The Issue Whether the Respondent is in violation of Section 479.07(1), F.S., and Section 479.07(4), F.S., which require an application for a permit to be made and granted and the fees paid each year. Whether a sign which has been standing without a current permit is eligible for a current permit upon payment of the delinquent fees.
Findings Of Fact The following described signs owned by Respondent had no current permit tags: Highway: US 17 Location: .91 miles south of Section 118S(207) Copy: Whispering Pines Highway: US 17 Location: .1 miles north 207 (Section 118S) Copy: Whispering Pines Highway: US 17 Location: South C/L Satsuma (Section 118S) Copy: Whispering Pines The parties stipulated that the subject signs were owned and erected by the Respondent and that there was no application for or fees paid under the requirements of Chapter 479, Florida Statutes, insofar as paying fees and obtaining current permits.
Findings Of Fact Petitioner is Mary A. Barber doing business as Data Phone, a sole proprietorship. Respondent is the School Board of Volusia County, a collegial public body which governs the School District of Volusia County, a constitutional district existing under Article IX, Section 4, of the Constitution of Florida. Prior to 1994, Respondent did not obtain telephone cabling services through the competitive bidding process. Instead, Respondent secured these services through a letter agreement with J. P. McCarthy doing business as American Phone Wire and Repair (American Phone), a sole proprietorship. Pursuant to that agreement, American Phone charged a minimum service charge of 45 dollars for the first hour of each service call. In 1993, Respondent's purchasing department noticed that the volume of telephone cabling services warranted competitive bidding. Respondent's telecommunications division and purchasing department initially developed specifications for the award of a contract based on a set of specifications from Pinellas County, Florida. They also consulted with the existing vendor, J. P. McCarthy. The early drafts of the specifications provided for a minimum charge per service call. However, the final specifications did not reference a minimum charge. On September 30, 1994, Respondent issued its Bid Request E-540 for telephone cabling equipment and services. In due course, Respondent awarded a contract to American Phone, with an initial expiration date of June 30, 1996. Section 3.11 of the bid specifications provided that the contract was subject to extension for two additional one-year periods, by mutual agreement of the parties. American Phone fulfilled its contractual obligations to Respondent through the services of J. P. McCarthy and the subcontractors that he engaged including Petitioner. Mr. McCarthy died in December 1995. In January 1996, Petitioner inquired as to Respondent's intentions regarding the extension of the contract, or the invitation of new bids, at the initial expiration of American Phone's contract on June 30, 1996. Respondent informed Petitioner that it would rebid the contract at the end of the initial term of the existing contract. J. P. McCarthy's widow gave Petitioner the first opportunity to purchase American Phone after Mr. McCarthy's death. Petitioner believed that American Phone was not transferable because it was a sole proprietorship. Therefore, she elected not to purchase it. In March 1996, Troy Masters, a former employee of Respondent, purchased the business of American Phone. The question whether American Phone was a sole proprietorship which died with its proprietor and therefore was not subject to purchase is collateral to these proceedings. There is no evidence indicating that American Phone is not currently a viable business entity. On May 10, 1996, Chester Rodriguez terminated his employment with Respondent as a computer technician. That same day he became a partner in American Phone, consummating prior negotiations with Troy Masters. Also on May 10, 1996, Respondent issued its Bid Request 2E-625 for telephone cabling equipment and services. Respondent sent Invitations to Bid to approximately 47 potential vendors including Petitioner. The general conditions of the bid specifications provided that "the Board may accept or reject any or all bids or parts of bids and may waive formalities, technicalities or irregularities. The judgment of the Board on such matters shall be final." Inter alia, the specifications provided: CONTRACTOR QUALIFICATIONS Contractor shall have a minimum of four (4) qualified technicians available to handle the Board's needs. Contractor must have someone on staff who is an active member of Building Industry Consulting Service International, Inc. (BICSI). This staff member must be available for implementation in the design and installation of cabling as required by the Board. Membership and registration certificate must accompany the bid. Contractor must have a minimum of five (5) years Bell System or equivalent experience. On June 4, 1996, at the appointed hour of 2 p.m., Olga Buckley publicly opened the sealed bids. Ms. Buckley is a buyer in Respondent's purchasing department. She opened the bids in alphabetical order according to the identity of the bidder as disclosed on the outside of the sealed bid envelope. Sealed bids with no identification were placed at the end of the stack. Twenty-two of the sealed bids contained statements of "no bid." Ms. Buckley checked the other five bids for conformity to a bid checklist which Respondent had included in the specifications. Three of the five submitted bids did not contain all of the required items on the bid checklist. The two remaining complete bids belonged to Petitioner and American Phone. Each of these bids contained the names and resumes of at least four technicians which the bidder would employ or subcontract in order to perform the Respondent's assigned work. American Phone's bid quoted twenty-five dollars ($25) per hour of technician time and a twenty (20) percent discount off the supply list. Data Phone's bid quoted twenty-eight dollars ($28) per hour of technician time. After opening the bids, Ms. Buckley conferred with Robert McDonald, manager of Respondent's telecommunications division. They determined that American Phone had submitted the lowest acceptable bid. Support staff prepared the bid tabulation and recommended action in accordance with Ms. Buckley's and Mr. MacDonald's evaluation. Next Linda Romine, Respondent's senior buyer, reviewed the bid responses and the bid tabulation for correctness. After Ms. Romine completed her review, the tabulation was posted on June 5, 1996 at approximately 3:56 p.m. On June 7, 1996, Petitioner submitted a Notice of Protest. That same day Petitioner discussed the substance of her protest with Tom Sims, Respondent's Purchasing Director. First, Petitioner claimed that the apparent low bidder, American Phone, had previously engaged in the practice of charging an initial forty-five dollar ($45) service charge for each service call, in addition to the hourly rate for technician time. As a result of this service charge, Petitioner claimed that the computation of the apparent low bid, based solely on the hourly rate, was inaccurate because American Phone intended to continue invoicing the service charge. Second, Petitioner indicated her belief that the bid specification language in Section 2.0, pertaining to contractor qualifications, required the contractor personally to have a minimum of five (5) years Bell System or equivalent experience. She voiced her opinion that neither American Phone, as the contractor, nor its principals had the requisite experience. Third, Petitioner expressed her view that the requirement for a contractor to belong to the BICSI was meaningless. She thought Respondent included this requirement to exclude all venders except J. P. McCarthy. Mr. Sims was unaware that American Phone had ever charged a forty-five dollar ($45) service charge. Between June 7, 1996 and June 10, 1996, Mr. Sims and his staff examined approximately 1000 invoices that American Phone submitted to Respondent under its previous 1994 contract. The purpose of this examination was to ascertain whether American Phone had charged a minimum service charge of forty-five dollars ($45) for each service call under the contract. The examination confirmed that American Phone had charged a minimum service charge under its 1994 contract, consistent with its practice under the previous letter agreement, even though the 1994 contract did not authorize a minimum service charge. Mr. Sims then contacted Chester Rodriguez of American to inquire whether American Phone intended to charge forty-five dollars ($45) for each service call in addition to the hourly rate shown in its 1996 bid. As a result of his investigation, Mr. Sims determined that American Phone never intended its 1996 bid to include any minimum charge for service calls. Mr. Sims determined further that, if the average number and length of service calls under the proposed 1996 contract was distributed similarly to the average number and length of calls under the existing contract, American Phone's bid, with a forty-five dollar ($45) service charge for the first hour of technician time, would still be approximately 8,000 dollars lower than the bid of Petitioner. The greater weight of the evidence indicates that the forty-five dollar ($45) service charge formerly billed by American Phone was not in addition to the hourly rate for the first hour of technician time. Examination of American Phone's invoices from the preceding years reveals that approximately 12 percent of the invoices showed a minimum service charge but no hourly charges for the first hour. Eighty-eight percent of the service calls were more than one hour. If vendors base their bid on a minimum service charge for the first hour of technician time, they will in all likelihood charge a lower rate for each subsequent hour of the service call. Revision of the bid specifications in this case to allow such bids would be to Respondent's advantage. It also would lead to a greater number of bidders. Mr. McDonald had never seen the 1994 contract. He did not know that the 1994 contract did not authorize the minimum service charge. After his investigation, Mr. Sims advised Mr. McDonald that American Phone's 1994 contract did not authorize any minimum charge for service calls. Mr. Sims also informed Mr. Rodriguez that Respondent would not approve further invoices for such minimum charges under the existing contract. Any action that Respondent may take to correct the overpayment of invoices that American Phone submitted under the existing contract is not at issue here. When Respondent developed the bid specifications concerning contractor qualifications, it construed the requirement of five years' Bell System or equivalent experience as applicable to the subcontractors or employees of the named contractor. During his investigation of issues raised in Petitioner's protest, Mr. Sims contacted several vendors by telephone seeking their interpretation of the language. Every vendor other than Petitioner construed the language similarly to Respondent. During these conversations, Mr. Sims inquired whether the vendors thought the requirement for a contractor to be a member of BICSI was meaningful. The answers to this question were mixed. Mr. Sims got mixed answers when he asked the vendors how they would apply a minimum service charge and handle overtime hours. Respondent's staff posted a revised "tabulation" on June 11, 1996 showing the same computations as the initial tabulation but with the notation that there was "no recommendation" among the vendors. The revised tabulation also stated that "[d]ue to clarification of specifications a re-bid will be submitted." On June 12, 1996 Petitioner (through counsel) filed a Notice of Protest of the revised tabulation. On June 13, 1996 Respondent held a pre-bid workshop with prospective vendors, including Petitioner, for the purpose of discussing revisions to the specifications following the decision to reject all bids under Bid Request 2E- 625B. On June 21, Petitioner filed, pro se, a formal protest asserting that (1) if American Phone bid included an undisclosed service charge of 45 ($45) dollars per call, her bid was actually the lowest; (2) American Phone did not have five years' Bell System or equivalent experience; (3) the principals of American Phone failed to show a minimum of three accounts serviced within the previous three years because they had only been in business since March 1996; and (4) the principals of American Phone were barred from any contractual relationship with Respondent by virtue of Section 112.3185(4), Florida Statutes. On June 24, 1996, Petitioner filed, through counsel, a second formal protest. The second formal protest challenged the initial tabulation showing that American Phone was apparent low bidder, and the requisite experience of American Phone under the specifications, but omitted the remaining complaints of Petitioner's pro se formal protest of June 21, 1996. On June 25, 1996 Respondent approved the recommendation of its staff to reject all bids with respect to Bid Request 2E-625, and to invite new bids under Bid Request 2E-625B, after revising the specifications. Mr. Rodriguez served in the United States Air Force from 1982 to 1988. While he was in the armed services, Mr. Rodriguez obtained telephone communications skills and training in equipment repair. From 1988 to May 1996, he worked for Respondent as a computer technician. Mr. Rodriguez also worked on weekends, moonlighting, for American Phone for approximately a year and a half. He had five years of Bell System equivalent experience. Although Mr. Rodriguez previously worked for Respondent, he was never employed in the Telecommunications Division which was the procuring division for the subject bid. He was never the supervisor nor under the supervision of Robert McDonald. Mr. McDonald never made a promise to Mr. Rodriguez or gave him any reason to expect that American Phone would receive a new or renewal contract from Respondent. Mr. Rodriguez had no expectation that Mr. McDonald would advocate the renewal of the existing contract with American Phone. Before Mr. Rodriguez resigned his position with Respondent, he informed his superiors that he intended to acquire an interest in American Phone. He also told them that American Phone would bid on a contract with Respondent. Mr. Rodriguez's superiors informed him that he could not simultaneously be an employee of the Respondent and a vendor of services to the Respondent. Troy Masters and Chester Rodriguez were employees of the Respondent until March and May, respectively, of 1996. They worked in the data processing under the supervision of the Manager of Technical Services in the Management of Information Services Division, Department of Central Services. Robert McDonald worked in the Telecommunications Division of the Department of Central Services. Petitioner presented no evidence that American Phone participated in competitive bidding for contractual services which were within the responsibility of Masters or Rodriguez while they were employees of Respondent.
Recommendation Based upon the foregoing findings and conclusions, it is recommended that the protest of Petitioner in this matter be dismissed. DONE and ENTERED this 11th day of October, 1996, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 11th day of October, 1996. COPIES FURNISHED: C. Allen Watts, Esquire Cobb, Cole and Bell, P.A. Post Office Box 2491 Daytona Beach, Florida 32115-2491 James R. Tanner, Esquire 339 South Ridgewood Avenue Daytona Beach, Florida 32114 Joan Koval, Superintendent School Board of Volusia County Post Office Box 2118 Deland, Florida 32721-2118 Frank T. Brogan, Commissioner Department of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400 Michael Olenick, Esquire Department of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400
Findings Of Fact On or about September 30, 1980, petitioner mailed its application to respondent for registration of the trademark "Cachet". Accompanying the application were a check for fifteen dollars ($15.00) and shoe insoles stamped "Cachet", each bearing an escutcheon and the legend "MADE IN SPAIN". On October 14, 1980, respondent returned petitioner's application, declining to register "Cachet" as a trademark in the absence of consent by Cachet, Inc., an unrelated active Florida corporation for profit with a Miami address, duly registered with respondent. Cachet, Inc. has not registered any trademark with respondent, and does not sell shoes. Ms. Nettie Sims, chief of respondent's bureau of corporate records and an employee of respondent for 27 years, testified that this action was in keeping with respondent's policy going back as far as she could remember.
The Issue The issue presented is whether the Department committed an unlawful employment practice by terminating Petitioner's employment due to her age or her sex or by retaliating against Petitioner.
Findings Of Fact Fred Chaplin supervises the fire protection specialists (fire inspectors) for the southeast region of the Bureau of Fire Prevention, Division of State Fire Marshal, Department of Financial Services. The headquarters for the southeast region is in West Palm Beach, with a field office in Plantation. For approximately five months there had been a vacant fire inspector position in the southeast region, and Ashley Caron, a fire protection specialist, was covering all of the counties in the southeast region during that time. She worked out of the Plantation field office where Amy Peebles was the administrative assistant. Michael Long, another fire protection specialist, worked out of the West Palm Beach office. He, like Ashley Caron, was responsible for inspecting state-owned and state-leased buildings and new construction. He was also responsible for all fire alarms in the southeast region whether they were in new construction or in existing buildings. He investigated fire alarm systems when he received complaints from outside contractors or other fire inspectors. When Petitioner Andrea Spainhour interviewed for the vacant position in the southeast region, she was interviewed by Caron, Long, and Joe Furiatto from the Department's Tallahassee personnel office. Prior to her interview, Long had talked with Peebles about whether they should re-post the vacancy since there were only two candidates. He erroneously thought there had to be a minimum of three applicants for a vacancy in order to fill it. Long, Caron, and Furiatto were impressed with Petitioner during her interview. She had an excellent background and extensive experience. The three interviewers rated Petitioner, a 50-year-old female, as superior to the other applicant, a younger male, and recommended that she be hired. When Petitioner accepted the offer of employment, Long, Caron, Peebles, and Chaplin were all excited that Petitioner would be working with them. Petitioner's first day of work was May 7, 2001. She reported to the Plantation office where Chaplin spent time with her in orientation over the next several days. He advised Petitioner that Caron would train her during May and June and that Petitioner would become responsible for the inspections in Miami-Dade County. He further advised Petitioner, as he had before she began work, that she was a probationary employee and that the Legislature was considering "privatizing" fire protection specialists. He further advised Petitioner that hers was a job "out in the field," but that she was expected to come into the office to pick up phone messages and mail, turn in inspection reports, and sign documents. He told Petitioner the guideline was that it would take approximately eight hours a week to take care of duties in the office. Amy Peebles assisted Petitioner by answering her questions, showing her how to use her Nextel telephone and the computer, and creating forms on the computer so that Petitioner could fill them out and e-mail them to her when Petitioner was out of the office. Caron also assisted Petitioner by answering questions and showing her how to fill out forms. Long told Petitioner to call on him if she had any questions. Everyone tried to make Petitioner feel part of "the team." On May 10 Petitioner sent Chaplin an e-mail saying that Caron and Peebles had given her a plant for her office and that she already felt like part of the family. Although not mentioned in the e-mail, Caron also gave Petitioner some shirts like Caron and Long wore when they made inspections identifying Petitioner as a fire inspector so she would be recognized as a member of the fire inspectors team. Caron also gave Petitioner a mapping program of Miami-Dade County that Caron had purchased to assist Petitioner in becoming familiar with the locations of facilities she would be inspecting. When Chaplin advised Long and Caron by e-mail that they had been complimented for their professionalism by the construction administrator at the Department of Juvenile Justice (DJJ), Long immediately advised Chaplin by e-mail that Petitioner was also present at the referenced meeting and had acted professionally and been an asset to the inspection team. Chaplin forwarded those e-mails to Petitioner to let her know that Long had included her in the compliment. When Petitioner began making inspections, she did not always submit the proper forms to Peebles or fill them out properly so that Peebles could send the required letters to those responsible for the inspected facilities. Peebles reported this problem to Chaplin. Petitioner also made mistakes on her vehicle logs that Chaplin corrected for her before forwarding them to Tallahassee. On June 12, Caron and Long car-pooled down to Miami- Dade County to attend a meeting at Florida International University (FIU). After the meeting, Long, who was responsible for fire alarm systems in the region, took the opportunity of being in Miami-Dade to evaluate the fire alarm system at the DJJ, which was located close to FIU, in order to ascertain how long his final inspection of the system would take. Their visit to DJJ was not an official visit and did not include an inspection. When Petitioner learned that they had gone to one of "her buildings" without her, she thought they intentionally excluded her from official business. She concluded they did not want her in her position due to her experience. At about that same time, Caron asked Long for assistance at one of her facilities in Broward. Prior to Petitioner's employment, Caron had told Long she had some concerns regarding a fire alarm system at the Coconut Grove Playhouse. When they finished in Broward, Long reminded Caron he needed to look at the Playhouse; so, they car-pooled down to Miami-Dade. This was an informal visit, and no official inspection took place. Again, when Petitioner learned they had gone to the Playhouse without her, she assumed they were intentionally excluding her from official business meetings. On July 25, 2001, Petitioner asked Chaplin to come to the DJJ in Miami-Dade because she had some questions about the Code. After they went through the facility and were in the parking lot, Petitioner began making allegations that gave Chaplin concern. She said that Long and Caron were trying to make her quit because they did not like her. She said she resented their making courtesy visits without her. She told him that Long and Caron were intentionally excluding her from meetings. Chaplin told her that she was misinterpreting their behavior and that he was sure there was a reasonable explanation for their attending meetings without Petitioner. She also told Chaplin that she had had a problem in the past working with other females. The following morning Chaplin directed Long and Caron to cancel their appointments and come to his office. He told them what Petitioner had said. They told him that the courtesy visits were not scheduled meetings but spur-of-the-moment visits when Long was in Miami-Dade. They were shocked at Petitioner's accusations because they had selected her for her position and had thought their relationships with Petitioner were good. Chaplin directed them to make Petitioner feel part of the team. That same day Petitioner sent Chaplin an e-mail that included a reminder that she was concerned about the matters she had discussed with him the previous day. On the following day, Chaplin received a call from Caron, who advised him that Peebles was quite upset and he should call her. When Chaplin called, Peebles sounded distraught and on the verge of tears. She told him that Petitioner had been in the office and was really mad at Chaplin, Long, and Caron. Peebles told him the negative things Petitioner had said about her co-workers and her supervisor. Peebles said she was somewhat afraid for her safety due to Petitioner's behavior. Chaplin told her to write a report, and she did. Based upon the description of the incident between Petitioner and Peebles, his own concerns from his meeting with Petitioner two days earlier, and Petitioner's failure to consistently submit accurate and timely vehicle logs and inspection reports, Chaplin made the decision to terminate Petitioner. He was concerned that Petitioner was creating a hostile atmosphere among her co-workers and with him. Chaplin contacted his supervisor and then sent a memo regarding Petitioner's behavior. A few days later he sent a follow-up memo detailing other concerns he had regarding Petitioner's job performance: inspection reports turned in late or not at all, vehicle logs with errors, and failure to follow standard office procedures. Petitioner's age and her sex were not considered when Chaplin made his decision. Chaplin's recommendation that Petitioner be terminated was processed and approved through his chain of command. Petitioner's employment by the Department was terminated August 23. Since she was terminated during her probationary period, she did not have any career service appeal rights. Petitioner was replaced by a 50-year-old male who was even more qualified for the position than was Petitioner. Only administrative assistants had access to the TMIC computer program. Although Petitioner wanted access, no fire protection specialists could access that program. Petitioner was told several times that she did not need to access TMIC and that no inspector had access. The "red book" contains information about the various facilities in a geographic area that are inspected. It is only a guide for inspectors to track when they last inspected a facility. It is not a necessary tool for an inspector to perform his or her job duties and only contains information also available in the office files. Petitioner was not discriminated against by not being given an updated red book until the end of July since the information in it exists elsewhere in the office. Petitioner believes that Chaplin discriminated against her because he did not like her, did not want to hire her, and provided her with a faulty vehicle. Prior to assigning the car to Petitioner, he drove that vehicle for a few days, had it cleaned, and had it serviced and inspected. He knew of no problems with that vehicle. When Petitioner later questioned the condition of the tires, he told her to get the car checked and bring him something in writing. He never received anything in writing from her regarding the condition of the tires.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Petitioner failed in her burden of proof and dismissing the petition filed in this cause. DONE AND ENTERED this 15th day of December, 2004, in Tallahassee, Leon County, Florida. S LINDA M. RIGOT 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 15th day of December, 2004. COPIES FURNISHED: Andrea Spainhour 400 North Main Avenue Clermont, Florida 34712 Mechele R. McBride, Esquire Division of Legal Services Department of Financial Services 200 East Gaines Street Tallahassee, Florida 32399-0333 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 23201 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 23201
The Issue The issue is whether this case should be dismissed based on Petitioner's failure to appear at the scheduled final hearing.
Findings Of Fact Upon receipt of the Petition for Relief at DOAH, an Initial Order was issued on October 8, 2010, requiring Petitioner to coordinate a joint response to provide certain information within seven days or to file a unilateral response, if a joint response was not possible. Petitioner did not respond to the Initial Order. On October 15, 2010, Respondent submitted a unilateral response indicating that Petitioner had not contacted Respondent to coordinate a response. The undersigned issued a Notice of Hearing on November 5, 2010, scheduling the final hearing for December 8, 2010, at the Martin Luther King, Jr., Administrative Center in Naples, Florida. The notice included citations to the procedural statutes and rules governing the hearing and information about the parties' obligation to appear at the hearing with their witnesses and evidence. With the Notice of Hearing, the undersigned issued an Order of Pre-hearing Instructions, which required the parties to exchange witness lists and copies of their proposed exhibits at least seven days before the final hearing and to file their witness lists with DOAH. The Order warned that failure to comply with these requirements "may result in the exclusion at the final hearing of witnesses or exhibits not previously disclosed." The foregoing Orders and notice were mailed to Petitioner at his address of record in New York, New York, and none of these envelopes was returned as undeliverable. Petitioner resides in New York, but as specified in the FCHR Determination of No Cause, Petitioner is a frequent visitor to Naples, Florida, where his mother lives in a condominium she owns at Park Shore Landings. Indeed, it was Petitioner's rental of a unit at Park Shore Landings, on multiple occasions spanning multiple weeks that gave rise to Petitioner's complaint filed with FCHR. On November 23, 2010, Respondent filed a Motion for Continuance because of difficulties coordinating Petitioner's deposition to accommodate Petitioner's holiday travel plans and scheduling conflicts. A continuance was granted for good cause shown, and the final hearing was rescheduled for February 15, 2011, at 9:00 a.m., in Naples, at a location to be determined at a later date. The Order stated that the previous Order of Pre-hearing Instructions remained in full force and effect. An Amended Notice of Hearing was issued on December 9, 2010, to specify the hearing location: Martin Luther King, Jr., Administrative Center, 5775 Osceola Trail, Naples, Florida. This notice repeated the hearing date (February 15, 2011) and time (9:00 a.m.). The notice also reiterated that the parties were required to appear at the time and place of the hearing with their witnesses and evidence and that failure to appear may result in dismissal. The notice listed the name, address, and telephone number for the hearing room contact person at the hearing site. The notice was mailed to Petitioner at his address of record and was not returned undeliverable. On December 15, 2010, Respondent filed a notice of taking Petitioner's deposition in Naples on December 22, 2010, at a court reporter's office near the scheduled location for the final hearing. On February 2, 2011, the undersigned issued another Amended Notice of Hearing to advise that any party desiring a court reporter had to make arrangements at the party's own expense, with notice to the other party and to the undersigned. This notice repeated the final hearing date (February 15, 2011), time (9:00 a.m.), and location (Martin Luther King, Jr., Administrative Center, 5775 Osceola Trail, Naples). The notice also repeated the name, address, and telephone number for the hearing room confirmation contact person. Like all previous notices of hearing, the notice reiterated that parties were required to appear at the time and place of the hearing with their witnesses and evidence and that "[f]ailure to appear at this hearing may be grounds for entry of an order of dismissal." On February 8, 2011, in accordance with the Order of Pre-Hearing Instructions, Respondent filed its witness list, with names and addresses for five witnesses and a certification that Respondent's exhibits had been provided to Petitioner. No witness list was filed by Petitioner. On February 10, 2011, Respondent gave notice to the undersigned and to Petitioner that Respondent had retained a court reporter to record the February 15, 2011, final hearing. The undersigned traveled from Tallahassee to Naples on Monday, February 14, 2011, and stayed overnight at a hotel in Naples, in order to convene the hearing scheduled for 9:00 a.m., the next morning. On February 15, 2011, the undersigned arrived at the noticed hearing location at approximately 8:30 a.m. Counsel for Respondent (from Tampa) and four of Respondent's witnesses were already present. Arriving at the same time as the undersigned was Respondent's fifth witness and the court reporter. At 9:00 a.m., the undersigned went on the record to convene the scheduled hearing to allow counsel for Respondent to enter his appearance for the record and to announce that Petitioner had not appeared or contacted anyone to explain his absence. The undersigned then recessed the hearing for 20 minutes in case Petitioner was running late. At 9:12 a.m. (as time-recorded by the undersigned's mobile phone), the undersigned called her assistant at DOAH to determine whether Petitioner had called DOAH or submitted anything in writing that would explain his failure to appear for the scheduled hearing. The undersigned's assistant stated that no calls or filings had been received and that she would call the undersigned on her mobile phone immediately, if Petitioner contacted her. Meanwhile, to make sure that Petitioner was not on the premises unable to find the hearing room, one of Respondent's representatives checked at the front desk, where anyone entering the building would have to check in and go through the security procedures, and verified that Petitioner had not arrived. Shortly after 9:20 a.m., the undersigned went back on the record to state that Petitioner had still not appeared, nor had Petitioner contacted DOAH or someone at the hearing site. The undersigned recited the steps taken to verify the absence of contact by Petitioner; reviewed the file, noting the multiple notices and Orders mailed to Petitioner; and confirmed Petitioner's address of record to which the notices and Orders were mailed and not returned as undeliverable. Respondent represented that Petitioner did not show up for the first deposition scheduled in coordination with Petitioner's calendar, but that Petitioner did appear the second time his deposition was set. Respondent also represented that Petitioner did not provide Respondent with a witness list or copies of any proposed exhibits. Respondent had no other information about Petitioner's whereabouts or intentions. Based on Petitioner's failure to appear and present a prima facie case to meet his burden of proof, the convened hearing was adjourned shortly before 9:30 a.m. Those present took some time to pack up computers and files and move furniture to restore the room to its prior configuration. Thus, it was after 9:30 a.m., when the undersigned exited the building, after checking again at the front desk to verify there was still no sign of, or word from, Petitioner. The undersigned drove to a hotel located eight minutes from the hearing site. Upon arrival, the undersigned's mobile phone rang, but could not be answered before the call went to voice mail. A voice mail message was left by the undersigned's assistant, time-recorded at 9:51 a.m. The message was that the undersigned's assistant had just spoken with Mr. Ziolkowski, who had called to say that he was at the hearing site, but no one was there. Petitioner told the assistant that he had been at the emergency room until an hour earlier (i.e., until 8:45 a.m.), and he went straight to the hearing site. The undersigned's assistant asked Petitioner why he had not called sooner, and his only response was that he did not have his mobile phone; but when asked how he was calling her then, he said he was calling from his mobile phone, and he gave the assistant his mobile phone number, which had not been provided previously. Petitioner then asked the undersigned's assistant about rescheduling the hearing. She explained that she had no authority to address his request; if Petitioner wanted the undersigned to consider a request for relief, it had to be submitted in writing and should provide any explanation and documentation he had as to why he could not be at the hearing and why he could not call. A memorandum from Mr. Ziolkowski was filed at DOAH by fax on February 16, 2011, at 2:40 p.m. The one-page memorandum, with no attachments and no certificate of service indicating service on Respondent, stated in pertinent part: Please accept my apologies for not being able to communicate with you yesterday regarding my delayed appearance to your courtroom. I was in the emergency room at Naples Community Hospital until 8:11 am Tuesday (2/15/11). I went straight from the hospital to the Administrative center and I didn't have my mobile phone or directions to the Administrative center and finally I reached the Administrative center at approximately 9:30 a.m. Petitioner ended the memorandum with a request to reschedule the final hearing. Copied onto the bottom of the page was a small label, perhaps a hospital-issued identification bracelet bearing Petitioner's name and date of birth, a reference number and several other numbers, "NCH 02/15/11," and a bar code. The undersigned issued a Notice of Ex-Parte Communication with the memorandum attached, which was mailed to both parties. On February 28, 2011, Respondent filed its Objection to Petitioner's Request for Re-Hearing. Respondent's objection asserted that the documentation offered by Petitioner was insufficient to prove that Petitioner was at Naples Community Hospital until 8:11 a.m. on February 15, 2011, because the identification label only showed a date, February 15, 2011, which could be as early as 12:01 a.m., or as late as many hours after the scheduled hearing. Petitioner chose not to provide the documentation that he apparently had to show the precise time that he left the emergency room--8:11 a.m. (more than 30 minutes earlier than he told the undersigned's assistant on the telephone). Such documentation would also likely reveal such information as the time of day or night when Petitioner was clocked in at the emergency room; why Petitioner presented at the emergency room; what, if anything, was wrong with Petitioner; and whether he received any treatment or whether treatment was deemed unnecessary. Respondent's objection went on to note that even assuming the accuracy of Petitioner's stated departure time of 8:11 a.m., from Naples Community Hospital, that hospital has only two campuses, "one of which is six minutes and the other is fifteen minutes away from the location of the hearing." Respondent's objection concluded, "At bottom, Petitioner was not in the emergency room at the time of the hearing, had ample time to attend the hearing, and has provided no evidence to support his request to re-schedule the duly-noticed February 15, 2011 hearing."
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing Petitioner, John Ziolkowski's, Petition for Relief. DONE AND ENTERED this 8th day of March, 2011, in Tallahassee, Leon County, Florida. S ELIZABETH W. MCARTHUR Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of March, 2011.
Findings Of Fact Grimes has been employed by FHP for 22 years and was promoted to lieutenant in 1977. In April, 1977, FHP Trooper E. J. Weatherly took 4 CB radios and a moped into custody after stopping several juveniles by the side of the road under suspicious circumstances. Weatherly spoke with Detective Brad Anderson of the Dade County Public Safety Department, about the property and it was decided that the suspected contraband remain with FHP in Weatherly's possession. Later, Weatherly and Grimes conversed about the CB radios. When Grimes asked if a report had been made, Weatherly explained what had been done regarding the radios. Grimes then borrowed of the CBs with the intention of checking its size to see if it would fit in his patrol car, but not for the purpose of operating it. The radio was returned on June 1, 1977, after having been kept in the trunk of Grimes' FHP vehicle. Grimes did not sign a receipt for the CB radio he obtained from Weatherly. There was no evidence to indicate that Grimes intended to convert the CB to his own use.
Findings Of Fact Respondent Joyce L. Lord owns real property on Innerarity Point fronting on Bayou Garcon, which lies off Pedido Bay, in Escambia County, Florida. When her neighbor to the east unplugged a canal in 1977 (without respondent's consent, even though she is a joint owner) she feared that her shoreline would erode, because this was the sequence of events 15 years ago, the last time the canal was opened up. PERMITS ISSUED On November 9, 1978, petitioner, Department of Environmental Regulation (DER) issued a dredge and fill permit No. 17-11736-1E, authorizing respondent: To construct a vertical seawall along the approximate mean high water line, extending 10' waterward of this line at the eastern 40' portion of the project, and to place approximately 15 cubic yards of fill material in accordance with [an attached drawing] 1/ . . . DER's Exhibit No. 1. Among the permit conditions was a provision that "the work authorized by this permit shall be valid for a three (3) year period that shall commence upon receipt by the permittee of all governmental authorizations, state and federal." DER's Exhibit No. 1. On May 18, 1979, the United States Army Corps of Engineers (Army Corps) issued its permit "to construct a riprap revetment and to construct a vertical bulkhead with backfill," DER's Exhibit No. 6, to which was attached a drawing identical to the drawing 2/ incorporated in the DER permit. The Army Corps permit specified an expiration date of May 18, 1982. DER's Exhibit No. 6. PILINGS PLACED In the summer of 1979, respondent put in no less than 14 pilings. She and a friend began by measuring from a tree depicted in the drawing incorporated in both the DER and the Army Corps permits to a point ten feet north of the tree and aligning pilings on an east-west axis through that point. Perpendicular to this line, pilings were placed in a row lying north and south, east of the pine tree, along respondent's property line. The placement of these two rows of pilings, which meet at right angles, at a point northeast of the tree, was concededly in conformity with both the DER and Army Corps permits, according to at least one of petitioner's witnesses. The third row of pilings was placed in a south- westerly-northeasterly direction beginning at the western end of the east-west row of pilings and going to what is now the eastern edge of a fill promontory jutting out into Bayou Garcon from respondent's property. In the drawing incorporated in both the DER and the Army Corps permits, this third row of pilings is depicted as coming ever closer to a shoreline that forms a straight line from the point of intersection with the bulkhead line (the third row of pilings) to the tree. Both when the permit issued and at the time of hearing, however, the shoreline along that stretch was a concave arc. At the time of hearing, the shoreline was 21 feet from the row of pilings, at its apogee. APPROXIMATIONS At no time has the mean high water line along this edge of Bayou Garcon been surveyed, as far as the evidence showed. A hydrographic survey is necessary to locate the mean high water line. According to the testimony of Mr. Kriegel, and of Mark Neiman Snowden, another DER employee, the bulkhead line just to the west of the tree (the third row of pilings) was, according to their interpretation of the permit language, to stay within ten feet of the shoreline existing at the time the permit issued, and this line was thought to be synonymous with "approximate mean high water line." Since DER issued permit No. 17-11730-1E to respondent, erosion 3/ has occurred along her beach. Her witnesses variously testified that she has lost from six to seven to 30 feet since the canal was unplugged in 1977. Petitioner's witness, Mr. Stuart, was unable to say that the beach did not extend 20 feet waterward of the pilings on November 9, 1978. James H. Callaway, one of respondent's neighbors, testified that sand comes and goes on riprap he has placed along his property, so that, even if the shoreline could be located precisely at two points in time, "straight line" extrapolation to some intervening time would not be reliable. FILL PLACED West of the pilings placed (more or less) where the DER and Army Corps permits authorized encapsulating bulkheads to keep backfill around the pine tree from washing away, respondent caused unconsolidated concrete and soils to be placed in the spring of 1981 out into the open waters of Bayou Garcon, extending by 67 feet a fill road running through the salt marsh on her land. See Appendix II. The roadway is not perpendicular to the shore but considerably more than 37 cubic yards of fill were dumped in the Bayou in building the road. Since the top surface of the fill is above water, the marine life destroyed and displaced by filling has not been able to reestablish itself. In any event, widgeon grass takes up to five years to grow back. Sea grass beds provide a habitat for small animals on which foraging fish, who have their own predators, feed. These smaller animals feed in turn on algae that thrives in benthic habitats like the approximately 555 square feet obliterated by extending the fill road out into the water. The salt marsh, across which the fill road runs down to the promontory into Bayou Garcon, is separated from the Bayou by a berm on which spartina patens predominates. 4/ DER's Exhibit No. 5. For reasons not developed in the record, DER declines to assert jurisdiction over the salt marsh, landward of the berm which was breached at least as early as September of 1978. SUBSEQUENT ARMY CORPS ACTION Almost a year after the fill for the road was placed in Bayou Garcon, Ms. Lord wrote the Army Corps requesting a two year extension of the Army Corps permit and asking for a modification "to allow rip-rap to replace the proposed vertical bulkhead on the N.E. waterward portion and extend canal bulkhead 3 ft. northward DER'S Exhibit No. 7 (emphasis in original). The Army Corps modified respondent's permit "in accordance with [her] request." DER's Exhibit No. 8. But, on discovering the fill road extending into open waters, the Army Corps issued a cease and desist order dated May 6, 1982. COSTS INCURRED After the Army Corps advised DER, a field inspection took place. DER incurred inspection and other expenses aggregating at least ninety-three dollars and sixty-six cents ($93.66). PROPOSED ORDERS CONSIDERED Petitioner's amended review of the record, proposed findings of fact and conclusions of law, and respondent's written argument, proposed findings and conclusions have been considered in preparation of the foregoing findings of fact. To the extent proposed findings of fact have not been adopted, they have been deemed immaterial or unsupported by the weight of the evidence.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That petitioner order respondent to remove all unauthorized fill material as indicated on Appendix II, Exhibit 8 to DER's Exhibit No. 3, within ninety (90) days of entry of the final order. That petitioner order respondent to pay costs of ninety-three dollars and sixty-six cents ($93.66). DONE and ENTERED this 20th day of May, 1983, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of May, 1983.
