Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, as well as my observation of the demeanor of the witnesses who observed and/or participated in each of the four episodes, the following facts are found: At all times material to the charges herein, respondent DeSantis was an on-duty Clearwater Police Department. officer, holding the rank of patrol sergeant. The respondent had been employed by the Clearwater Police Department since March 14, 1977. He was certified by the Criminal Justice Standards and Training Commission on July 7, 1977, and was issued Certificate Number 02-18239. THE ANDERSON INCIDENT At approximately 8:00 p.m. on October 27, 1984, a radio dispatch was transmitted to Clearwater police officers advising that there was an armed black male in the area who had threatened that he was either going to get some money or someone would be hurt. Respondent observed a suspect, later identified as Harold Anderson, in front of a laundromat where three or four people were sitting in chairs. Respondent drove up to the laundromat, and observed Mr. Anderson walk inside. A woman and a child were inside the front area of the laundromat. Respondent followed Anderson into the laundromat and Anderson proceeded to walk the back area, keeping his back to the respondent. Assuming that Anderson had a gun in his hand and fearing a possible hostage situation with the woman and child, respondent drew his service revolver and informed Anderson that he was under arrest. With pistol drawn and facing Anderson's back, respondent made two attempts within the laundromat to take Anderson into custody. During the second attempt and while respondent's gun was placed on Anderson's spine, a struggle ensued near the front doorway. The struggle caused both the respondent and Anderson to fall, with Anderson on the bottom, upon the hood of a car parked outside the entryway to the laundromat. Sometime during the struggle, respondent was attempting to place his service revolver under Anderson's chin. Instead, the barrel of respondent's pistol went into Anderson's mouth, where it remained for between 20 and 40 seconds, causing Anderson to make choking and gagging sounds. Respondent's pistol was removed from Anderson's mouth after Anderson was handcuffed with the assistance of two other police officers. A loaded handgun was retrieved from the waistband of Anderson's trousers. Officer Kettel arrived on the scene as respondent and Anderson were struggling at the doorway of the laundromat. He observed that Anderson was resisting arrest and that respondent was attempting to calm Anderson down and to retrieve his gun. He recalled that respondent's pistol went into Anderson's mouth as they both landed on the car hood. Officer Watson was the third police officer to arrive. He did not observe the struggle between respondent and Anderson prior to the two reaching the hood of the parked car. When Watson arrived at the scene, Anderson was lying on his back on the car hood and respondent was holding a pistol in Anderson's mouth. Watson's testimony was conflicting as to the exact point in time that Anderson ceased to struggle and the point in time that the pistol was removed from his mouth. Until the point in time that Anderson was handcuffed and his loaded gun retrieved from him, respondent was in fear for his life. He admits that the barrel of his service revolver went into Anderson's mouth, but states that this was unintentional and that he could not remove it without endangering himself until he received assistance from other officers in subduing Anderson. The testimony of two civilian eyewitnesses to this incident was somewhat conflicting as to when the gun went into Anderson's mouth, when Anderson ceased resisting his arrest, and when the gun was removed from Anderson's mouth. There was no evidence that Mr. Anderson was injured as a result of respondent's revolver being inside his mouth. THE HEYWOOD INCIDENT On November 3, 1984, three police officers responded to a radio dispatch concerning an individual who had returned to a Maas Brothers department store armed with sticks and bricks after previously having had an altercation with the security guard there. The individual was Steve Heywood, a 19 year old black male, who had testified that he had returned to Maas Brothers "to defend himself" because the security guard had broken his necklace approximately one-half hour earlier in the evening. When respondent drove into the Maas Brothers parking lot, he observed five or six people standing near the doorway and saw Heywood, dressed only in shorts and tennis shoes, throw some bricks and sticks in a bush. Respondent got out of his cruiser and Heywood started walking away from him. Respondent told Heywood to "freeze" and to "hit the ground." Heywood took three or four more steps, then turned around quickly. At that point, respondent drew his service revolver. Heywood put his hands out or up, started pleading that he had done nothing and went down to the ground on his stomach, with his hands visible. Respondent then approached Heywood with his gun still pointing at him, put his knee on Heywood's back, and placed the barrel of his service revolver next to Heywood's head where it remained for a period of about 30 seconds until another officer handcuffed Heywood. While Heywood appeared excited or upset during this process, he did not fight or struggle. THE TRUBY INCIDENT On October 5, 1984, respondent and Reserve Officer Karen Jackson were dispatched to investigate a report of a fight at an apartment complex. Soon after the officers arrived, Paul Truty began creating a disturbance in the parking lot by shouting abusive and threatening remarks at a victim of a prior sexual abuse, her family and the police officers. Detective Margaret Jewett was also dispatched to the scene to assist the sexual a~use victim. When Truby refused to stop yelling obscenities and inciting the crowd, respondent told him he was under arrest. Truty then began to walk backwards away from the respondent. Respondent pounded his nightstick on the ground three or four times, demanding that Truby return, and Truby then turned and started walking between two apartment buildings. Respondent and Detective Jewett followed Truby a short distance and apprehended him. The respondent pushed Truby against a wall and Jewett placed handcuffs on Truby, securing his hands behind his back. The respondent and Detective Jewett each took one of Truby's arms and escorted him approximately fifty yards back to the respondent's police car. During the walk back to the car, Truby did not resist or struggle and was cooperative and submissive. From this point, there is conflicting evidence between respondent's recollection of events and the recollections of Reserve Officer Jackson and Detective Jewett. Respondent states that Truby was highly intoxicated at the time of his arrest and that he had to use his nightstick to keep Truby's spine stiff and steer him while they were walking back to the patrol car. Respondent explains that Truby stumbled near the car due to the presence of some concrete tire stops adjacent to the passenger side of the cruiser. Detective Jewett and Officer Jackson recall that respondent positioned his police baton parallel to Truby's spine and under his handcuffed hands. As Truby was beginning to enter the police cruiser, respondent intentionally pulled up on the lower end of the nightstick near the handcuffs, thus causing TruLy to stumble and fall off balance. According to these witnesses, respondent then made a sarcastic remark about Truby falling and subsequently pulled Truby up with the nightstick and placed him in the car. Detective Jewett stated that Truby may have been intoxicated. THE VONDERAU INCIDENT On the evening of October 5, 1984, Officer David Watson was dispatched to investigate a report of a domestic disturbance in a residential neighborhood. Officer Green was dispatched as a back-up officer. Upon arrival at the scene, the officers spoke to a very upset woman who told them that her son had done extensive damage to her home and had threatened her. The interior of the woman's home was in shambles. A neighbor led the son, later identified as John Vonderau, to the area of the street where the officers were. He was wearing no shirt and the officers believed he had been drinking. Vonderau exhibited bizzare behavior, marked bye dramatic swings of mood from calm and lethargic to aggressively pacing the street with clenched fists. Officer Watson was concerned that Vonderau could become violent, but he was unsure of his legal right to arrest him since no crime had been committed in Watson's presence. He considered taking Vonderau to a detoxification center or effecting an involuntary commitment to a treatment facility for the mentally ill, pursuant to the Baker Act. Being unsure of the legal ramifications of doing so, Watson radioed respondent, who was his superior on duty that evening, and asked him to come to the scene to advise on the proper course of action. Before respondent arrived, Officer Desrosiers drove by and Officer Watson requested that he stay because Vonderau appeared to be getting more agitated. When respondent and Reserve Officer Jackson arrived on the scene, Officers Watson, Green and Desrosiers were standing in the street in a loose circle around Vonderau, who was pacing back and forth. Officer Watson advised respondent that Vonderau had made death threats to his mother and had completely ramshackled her house. A decision was made that the officers would take Vonderau into custody as a Baker Act patient. When respondent and Watson began to approach Vonderau, he brushed against respondent's shoulder and then assumed a martial arts/karate-type stance, and said, "You'd better get your clubs out. You're going to need them." The officers all took out their police batons, and Vonderau continued to make karate- type motions. Officer Desrosiers was talking on his radio when Vonderau swung at him. Respondent thought Vonderau struck Desrosiers, but no contact was made. Vonderau also approached Officers Watson and Green in an aggressive fashion. When he turned away from Officer Watson, Watson struck Vonderau's leg with his police baton. Vonderau then ceased his crouched stance, stood erect, put his hands in the air and said, "You got me." Officer Watson then ordered Vonderau to get down on the ground. After hesitating momentarily, Vonderau then assumed a push-up position, facing the street and suspending himself with his feet and hands. Immediately after Officer Watson ordered Vonderau to lie flat on the street, the respondent struck a very hard blow with his police baton across Vonderau's shoulders, causing a welt. Vonderau then went immediately to the ground. Once Vonderau was down flat on the street, at least three of the officers quickly moved to securely hold him down and handcuff his hands behind his back. The fourth officer walked over to the police vehicle to retrieve a set of "flex cuffs" to place around Vonderau's legs. At some point, respondent drew his service revolver and, after Vonderau was down and was being handcuffed by the other officers, respondent held his gun to the back of Vonderau's neck behind his ear, while pushing his nightstick against Vonderau's neck. Vonderau had ceased resisting and being aggressive from the time he went flat on his stomach to the street. Respondent held the gun to Vonderau's neck or head for approximately thirty seconds, angrily telling him that if he moved, respondent would "blow his head off." After Vonderau was hand and leg cuffed, he was taken to the police station by Officers Watson and Desrosiers. The testimony is somewhat conflicting as to the exact point in time that respondent withdrew his service revolver from his holster. Respondent states, and the other officers present admit the possibility, that his pistol was drawn when Vonderau first assumed his karate-type stance and began swinging at the other officers. He further states that he thereafter attempted to place his pistol back in its holster, but, because his holster lining was torn, he had to hold it there. However, on cross- examination, respondent admitted that he intentionally placed his gun next to Vonderau's head because he felt he and the other officers were in jeopardy. Respondent felt that the placing of his service revolver against Vonderau's neck was effective in calming him down. All officers on the scene believed that Vonderau possessed knowledge of a martial art and that he was dangerous. However, officers Watson, Green, Desrosiers and Jackson agreed that Vonderau ceased to resist completely once he was flat on the ground on his stomach.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED THAT: Respondent Joseph DeSantis be dismissed as an employee of the Clearwater Police Department for utilizing excessive force during the arrests of Steve Heywood and John Vonderau, and that the Administrative Complaint filed by the Criminal Justice Standards and Training Commission be DISMISSED. Respectfully submitted and entered this 20th day of April, 1987. DIANE D. TREMOR Hearing Officer The Division of Administrative Hearings 2009 Apalachee Parkway The Oakland Building Tallahassee, Florida 32301 (904) 488 9675 FILED with the Clerk of the Division of Administrative Hearings this 20th day of April, 1987. COPIES FURNISHED: Louis Kwall, Esq. 133 N. Ft. Harrison Avenue Clearwater, FL 33516| Margot Pequignot, Esq. P.O. Box 1669 Clearwater, FL 3351 Robert G. Walker, Jr., Esq. P.O. Box 4748 Clearwater, FL 33516 Miles A. Lance, Esq. P.O. Box 4748 Clearwater, FL 33516 Joseph S. White, Esq. Florida Department of Law Enforcement P.O. Box 1489 Tallahassee, FL 32302 APPENDIX The proposed findings of fact submitted by each of the parties have been carefully considered and have been accepted and/or incorporated in this Recommended Order, except as noted below: Petitioner, CJSTC 22. The evidence is unclear as to the number of officers holding Vonderau down. 40, 41 and 43. Rejected; not established by competent, substantial evidence. Rejected; not established by competent, substantial evidence. First sentence rejected; contrary to the evidence. 55. Rejected, contrary to the evidence. Petitioner, City of Clearwater (NOTE: Many of the City's proposed findings of fact constitute recitations or summaries of an individual's testimony. The following rejections of the proposed factual findings does not indicate that the cited witness did not so testify, but that said testimony was not sufficient, in light of other testimony, to support a factual finding.) 8(b) Rejected. 8(f) Rejected. 8(i)(2) Rejected, as contrary to the evidence. 8(i)(5) Rejected, as contrary to the evidence. 8(i)(6) Rejected, as contrary to the evidence. 8(i)(7) Rejected, as constituting a legal conclusion as opposed to a factual finding. 9(i) McKenna was accepted as an expert in the area of law enforcement standards. 9(k)(5) Rejected as a factual finding. 10(d)(l) Rejected, not established by competent, substantial evidence. 10(d)(3) Rejected, not established by competent, substantial evidence. 10(g)(3) & (i) Rejected, not established by competent, substantial evidence. Respondent (NOTE: Many of respondent's proposed factual findings constitute verbatim recitations of testimony. These are improper findings of fact and are rejected as such.) page 6, first Rejected, as contrary to the sentence of last evidence. paragraph page 24, second Rejected, not supported by full paragraph competent evidence. page 27, first Rejected, as contrary to the paragraph evidence. page 28A, last Rejected as irrelevant and paragraph immaterial to the issues in dispute. ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA, DEPARTMENT OF LAW ENFORCEMENT CRIMINAL JUSTICE STANDARDS AND TRAINING COMMISSION CRIMINAL JUSTICE STANDARDS AND TRAINING COMMISSION, Petitioner, vs. DOAH Case Nos. 85-3698 86-0889 JOSEPH R. DESANTIS, CJSTC Case No. L-1703 Certificate Number: 02-18239 Respondent. /
Findings Of Fact Ben A. Posdal is the owner of property commonly known as 166 Brightwater Drive, in the City of Clearwater, Florida. On August 7, 1986, he applied for variances to construct two wooden decks on his property, located at the above address. The property which is the subject of the variance request is a building which contains four apartments, which are rented by Ben A. Posdal to various tenants. On August 28, 1986, the Development Code Adjustment Board (DCAB) denied the variance requested by Mr. Posdal on the grounds that he had not demonstrated a hardship and that he had not demonstrated that the requested variance would not violate the general spirit and intent of the Clearwater Land Development Code. On September 9, 1986, an appeal was filed by Ben A. Posdal from the decision of the Development Code Adjustment Board. The appeal alleges that the DCAB decision was arbitrary, capricious and unreasonable on the following grounds: Other properties allegedly are in violation of the back line setback regulations; The DCAB failed to give enough evidentiary weight to photographs he submitted; and Appellant allegedly is being deprived of the beneficial use of the property in a manner commensurate with the community. There are no physical conditions which are unique to the property. There is no particular physical surroundings, shape or topographical condition that would result in an unnecessary hardship upon the Appellant. Failure to obtain a variance would not impinge upon Appellant's use of the property in any way. The record on appeal contains competent, substantial evidence to support the DCAB decision. Nonconforming uses in the area of the subject property are legal nonconforming uses.
Findings Of Fact At all times relevant hereto, Sammie Rayner, Respondent, was employed by the City of Clearwater as a customer service representative in the utility department. On February 11, 1992, Respondent needed to take her daughter to Seminole High School for a test and mentioned this to Joyce Griesel, Senior Customer Service Representative. The only city employees in the customer service section with authority to grant Respondent permission to leave the building on February 11, 1992, were John Scott, Utility Consumer Response Manager and Tim Bissonnette, Customer Service Supervisor. On the afternoon of February 11, 1992, Bissonnette was out of the office attending a conference; however, Scott was available. Bissonnette was Respondent's immediate supervisor, and Scott was over Bissonnette. Prior to October 1991, the Senior Customer Service Representative had authority to allow customer service representatives to leave the building for short periods. However, because of an incident in October 1991, this authority was removed from the Senior Customer Service Representative, and all employees were advised of the changed policy. Although Respondent denies that she was told that only Scott and Bissonnette could grant permission to leave the building, she did ask if Bissonnette was available before she departed the office around 3 p.m., on February 11, 1992. Respondent also contends that she asked Giesel for permission to leave, but Giesel denies that she gave such authorization, knowing full well that she had no such authority. Respondent was not given permission to leave the building on February 11 by Giesel.
The Issue This hearing officer appeal under Section 4-505 of the City of Clearwater Community Development Code (Code) is the second of two administrative appeals available to and taken by Appellant, Deborah Groen Sobeleski (Sobeleski) under the Code. The issue in this second appeal is whether to sustain the decision of the City of Clearwater Community Development Board (CDB). The CDB's decision, made under Section 4-504 of the Code, was to allow Sobeleski's earlier Application for Administrative Appeal to the CDB from a Development Order (DO) issued by the City of Clearwater Community Development Coordinator (CDC) to remain on the CDB's consent agenda, which had the effect of denying the Application for Administrative Appeal and confirming the CDC's DO without a quasi-judicial hearing for receipt of additional evidence. The CDC's DO granted, with conditions, the Flexible Standard Development Application filed by Appellee, Christopher Mariani (Mariani, or Applicant), and subsequently amended, for a deviation to allow construction of a dock exceeding the 60-foot maximum length otherwise allowed by the Code.
Findings Of Fact On January 18, 2002, Appellee, Christopher C. Mariani (Mariani, or Applicant), filed a Flexible Standard Development Application for a deviation from Section 3-601.C.1.b.2 of the City of Clearwater Community Development Code (the Code) to allow construction of a 101-foot long dock (98 feet in length with a 3-foot step-down) where 60 feet would be the maximum otherwise allowed by the Code. The deviation from Code apparently was requested because a Pinellas County Department of Environmental Management Water and Navigation Report dated November 26, 2001, stated: Seagrass beds are located along this entire property, and extend out to a maximum of 65 ft. from the seawall in the area of the proposed dock although it becomes sparse at approximately 60 ft. It is the policy of this Department to limit structures over seagrasses to 4 ft. in width and to place the terminal platforms and boat slips beyond the limits of the seagrasses wherever possible. At the time the application was filed, Section 4-505 of the Code provided that, in an appeal to a hearing officer from a decision of the City of Clearwater Community Development Board (CDB), the record before the CDB could be "supplemented by such additional evidence as may be brought forward during the hearing"; and the appellant's burden was to show that the CDB's decision could not be "sustained by the evidence before the board and before the hearing officer." The "City of Clearwater Planning Department Staff Report for 2/14/02 DRC Meeting" recommended flexible standard development approval for a 92-foot long dock.3 The stated "Bases for approval" were: compliance with the flexible standard development criteria under Section 3-601.C.1.g.4 of the Code; compliance with the general applicability criteria under Section 3-913 of the Code; and compatibility with the surrounding area. The Staff Report noted: (1) "there are no navigational concerns with the proposed development"; and (2) "the proposal is more environmentally sensitive than the existing5 dock and constitute an improvement over existing conditions." The Report also stated that, since only one of the three criteria in Section 3- 601.C.1.g. need be met, similarity to surrounding dock patterns was not applicable but that "the proposed dock, as amended, will be similar to surrounding dock patterns." By letter dated March 5, 2002, Mariani amended his application to: decrease the length of the proposed dock to 95 feet; reduce the roof length over the larger capacity boat lift from 48 feet to 38 feet (to match the roof length over the smaller capacity lift); and reduce the total dock square footage to 476.25 square feet versus the 498 feet previously requested. On or about April 14, 2002, Mariani submitted to the City a set of "Dock Plans" for a 92-foot long dock.6 The document included "Diagram A Permittable Construction" and "Diagram B Proposed Construction." The apparent purpose was to contrast the dock Mariani would have been permitted to build in the absence of seagrasses with his proposed dock.7 On May 2, 2002, Section 4-505 of the Code was amended to provide that the appeal hearing before a hearing officer consists solely of reception of the record before the CDB and oral argument and that the burden on appeal to the hearing officer is for "the appellant to show that the decision of the [CDB] cannot be sustained by the evidence before the [CDB], or that the decision of the [CDB] departs from the essential requirements of law." Under the amendment, no other evidence is to be considered.8 By letter dated July 22, 2002, the CDC9 issued a DO stating concurrence with the DRC's "findings." Except for this reference, the record-on-appeal does not contain any evidence of the DRC's recommendation or any written findings by the DRC.10 But the CDC approved Mariani's application, as amended, upon the same "Bases for approval" contained in the "City of Clearwater Planning Department Staff Report for 2/14/02 DRC Meeting," with the following conditions: That a building permit for the proposed dock only be issued concurrently with, or subsequent to, building permit issuance for a principal, residential structure on the site; That the proposed dock be relocated farther east (with the dock head centered on the midpoint of the waterfront property line, as measured at the seawall) and constructed perpendicular to the waterfront property line; That the relocation of the dock meet all criteria under Section 3-601.C.1; and That revised plans reflecting conformance with condition #2 be submitted with the building permit application, to the satisfaction of staff. The DO then stated: "The approval is based on and must adhere to the site plan dated received April 15, 2002, or as modified by condition #2."11 On July 26, 2002, Sobeleski filed an Application for Administrative Appeal to the CDB from the CDC's decision. It included numerous exhibits. It appears that not all of the Application for Administrative Appeal and attachments were presented to the CDB for its consideration on August 20, 2002. One attachment was a letter dated March 27, 2002, from Sobeleski's attorney to the CDC and the City's Land Planner. This letter had 15 exhibits attached, but the CDC removed Exhibits 9-15 from the version of the letter presented to the CDB for its consideration. However, the letter stated that Exhibits 10-15 were attached for "ease of review," and the CDC separately presented copies of the documents contained in Exhibits 12-15 for the CDB's consideration. As for the other exhibits removed from the letter, Exhibit 9 was a computer diskette containing the photographs that were presented to the CDB for its consideration as Exhibits 1-8. Exhibit 10 was a letter dated March 6, 2002, from individuals named Blum to the City Planner stating no objection to the proposed dock. Exhibit 11 was a letter dated March 7, 2002, from Mariani to the CDC responding to opposition from Sobeleski and another individual to the proposed dock. While Exhibit 11 apparently was not presented to the CDB for its consideration, it clearly was adverse to Sobeleski's position and was addressed at length in the letter from Sobeleski's attorney dated March 27, 2002. In On August 20, 2002, the CDB considered the documents described in the immediately preceding Finding, together with a "City of Clearwater Planning Department Summary of Events," dated August 20, 2002, as well as oral presentations by the CDC, counsel for Sobeleski, and counsel for Mariani. The audiotape- recording of the oral presentations reveals that, upon the advice of the CDC and the Assistant City Attorney, the CDB attempted to limit the oral presentations to the question whether the CDB should remove Sobeleski's Application for Administrative Appeal from the CDB's consent agenda so as to cause a quasi-judicial hearing to be conducted, or should leave it on the consent agenda, which would result in upholding the CDC's decision. After being restricted by the CDB from addressing the merits, counsel for Sobeleski argued for a quasi- judicial hearing for reasons of "public policy." The CDB then allowed counsel for Mariani to address the merits in arguing that Sobeleski had made no showing as to why the CDC decision was incorrect so as to justify a quasi-judicial hearing.12 The Assistant City Attorney concurred that some such showing should be necessary to justify removal from the consent agenda. After the oral presentations, the CDB voted to leave Sobeleski's Application for Administrative Appeal on the CDB's consent agenda, thereby upholding the CDC's decision to issue the DO. On August 26, 2002, Sobeleski filed an Appeal Application from the CDB's decision. On September 20, 2002, the City referred the Appeal Application to DOAH under Section 4-505 of the Code. However, the referral letter from counsel for the City stated: Please note that I am not forwarding Exhibits 1-15 to the Appeal Application. Items 1-9 and 12-15 are already of record before the Board and are thus otherwise included. Items 10 and 11 were not of record below and are not being included, on that basis. Although the manner in which the record-on-appeal was prepared made it exceedingly difficult to ascertain, it appears that the referral actually failed to forward the entirety of Exhibit B to the Appeal Application, which consisted of letters from Appellant's counsel dated August 16 and March 27, 2002.13 The documents called "Exhibits" or "Items" in the referral letter actually were Exhibits 1-15 attached to the letter from Appellant's counsel dated March 27, 2002. As previously found, the CDC decided not to present to the CDB all attachments to the letter dated March 27, 2002. See Finding 9, supra. For that reason, the Assistant City Attorney "redacted" the Appeal Application by deleting the items not in fact presented (Exhibits 9, 10, and 11), as well as the items identical to documents separately presented (Exhibits 12-15), to the CDB for its consideration. See Finding 11, supra.14
The Issue The issue is whether Petitioner's application to sit for the water well contractor examination should be approved.
Findings Of Fact Based on the evidence presented by the parties, the following findings of fact are made: On January 9, 2004, Petitioner, who resides in Baker County, Florida, filed his application with the District requesting that he be allowed to sit for the water well contractor examination. The requirements for qualification to take the examination are set forth in Florida Administrative Code Rule 62-531.300. Relevant to this controversy is the requirement that an applicant present "satisfactory proof of two years experience in the water well construction business." This requirement is normally met by the applicant providing a list of at least ten water well jobs he has completed during a consecutive 24-month period (together with their locations, major use, and approximate depth and diameter), the name and address of the owner of the well, and the approximate date the activity took place. See Fla. Admin. Code R. 62-531.300(6)(a). If the work has been completed in Florida, the applicant is also required to submit copies of completion reports for each of the ten wells. Id. Completion reports are filed by the contractor with the District within thirty days after the work is completed. See Fla. Admin. Code R. 40C-3.411. Finally, the applicant must submit letters from three persons attesting to the length of time the applicant has been working in the water well construction business as a major activity. See Fla. Admin. Code R. 62-531.600(6)(a). Alternatively, an applicant may present "satisfactory proof of equivalent experience," which may be accepted by the District "on a individual basis." See Fla. Admin. Code R. 62- 531.300(6)(b). While this option has rarely, if ever, been used by any applicant, at hearing the District suggested that this provision would allow an applicant to submit other credible documentary evidence, such as affidavits, attesting to the applicant's equivalent experience. Mr. Julian C. Varnes, Jr., a District water resource representative III, is in charge of reviewing water well contractor applications in four northeast Florida counties, including Baker County. Mr. Varnes reviewed Petitioner's application and concluded that he had failed to submit proof of two years' experience in the water well contracting business or satisfactory proof of equivalent experience, as required by the rule. In this case, Petitioner submitted ten completion reports with his application, but none of the reports indicated that he had been involved on those projects, and Petitioner acknowledged at hearing that he could not recall if he was even present on the job site. This is probably because the reports related to jobs performed between November 10, 1982, and July 31, 1985, by his father, a licensed water well contractor, when Petitioner was less than fifteen years old. In addition, the reports submitted by Petitioner covered work performed over a 32-month period, rather than over a 24-month period, as required by the rule, and some of the reports did not have the complete address of the location of the well. By letter dated February 4, 2004, the District advised Petitioner that his application was deficient because he had failed to submit the information required in Florida Administrative Code Rule 62-531.300(1)(b) and (6) relative to experience. The letter advised Petitioner that he must submit an "acceptable list of ten wells together with their completion reports, for wells that [he had] constructed, repaired, or abandoned, with completion dates distributed over a consecutive 24-month time period." Further telephonic discussions between Petitioner and District personnel concerning the request for additional information occurred on March 25 and 29, 2004, but they did not resolve the District's concerns. On June 15, 2004, the District staff again notified Petitioner in writing that he must submit the requested information within 30 days or his application would be denied. When no response was received from Petitioner, on July 27, 2004, the staff issued a Technical Staff Report recommending that the application be denied because of Petitioner's failure to comply with the requirements of Florida Administrative Code Rule 62- 531.300(1)(b) and (6). On August 23, 2004, a Notice of Staff Intent to Recommend Denial of Water Well Contractor Application No. 7300 and Notice of Rights was issued by the District. Petitioner's request for a hearing was then filed. After his first request for a hearing was dismissed, on November 18, 2004, Petitioner filed an amended request for a hearing. In that request, he alleged that the District was "not capable of locating completion reports filed by [Petitioner] and/or his father"; that the experience of he and his father was well known to two District staffers; that he had purchased a well drilling company from another individual and operated under the seller's license for over a year; that he is entitled to licensure because he has satisfactory equivalent experience; and that his father has paid all outstanding fines previously imposed by the District. As relief, Petitioner has requested that he be allowed to take the contractor's examination. At hearing, Petitioner explained that his father was in the water well contracting business for twenty years, and that beginning in 1983, when he was thirteen years old, he had helped his father on "hundreds of jobs" until his father's retirement in 1994. However, Petitioner cannot recall the names and addresses of customers who were serviced by his father's business, which is necessary in order for the District to retrieve completion reports presumably filed by his father. Because of the large number of completion reports filed by contractors throughout its multi-county jurisdiction, in order to retrieve one, the District must have the following information: the year the job was completed, the county in which the job was performed, and the address (township and range) of the well's owner. Petitioner is unable to provide this information.1 In addition, Petitioner stated that he had purchased a water well contractor's business (from Tim Johnson) shortly after his father retired in 1994 and that he operated the business under Mr. Johnson's license for a little more than a year. Although Petitioner produced no documentation concerning jobs he may have performed under Mr. Johnson's license, even if he had, that work would still constitute less than 24 consecutive months of experience, as required by the rule. Petitioner further asserted that Mr. Varnes, who oversees the water well contractors in Baker County, personally "knows" that he is an experienced well driller (having gained such experience through working for his father for many years) and that he possesses the skills necessary to take the examination. However, Mr. Varnes did not agree with this assertion. Finally, Petitioner asked that he be allowed to take the examination, which would be the best indicator of whether he possesses the necessary knowledge to be a contractor. He also pointed out that each completed project must be inspected by a District employee, and that such inspections would verify and ensure that his work is satisfactory. However, the rules require that before the examination can be taken, certain requirements must be met. Petitioner has not satisfied those requirements.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the St. Johns River Water Management District enter a final order denying Petitioner's application to sit for the water well contractor examination. DONE AND ENTERED this 25th day of January, 2005, in Tallahassee, Leon County, Florida. S DONALD R. ALEXANDER 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 25th day of January, 2005.
Findings Of Fact Respondent, Studebaker's Restaurant (Respondent), owns a 50's theme bar in Clearwater which offers entertainment and dancing and serves alcoholic beverages and food. Studebaker's has a nationwide policy, also followed at the Clearwater establishment, of restricting admittance to persons aged 23 and older. In the same building housing the Clearwater Studebaker's, Respondent also owns and operates a theme bar called the Palm Beach Club which is under common management and which is operated like Studebaker's except that the theme and music is contemporary and anyone who has attained the legal drinking age is allowed admittance. Petitioner, Ronald M. McElrath, is the coordinator for the Community Relations Board established under Chapter 99 of the City of Clearwater Code. He is approximately 38 years of age. In May or June 1985, McElrath witnessed an employee of the Clearwater Studebaker's refusing admission to a female on the basis that she was not at least 23 years of age. Investigating further, McElrath verified through the manager of the Clearwater Studebaker's that Respondent did have a policy restricting admission to the Clearwater Studebaker's to persons at least 23 years of age. Based on McElrath's knowledge and information, McElrath and the Community Relations Board attempted to conciliate with Respondent the alleged conflict between Respondent's age policy at the Clearwater Studebaker's and Chapter 99 of the City of Clearwater Code. By November 13, 1985, McElrath and the Community Relations Board concluded that their attempts at conciliation would not be successful, and the Community Relations Board filed a charge of discrimination against Respondent. That charge of discrimination was referred to the Division of Administrative Hearings and assigned Case No. 85-3513. On or about February 11, 1986, Case No. 85-3513 was dismissed and the file closed based upon the Community Relations Board's report that it was withdrawing its petition in the case and that an individual other than the Community Relations Board would file a separate petition as Charging Party. Actually, on or about January 9, 1986, McElrath, in his capacity as coordinator for the Community Relations Board, had filed a Supplemental Charge Of Discrimination against Respondent on the same alleged facts that formed the basis of Case No. 85-3513. McElrath's Supplemental Charge Of Discrimination was referred to the Division of Administrative Hearings on or about February 4, 1986, resulting in this case. McElrath has never attempted to file any other complaint under Chapter 99 of the City of Clearwater Code in his capacity as coordinator for the Community Relations Board. Because no further investigation was necessary and no further attempts to conciliate were reasonably likely to succeed, McElrath made no further investigation and made no further attempts to conciliate with Respondent after filing the Supplemental Charge Of Discrimination. Before filing of the Supplemental Charge Of Discrimination in this case, McElrath did not make a formal probable cause determination and did not serve notice of determination of probable cause on the Respondent. Respondent and its management has a commendable and appropriately implemented policy of being a responsible seller of alcoholic beverages for consumption on the premises. However, contrary to Respondent's assertions in this case, the policy of allowing only persons 23 years of age and older in the Clearwater Studebaker's is not significantly motivated by a desire to reduce alcohol-related traffic accidents. The primary motivation for the age limit is to establish and maintain an economically successful theme bar. Any contribution towards reducing alcohol related traffic accidents is an after thought rationalization. This was proven by Respondent's willingness to divert patrons younger than 23 next door to its Palm Beach Club where Respondent willingly serves them alcoholic beverages for consumption on the premises.
The Issue The issues in this case are the validity of Florida Administrative Code Rules 18-14.003(4) and 18-21.004(1)(g)-(h) and (7)(i),1 and an alleged unadopted rule prohibiting fish cleaning stations over sovereign submerged land (SSL); and Petitioner's claim to an award of attorney's fees and costs under Section 120.595(3)-(4), Florida Statutes.2
Findings Of Fact Petitioner owns land on Lake Talquin. In 2003, he obtained a joint permit and SSL consent of use to build a seawall, a boat dock and a covered but not walled boathouse there. In 2005 he obtained another joint permit and SSL consent of use to build another boat dock and another covered boathouse at another location on his property there. Both joint permit/authorizations had general and special conditions. Both had a general condition that limited the permit/authorization to "the specific processes and operations applied for and indicated in the approved drawings or exhibits" and required Petitioner to operate and maintain the facilities "to achieve compliance with the conditions of this permit." Both have a specific condition prohibiting "fish cleaning stations . . . on any structure that is located over the water." The 2003 joint permit/authorization has a specific condition prohibiting any walls and doors on the boathouse and another specific condition prohibiting the installation of water and electric lines. The 2005 joint permit/authorization omits those specific conditions. DEP has issued a Notice of Violation (NOV) against Petitioner for violating the 2005 joint permit/authorization's specific condition prohibiting water and electric lines, for exceeding the dimensions of the boathouse authorized by the joint permit/authorization, for adding a second story structure of livable space (with a kitchen, bathroom, shower, furnished seating area, flat-panel television, and window air conditioning unit) above the boathouse in the space between the roof rafters and the top of the authorized first story structure. DEP has not issued an NOV as to the 2003 joint permit/authorization although it also has electric and water lines. DEP has not issued an NOV as to either joint permit/authorization for having a fish cleaning station over the water. An inspector told Petitioner that the fish cleaning station on the newer facility was a violation of the 2005 permit but that it was not an issue anymore after a change in the law. Petitioner attempted but failed to prove that DEP or BOT prohibits fish cleaning stations over water as a general rule. It is not clear what change in the law has occurred with respect to fish cleaning stations. In any event, the evidence was that these facilities are prohibited when appropriate for protection of water quality, not as a general rule. Rule 18-14.003 states in pertinent part: It shall be a violation of this rule for any person or the agent of any person to knowingly refuse to comply with any provision of Chapter 253, F.S., willfully violate any provision of Chapter 253, F.S., or to willfully damage state land (the ownership or boundaries of which have been established by the state) or products thereof, by doing any of the following: * * * (4) Maintain, place or build permanent or temporary structures, including, but not limited to, additions to existing structures; all structures whose use is not water- dependent; sanitary septic systems; fences, docks and pilings; houses; oil rigs; and utility installations on or over state land without consent or authority from the Board or Department. Petitioner's rule challenge focuses on the part of the rule specifying: "structures whose use is not water-dependent; sanitary septic systems; . . . houses; . . . and utility installations on or over state land without consent or authority from the Board or Department." Rule 18-21.004 states in pertinent part: The following management policies, standards, and criteria shall be used in determining whether to approve, approve with conditions or modifications, or deny all requests for activities on sovereignty submerged lands. General Proprietary. * * * Activities on sovereignty lands shall be limited to water dependent activities only unless the board determines that it is in the public interest to allow an exception as determined by a case by case evaluation. Public projects which are primarily intended to provide access to and use of the waterfront may be permitted to contain minor uses which are not water dependent if: Located in areas along seawalls or other nonnatural shorelines; Located outside of aquatic preserves or class II waters; and The nonwater dependent uses are incidental to the basic purpose of the project, and constitute only minor nearshore encroachments on sovereign lands. Stilt house, boathouses with living quarters, or other such residential structures shall be prohibited on sovereignty lands. * * * General Conditions for Authorizations. All authorizations granted by rule or in writing under Rule 18-21.005, F.A.C., except those for aquaculture activities and geophysical testing, shall be subject to the general conditions as set forth in paragraphs through (i) below. The general conditions shall be part of all authorizations under this chapter, shall be binding upon the grantee, and shall be enforceable under Chapter 253 or 258, Part II, F.S. * * * (i) Structures or activities shall be constructed, operated, and maintained solely for water dependent purposes, or for non- water dependent activities authorized under paragraph 18-21.004(1)(g), F.A.C., or any other applicable law. Petitioner's rule challenge focuses on the parts of this rule prohibiting non-water dependent uses over SSLs, unless in the public interest as determined by a case-by-case evaluation and prohibiting stilt houses, boathouses with living quarters, and other residential structures. Petitioner contends that these rules: exceed their legislative authority; enlarge, modify, or contravene the laws they implement; are vague, lack adequate standards for BOT decisions, and vest unbridled discretion in the BOT (particularly by use of the terms "structure whose use is not water dependent," "utility installations," and "public interest by a case by case evaluation"); and are arbitrary and capricious (for essentially the same reasons they allegedly are vague). See § 120.52(8)(b)- (e), Fla. Stat. The term "structure whose use is not water dependent" is not defined by rule, but Rule 18-21.003(68) states: "'Water dependent activity' means an activity which can only be conducted on, in, over, or adjacent to water areas because the activity requires direct access to the water body or sovereign submerged lands for transportation, recreation, energy production or transmission, or source of water, and where the use of the water or sovereign submerged lands is an integral part of the activity." DEP makes determinations of water-dependency on a case- by-case review of the facts and circumstances presented in each case. DEP does not have a list of factors used in making this determination in any rule, non-rule policy, or other document. According to the evidence, DEP considers docks and boathouses to be water-dependent structures. A roof over a dock may be considered water-dependent depending on the facts and circumstances and whether the roof is an integral and required part of the water-dependent activity. The same is true with respect to benches that are part of a dock structure. Boating- related paraphernalia such as boat paddles, life vests, and similar items can be stored in empty rafters under the roof of a permitted docking facility, but not rakes and shovels cannot, because boating-related paraphernalia are associated with transportation across water, while rakes and shovels are not. Cans of gasoline are related to transportation on water, but their storage on the rafters of a boathouse is not necessarily a water-dependent activity because this is not considered to be safe. Depending on the circumstances, DEP has authorized the installation of electrical and water lines and sewage pump-out systems on boat docking facilities. The installation of electrical and water lines and sewage pump-out systems can be an integral or required part of a public or private commercial marina or docking facility, but generally not a noncommercial dock. DEP once authorized the use of golf carts in connection with a long private pier. The evidence proved that reasonable people of common intelligence can disagree on the interpretation and application of the "not water-dependent" definition. Even experienced consultants are required to check with DEP to be sure they are interpreting and applying the definition correctly. DEP employees sometimes are required to check with DEP headquarters in Tallahassee to be sure they are interpreting and applying the definition correctly. But the evidence did not prove that the definition is vague, lacks adequate standards for BOT decisions, or vests unbridled discretion in the BOT. The term "utility installations" is reasonably clear and is generally understood to mean the installation of water, sewer, and electricity. The evidence did not prove that the term is vague, lacks adequate standards for BOT decisions, or vests unbridled discretion in the BOT. The evidence did not prove that the term "public interest by a case by case evaluation" is vague, lacks adequate standards for BOT decisions, or vests unbridled discretion in the BOT. The evidence was that DEP interprets the definition in the sentence that immediately follows in Rule 18-21.004(1)(g) to limit the "public interest" exception to certain "public projects" (which BOT then broadly interprets to include privately-owned marinas that are open to the public). The evidence did not prove that the challenged parts of Rules 18-14.003 and 18-21.004 are unsupported by logic or the necessary facts, or were adopted without thought or reason or are irrational.
Findings Of Fact On the evening of February 7, 1978 Officer Di Stasio stopped a vehicle driven by Michael Gross in the City of Clearwater. The primary reason for stopping this vehicle was that Gross had exited onto the main street from a side street and nearly collided with the car driven by Di Stasio. After stopping the vehicle Di Stasio questioned the driver regarding the registration of the vehicle, among other things, and although Gross could not produce the registration he did produce a Bill of Sale for the vehicle dated in 1976. Gross told Di Stasio that the car had been registered in his wife's name, that they were in the process of getting a divorce, and the registration was probably in the mail to him. The tag was from Kentucky, was bent and rusty, and was secured to the vehicle by wire. In lieu of citing Gross for driving with an invalid tag Di Stasio removed the tag from Gross's car and advised Gross that it was unlawful to drive the vehicle without a valid tag. Di Stasio subsequently threw the tag in the trash and made no report of the incident. The Clearwater police had a book showing the various states' automobile tags and expiration dates of these tags. Had Di Stasio radioed in for this information he would have learned that the tag on Gross' car had not expired. Police officers had been instructed regarding the existence of the book but Di Stasio apparently missed the training session when this Information was disseminated. The following morning on February 8, 1978 Gross appeared at the police station to inquire what he needed to do to drive his car. He related the instance of the previous evening to Captain Enlow of the Clearwater Police and when the latter could find no report of the incident called Gross at his home to come down to the police station. Di Stasio advised Captain Enlow that he thought the tag was invalid and therefore he removed it from the car. Although the tag had a `77 decal on it information in the police station indicated the tag was valid until March, 1978. Di Stasio took Gross to the tag office in the courthouse where he was able to obtain a temporary tag for the vehicle. As a result of Officer Di Stasio removing the tag and failing to maintain custody of the tag as required by police regulations he was suspended without pay for three days. Subsequent inquiries to Kentucky confirmed that the car was properly registered to Michael Gross and that the tag on the vehicle was a valid tag on February 8, 1978. Respondent's primary explanation for removing the tag from the vehicle was that Gross told him the tag had been placed on the vehicle to come to Florida and that it did not belong to the car. Gross was not a witness at this hearing and this testimony was rebutted by information in Exhibit 6 received from the Lexington, Kentucky Police. In defense of his actions in not securing the tag as required by Rule 73 when it came into his possession, Respondent produced several witnesses who testified that they had been instructed not to bring in partly filled beer cans or to remove whiskey from a motor vehicle when the driver was apprehended. None of these witnesses recalled any specific instance where a tag had been removed from a vehicle and not accounted for pursuant to Rule 73. Respondent contended that a police officer is given wide latitude to exercise discretion in the handling of property and as an example cited the instances when children's toys are left in the street and the police do not take this property into custody. The principal exception to the rule that property coming into the possession of a police officer is to be turned in to the property office involves the handling of alcoholic beverages which is not evidence.
The Issue Did Respondents violate the provisions of Rules 62-550.518(3), 62-555.320(4)(8), 62-560.410(2)(c), 62555.350(2), and 62-555.345, Florida Administrative Code, as alleged in the Notice of Violation and Orders for Corrective Action, Case Nos. 96-653PW2442B and 96- 653PW2442C dated June 9, 1997?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: At all times pertinent to this proceeding, the Department, through the Polk County Health Department, under the authority of an Interagency Agreement with the Department of Environmental Protection, was the agency of the State of Florida charged with the responsibility for inspecting and clearing Public Water Systems in Polk County Florida under Section 403.121, Florida Statutes. SDS Properties Investors Group, Inc. (SDS) is a Florida corporation authorized to do business as Budget Motel. SDS is owned by Shaikh. Sanitary surveys are conducted by the Department every three years and include the inspection of Public Water Systems (PWS) . On January 26, 1996, the Department conducted a routine sanitary survey of Budget Motel (Budget) located at 1418 Highway 17 South, Lake Wales, Florida, which should have included Budget's public water system, PWS 6532442. However, Polk County's inspector, Henry Tagioff, was shown a well, by a Budget employee, that was located on the adjacent property owned by Smokey's Mobile Home Park (Smokey's) and not a part of Budget's water system. Tagioff was not aware that the well he inspected was owned by Smokey's and not on Budget's property. During the inspection, Tagioff noted several violations and advised the Budget employee that Tagioff needed to discuss these violations with Shaikh. On January 29, 1996, Tagioff and Lee Forgey, another Polk County employee, met with Shaikh to discuss the violations noted by Tagioff on January 26, 1996. During this meeting, Shaikh, Tagioff, and Forgey discussed the violations previously found by Tagioff on January 26, 1996, concerning the well on Smokey's property. At no time during this meeting did Shaikh advise Tagioff or Forgey that neither he nor Budget own the well under discussion. The record is not clear, but sometime between January and May 1996, Budget's well had collapsed and was not useable. Subsequent to Budget's well collapsing, Shaikh contracted with George Dunham, after obtaining Smokey's permission, to connect Budget's water system (PWS6532442) to Smokey's well. At the time of connecting Budget's water system to Smokey's well, Dunham advised Shaikh that this was only a temporary solution and gave Shaikh a proposal for a new well since Budget's old well could not be repaired. On May 2, 1996, Tagioff made a reinspection of Budget's water system and found that Budget's well had collapsed and was inoperable, and that Budget had connected to Smokey's well to furnish water to the motel and its guests. Tagioff advised Shaikh that Budget would need a new well since its old well was inoperable and the connection to Smokey's well was only temporary. On May 21, 1996, Mark Fallah, a Polk County employee, conducted a site inspection and prepared a report for use in connection with Budget's application with Southwest Florida Water Management District (SWFWMD) for a new well permit. In connection with Fallah's site inspection and report, the Department advised Shaikh by letter dated May 21, 1996, of certain things concerning the new well that had to be completed prior to placing the well into public use. The letter provides in pertinent part as follows: Upon completion of the drilling and the verification of the grouting procedure by the Water Management District, the following items, as required by Chapters 62-555 and 62550 of the Florida Administrative Code, are to be completed prior to this water system being placed into public use. * * * 2. A continuous chlorination unit that is electrically interlocked with the well pump circuit. * * * A flow measuring device is required on all Non-Community Water Systems. A copy of the well completion report must be furnished to this office by the well driller within thirty (30) days after the well installation. Bacteriological clearance of the well must be performed by submitting twenty (20) consecutive water samples for analysis to an HRS certified laboratory. A maximum of two (2) samples per day taken at least six hours apart may be collected. Additional samples may be required until twenty (20) consecutive satisfactory samples are received. * * * After the well and plant construction is completed, contact our office for an inspection so that written clearance can be issued. It is prohibited for any Public water system to be placed into use without clearance being issued from this department. (Emphasis Furnished). SWFWMD approved Budget's new well application and issued Budget Permit No. 579811.01 for drilling a new well. However, upon completion of the new well, there were certain conditions that had to be met as indicated in the letter from the Department dated May 21, 1996. On May 31, 1996, and July 10, 1996, Fallah inspected Budget's new water system for compliance and, on both occasions, found that Budget had failed to install the chlorination unit, the flow meter, and had not submitted a well completion report or bacteriological samples. On July 15, 1996, the Department issued a Warning Notice to Shaikh advising him that the system could not be used until approved by the Department. For enforcement purposes, the file was transferred to Lewis Taylor, enforcement officer for drinking water systems for Polk County. On November 14, 1996, Taylor conducted an inspection of Budget's water system and reported that: (1) Budget's well had been placed into service without approval from the Department; (2) there was no chlorinator in operation; (3) there was no flow meter; (4) the Department had not received any bacteriological samples since November 1995; (5) there was no certified operator servicing the motel's water system; and (6) Budget had not provided public notice to its customers of its failure to monitor its drinking water. A second Warning Notice was issued by the Department and furnished to Shaikh on November 22, 19-96, which in substance advised Shaikh that Budget was in violation of Rules 62-550 and 62- 555, Florida Administrative Code, for its: (1) failure to obtain the Department's clearance before placing its new well in service; (2) failure to provide quarterly bacteriological samples; (3) failure to maintain proper chlorine residual in the water system; failure to provide a flow meter in the water system; (5) failure to provide public notification to its customers that its water system had failed to comply with Rule 62-550, Florida Administrative Code; and (6) failure to provide the Department with verification of Budget retaining a certified operator to oversee the operation and maintenance of its water system. On March 3, 1997, Tagioff and John GoPaul, US Environmental Agency, inspected Budget's water system and found that: (1) there was no chlorine residual in the system; (2) the chlorination unit located at the motel was not in use; (3) there was no flow meter within the system; (4) no quarterly bacteriological samples had been furnished to the Department; and the well had not been cleared for use by the Department. Based on the testimony of Lewis Taylor which I find credible, the Department has expended the following in the inspection of Budget's water system: (1) 20.25 hours of professional time at a rate of $30.00 per hour for a total of $607.50; (2) three hours of clerical time at a rate of $15.00 per hour for a total of $45.00; and (3) $27.00 in travel costs and postage. The total amount expended in the inspection of this water system by the Department was $679.50.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department enter a final order finding Respondents guilty of the violations as charged and requiring Respondents to comply with the Orders for Corrective Action as set out in the Notice of Violation and Orders of Corrective Action in Case Nos. 96-653PW2442B and 96-653PW2442C. It is further recommended that Respondents be required to pay the costs and expenses of investigating the violations and prosecuting this matter in the amount of $679.50. DONE AND ENTERED this 27th day of May, 1998, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE 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) 921-6947 Filed with the Clerk of the Division of Administrative Hearings this 27th day of May, 1998. COPIES FURNISHED: Angela T. Hall, Agency Clerk Department of Health 1317 Winewood Boulevard, Building 6 Tallahassee, Florida 32399-0700 Roland Reis, Esquire Department of Health Polk County Health Department 1290 Golfview Avenue, 4th Floor Bartow, Florida 33830-6740 Habib U. Shaikh 4014 Billingsgate Road Orlando, Florida 32839-7515 SDS Properties Investors Group, Inc. d/b/a Budget Motel 1418 Highway 17 South Lake Wales, Florida 33853
Findings Of Fact Jaime Fernandez was transferred in 1977 to Clearwater Traffic Engineering Department as an electrician's helper from the Clearwater Pollution Control Department. Prior to coming to Water Pollution Control, Respondent had been a CETA employee in the Parks Department from which he was fired for incompetence (Respondent's testimony). Although the exact situation was not made clear to the Hearing Officer, it appeared that Respondent appealed his firing from the Parks Department alleging some type of discrimination, and, following a hearing, the City was required to reemploy him. At all times here relevant, Respondent was an employee in the Classified Civil Service of Clearwater. Respondent testified that the evaluations he received at Water Pollution Control were satisfactory overall, and the request for a transfer was initiated by him. As an electrician's helper, Respondent was one of six or seven electrician's helpers. When he was subsequently transferred to the position of ET helper, he was the only ET helper in the Traffic Engineering Department. With a larger number of electrician's helpers it was easier to assign trench digging, painting and other similar menial jobs to Respondent without detracting from the overall efficiency of the Department than it was when Respondent became the only ET helper in a group with two ET's. Respondent served as an electrician's helper in the Traffic Engineering Department for approximately two years before he was transferred to the position of ET helper. During these two years as an electrician's helper, Respondent failed to get a satisfactory overall evaluation and never received a merit pay increase. He was transferred to the electronics shop as an ET helper in late 1979. In the six months follow-up review of Respondent's unsatisfactory evaluation report dated 2-9-80, the Director of the Traffic Engineering Department recommended Fernandez be terminated for incompetence. This recommendation was rejected by the Personnel Department because of insufficient documentation of the events giving rise to the recommendation. On August 25, 1978, Respondent was given a letter of reprimand following an accident involving a truck, driven by Respondent, and a building in which Respondent's inattention contributed to the accident (Exhibit 6). On April 14, 1980, Respondent was suspended from duty without pay for three days on charges of incompetence and inefficiency in his work product, errors in daily time cards and other reports, and continuous performance evaluations indicating improvement needed. On the instant charges the evidence was unrebutted that during the period August 1, 1980, through March 15, 1981, 19 errors were made by Respondent on the time sheets he submitted. Twenty-seven other employees in the same Department fill out time sheets and, during the same period, the next highest number of errors was eight. Most of the employees made only one or two errors in completing their time sheets. During the period February 2, 1981 to February 5, 1981, Respondent was given a work order to construct and install back boards in two transit controllers (Exhibit 1). Included in the work order was a drawing showing how the panel was to be connected and detailed instructions on how the work was to be performed. Despite close supervision, Respondent failed to follow the instructions, cut the wires longer than the maximum three feet lengths as shown on the work order, installed grounding bar in the wrong location, and did not properly lace the harness. This work order was within the capability of a reasonably qualified ET helper to complete in twenty hours. Respondent took forty-seven hours to accomplish this work and made numerous errors which had to be corrected by others. During a period in mid-February; 1981, Respondent was assigned a detector to repair. Repair of this equipment was also within the capability of a reasonably qualified ET helper in about four hours. After working on this detector for twenty-one hours, Respondent was still unable to repair it. It was given to an electronics technician who repaired the detector in approximately one hour. Respondent, in work order 136, was given an LT 169 load pack to repair. Test equipment is set up in the petitioner's shop for trouble shooting this equipment. After testing this load pack, Respondent replaced the part he thought defective but, when tested by someone else, the equipment was still inoperative. The part replaced by Respondent was the part most frequently found defective in this load pack. In this instance, this part was not the cause of the equipment being in operative. This was a routine work order that a reasonably qualified ET helper should have been able to complete. Respondent has been counselled and evaluated numerous times by different supervisors in the Traffic Engineering Department for the past three years and has yet to be assigned a satisfactory evaluation. No other employee has been retained in a position with the City of Clearwater for such an extended period with unsatisfactory evaluations. Respondent testified that he has completed a two-year course in electronics at Pinellas County Vocational School and has one year of college. Accordingly, he deemed himself better qualified as an ET helper than as an electrician's helper. He felt he should have been disciplined for incompetency as an electrician's helper during the two years he worked in that Division, rather than as an ET helper in which position he has worked for approximately one year. Respondent's testimony, that he was denied earned leave or pay for this leave when he was dismissed, was not rebutted. However, the City of Clearwater's regulations relating to leave were not presented to the Hearing Officer, and without access to these regulations, Respondent's claim cannot be resolved.
