds to pay for the major infrastructure improvements. Expenses for the operations and maintenance are expected to be paid through annual maintenance assessments to ensure that the property or person receiving the benefit of the district services is the same property or person to pay for those services. Two types of alternatives to the use of the District were identified. First, the City of Palm Coast might provide facilities and services from its general fund. Second, facilities and services might be provided by some private means, with maintenance delegated to a home owners' association. A community development district allows for the independent financing, administration, operations, and maintenance of the land within such a district. A community development district allows district residents to completely control the district. The other alternatives do not have these characteristics. From an engineering perspective, the proposed District is the best alternative to provide the proposed community development services and facilities to the land included in the proposed District because the District will provide the necessary means to maintain the project consistent with the intent of the original design. Alternative approaches, such as dedicating the area to another municipality, may result in conditions deviating from the original intent of the project. A localized agency (District) that is focused on maintaining and governing the area will help to ensure that the design and intent for which the project was developed and presented to the public will be maintained. The evidence shows that from planning, economic, engineering, and special district management perspectives, the proposed District is the best alternative available for delivering community development services and facilities to the area that will be served by the District. Whether the community development services and facilities of the proposed district will be incompatible with the capacity and uses of existing local and regional community development services and facilities. The services and facilities proposed to be provided by the District are not incompatible with uses and existing local and regional facilities and services. Currently, the land within the proposed District boundaries is undeveloped and, therefore, cannot duplicate the local or regional facilities. The facilities within the District are designed to meet, and in some areas exceed, the current design requirements by local municipalities and are, therefore, compatible with the capacities and uses of the existing regional community development facilities and services. Therefore, the evidence shows that the community development services and facilities of the proposed district will not be incompatible with the capacity and uses of existing local and regional community development services and facilities. Whether the area that will be served by the district is amenable to separate special-district government. As previously noted, from planning, economics, and engineering perspectives, the area of land to be included in the proposed District is of sufficient size, is sufficiently compact, and is sufficiently contiguous to be developed and become a functionally interrelated community. The community to be included in the District needs the basic infrastructure systems to be provided. From planning and economic perspectives, the area that will be served by the proposed District is amenable to separate special-district government. Other requirements imposed by statute or rule. Chapter 190, Florida Statutes, and Chapter 42-1, Florida Administrative Code, impose specific requirements regarding the Petition and other information to be submitted to the Commission. Elements of the Petition The Commission has certified that the Petition to Establish the Town Center at Palm Coast Community Development District meets all of the requirements of Section 190.005(1)(a), Florida Statutes. Statement of Estimated Regulatory Costs (SERC) The SERC contains an estimate of the costs and benefits to all persons directly affected by the proposed rule to establish the District--the State of Florida and its citizens, the County and its citizens, the City and its citizens, the Petitioners, and consumers. Beyond administrative costs related to rule adoption, the State and its citizens will only incur minimal costs from establishing the District. These costs are related to the incremental costs to various agencies of reviewing one additional local government report. The proposed District will require no subsidies from the State. Benefits will include improved planning and coordination of development, which are difficult to quantify, but nonetheless substantial. Administrative costs incurred by the City of Palm Coast and Flagler County related to rule adoption should be minimal. Benefits to the City of Palm Coast and Flagler County will include improved planning and coordination of development, without incurring any administrative or maintenance burden for facilities and services within the proposed District except for those it chooses to accept. Consumers will pay special assessments for certain facilities. Location in the District by new residents is voluntary. Generally, District financing will be less expensive than maintenance through a property owners' association or capital improvements financed through developer loans. Benefits to consumers in the area within the CDD will include the option of having a higher level of public services and amenities than might otherwise be available, completion of District-sponsored improvements to the area on a timely basis, and a larger share of direct control over community development services and facilities within the area. Section 190.005(1)(a), Florida Statutes, requires the Petition to include a SERC which meets the requirements of Section 120.541, Florida Statutes. The Petition contains an SERC. It meets the requirements of Section 120.541, Florida Statutes. Other Requirements Petitioners have complied with the provisions of Section 190.005(1)(b)1., Florida Statutes, in that Flagler County and City of Palm Coast were paid the requisite filing fees. Section 190.005(1)(d), Florida Statutes, requires the Petitioners to publish notice of the local public hearing in a newspaper of general circulation in Flagler County and the City of Palm Coast for four successive weeks prior to the hearing. The notice was published in the legal Advertisement section of the Flagler/Palm Coast News-Tribune, a newspaper of general circulation, for five (5) successive weeks, on June 29, July 6, July 13, July 20, and July 27, 2002. Flagler County's Support for Establishment Pursuant to the requirements of Section 190.005(1)(b), Florida Statutes, Petitioners filed a copy of the Petition and the $15,000.00 filing fee with Flagler County prior to filing the Petition with the Commission. As permitted by Section 190.005(1)(c), Florida Statutes, the Flagler County Commission held a public hearing on May 6, 2002, to consider the establishment of the Town Center at Palm Coast Community Development District. At the conclusion of its public hearing on May 6, 2002, and after considering the factors enumerated in Section 190.005(1)(e), Florida Statutes, and the representations in the SERC, the Flagler County Commission adopted Resolution No. 2002- 50, expressing support for the Commission to promulgate a rule establishing the Town Center at Palm Coast Community Development District. Palm Coast's Support for Establishment Pursuant to the requirements of Section 190.005(1)(b), Florida Statutes, Petitioners filed a copy of the Petition and $15,000.00 filing fee with the City of Palm Coast prior to filing the Petition with the Commission. As permitted by Section 190.005(1)(c), Florida Statutes, the City of Palm Coast held a public hearing on June 4, 2002, to consider the establishment of the Town Center at Palm Coast Community Development District. At the conclusion of its public hearing on June 4, 2002, the City of Palm Coast Commission adopted Resolution No. 2002-18, expressing support for the Commission to promulgate a rule establishing the Town Center at Palm Coast Community Development District.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Governor and Cabinet, sitting as the Florida Land and Water Adjudicatory Commission, pursuant to Chapters 120 and 190, Florida Statutes, and Chapter 42-1, Florida Administrative Code, establish the Town Center at Palm Coast Community Development District as requested by the Petitioners by formal adoption of the proposed rule. DONE AND ENTERED this 27th day of August, 2002, in Tallahassee, Leon County, Florida. CHARLES A. STAMPELOS 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 27th day of August, 2002. COPIES FURNISHED: Michael Chiumento, III, Esquire Chiumento & Associates, P.A. 4 Old Kings Road, North, Suite B Palm Coast, Florida 32137 Donna Arduin, Secretary Florida Land and Water Adjudicatory Commission The Capitol, Room 2105 Tallahassee, Florida 32399 Barbara Leighty, Clerk Growth Management and Strategic Planning The Capitol, Room 2105 Tallahassee, Florida 32399-0001 Charles Canady, General Counsel Office of the Governor The Capitol, Suite 209 Tallahassee, Florida 32399-1001 Exhibit 1 Petitioners' Witnesses at the Public Hearing William I. Livingston, President Florida Landmark Communities, Inc. One Corporate Drive, Suite 3A Palm Coast, Florida 32137 David R. Root 14 Fern Court Palm Coast, Florida 32137 Robert B. Gaylord Singhofen & Associates 6961 University Boulevard Winter Park, Florida 32792 Henry F. Fishkind, Ph.D. Fishkind & Associates 11869 High Tech Avenue Orlando, Florida 32817 Robert D. Londeree Planning and Design Post Office Box 1077 Windermere, Florida 34786 Exhibit 2 List of Petitioners' Exhibits Letter Description Petition for Rulemaking to Establish a Uniform Community Development District (Petition with ten (10) Exhibits) Composite Exhibit -- Prefiled Testimony of William I. Livingston (10 pages) General Location Map Vicinity Map showing District boundaries Metes and Bounds Description of District boundaries B-4 Written Consent of Landowners Utility Plan showing major trunk water mains and sewer interceptors adjacent to District boundaries Development Costs and Timetable Conceptual Site Plan showing public and private uses B-8 Land Use Plan Resolution No. 2002-18, of the City Council of the City of Palm Coast endorsing the formation of the Town Center at Palm Coast CDD Resolution No. 2002-50, of Flagler County, Florida's County Commissioners demonstrating its support of the formation of the Town Center at Palm Coast CDD Proof of Publication from Flagler/Palm Coast News- Tribune Prefiled Testimony of David R. Root (5 pages) Prefiled Testimony of Robert B. Gaylord (6 pages) Utility Plan showing major trunk water mains and sewer interceptors adjacent to District boundaries Development Costs and Timetables Prefiled Testimony of Henry F. Fishkind, Ph.D., (6 pages) Statement of Estimated Regulatory Costs for the Town Center of Palm Coast CDD I Prefiled Testimony of Robert D. Londeree (9 pages) I-1 Town Center at Palm Coast Development of Regional Impact Application for Development Approval Town Center at Palm Coast Development of Regional Impact Application for Development Approval Response to Request for Additional Information (Sufficiency Response) Petitioners' FLUM Amendment for Town Center at Palm Coast Application
Findings Of Fact A Backdrop to the Charges At all times relevant hereto, respondent, Tom F. Brewer, was a teacher at Crestwood Middle School (CMS) in Royal Palm Beach, Florida. He is employed by petitioner, The School Board of Palm Beach County (Board). Respondent, who is now fifty-four years old, is certified as a middle school teacher with a specialty in the area of mathematics. He has taught in the Palm Beach County school system since August, 1973 and has consistently received satisfactory evaluations. Most recently, he was assigned to CMS to teach mathematics to seventh and eighth graders. Since CMS is ten miles from his home, Brewer left for work each school day around 7:50 a.m. and returned around 4:20 p.m. In addition, until September, 1985 he spent two weekends a month at National Guard drills where he was the unit first sergeant. From November, 1982 until March, 1984 he worked on his other weekends as a security guard at a local country club. Forest Estates Drive in West Palm Beach, Florida is the focal point of this proceeding. In November, 1978 respondent moved into a home in the 300 block on Forest Estates Drive. Other residents on the street at that time were James H. Williams, Sandra Cownden and her daughter, Tina Luciano (Tina), Margaret Hill and her daughter and stepdaughter, Robin Mahoney (Robin) and Kim McKenna (Kim), and Hilda Barrett. Shortly after Brewer moved into the neighborhood, the Pecks moved in next door. Mr. Peck is a uniformed deputy sheriff with a marked patrol car. In 1982, Helen Happ moved with her family into a home on the same block. In 1985, Stephen Erickson moved into the home previously occupied by Hilda Barrett and which was directly across the street from Brewer. All of the above neighbors testified at final hearing or gave deposition testimony and are a part of this neighborhood drama. Some lived there only part of the time since 1978 while a few were neighbors for the entire nine year period. Respondent is divorced and lives by himself at his home on Forest Estates Drive. He has three grown children, a girl and two boys, living in the West Palm Beach area. The children, who are now 28, 26 and 25 years of age, regularly visited Brewer several times a week during the years in question. As might be expected, Brewer became reasonably acquainted with all of his neighbors since moving to Forest Estates Drive almost ten years ago. They became aware of the fact that he was a school teacher. The principal prosecution witness is Tina, who lived with her divorced mother two houses away from Brewer. Tina, who was born on March 16, 1969, was not bashful or shy, and at the age of nine, began going to Brewer's house when he first moved in the neighborhood. As she frequently did with other neighbors, Tina asked Brewer for money and favors. Brewer responded by giving Tina odd jobs to do around his house such as washing his car, mowing the yard or cleaning windows. Therefore, over the years it was not unusual to see Tina going to and from Brewer's house. As she grew older, Tina began using Brewer's telephone to call friends and to watch Brewer's widescreen television set which was wired for cable. It should be noted here that Tina has a reputation as being an untruthful person. Against this backdrop, respondent was arrested by the Palm Beach County Sheriff's Office in March, 1987 for contributing to the delinquency of a seventeen year old minor (Tina), a misdemeanor charge. He was subsequently acquitted after a three day jury trial in March, 1988. After learning that respondent had been arrested, the Board suspended Brewer without pay on November 17, 1987. This action was formalized by a petition for dismissal issued on December 3, 1987. Respondent has remained suspended without pay pending the outcome of this proceeding. As amended, the petition for dismissal alleges that on January 1, 1987 respondent "allowed two females, then 16 and 17 years old, to visit him at his home," that he "supplied and/or permitted the females to consume liquor in his home," and that he "requested and received back rubs from both females and requested sex from the 16 year old." In addition, the amended petition charges that respondent allowed "other males and females in the neighborhood" to visit his home "on a regular basis for the past nine (9) years" and "to drink alcohol in his presence," and that he "regularly loaned money to the neighborhood children and gave them rides to various locations in the vicinity," all without the knowledge or consent of the parents. Finally, it is alleged that in June, 1987 respondent "used profanity in the presence of a minor . . . and engaged in other inappropriate conversation." These allegations will be examined separately hereinafter in the order in which they are raised in the petition. The Criminal Arrest and Attendant Notoriety In March, 1987 respondent was arrested and charged with contributing to the delinquency of a minor, a misdemeanor. The charges stemmed from an incident that allegedly occurred on January 1, 1987 at Brewer's home and involved Tina, then seventeen years old, and her sixteen year old friend, Angie. After school resumed in January, 1987 Brewer reported to his principal that he was involved in a "run in with the law" on New Year's Day. This information was conveyed to the deputy Superintendent who advised that no action should be taken until "something official happened." For some reason, the school either failed to learn of Brewer's arrest in March or did nothing at that time. In any event, the arrest was eventually reported in articles published in a local newspaper on November 8 and 19, 1987. Brewer's three day trial in March, 1988 received even more widespread newspaper and television coverage. After the articles appeared in the local newspaper in November, 1987, the superintendent of schools was contacted by one parent whose child was a student in respondent's classroom. Other than this one contact, the Superintendent had no other personal knowledge of any parent concern over respondent's arrest. However, based upon his review of the matter, and having assumed the charges herein to be true, the superintendent concluded that the resulting notoriety attendant to respondent's arrest impaired his effectiveness as a teacher. He further opined that respondent is now vulnerable to accusations of similar improper behavior in the future, and he believes that parents would object if respondent was reassigned to the classroom. Also believing the charges to be true, several neighbors reported that they were concerned with respondent's behavior, and they did not wish their children to be around him. Finally, after the arrest became public, one witness in this proceeding was contacted by several CMS students inquiring about the charges. The January 1, 1987 Incident Angela (Angie) is a girlfriend of Tina who had just turned sixteen on December 18, 1986. At that time she was enrolled as a student at a local high school but was not attending classes. She was also on probation for burglary and grand theft and has a reputation of being an untruthful person. She stayed overnight with Tina on December 31, 1986 to celebrate the holiday, and the two spent New Year's Eve partying with friends until dawn. During the course of the evening Angela consumed a great deal of whiskey and got very drunk. The whiskey was bought for Angie by an undisclosed third party. On January 1, 1987 Tina and Angie spent most of the day at Tina's house with Tina's mother and grandparents. Around 5:00 or 5:30 p.m., the two went to Brewer's house so that Tina could use his telephone to call her boyfriend, Matt. Angie, who was recuperating from a substantial hangover, just wanted to stretch out on Brewer's couch. They found Brewer watching the football bowl games on television. Tina made several calls, including one to Matt, and another to Tommy, who had just broken up with Angie. After the calls were completed, Tina returned to her house to eat dinner. Angie remained on Brewer's couch, still nursing her hangover. After finishing her meal, Tina returned to Brewer's house. Angie then departed to Tina's house to shower and change clothes. Tina also returned to her home a short while later to see what was taking Angie so long. The two eventually returned to Brewer's house around 7:00 or 7:30 p.m. Tina then asked Brewer for a ride to pick up Matt and bring him back to her house. Brewer agreed and the two left leaving Angie watching television. When Tina, Brewer and Matt returned to Brewer's house around 8:00 p.m., they found Angie gone. According to Tina's mother, Angie returned to Tina's house while Tina and Brewer were gone and had left with two male friends. Not knowing this, Tina and Matt left Brewer's house to find Angie but returned about twenty minutes later, by now Brewer's twenty-six year old son, Chuck, had arrived to watch the Orange Bowl football game with his father. A while later, two male friends of Matt showed up at the doorstep and were invited in to watch television. Tina, Matt and his two friends stayed for about 45 minutes watching the football game and then left. Around 10:30 p.m. that evening, a disturbance occurred in the street in front of Tina's house. Brewer's next door neighbor, George Peck, III, who happens to be a uniformed deputy sheriff, observed a girl "screaming and crying" in the middle of the street. The girl (Angie) was with a young man. When the two would not tell him what was the matter, the deputy told the two to leave the neighborhood. In contrast to the testimony of both Tina and Angie that Angie was intoxicated that evening, the deputy did not detect any odor of alcohol on Angie's breath and she did not appear to be intoxicated. Further, the deputy's testimony that the above event occurred around 10:30 p.m. is accepted as being more credible than Angie's testimony that Peck spoke with her some two and one- half hours earlier. Another disturbance occurred in front of Tina's house around midnight involving Tina, Angie and several male teenagers. The police were called and an investigation was begun. As a result of accusations by Tina and Angie, Brewer was later arrested and charged with contributing to Tina's delinquency. At no time during the day or evening of January 1, 1987 did Brewer offer or furnish alcoholic beverages to Tina and Angela nor did the two girls consume alcoholic beverages at his home. He did not ask the girls to give him a back rub, engage in a sexual activity or make any improper overtures towards the girls. Testimony by Tina and Angela to the contrary is rejected as not being credible. Neighborhood Saint or Sinner? The amended complaint alleges that Tina, "along with other males and females in the neighborhood, under the age of 18, have visited Respondent at his home on a regular basis for the past nine (9) years," and that such minors were unchaperoned and consumed alcoholic beverages in his home. As to this allegation, the Board has stipulated that none of the minors were students from Crestwood Middle School. There were numerous confirmed visits by Tina to Brewer's house over the years. She was accompanied on several visits by Robin, who once lived on the street and later lived with Tina for a short time in 1984, and by Angie. In addition, Tina would sometimes bring a boyfriend or another girlfriend, including Theresa, Diane or Kim, who either lived for brief periods of time with Tina or who happened to be in the neighborhood to visit her. Neighbors on the street observed Tina and other similarly aged females visiting Brewer's house from time to time. Except for Robin, the neighbors could not identify the girls and were nonspecific as to the dates and frequency of such visits. None of the neighbors knew the purpose of the visits or what occurred once the visitors entered his home. Most did not know if the guest might be Brewer's daughter, a teenager during part of this period, and who visited him several times a week. While they suspected sinister motives on the part of Brewer, none had any proof of this. There is no competent, credible evidence that Brewer ever furnished alcoholic beverages to minors or allowed them to consume the same at his house. At hearing both Angie and Tina claimed that Brewer often either purchased beer for or gave it to their friend, Rob. However, this assertion was denied by Rob, and his testimony is deemed to be the most credible. Angie claimed that during the last few months of 1986 Brewer would frequently furnish her and Tina with wine coolers or beer. However, she later testified that, except for the January 1, 1987 incident, she never drank an alcoholic beverage at Brewer's home. Her testimony is not deemed to be credible. There was further testimony by neighbor Erickson that he saw a girl (who he did not know) leaving Brewer's house one day during the summer of 1986 carrying what he thought was a can of beer. He thought the girl carrying the can was accompanied by Tina. Erickson also occasionally saw persons of Tina's age leaving Brewer's house carrying brown paper bags. He did not know what the bags contained. Neighbor Barrett reported that in 1978, when she was thirteen, she frequently saw Tina and Robin, then nine years old or so, with sacks of beer and cigarettes after leaving Brewer's house. This testimony is rejected as being incredible. Neighbor Happ reported seeing Tina and a friend leaving Brewer's house around 7:30 a.m. one day and assumed they had spent the night. However, other testimony revealed that the two had actually spent the night at Tina's home before going to Brewer's house that morning. All other testimony in favor of the allegation has either been rejected as not being credible or has been disregarded since it is based solely on hearsay and rumor. Robin is one year older than Tina and once lived in Forest Estates Drive. She also lived with Tina for a few months in 1984. To avoid honoring a subpoena compelling her attendance at this hearing, Robin temporarily left the State of Florida. However, over objection of respondent, her deposition was received in evidence as petitioner's exhibit 5. According to Robin's deposition, she and Tina visited Brewer's home when Robin was around fourteen or fifteen years of age and would drink beer given to them by Brewer. Claiming a lack of recollection, she was unable to give any other details concerning these incidents. Other allegations made by Robin were even more vague and distant. Tina's mother stated that around midnight one evening in 1985 she drove her car to Brewer's house (two doors away) to pick up Robin. Robin's statement as to why she needed a ride is either irrelevant to the charges or discredited. Robin's testimony was contradicted by Brewer who acknowledged that Robin and Tina came over a number of times in 1984 when Robin lived with Tina but only to watch cable TV. This testimony is accepted as being the most credible. It is accordingly found that at no time did Brewer ever offer or furnish alcoholic beverages to Robin or allow her to bring them into his home for consumption. Tina's many visits to Brewer's home are confirmed in the record. Indeed, she regularly visited Brewer's house from the time he moved into the neighborhood in 1978 through 1986. While Tina's mother permitted Tina and her friends to drink in her own home, testimony by Tina that she occasionally drank a beer or wine cooler at Brewer's home is rejected as not being credible. Giving Money and Rides to Neighborhood Children It is alleged that Brewer "regularly loaned money to the neighborhood children and gave them rides to various locations in the vicinity." Much of the testimony relating to this allegation comes from Tina who had a reputation for approaching any and all neighbors for "loans" or "rides." Indeed, practically every neighbor was aware of Tina's habits, and each had been approached by her for favors at one time or another. The other "neighborhood children" are not identified in the petition, but Brewer acknowledged that he occasionally transported not only Tina but also some of her friends. Except for Brewer's voluntary admission that he gave approximately $20 to Kim, a friend of Tina, during the last year, there is no evidence of any other "neighborhood children" receiving loans from Brewer. As to Kim, she is not a resident of the neighborhood, and her age and address are unknown. Brewer readily acknowledged that during recent years, he occasionally gave Tina a few dollars and bought her meals since he felt sorry for her, and she always appeared to be hungry and broke. Prior to that, he had also given her money for odd jobs around his house. He readily acknowledged that he gave her rides to or from various places since she had no transportation. This was because her mother refused to provide transportation once she dropped out of school. There were no sinister motives in providing this assistance since he thought of her as a daughter who had a very troubled childhood. Finally, while the mothers of both Tina and Robin disapproved of Brewer and instructed their daughters not to see him, they knew what Brewer was doing but never personally told Brewer to stop allowing their daughters into his home or, in the case of Tina, to stop giving her rides or occasional financial assistance. Using Profanity in the Presence of a Minor The amended complaint alleges that Brewer used profanity in the presence of a minor and engaged in "other inappropriate conversation." This charge stems from a visit by Tina to Brewer's home in June, 1987. Tina admitted that Brewer never used profanity in her presence prior to that visit. However, by June 25, 1987 Brewer had been charged with a misdemeanor and was extremely upset at Tina, who was responsible in part for police filing charges against him after the January 1, 1987 On incident. June 25 Tina briefly visited Brewer's home where the two discussed the criminal charges. Tina was told by Brewer that their conversation was being taped. A transcription of the conversation has been received in evidence as petitioner's exhibit 4. Brewer proceeded to question Tina about the January 1 incident. During the course of the conversation Brewer used the words "bullshit," "dammit," "damn," and "shit." However, Tina was then an adult (eighteen years of age) and was not a student since, according to her mother, she had not "officially" attended school since she was thirteen. Miscellaneous Despite Tina's continued truancy from school, Brewer attempted to persuade Tina to stay in school and to obtain an education. However, if he spoke with her for any length of time on this subject, she would simply leave the room. She ignored all of his advice. Tina was observed driving Brewer's car around the block on one occasion when she was fifteen years old which was prior to her receiving a driver's license. However, it was done without Brewer's knowledge and consent.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the amended petition for dismissal filed against respondent be dismissed, with prejudice, and that respondent be reinstated retroactive to November 17, 1987 with all attendant back pay. DONE AND ORDERED this 5th day of July, 1988, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER 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 5th day of July, 1988.
The Issue Whether Petitioner proved, by clear and convincing evidence, just cause to terminate Respondent's employment.
Findings Of Fact Hill was a School Board employee from 1978 up to and including December 15, 1999. In the 1999-2000 school year, Hill was assigned to Palm Beach Gardens High School. Although classified as a "teacher on special assignment," his employment responsibilities paralleled those of an Assistant Principal. Hill's job responsibilities included monitoring the halls, supervising the campus and working with students in various functions. He was also responsible for student discipline. Hill enjoyed his work with students and was good at it. He was very well liked by students and interacted positively with them. His authority was rarely challenged. In his last two annual evaluations, Hill was described as a "team player" who "maintains excellent rapport with all students" and serves a "vital role" in the operation of the school. Hill's life and previously unblemished career began to unravel on the night of December 16, 1999. Sometime around midnight, Hill was the subject of a traffic stop. Hill was driving a car owned by his sister, and was alone when pulled over on Atlantic Avenue, Delray Beach, Florida. Hill was detained because a Delray Beach police officer had observed that Hill's driving was erratic; that his left taillight was out; and the car's license tag was out of date. At all times during the traffic stop and the events which transpired after, Hill conducted himself as a "perfect gentleman." He was polite and fully cooperative with the police. After failing a roadside sobriety test, Hill was arrested and taken to the Palm Beach County Jail. Hill consented to a breath test, which revealed an unlawful blood alcohol level of .159/.158. The test result triggered an automatic suspension of Hill's driving privileges; however, those privileges were reinstated by the Department of Highway Safety and Motor Vehicles when it came to light that the so-called Intoxilyzer breath analysis machine on which Hill's test was performed had not been maintained in the manner required by law. While being held in custody, Hill's personal belongings, including the contents of his pockets, were taken from him at the jail. During this process, police claim to have found a baggie weighing 7.4 ounces and containing cocaine. The evidence established that at least two Delray Beach police officers were involved in the portion of the booking process which resulted in the alleged discovery of a "dime bag" of cocaine; however, at the final hearing, Delray Beach Police Officer Scott McGuire (McGuire) was the only witness produced by the School Board who claimed knowledge of the circumstances surrounding the alleged discovery of the baggie, which allegedly contained 7.4 grams of cocaine. McGuire's testimony fell far short of clear and convincing evidence that Hill did in fact possess a dime bag, a baggie, 7.4 grams of cocaine, or 7.4 grams of a substance containing cocaine. McGuire's testimony alternated general statements about what usually happens during the booking process with what happened with respect to Hill's booking on the night of December 16, 1999. McGuire's casual demeanor while testifying, coupled with the imprecise nature of the questions asked and the answers given by him, rendered the undersigned unable to conclude that an appropriate chain of custody had been maintained. In other words, the School Board failed to establish by clear and convincing evidence that the contents of Hill's pockets--and only the contents of Hill's pockets--were at all times accounted for and handled in a manner adequate to assure that no items were removed or added. Initially, the School Board, relying solely upon police reports, asserted that the baggie alleged to have been found in Hill's possession contained 7.4 grams of cocaine. That assertion was negated by Gina Evanzia (Evanzia), Senior Forensic Scientist for the Palm Beach County Sheriff's Office Crime Laboratory and the only School Board witness with personal knowledge of the actual baggie alleged to have been found among Hill's possessions. Evanzia testified that the baggie which the School Board attributed to Hill was not large enough to hold 7.4 grams of anything. The baggie provided to Evanzia for testing and alleged to have come out of Hill's pocket contained 18 milligrams of a substance which contained cocaine, and not the 7.4 grams alleged to have been found in Hill's possession on the night of December 16, 1999. At the time of Hill's arrest and at final hearing, neither McGuire nor any other witness provided a useful physical description of the baggie alleged to have been in Hill's pocket. The gaps in McGuire's testimony coupled with the unexplained discrepancies between the 7.4 gram baggie alleged to have been found in Hill's possession and the much smaller baggie about which Evanzia testified makes it impossible to determine what, if any, contraband was found on Hill's person. The alleged discovery of the 7.4 gram baggie resulted in the police recommending that Hill be charged with introducing contraband into a correctional facility. Declining to do so, the State Attorney instead charged Hill with possession of cocaine. Prior to the time Hill was transported to the jail, the arresting officers searched Hill's sister's car for contraband. Finding none, the police made arrangements for the car to be impounded and towed to a privately owned lot for storage. After the car was placed in the custody of the towing company, one of its employees claimed to have found two more baggies alleged to contain significant amounts of cocaine in plain sight on the floorboard of the car. Police tested the baggies for fingerprints but found none. There is no credible evidence that there was any cocaine on the floorboard of the car while it was in Hill's possession and control. The testimony of Officer V. Gray (Gray) that he failed to spot the baggies "[because he] didn't have a flashlight to go through the car real good" was so implausible that Gray was readily cross-examined out of it on the next page of transcript. 1/ No criminal charges were brought against Hill on account of these baggies. Although Hill had substantial and legitimate defenses to the criminal charges which the State Attorney did elect to file, Hill accepted responsibility for the arrest by accepting the State Attorney's offer to enter into a plea bargain which would take into account Hill's previously spotless record. The State Attorney, believing that Hill should be afforded an opportunity to atone for the aberrational events of December 16, 1999, and to rehabilitate himself, permitted Hill to plead guilty to a misdemeanor charge of driving while intoxicated, and to dispose of the cocaine charge by entering a pretrial intervention (PTI) program. At the time of the final hearing, Hill was in full compliance with all of the terms of the PTI agreement. At all times material to this case, Hill was appropriately contrite about the DUI arrest. He was and is willing to demonstrate his contrition and his commitment to public service by accepting any assignment, coupled with any degree of probation and/or supervision deemed appropriate by the School Board, to assure that he is fully rehabilitated before being allowed to resume contact with students.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board enter a Final Order reinstating Hill's employment with the School Board with back pay and benefits retroactive to the date of termination. DONE AND ENTERED this 13th day of June, 2001, in Tallahassee, Leon County, Florida. FLORENCE SNYDER RIVAS 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 13th day of June, 2001.
The Issue The issue for determination is whether Respondent should be dismissed from employment with Petitioner.
Findings Of Fact In 1987, Steven E. Belford, hereinafter Mr. Belford, began his employment with the Palm Beach County School Board, hereinafter School Board, as a School Police Officer. From 1991 through April 1995, Mr. Belford considered the conduct of the School Board’s employees, including supervisory and management personnel, towards him to be racially hostile. During this same time period, from 1992 through April 1995, the School Board considered the conduct of Mr. Belford towards co-workers, supervisors, superiors, and students to be inappropriate. On April 10, 1995, a meeting, which could affect Mr. Belford’s employment, was held regarding his job performance. At this meeting, Mr. Belford was represented by counsel from the Police Benevolent Association, hereinafter PBA. Also among those present at the meeting was James Kelly, Chief of the School Police for the School Board. Chief Kelly was concerned with Mr. Belford’s conduct in the performance of his duties. During this meeting, Mr. Belford described the problems that he was experiencing in the work place. After listening to Mr. Belford, Chief Kelly’s concerns extended to the safety of students, staff, and visitors at the school to which Mr. Belford was assigned. As a result of this meeting, Chief Kelly determined that Mr. Belford should and would be required to undergo a fitness for duty examination. Mr. Belford’s PBA counsel advised him to undergo the fitness for duty examination. Even though Mr. Belford’s position was that there was no basis for the examination and that it was, therefore, inappropriate, he agreed to the examination. Mr. Belford was willing to comply with whatever was required of him, even though he may not agree, to keep his job. It is undisputed that the referral of Mr. Belford for a psychological evaluation was reasonable. On April 25 and 26, 1995, Dr. Harley V. Stock performed what he referred to as the “mandatory fitness for duty examination.” In Dr. Stock’s evaluation, dated May 3, 1995,2 he stated, among other things, the following: [Mr. Belford] shows no impairment in relationship to reality. . . . there was no indication of any underlying mood disorder. . . . There is no indication of any underlying thought disorder. . . . In summary this examiner has had the opportunity to review a significant amount of collateral information regarding Mr. Belford’s employment with the Palm Beach School Police Department. It appears that he has had fluctuating reviews, particularly in areas as it relates [sic] to interpersonal interactions. When confronted with documentation, Mr. Belford always has an “excuse”. He essentially feels that most of the problems that he is currently facing are a result of racial discrimination. He takes absolutely no responsibility for his own behavior. He is overly suspicious about other people’s motives towards him. He denies any type of provocative physical action towards the students or others. He believes that he is “misunderstood”. Psychological testing reveals him to be a skeptical, suspicious, over-controlled individual who may have the propensity to lose his “temper” at times when provoked. He, however, will have no insight into this. Instead, he would rather shift the blame, and responsibility to others for any problems that he finds himself in. I find some of Mr. Belford’s explanations for his behavior, as contained in the allegations, incredible. Based on psychological testing, Dr. Stock made the following recommendations in his evaluation: Because of his current psychologic [sic] functioning, his behavior at this time cannot be predicted in terms of his interactions with students and faculty members. He obviously harbors a great deal of hostility towards others, but does not either acknowledge, or recognize it. This can lead to episodes where he may become physically assaultive at the most, or at the very least, verbally aggressive in a way that is inappropriate in a school environment. I would therefore recommend that he is temporarily Unfit For Duty and that he needs mandatory psychologic [sic] counseling. Mandatory psychologic [sic] counseling means that the School Board should be appraised [sic] of his keeping scheduled counseling appointments, and that within a reasonable time, he be re-evaluated to ascertain whether he is making any progress in psychotherapy and gaining any insight into how to both understand his behavior and to modulate his impulses. During the time of treatment, I would recommend that he not engage in any functions that would place him in the role of having any type of “police authority”. This would include coming into contact with students and administrators. However, his psychologic [sic] condition does not render him totally incapable of employment. A “light duty” position would be appropriate in which he can carry on selected roles as described by the School Board while receiving treatment. After treatment is completed, within a reasonable time, Mr. Belford should then be re-evaluated to see if indeed treatment has had any effect on him. At that juncture, a further determination can be made about his work placement. In a meeting held on May 17, 1995, the results of Dr. Stock’s evaluation were discussed with Mr. Belford who was accompanied by his PBA counsel. Mr. Belford was advised that Dr. Stock considered him to be temporarily unfit for duty. In May 1995, in accordance with Dr. Stock’s recommendations, Mr. Belford was removed from duty. He was assigned light duty in the risk management department while he underwent counseling. Mr. Belford’s psychological counseling sessions were conducted by MCC Behavioral Care. His counseling sessions began on May 18, 1995. The School Board coordinated Mr. Belford’s appointments with MCC Behavioral Care and Dr. Stock. Melinda Wong was the coordinator for the School Board. During his last counseling session with MCC Behavioral Care held on August 4, 1995, Mr. Belford and his counselor agreed that he need not return to MCC Behavioral Care for any more counseling sessions. However, the counselor did not indicate to Mr. Belford whether he should or was required to return to Dr. Stock for a final evaluation. In August 1995, a representative from Ms. Wong’s office informed Mr. Belford that his final evaluation with Dr. Stock would be conducted on August 29, 1995. Mr. Belford attended the session with Dr. Stock on August 29, 1995. Mr. Belford departed the session with the understanding that the session was for his final evaluation and that Dr. Stock would submit his final report to the School Board within the next week. However, no final determination was made by Dr. Stock regarding Mr. Belford’s fitness for duty. Dr. Stock had concerns regarding the appropriateness of the counseling provided to Mr. Belford by MCC Behavioral Care. During the month of September 1995 and subsequent months, Mr. Belford periodically inquired of Ms. Wong about the status of Dr. Stock's final determination. Each time, she informed him that no determination had been made by Dr. Stock. Mr. Belford was clearly frustrated. On October 5, 1995, Mr. Belford filed a complaint of discrimination with the Equal Opportunity Employment Commission, hereinafter EEOC, against the School Board. Finally, Dr. Stock's office contacted Ms. Wong and informed her that Dr. Stock needed to have one more session with Mr. Belford in order to make a final evaluation. Ms. Wong arranged for the session to be conducted on January 3, 1996, after Mr. Belford's Christmas vacation. On Friday, December 15, 1995, at approximately 2:40 p.m., Ms. Wong went to Mr. Belford’s workplace which was in the immediate vicinity of her workplace. She advised Mr. Belford that he needed to attend a final session with Dr. Stock on January 3, 1996, in order for Dr. Stock to prepare the final evaluation. Believing that he had attended his final session with Dr. Stock on August 29, 1995, and that Ms. Wong was not aware of the final session, Mr. Belford informed Ms. Wong that he had already completed his final session and requested that she check her records. Mr. Belford was visibly tense and upset. Ms. Wong was surprised by Mr. Belford's reaction. She interpreted Mr. Belford's conduct as refusing to attend his last session with Dr. Stock for a final evaluation. Ms. Wong departed Mr. Belford’s workplace and immediately contacted Chief Kelly. Seeking advice, Chief Kelly telephoned Louis Haddad, the School Board’s Coordinator of Employee Relations. Mr. Haddad advised Chief Kelly to immediately contact Mr. Belford and to arrange a meeting with Mr. Belford that afternoon in Mr. Haddad's office, which was in the same building. Attending the meeting would be Mr. Belford, Chief Kelly, Ms. Wong, and Mr. Haddad. Chief Kelly telephoned Mr. Belford and informed Mr. Belford that he wanted to meet with him in Mr. Haddad's office. Mr. Belford informed Chief Kelly that he was getting-off work in approximately 10 minutes at 3:00 p.m.. At that time, Chief Kelly made it clear that he was giving Mr. Belford a direct order to attend the meeting. Mr. Belford advised Chief Kelly that he wanted his counsel present at the meeting. Chief Kelly did not respond to Mr. Belford's request, but asked him if he was refusing to attend the meeting, thereby disobeying a direct order. Immediately, Mr. Belford became nervous and afraid and felt queasy in the stomach. He inquired as to the location of the meeting. Chief Kelly informed him where the meeting was being held, and they both terminated the telephone conversation. Mr. Belford was on duty when Chief Kelly gave him the direct order to attend the meeting. Mr. Belford did not refuse to attend the meeting. He intended to attend the meeting. When the telephone conversation ended, Chief Kelly had a reasonable expectation that Mr. Belford would obey the direct order and attend the meeting being held that afternoon. Shortly after the telephone conversation with Chief Kelly, Mr. Belford began recalling the events leading up to the telephone conversation, and his nervousness and queasy feeling intensified. Mr. Belford became ill and was unable to attend the meeting. He departed from his workplace without notifying anyone of his sudden illness3 and without attending the meeting. While waiting for Mr. Belford, Chief Kelly, not being aware that Mr. Belford had departed his workplace, telephoned Mr. Belford's PBA counsel and informed him of the meeting and briefly of the underlying circumstances. The PBA counsel considered the meeting appropriate and advised Chief Kelly that he would be available by telephone when Mr. Belford arrived. Immediately after leaving his office, Mr. Belford contacted his new counsel. At approximately 3:25 p.m., a representative from the office of Mr. Belford's new counsel telephoned Chief Kelly. The representative of Mr. Belford's new counsel indicated to Chief Kelly that Mr. Belford would not be attending the meeting due to his sudden illness. Chief Kelly informed the representative that Mr. Belford had disobeyed a direct order and that, among other things, Mr. Belford was relieved of duty and would be recommended for termination due to insubordination. Prior to this telephone call, Chief Kelly had no knowledge that anyone other than the PBA counsel was representing Mr. Belford. Unbeknownst to the PBA counsel and Chief Kelly, Mr. Belford had decided prior to December 15, 1995, that he no longer wanted the PBA counsel's representation and that he wanted new counsel. On Monday, December 18, 1995, the next business day, Chief Kelly received written notification from Mr. Belford's new counsel regarding the reason for Mr. Belford's failure to attend the meeting. It is undisputed that there is no right to consult an attorney before obeying a direct order of a superior officer. Furthermore, it is undisputed that obeying a direct order from a superior officer is a critical and important aspect of the responsibilities of a police officer. On December 20, 1995, Chief Kelly recommended that Mr. Belford be terminated from employment with the School Board for insubordination. Mr. Belford never had a session with Dr. Stock subsequent to August 29, 1995. It was reasonable for Mr. Belford to presume that, since he was being recommended for termination, he was not expected to attend any future session with Dr. Stock. Dr. Stock never made a final determination as to whether Mr. Belford was fit to return to duty. On January 9, 1996, a pre-termination meeting was held with Mr. Belford at which he was represented by counsel. At the meeting, Mr. Belford was notified that he was being terminated for gross insubordination. By letter dated January 26, 1996, the School Board notified Mr. Belford that he was being suspended without pay and that he was being recommended for termination due to gross insubordination. On February 23, 1996, the School Board responded to Mr. Belford's charge of discrimination filed with the EEOC. The School Police for the School Board has a written policy regarding separation from employment. The policy defines gross insubordination in section "IV. C. Suspension/Termination" as "a willful disregard or constant or continuing intentional refusal to obey a direct order, reasonable in nature and given by and with proper authority." Furthermore, section "IV. D." provides that "Employees included in a bargaining unit are subject to suspension/dismissal provisions of the collective bargaining agreement." The School Board and the Palm Beach County PBA have a collective bargaining agreement, hereinafter CBA. Article 7 of the CBA, entitled "Police Officers Bill of Rights," provides in pertinent part as follows: 7.1 All law enforcement officers employed by the School Board shall have the following rights and privileges: Whenever a law enforcement officer is under investigation and subject to interrogation by members of his agency for any reason which could lead to disciplinary action, demotion, or dismissal, such interrogation shall be conducted under the following conditions: * * * I. At the request of any law enforcement officer under investigation, he/she shall have the right to be represented by counsel or any other representative of his/her choice who shall be present at all times during such interrogation when the interrogation relates to the officer's continued fitness for law enforcement service. * * * 5. No law enforcement officer shall be discharged, disciplined, demoted, or denied promotion, transfer, or reassignment, or otherwise be discriminated against in regard to his/her employment, or be threatened with any such treatment, by reason of his/her exercise of the rights granted by this part. Article 29 of the CBA, entitled "Progressive Discipline," provides in pertinent part as follows: This Section covers actions involving oral or written warnings, written reprimands, suspensions, demotions, dismissals, or reductions in grade or pay with prejudice. Disciplinary action may not be taken against an employee except for just cause, and this must be substantiated by sufficient evidence which supports the recommended disciplinary action. * * * 8. The discipline, dismissal, demotion, and suspension of any employee shall be for just cause. Where just cause warrants such action(s), any employee may be demoted, suspended, or dismissed upon recommendation of the Chief of Police to the Superintendent of Schools. Except in cases that constitute a real immediate danger to the District or other flagrant violation, progressive discipline shall be administered as follows: Verbal warning (written notation). Written warning. Written reprimand filed in Personnel. Suspension with or without pay. Dismissal. It is inferred and a finding is made that Mr. Belford is a member of the Palm Beach County PBA and is, therefore, subject to the collective bargaining agreement.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Palm Beach County School Board enter a final order revoking the suspension and dismissal and reinstating Steven E. Belford under terms and conditions as are appropriate. DONE AND ENTERED this 13th day of October, 1997, in Tallahassee, Leon County, Florida. ERROL H. POWELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 13th day of October, 1997.
The Issue The basic issue in Case No. 90-2403 is whether the application of the Petitioner, Ian G. Koblick, for a lease of sovereign submerged lands and an easement for an appurtenant previously filled area should be granted or denied. The Board of Trustees of the Internal Improvement Trust Fund propose to deny the application. The Intervenor, Izaak Walton League, opposes the application and supports the proposed denial. The basic issue in Case No. 91-0258 is whether certain action proposed by the Board of Trustees of the Internal Improvement Trust Fund regarding filled areas in John Pennekamp Coral Reef State Park affects the substantial interests of the Petitioner, Marine Resources Development Foundation.
Findings Of Fact Petitioner Ian G. Koblick is the record title holder of certain real property in Key Largo, Monroe County, Florida, located at 51 Shoreland Drive, where he owns and operates a for profit corporation known as "Koblick Marine Center" and a nonprofit corporation known as "Marine Resources Development Foundation." (MRDF) Petitioner purchased the property in the spring of 1985. Petitioner Koblick's attorney contacted the Division of State Lands on behalf of Petitioner for a sovereignty submerged land lease for two docks and an easement for an appurtenant filled area, the subject of DNR lease file #44001275, in the fall of 1984. As part of the application process, Petitioner's attorney submitted to Respondent's staff a survey of the proposed submerged lands lease area, which contained water depth information. The fill parcels known as "F-7" and "F-8," which are the subjects of the second petition, are not owned by either of the Petitioners. Petitioner has no deeds or conveyances to the lands in the proposed lease and easement area. Petitioner has been using the lands in the proposed lease and easement area continuously since 1985, without consent from the Respondents. At no time has there been any written assurance made by Respondent or its staff that a lease would be issued to Petitioner. The lands within the proposed lease and easement area lie within the boundaries of John Pennekamp Coral Reef State Park. On September 21, 1967, the Respondent Board of Trustees dedicated certain sovereignty submerged lands to the Florida Board of Parks and Historical Memorials. The effect of this dedication was to extend the boundaries of John Pennekamp Coral Reef State Park to the shoreline. The Florida Park Service, part of the Division of Recreation and Parks in the Department of Natural Resources, has continuously managed the Park since then. The Respondent Board of Trustees has not conveyed, alienated, or modified its interest in the lands within the proposed lease and easement area, except for one submerged land lease, #44-39-0784-5E, to Tahiti Village (a predecessor in interest to Petitioner) for a period of five years from August 1, 1978, through July 31, 1983. That lease was for a much smaller parcel of land than Petitioner's proposed lease area and was never renewed. When Petitioner Koblick purchased his property, the two docks and the filled parcel, "F-9", in the proposed lease easement area were already in place. The then existing docks were not those previously consented to by Respondent. After he purchased the property, Petitioner constructed catwalks on the docks and upgraded the electrical system on the fill area without permission from either the Board of Trustees or the Division of Recreation and Parks. Petitioner Koblick is not in possession of any permits giving consent to fill the filled area "F-9" in the proposed lease and easement area. The fill material at filled area "F-9" was placed there between 1964 and 1969, without the consent of the Respondents. Filled area "F-9" has riprap all along its outer edge and tip. This riprap area is currently habitat for a variety of marine plants and animals. Removal of all of the fill material at "F-9" would, of course, destroy that habitat and leave a barren area that might take many years to revegetate. A benthic community eventually would be created in the area from which the fill was removed. Filled area "F-9" also provides protection to the existing shoreline, which includes a seawall, and to a basin that is landward of "F-9." Removal of all of the fill material at "F-9" would reduce the protection to the shoreline and expose the seawall and other shore structures to erosion. Removal of the fill material at "F-9" down to the mean high waterline would not have any demonstrated environmental benefits, but would be a hazard to navigation because at high tide the remaining fill would be difficult to see. The majority of boats docked in the 18 slips in the proposed lease area pay slip rent to Koblick Marine Center. Only three MRDF boats are docked at the docks. A charter boat business, which leases out boats to the public, is also operated at the docks on the proposed lease area. The Intervenor, Izaak Walton League, Mangrove Chapter, is a not for profit Florida corporation which has as its purpose the protection of the state's soil, water, woods, and wildlife. A substantial number of Intervenor's members live near Pennekamp Park and use the park for recreational and educational purposes. Any activity which detracts from, or has a potential for detracting from, the purposes to which the Pennekamp Park is dedicated also detracts from or has a potential for detracting from the recreational and educational interests of the Intervenor's members who live near and use the park. Largo Sound is a manatee habitat. Manatees have been sighted in or near the proposed lease area. Activities in the proposed lease area, which include the discharge of pollutants and boat traffic to and from the docks, have a potential adverse impact on manatees, which are an endangered species. There are benthic communities in the proposed lease area under the mooring areas and where pilings are located. There is no way Petitioner can relocate the docks out of the benthic communities in the proposed lease area. The docks in the proposed lease area shade the benthic communities beneath them. Shading from boats at the docks in the proposed lease area, especially from boats used as residences that rarely leave the docks and from large vessels, damages the benthic communities. Boats docking in the slips in the proposed lease area have caused bare, scoured, concave spots beneath their bottoms. This is due to shading, propeller activity, and grounding of the vessels. Sea grasses and corals have been killed as a result. Boats docking in the proposed lease area have caused prop dredging or grounding damage to benthic communities and corals in Largo Sound, in the slips, just outside the slips, and in the canal adjacent to the proposed lease area. Petitioner Koblick has taken various steps to prevent or minimize the possibility of water pollution from the activities at the proposed lease area. These steps include discontinuing the sale of fuel at the subject docks and adopting strict rules prohibiting the discharge of any pollutants from boats docked at his facility, and prohibiting various activities that might be a source of pollution. These efforts notwithstanding, boats docking in the proposed lease area have discharged oil, pollutants, and bilge water overboard. Further, while water quality samples taken from the proposed lease area show good levels of dissolved oxygen and good levels of nitrates, water quality samples taken from the proposed lease area also reveal the presence of ammonia and pesticides, including endrinosulfan, endrin, and lindane, together with its isomers, at levels which exceed state water quality standards. 3/ Pollutants pose a threat of harm to benthic communities, corals, manatees, and other wildlife. Water depths in the slips and turning basin of the docks in the proposed lease area are shallower than minus four feet in some areas, ranging from minus 1.5 feet to minus 5.3 feet. Boats in those slips for the past five years have had drafts of more than 1.5 feet, some of them having drafts of 3 feet to 3 feet 8 inches. Boating related activities in the proposed lease area contribute to cumulative adverse impacts on Pennekamp Park. If boats were eliminated from the docks in the proposed lease area, the benthic communities would be likely to recolonize in approximately two years.
Recommendation On the basis of all of the foregoing, it is RECOMMENDED that the Board of Trustees of the Internal Improvement Trust Fund enter a final order to the following effect: Dismissing the petition in Case No. 91-0258 as moot; Denying Petitioner Koblick's application for a lease and easement; Ordering Petitioner Koblick to remove all docking structures located on the Respondent's lands; Ordering Petitioner Koblick to pay lease fees in arrears in the amount of $10,202.24; and Ordering that the fill material at filled area "F-9" not be removed. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 17th day of April 1992. MICHAEL M. PARRISH, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SC 278-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of April 1992.
