The Issue Whether Petitioner, Miami Yacht Divers, Inc., is entitled to reimbursement for cleanup costs.
Findings Of Fact The Respondent is the state agency charged with the responsibility of administering claims against the Florida Coastal Protection Trust Fund. Petitioner is a company located in Dade County, Florida, which performs commercial diving operations. Such operations include oil pollution containment and clean-up. At all times material to the allegations of this case, Dan Delmonico was the principal officer or owner for the Petitioner who supervised the operations of the company. In April of 1993, Mr. Delmonico discovered a fuel discharge next door to the premises of Defender Yacht, Inc., a company located on the Miami River in Dade County, Florida. The source of the discharge was an abandoned sunken vessel. This derelict vessel had no markings from which its ownership could be determined. Upon discovering the vessel, Mr. Delmonico did not contact local, state, or federal authorities to advise them of the discharge. Instead, Mr. Delmonico contacted several colleagues whose help he enlisted to assist him to clean up the discharge. In this regard, Mr. Delmonico procured the services of a diver and a crane company to remove the vessel from the water. Additionally, Mr. Delmonico utilized a boom and oil absorbent clean-up pads to remove the discharged fuel from the water. In total, Mr. Delmonico maintains it took four work days to complete the removal of the discharge and the salvage of the derelict vessel. At no time during this period did Mr. Delmonico contact local, state, or federal authorities to advise them of the foregoing activities. No official from any governmental entity supervised or approved the clean-up operation or salvage activity which is in dispute. After the fact Petitioner filed a reimbursement claim with the United States Coast Guard. Such claim was denied. Upon receipt of such denial, Petitioner filed the claim which is at issue in the instant case. In connection with this claim with Respondent, Petitioner submitted all forms previously tendered to the Coast Guard including the standard claim form, labor receipts, rental receipts, supply receipts, trailer and storage receipts, cash expenses, a job summary, and photographs. On or about September 20, 1996, Respondent issued a letter denying Petitioner's claim for reimbursement for expenses associated with the above-described salvage and clean-up activities. The grounds for the denial were the Petitioner's failure to obtain prior approval for the activities and the absence of "good cause" for the waiver of prior approval. Additionally, the Respondent maintained that Petitioner had failed to provide evidence that a pollutant discharge existed and that the removal of the vessel was necessary to abate and remove the discharge. It is undisputed by Petitioner that prior approval for the clean-up activities was not obtained. Petitioner timely disputed the denial and was afforded a point of entry to challenge such decision.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection enter a Final Order denying Petitioner's claim for reimbursement. DONE AND ENTERED this 31st day of December, 1997, in Tallahassee, Leon County, Florida. J. D. Parrish 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 Filed with the Clerk of the Division of Administrative Hearings this 31st day of December, 1997. COPIES FURNISHED: Kathy Carter, Agency Clerk Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 F. Perry Odom, General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 Kathelyn M. Jacques Assistant General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 N. Paul San Filippo, Esquire Seidensticker & San Filippo Parkway Financial Center 2150 Goodlette Road, Suite 305 Naples, Florida 34102
The Issue The issue in this case is whether the decision of the Planning and Zoning Board denying Petitioner's application for conditional use approval should be sustained.
Findings Of Fact On or about February 16, 1990, the Petitioner filed an application for conditional use approval with the Respondent seeking permission to operate a personal watercraft rental business at a motel and restaurant located at 601 South Gulf View Boulevard on Clearwater Beach. According to the application, the Petitioner proposes to rent two "Hobie cat" catamaran sailboats, and four to ten "wave runners". The Petitioner proposes that the vessels would be escorted westward, north of and parallel to, the marked boat channel in Clearwater Pass, then northwestward to open waters where, according to Petitioner, a "safewatch and service unit of nonpropeller power" would "monitor" customer activities. The subject property is located between South Gulf View Boulevard and Clearwater Pass, west of the Clearwater Pass Bridge, and is comprised of two zoning districts, an upland portion that is zoned CR-28, or Resort Commercial "Twenty-eight", and a beach front portion that is zoned OS/R, or Open Space/Recreation. Clearwater Pass separates Clearwater Beach and Sand Key Islands, and is the only open access between Clearwater Harbor and the Gulf of Mexico. A convenience store is located north of the property, and hotels are located east and west of the property. At the hearing before the Respondent's Planning and Zoning Board on March 13, 1990, the Planning and Development Department recommended denial of the application. In its written report to the Board, the planning staff based its recommendation upon the recommendations of the City's Harbormaster and Marine Advisory Board, which in turn were based upon concerns for safety due to the heavy boat traffic in the Clearwater Pass channel and at jetties along the southern end of Clearwater Beach and the northern end of Sand Key, all of which are located in the vicinity of the subject property. Based upon the testimony of Harbormaster Bill Held, it is found that state and federal approval of markers to mark off a private corridor in Clearwater Pass to accommodate Petitioner's proposed activities would be unlikely. During the hearing before the Board, the Board heard testimony from several persons in opposition to this application based upon concerns regarding the safety of swimmers due to careless operation of similar types of vessels, and strong currents in Clearwater Pass. At the conclusion of the public hearing, the Board discussed the application prior to voting. Members of the Board expressed concerns regarding public safety due to the dangerous condition of the area. The Board then voted unanimously to deny the application. Subsequently, the Petitioner timely filed a notice of appeal, resulting in this case. During this final hearing, Ronald Hollins, President of Gulf Fun, Inc., and agent for the Petitioner, testified that his proposed business would operate seven days a week, from sunrise to sunset, or approximately twelve hours daily. Petitioner testified that his personal watercraft rental vessels would be escorted during trips both from the subject property westward to the waters of the Gulf of Mexico and also during return trips, and that a "safety service" boat would monitor the rental vessels while in operation, with the escort boat and the "safety service" boat being in radio contact with a base unit at the motel property. The rental vessels would be prohibited from crossing Clearwater Pass to the south side of the boat channel, and would be limited to an area of operation bounded on the south by Clearwater Pass and on the north by Pier 60 on Clearwater Beach. Petitioner proposes to employ only three or possibly four employees to operate the escort boat, the "safety service" boat, and the base location, to rent the personal watercraft vessels, show a video tape and give a safety booklet to customers, as well as to otherwise supervise the rental vessels during the approximately 84 hours per week that his business would be in operation. Petitoner has never operated a similar business. Based upon the testimony of Richard Howard, captain of a charter boat which regularly goes in and out of Clearwater Pass, it is found that personal watercraft vessels frequently present a hazard to navigation due to the manner in which they are customarily operated. Specifically, personal watercraft operators in Clearwater Pass engage in practices such as towing swimmers on inner tubes, purposely spraying water at boats, and jumping the wakes of boats in the Pass. The activities proposed by Petitioner would exacerbate the insufficient clearance between boats in the channel, boats anchored at the beach, and swimmers, and would, therefore, be inappropriate in Clearwater Pass. The currents in Clearwater Pass are found to be dangerous to boaters on a regular basis, based on the testimony of Arnold Abramson, bridge tender at the Clearwater Pass bridge and Harbormaster Bill Held. A significant number of personal watercraft operators do not demonstrate an understanding of the rules of navigation, or of the currents in the Pass. Based on the testimony of Marine Patrol Office Bill Farias, it is found that the lack of apparent common sense which is frequently demonstrated by personal watercraft operators in Clearwater Pass creates a dangerous condition for others. A common practice is to jump the wake of boats, which results in a loss of control in mid-air. The jetty at the western end of Clearwater Pass obscures vision, making it difficult for incoming boaters to see personal watercraft in the vicinity of the motel, and also making it difficult for personal watercraft operators to see incoming boats. There is another boat rental operation in the area of this subject property, located at the Hilton Hotel, but this existing operation predates the adoption of the Clearwater Land Development Code. The Clearwater Pass bridge had 12,000 drawbridge openings in the past year, and is one of the busiest in Florida.
The Issue Whether the Florida Fish and Wildlife Conservation Commission ("FWC," "Respondent," or "Commission") properly determined that two (2) vessels owned by Jeffrey Sundwall ("Petitioner" or "Sundwall") were derelict or abandoned upon the waters of the state of Florida ("State") in violation of section 823.11, Florida Statutes (2018),1/ and, therefore, subject to the provisions of sections 823.11, 705.101(3), and 705.103, Florida Statutes.
Findings Of Fact The undersigned makes the following findings of material and relevant fact: Following the aftermath of Hurricane Irma in September 2017, law enforcement officers from FWC investigated what were categorized as "displaced vessels" found around the State that had been impacted and dislocated by the hurricane. Many had been ripped from their moorings, slips, or docks and floated away, driven by the winds and tides. Vessels displaced by Hurricane Irma included those that were either wrecked or sunken in waters of the State. Vessels that were left on the waters of the State in a wrecked or sunken state by Hurricane Irma were considered "derelict vessels" by FWC under section 823.11(1)(b). Following Hurricane Irma, derelict and displaced vessels were dealt with differently by FWC than derelict vessels would ordinarily be handled. For instance, ordinarily, derelict vessels would be left on the waters of the State while the owner was determined, located, and notified and the investigation process was completed. In the wake of Hurricane Irma, however, since there were so many derelict vessels that littered the waters of the State, particularly in South Florida and the Florida Keys, the State authorities chose to be more proactive and remove the derelict vessels from the State waters and store them for 30 days. After the hurricane in September 2017, FWC attempted to locate and notify owners that their derelict vessel had been located, removed from the waters of the State, and stored. The owner could either (1) retrieve the vessel during a 30-day window following notification, (2) waive their interests in the vessel and allow the State to destroy the vessel sooner than 30 days, or (3) do nothing. If the owner had not recovered the vessel or challenged the derelict determination after 30 days, Respondent would proceed with destruction of the derelict vessel. Ordinarily, the private owner of a derelict vessel is responsible for all costs associated with its removal and destruction. Despite this, after Hurricane Irma, the State assumed those costs. The law enforcement officers who testified at the hearing received training at the law enforcement academy to identify derelict vessels as defined by State law. Facts Relating to the Vessel, Cuki Following Hurricane Irma, FWC personnel determined that a vessel named Cuki was displaced following Hurricane Irma. It was found grounded and partially imbedded on the beach just south of Spessard Holland Beach Park in the unincorporated area of Melbourne Beach in Brevard County. The Cuki, is a 1974 Columbia 45-foot, two-masted sailboat. Depending on the level of the ocean tide, this area of the beach was rather wide and flat, and frequented by members of the public and other beachgoers.3/ An Incident Summary Report was prepared by Kelsey Grenz on November 21, 2017. The Cuki was first reported to FWC as grounded on the beach in Brevard County on September 19, 2017. Resp. Ex. 1. The facts, and reasonable inferences from the facts, indicate that when it was first reported to FWC on September 19, 2017, the Cuki was in reasonably decent condition.4/ See Pet. Exs. N and X. Respondent investigated ownership of the Cuki and identified Petitioner as the last documented owner of the Cuki.5/ Resp. Ex. 2, pp. 1-2. On November 15, 2017, Grenz and her supervisor provided written notice to Petitioner that his vessel, the Cuki (documented vessel DO564929), was wrecked and grounded off the coast of Brevard County, Florida, following Hurricane Irma. Resp. Exs. 1 and 2. The notice was hand-delivered to Petitioner by Grenz while he was in custody and incarcerated at the Monroe County Detention Center on several unrelated criminal charges.6/ Resp. Ex. 1, pp. 1-2. In addition to the written notice informing Petitioner that the Cuki had been displaced following Hurricane Irma, Grenz also provided Petitioner with a waiver document that would have allowed Petitioner to waive his interests in the Cuki, and allowed the State to remove and destroy the vessel at no cost to him. Resp. Ex. 1, p. 2. Petitioner was unwilling to sign the waiver.7/ By November 15, 2017, the vessel, although derelict and grounded on the beach in Brevard County, was still considered physically in the waters of the State. Resp. Exs. 5a and 5b. More specifically, it was below the high-tide watermark on the beach, and, at times, the normal tidal flows of the Atlantic Ocean washed up against and around it. Resp. Ex. 5. On January 16, 2018, Respondent, Law Enforcement Officer Bob Wehner, went to the location of the Cuki and recorded the vessel’s condition as he personally observed it then. In a short report, Wehner described the Cuki as follows: Vessel "CUKI" is a 1974 45’ Columbia Fiberglass sailboat that is beached on the Atlantic coast in the unincorporated area of Brevard County (N28.0454 W80.5462). The portside of the vessel is partially imbedded in the sand below the high-water tidemark on the beach. The vessel is equipped with an inboard motor, however, there is no shaft or propeller present. The vessel has no rudder, or steering wheel at the helm and no other means of steerage. The vessel is equipped with two masts. The mast at the stern of the vessel is broken at the base and suspended only by a single cable. There are no sails and the sail rigging is either missing or in disarray. The hatches at the topside of the cabin and windows on the portside have no covers leaving the interior open to the rain and wave activity. Resp. Ex. 3, p. 2. A detailed series of daylight pictures of the Cuki were taken by Wehner on January 16, 2018. The pictures generally reveal and show that the vessel: Was grounded on the beach in waters of the State. Resp. Ex. 4(a). The Cuki had cables attached to the sail that were tangled up, or in disarray. Resp. Exs. 4(a) and 4(h). Some of these cables and other riggings were supposed to be attached to the masts and were broken off. Resp. Ex. 4(d). The Cuki had seven (7) or eight (8) open hatches or doors on the top side of the vessel that were subject to wind, rain, ocean spray, and other natural elements. Resp. Exs. 4(c), 4(d), and 4(g). The Cuki was lying on its port side, pointing generally north with the bottom/keel area facing out towards the Atlantic Ocean. It was partially imbedded in the beach sand all the way up to the gunwale on the port side of the vessel. Resp. Exs. 4(d) and 4(e). Its rear mast was broken at the base, making the mast unusable. Resp. Exs. 4(f) and 4(g). It had no rudder or steering wheel to navigate the vessel when it was under power. The drive shaft and propeller were missing and were not connected to the inboard motor used to power the vessel when it was not under sail. Resp. Exs. 4(i), 4(j), and 4(k). The Cuki’s keel, necessary for stabilizing the vessel, was imbedded in the sand and was cracking and rusting where it was affixed to the hull. Resp. Exs. 4(l), 4(m), and 4(n). The vessel had no skeg to protect the rudder. Resp. Exs. 4(i) and 4(j). FWC hand-delivered a supplementary written notice to Petitioner on January 17, 2018. The notice provided Petitioner with additional details of the specific condition of the Cuki, as detailed above on January 17, 2018. Resp. Ex. 6. At present, the Cuki is still located on the beach in Brevard County, Florida. At some point in time when Respondent was prepared to remove the Cuki from the Brevard County beach as a derelict vessel, it determined that an order had been entered by the Monroe County Court for the Sixteenth Judicial Circuit of Florida. It ordered FWC, and other state entities, not to destroy, remove, alter, move, or otherwise dispose of the Cuki until certain that misdemeanor criminal charges filed against Petitioner were resolved.8/ Resp. Ex. 10. Apparently, this July 24, 2017, order was lifted when an Amended Order Granting State’s Motion to Reconsider was entered on January 8, 2018. Resp. Ex. 12. This second order specifically stated that FWC "may remove the [vessel] or the vessel may be removed by the post-Irma federal grant program." Resp. Ex. 12. It further stated that Petitioner, as the defendant in that criminal case, could "make arrangements, prior to the local, State, and/or Federal government removing the vessel, to have the vessel removed and stored on private property with the consent of the property owner." Resp. Ex. 12. Neither party did so.9/ Petitioner does not contest that the Cuki is "destroyed" or "abandoned." Sundwall also characterized the Cuki as a "carcass at this point." Rather he argues, in part, that FWC had a duty to maintain or protect the Cuki after it grounded in Brevard County. Facts Relating to the Vessel, Sea Myst Following Hurricane Irma, FWC personnel determined that another vessel, named the Sea Myst (documented vessel FL6220JX), registered to Petitioner, was displaced following Hurricane Irma. The Sea Myst is a 15-foot, fiber-glassed open motorboat. The Sea Myst was wrecked and substantially dismantled in the waters of the State in Monroe County. Resp. Ex. 8. When it was found, a visible water line stain and barnacle growth on the outside of the hull indicated that the vessel had been partially submerged or sunken in the sea water. The barnacles attached to the hull indicated to the officers that it had been submerged in sea water for an extended period of time.10/ Resp. Exs. 9(a), 9(b), 9(c), and 9(d). When it was first discovered, it appeared that approximately 75 percent of the Sea Myst vessel was underwater at the bow. Resp. Ex. 9(a). There was no outboard motor or other means of propulsion on the vessel. There was also no steering linkage with which to steer the vessel. Resp. Ex. 9(d). When it was first found, the Sea Myst was lodged alongside other derelict vessels, which were lying "stacked up" against the shore. Pet. Ex. W. To determine if a vessel is substantially dismantled, FWC commonly looks to three categories: propulsion, steerage, and hull integrity. Since the Sea Myst was missing both propulsion and steerage, it was substantially dismantled, given the conditions under which it was recovered following Hurricane Irma.11/ Post-Hurricane Irma Investigation and Collection of Derelict Vessels Following Hurricane Irma, the U.S. Coast Guard removed displaced and derelict vessels from the waters of the State that were not able to be retrieved by their owners, including the Sea Myst. Neither FWC nor the U.S. Coast Guard removed any vessels from the waters of the State following Hurricane Irma, unless they were left on the waters of the State in a wrecked or derelict condition. This included vessels that were submerged, partially submerged, beached, or grounded in a position where they could not be moved under their own power without mechanical assistance. All the vessels removed by the U.S. Coast Guard or the Commission were on waters of the State. Removal of these vessels was also necessary to prevent hazards to navigation. Following removal from the waters of the State, the Sea Myst, like other vessels, was put in a storage location that was monitored by FWC. This was to allow Sundwall, identified as the registered owner, an opportunity to receive notice of the vessel’s condition and to retrieve the vessel from the storage location, without incurring the costs of removal from the waters of the State. Resp. Ex. 8, pp. 1-2. On January 19, 2018, David Bellville hand-delivered written notice to Petitioner that his vessel, the Sea Myst, was damaged and displaced by Hurricane Irma. Resp. Ex. 7. In addition to this notice, Bellville also provided Petitioner with a waiver document that would have allowed Petitioner to waive his interests in the Sea Myst, and allowed the State to remove and destroy the vessel at no cost to him. Petitioner did not agree to sign the vessel over to the State. Petitioner testified that he is not the owner of the Sea Myst and that the Sea Myst had been bought and paid for by an un-named person and never collected. Petitioner further stated that he filed a Petition for an Administrative Hearing regarding the Sea Myst in error and that he felt the vessel should be destroyed with federal disaster/FEMA funds. Nonetheless, the more credible evidence indicates that Petitioner is still the titled owner of the Sea Myst, which is a derelict vessel.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Fish and Wildlife Conservation Commission enter a final order finding Petitioner’s vessels, the Cuki and the Sea Myst, derelict vessels under section 823.11, Florida Statutes, and abandoned property pursuant to chapter 705, Florida Statutes; that Petitioner was obligated to remove his derelict vessels from the waters of the State and has not done so; that Respondent did not violate any responsibility or duty to protect, maintain, or preserve the vessels; that appropriate costs be recovered upon proper application and proof; and that Respondent may dispose of both vessels as authorized by law. DONE AND ENTERED this 25th day of July, 2018, in Tallahassee, Leon County, Florida. S ROBERT L. KILBRIDE 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 25th day of July, 2018.
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.
Findings Of Fact At all times material hereto, John L. Eifert (Respondent) was certified by the Criminal Justice Standards and Training Commission (Petitioner). Respondent was certified on July 17, 1981, being issued Certificate Number 74043. On or about June 14, 1984, Officer Goodwin of the Miami Beach Police Department (Miami Beach P.D.) was involved in an automobile accident. Officer Goodwin was off-duty at the time. The officers dispatched to the accident scene found, among other things, on the driver's side of Officer Goodwin's vehicle, evidence bags from the Miami Beach P.D. and a clear plastic bag. The evidence bags were clearly marked as Miami Beach P.D. evidence bags. The clear bag and one of the evidence bags contained a white substance that the officers suspected was cocaine. Officer Goodwin was arrested for driving under the influence of alcoholic beverages and/or narcotics. All the bags found in Officer Goodwin's vehicle at the accident scene were seized and placed into evidence. The white substance in the bags was subsequently tested. The tests revealed that the white substance was cocaine. The cocaine found in Officer Goodwin's vehicle was the same cocaine that he had seized in a narcotic's case. He had obtained the cocaine from the evidence room under false pretenses, indicating that he was going to testify in court and needed the cocaine for his testimony. There was no court hearing. Officer Goodwin obtained the cocaine for his own personal use; he intended to consume the cocaine himself. Officer Goodwin was Respondent's fellow officer with the Miami Beach P.D. and friend. They had gone through the police academy together in 1981, and they were motorcycle officers together. Prior to the accident, at approximately 9:30 a.m. on June 14, 1984, Officer Goodwin had visited Respondent at Respondent's off-duty job. Respondent was moonlighting as a security guard at a bank. Officer Goodwin had been ingesting cocaine prior to the visit, had not slept in approximately 24 hours, and was paranoid. Officer Goodwin wanted to use Respondent's residence to consume more cocaine. Because of his paranoid behavior and because he was a friend, Respondent agreed for Officer Goodwin to go to his residence and convinced Officer Goodwin to wait for him there. When Officer Goodwin arrived at Respondent's residence, he continued to ingest cocaine. Also, he placed some of the cocaine in individual plastic bags. Officer Goodwin hid the cocaine filled plastic bags in Respondent's residence. When Respondent came to his residence at approximately 4:45 p.m. that same day, he found Officer Goodwin more paranoid than before. Officer Goodwin refused to remain at Respondent's residence and left shortly before 5:00 p.m. Before leaving, Respondent agreed for Officer Goodwin to leave the cocaine filled plastic bags in his residence. Officer Goodwin informed Respondent where he had hid the bags. Respondent located the cocaine filled bags. Without getting any sleep, Respondent continued with his social activities planned for the remainder of the evening. At approximately 10:00 p.m., Respondent went to his second moonlighting job. On June 15, 1984, around 3:30 a.m., Officer Goodwin called Respondent at his second moonlighting job. Officer Goodwin informed Respondent that he had been arrested and requested that Respondent dispose of the cocaine and told him where to leave it. Unbeknownst to Respondent, Officer Goodwin was calling from police headquarters and was attempting to return the remaining cocaine to the Miami Beach P.D. Instead of following Officer Goodwin's instructions, Respondent went home around 3:50 a.m. and disposed of the cocaine by dumping it into the bay behind his residence. Respondent believed that he was helping Officer Goodwin, a friend. Subsequently, around 6:00 a.m., Respondent received another telephone call from Officer Goodwin. Respondent informed him what he had done with the cocaine. Officer Goodwin was upset about what Respondent had done. Goodwin admitted at hearing that, due to the quantity of cocaine that he had ingested, beginning June 13, 1984, and continuing into June 14, 1984, he had very little independent recollection of what happened that day. His information, as to what happened that day, is mostly from reading his statements that he had made regarding the incident, police reports, and transcripts of depositions. Further, Goodwin also admits that his recall prior to going to Respondent's residence is fair. Officer Goodwin entered into a plea agreement regarding the accident and the cocaine. The plea agreement provided, among other things, that he give testimony, regarding the incident, forever in whatever the forum may be and that he relinquish his certification from Petitioner. Presently, Goodwin is in charge of a drug treatment center for Metro- Dade County. He has been in this position for five years. In June 1984, Respondent resigned from the Miami Beach P.D. Consistent with the policy of the Miami Beach P.D. at that time, no investigation was instituted against Respondent by Internal Affairs of the Metro-Dade Police Department due to his resignation. Respondent does not deny that he permitted Goodwin to take the cocaine to his residence, that he permitted Goodwin to leave some of the cocaine at his residence, and that Goodwin left some of the cocaine at his residence. Furthermore, Respondent does not deny that the cocaine remained at his residence after Goodwin left and that he disposed of the cocaine by dumping it into the bay. At the time of his resignation, Respondent and the Miami Beach P.D. agreed that, whenever inquiries were made regarding Respondent, the Miami Beach P.D. would make neither negative nor positive comments about Respondent. The intent of this agreement was to allow Respondent to keep his record clean. However, the reverse occurred. He was effectively prevented from getting jobs in law enforcement. Subsequently, Respondent and the Miami Beach P.D. agreed to full disclosure regarding Respondent and the cocaine incident. In 1987, Respondent began to obtain employment in law enforcement. From September 1987 to January 1989, Respondent was employed as a police officer with the Indian Creek Village Police Department. From February 1989 to May 1989, he was employed as a police officer with the Florida City Police Department. Respondent resigned from both positions. In January 1990, Respondent was rehired by the Florida City Police Department (Florida City P.D.). At the time of hearing, he was still employed with the Florida City P.D. Respondent's personnel file reflects that, during his tenure as a police officer, Respondent has had one reprimand. The reprimand occurred after his resignation from the Miami Beach P.D. However, Respondent's personnel file also reflects that, during his tenure as a police officer, Respondent has had numerous commendations and letters commending his performance. He has been subjected to pressure and dangerous encounters and has performed in an exemplary manner. At hearing, several individuals, law enforcement and non-law enforcement, supported Respondent either through testimony or letters. Respondent's former pastor and the Mayor of the City of Florida City testified in support of him. Both regarded Respondent as having high moral character. Moreover, the Mayor's position was that the incident in June 1984 would have no effect on his opinion of Respondent. Additionally, the former Police Chief of the City of Miami Beach at the time of the incident in June 1984 did not find it odd or unusual for Respondent to still be in law enforcement. To him, Respondent had made a mistake, paid for the mistake, and had turned his life around. By letter, Respondent's immediate supervisor of five years with the Florida City P.D. supported him. Also, a special agent with the Florida East Coast Railway Police, who has known Respondent both personally and professionally for approximately nine years, supported Respondent. Petitioner filed the administrative complaint against Respondent on August 9, 1993. Respondent has no prior disciplinary action against him by Petitioner.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Criminal Justice Standards and Training Commission enter a final order Reprimanding Respondent; and Placing Respondent on probation for one (1) year under terms and conditions that the Commission deems appropriate. DONE AND ENTERED in this 2nd day of January, 1997 in Tallahassee, Leon County, Florida. ERROL H. POWELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of January, 1997. COPIES FURNISHED: Richard D. Courtemanche, Jr. Assistant General Counsel Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Michael Braverman, Esquire Braverman and Grossman, P.A. 2780 Douglas Road, Suite 300 Miami, Florida 33133-2749 A. Leon Lowry, II, Director Division of Criminal Justice Standards and Training Post Office Box 1489 Tallahassee, Florida 32302 Michael Ramage General Counsel Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
Findings Of Fact Respondent, Lori Goldston, was employed by the Petitioner, City of Clearwater, for approximately seven and one-half years as a Building Construction Inspector II. On April 13, 1994, Respondent was placed on administrative leave and on April 21, 1994, she was terminated and all pay and other benefits were terminated as of 4:00 p.m. on April 21, 1994. Specifically, Respondent was terminated for alleged violations of Rule 14, Sections 1(b), (d), (k), and (1) of the Civil Service Rules and Regulations of Respondent, to-wit: (b) Is incompetent in the performance of the specific duties of [her] position. (d) Has been careless or negligent in the care of the property of the City; or has participated in the unauthorized use thereof. Has been . . . guilty of conduct un- becoming a City employee defined as scandalous or disgraceful conduct while on or off duty where such conduct tends to embarrass the City or bring its service into public disrepute. Has violated any lawful and reasonable official regulation or order or failed to obey any lawful and reasonable direction made and given . . . by [her] superior officer when such violation or failure to obey amounts to insubordination or serious breach of discipline which may reasonably be expected to result in a lower morale in the department or to result in loss, inconvenience, or injury to the City or the public. During the week of April 4, 1994, Tom Chaplinsky received two complaints that a City vehicle was observed leaving the city limits with a magnetic sign covering the City seal. The complainants related that the driver appeared to be Respondent and that the vehicle was heading north on alternate route 19 when it was so observed. Vick Chadora, assistant central planning director, requested that Chaplinsky investigate the complaints. Chaplinsky along with Kevin Garriot, a building code analyst, initiated an investigation to check Respondent's inspection schedule and job sites for the day of April 11, 1994. Chadora and Chaplinsky reviewed Respondent's inspection schedules and job sites on April 11, 1994, and discovered that most of Respondent's inspections were completed by mid-morning. Chadora then instructed Chaplinsky to check Respondent's residence which is located north of Palm Harbor, approximately 8 to 10 miles outside of the city limits. During mid-morning on April 11, 1994, Chaplinsky parked near the end of the dead end street on which Respondent's residence is located. He saw what appeared to be her city vehicle but was unable to make a positive identification. On Tuesday, April 12, 1994, Chaplinsky again found that a majority of Respondent's inspections had been completed by mid-morning. Chaplinsky contacted her by radio at approximately 11:00 a.m., to determine her location and she replied that she was in Clearwater Beach. Chadora drove to the beach area while Chaplinsky and Garriot drove to Respondent's residence between 11:00 and 11:15 a.m. Messrs. Chaplinsky and Garriot parked at the entrance to the dead end street where Respondent resides and waited. At approximately 11:45 a.m., Chaplinsky and another staff assistant began trying to reach Respondent by radio. At approximately 12:55 p.m., Respondent answered her radio. At that time, Respondent was asked to investigate a complaint on the beach. At approximately 1:20 p.m., Messrs. Chaplinsky and Garriot observed Respondent in her city vehicle, with the City seal covered, leaving her neighborhood. They lost Respondent in traffic but later caught up with her at the site of the complaint. At that time, the City seal on her vehicle was no longer covered. On April 13, 1994, Messrs. Chaplinsky and Garriot again drove to Respondent's residence during mid-morning and waited at the entrance to her street. Respondent was observed leaving the City in the city vehicle with the City seal covered. At approximately 2:55 p.m. on April 13, 1994, with Messrs. Chaplinsky and Garriot present, Respondent was advised by Chadora that two people had complained that she was using her city vehicle with the City seal covered while leaving the city limits. Before Chadora could complete his inquiry, Respondent immediately denied that it was her. Upon Respondent's repeated and adamant denial, Chadora told her that he and Garriot has observed her leaving her residence on Tuesday, April 12 and Wednesday, April 13 in the City vehicle. Upon being confronted with that information, Respondent admitted that they had caught her in a lie and she admitted that she did leave the city limits in the city vehicle. Respondent indicated that she was trying to complete a construction project at home in order to re-finance and satisfy a balloon note which was coming due and the lender was insisting that certain renovations be completed prior to closing. During 1990, Respondent was disciplined for leaving the city limits and going to her home. At that time she was specifically advised that she should not leave the city limits to return home in the city vehicle without first obtaining permission from her supervisor. For that offense, Respondent was suspended for four days. Petitioner has a system of progressive discipline in effect which is utilized to discipline employees who engage in conduct contrary to the City's rules and regulations. An employee who violates the rules accumulates points under the disciplinary system. An employee who receives up to 60 points within a specified period (24 months), can be subjected to discharge. Respondent accumulated 140 points for the alleged infractions that she received for leaving the City limits during the days April 11-13, 1994. Petitioner also has a liberal sick leave policy which employees may avail by demonstrating need to use sick leave. Respondent did not advise Petitioner that she was suffering from any medical disability or other infirmity which would warrant the utilization of sick leave prior to her discharge. Respondent maintained that she failed to advise Petitioner of her need for sick leave -- she suffers from severe depression which is prompted by a chemical imbalance in her brain -- because she did not want other employees to know about her problems as she feared it would be common knowledge among her colleagues. Respondent attempted to show that she was being treated unfairly and more harshly than other employees had been treated for similar misconduct. Specifically, Respondent related an incident wherein an employee threw a temper tantrum during a grievance meeting, tossed a beeper against a bookcase and was generally insubordinate when he was questioned about an infraction. Petitioner explained that that employee "blew up" when he was confronted about a simple rule infraction and that employee was suspended as was Respondent when she was first disciplined for leaving the City in a vehicle without authorization in 1990. Respondent failed to show that she was treated more harshly or that she was the recipient of disparate treatment by Petitioner. Respondent demonstrated that the other employee was similarly treated when Petitioner was disciplined in 1990. Moreover, that employee was subjected to discharge when he later violated the city's rules and regulations (a drug offense-employee failed a urinalysis screen). Petitioner had no way of knowing prior to April 21, 1994, that Respondent requested or was otherwise in need of "an accommodation" due to her health in April of 1994.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order dismissing Respondent from her position of a Building Construction Inspector II effective April 21, 1994. DONE AND ENTERED this 28th day of February 1995 in Tallahassee, Leon County, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of February 1995. APPENDIX The following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. Paragraph 1, adopted as modified, paragraphs 2, 18, and 19, Recommended Order. Paragraph 3, rejected, unnecessary. Paragraph 4, adopted as modified, paragraph 18, Recommended Order. Paragraph 7, rejected, irrelevant. Paragraph 8, conclusionary and argument. Paragraph 11, adopted as modified, paragraph 22, Recommended Order. Respondent's Proposed Findings of Fact. Paragraph 5, rejected, contrary to the greater weight of evidence, paragraph 16, Recommended Order. Paragraph 8, rejected, irrelevant. Paragraph 11, rejected, contrary to the greater weight of evidence, paragraphs 2, 14, and 19, Recommended Order. Paragraph 13, rejected, contrary to the greater weight of evidence. Paragraphs 15 and 16, rejected, contrary to the greater weight of evidence, paragraph 23, Recommended Order. Paragraph 17, adopted as modified, paragraphs 17-20, Recommended Order. Paragraph 18, rejected, contrary to the greater weight of evidence, paragraph 23, Recommended Order. Paragraphs 19-22, rejected, irrelevant and unnecessary. COPIES FURNISHED: Miles A. Lance, Esquire Assistant City Attorney City of Clearwater Post Office Box 4748 Clearwater, Florida 34618-4748 Robert McCormack, Esquire Prestige Professional Park 2655 McCormick Drive Clearwater, Florida 34619 Karleen DeBlaker City Clerk City of Clearwater P.O. Box 4748 Clearwater, Florida 34618-4748
The Issue The issues are whether Offshore Shipbuilding, Inc., (Offshore) is entitled to reimbursement from the Florida Coastal Protection Trust Fund, pursuant to Sections 376.011-.21, Florida Statutes, for costs and expenses incurred by Offshore in a spill cleanup at Offshore's Green Cove Springs facility or whether the Department of Natural Resources (DNR) correctly denied Offshore's application for reimbursement.
Findings Of Fact Offshore engages in the business of dry docking and repairing boats, barges and other types of marine vessels. Its primary facility and business offices are in Palatka, but it also leases a facility at the Clay County Port in Green Cove Springs, Florida. The scallop vessel, Theresa R. II (Theresa), was repaired by Offshore at the Green Cove Springs facility from August 2 to August 7, 1991. The vessel was hauled out of the St. Johns River and placed on a dolly located on a marine railway which extends south from the river about 500 feet. Prior to coming to Offshore's facility, Theresa had undergone major reconditioning at another facility. In the course of that work, the vessel's bilges had been pumped out by Envirotech Southeast on May 3, 1991. Envirotech pumped 2,200 gallons of water from the bilge. When the Theresa arrived at Offshore, it did have some water in the bilge. There was oil floating on top of the water and most likely a sludge of waste matter from the painting and scraping had settled to the bottom of the bilge. John Rita, the owner of the Theresa, indicated that he wanted to pump out the bilge onto the ground, but was advised by Offshore that he would need to have it pumped out by a qualified pumper. The repairs to be performed by Offshore included repairs to the sea valve in the engine room where the bilge was also located. Hawkins, an employee of Offshore, could not make that repair until the bilge water level was lowered. Hawkins performed some other tasks and then found that the bilge was empty enough to perform those repairs. He did not know how the bilge water level was lowered and did not see that the bilge had been pumped on the ground and did not see or smell diesel fuel or oil on the ground. On Saturday, August 3, 1991, Rita acknowledges that he pumped water from the bilge over the starboard side of the vessel. Rita says the source of the water was rain and water from the St. Johns River. He did not pump the bilge dry, but pumped enough water to lower the level and permit the repairs. He pumped only water, leaving the solids in the sludge on the bottom and the oils floating on top suspended above the water. Solid materials tend to cling to surfaces and are not easily removed by water. In order to remove solid materials, it is necessary to physically remove them by some sort of tool, like a hoe or shovel. The Theresa was launched on August 7, 1991, around 3:30 p.m. Cleanup around the yard where the Theresa had been began the morning of August 8, 1991. Later that afternoon, an unidentified employee of Offshore reported discovering a spill to Fred Willshier, Offshore's yard superintendent at Green Cove Springs. Willshier called the Palatka office and told Tony Bucknole, Offshore's Vice President and General Manager, about the spill. Bucknole told Pam Barrett, an employee whose duties included environmental matters, personnel and payroll. Willshier reported the spill to Barrett around 3:00 p.m. Bucknole told Barrett to go to the Green Cove Springs yard the next morning on her way to work. Barrett and Willshier examined the spill the morning of Friday, August 9, 1991. The spill contained some oil and smelled of diesel fuel. The area of the spill was approximately 4 or 5 feet from the marine railway next to where the Theresa had been. Various witnesses described the spill as being 30 feet, 50-75 feet and 30 yards from the St. Johns River. No contamination was threatening the river and no spill material had reached the beach area adjacent to the shoreline. Barrett ordered the necessary materials such as barrels and shovels for the removal of the contaminated soil. She told Willshier to remove all the contamination that could be seen, to put the soil in drums, to seal the drums and to label the drums. Soil was removed from the site on August 9 and 10, 1991. The soil was placed into drums without lids, because no lids were available on such short notice. Some of the soil in drums was taken to Palatka and put into a large steel bin. The drums were then taken back to Green Cove Springs for reuse with this spill. The drums were sealed with visqueen and duct tape. No one labeled the drums as to date, source, or number, although some drums were apparently labeled so as to show that they contained soil and diesel fuel or oil. Willshier was supposed to supervise the cleanup, but he does not know who wrote on the drums, how many drums were filled or what happened to those drums. The steel bin at Palatka had no cover. No one knows if it was empty when the drums were emptied into it or if other materials were added after the contents of those drums was put into it. Barrett, who was responsible for the inventory of such materials, didn't know that any of the soil was put in the steel bin. She also could not account for the number of drums or their location immediately after the cleanup was completed. On August 29, 1991, Sgt. Jesse Baker of the Florida Game and Fresh Water Fish Commission and Jane Mears of the Department of Environmental Regulation participated in the execution of a search warrant related to Offshore's handling of hazardous waste at the Palatka facility. That search revealed numerous 55-gallon drums at the Palatka site, many of which were not labeled. Of those drums with labels, some had partially disappeared or were unreadable, some were labeled during the execution of the search warrant and some had more than one label. Additionally, four drums were located next to a derelict tugboat, the Victoria, and the crane operator was in the process of lifting drums of contaminated soil and liquid waste and dumping those contents into the bilge of the Victoria. Sgt. Baker saw several metal bins containing soil, rust, and other waste materials, including one large steel container which was full of soil. These containers of soil were not labeled. Sgt. Baker was informed by Offshore employees that for three days they had been combining the contents of the various drums and there was no way to determine with certainty "what soil came from where." He was also advised that the combined contaminated soils and liquid waste had been placed in the tugboat for ultimate "disposal." Sgt. Baker observed a large quantity of waste material in the Victoria's hold and several crushed metal drums in a dumpster. The next day, August 30, 1991, Ms. Mears and Sgt. Baker inspected the Offshore facility at Green Cove Springs. They found additional drums of contaminated soil and waste material at Green Cove Springs. The condition of the drums was similar, with some having visqueen and duct tape sealing them. The labeling was similarly haphazard or nonexistent. As a result of these inspections, all waste material at both sites was appropriately sealed, labelled, and inventoried. The resulting inventories were offered by Offshore as the only proof that 43 drums of contaminated soil were removed from the spill site. Numerous witnesses, including Ms. Mears and Sgt. Baker, examined the site from which this contaminated soil was allegedly removed. There was no observable hole or depression which would account for removal of soil down to one foot below grade just three weeks earlier. Offshore did not notify the Department of Natural Resources of the alleged spill until January 28, 1992. Offshore did not notify the Florida Marine Patrol or the U.S. Coast Guard of the alleged spill until on or about that same date. Offshore never sought or received authorization or approval of its cleanup activities from the Department of Natural Resources prior to its activities to remove the alleged spill. Offshore first filed an application for reimbursement from the Florida Coastal Protection Trust Fund on February 26, 1992. That application, filed by counsel for Offshore, sought reimbursement of $3,603.93 for expenses allegedly incurred by Offshore in containing and cleaning up a spill of diesel fuel from the Theresa R. II. The application claimed $3,218.75 for labor costs and $385.18 for materials. That application was incorrect about several material facts. First, the date of the alleged spill was August 8-9, 1991, even though the vessel alleged to be responsible for the spill had been launched on August 7, 1991, and even though at hearing, Offshore took the position that the spill occurred on August 3, 1991, when Rita pumped water from the bilge. The second error in the application is the assertion that the spill occurred when the vessel's owner pumped the contents of the fuel tank over the side of the vessel and onto the ground. In fact, only the contents of the vessel's bilge were involved. The application also seeks reimbursement for labor costs for the alleged cleanup of $25.00 per hour and $37.50 per hour for overtime. In fact, the employees who cleaned up the alleged spill were paid only their regular hourly wage. None of the employees were paid even $25.00 per hour. Offshore was claiming its regular hourly charge for repairs performed in its yards rather than the amount actually paid to the employees. That regular hourly charge is based on Offshore's annual average hourly cost for all its services which includes salaries, insurance, overhead, fuel, and other expenses necessary to run the yards, presumably including some profit. Fourth, the application asserts that the contaminated soil had been drummed and transported to the Palatka facility. In fact not all the contaminated soil was drummed or taken to Palatka. It cannot be determined precisely how much soil was removed or where it is now located. Offshore billed Mr. Rita, the vessel's owner, for the cleanup by sending him a bill for $5,887.53 on August 23, 1991. Offshore presented evidence regarding sampling and testing of the contents of certain drums which it alleges contained soil from the alleged spill. Because there is insufficient evidence to establish the true origin of the contents of the various drums and because Offshore was so haphazard in maintaining records of the contents of the drums, the testimony and evidence regarding the sampling and testing is simply not material or probative of any issues significant to the resolution of this reimbursement claim.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Natural Resources enter a Final Order and therein DENY the reimbursement claim filed by Offshore Shipbuilding, Inc., and DISMISS the petition filed herein. DONE and ENTERED this 18th day of December, 1992, in Tallahassee, Florida. DIANE K. KIESLING Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of December, 1992. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 92-3946 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the parties in this case. Specific Rulings on Proposed Findings of Fact Submitted by Petitioner, Offshore Shipbuilding, Inc. 1. Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1 & 2(1); 3(8); 4(9); 5(2); 13(2); 17 & 18(4); 19-22(5); 24(5); 29(3); 32(3); 35(3); 38(6); 42 & 43(8); 45(8); 48(10); 59(9); 60(10); 86(9); and 103(11). 2. Proposed findings of fact 6, 10-12, 14, 16, 25-27, 30, 31, 33, 39, 40, 46, 47, 49, 50, 56, 61-64, 71-74, 76-79, 83, 87-93, 95, 107, 108, 111, 121, 122, 136, 187-192, 198, 216-219, 221, and 222 are subordinate to the facts actually found in this Recommended Order. 3. Proposed findings of fact 7, 8, 15, 23, 28, 34, 36, 37, 41, 52, 53, 58, 65- 67, 69, 70, 75, 80, 84, 85, 94, 97-100, 102, 117, 124-132, 141-184, 186, 193- 197, 199-215, 220, 223-236, and 238-240 are irrelevant. 4. Proposed findings of fact 9, 44, 51, 55, 57, 68, 96, 101, 104-106, 109, 110, 112-116, 118-120, 123, 133-135, 137-140, 185, and 237 are unsupported by the credible, competent and substantial evidence. 5. Numerous proposed findings of fact, including but not limited to, 151-153, 155-157, 159, 160, 167, 218, and 219 are mere summaries of testimony and are not appropriate as findings of fact. Specific Rulings on Proposed Findings of Fact Submitted by Respondent, Department of Natural Resources 1. Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 2(1); 3-7(24-28); 9(29); 10 & 11(27); 12(22); 13(23); 15 & 16(2); 19(3); 20(3); 21(6); 22 & 23(7), 24(8); 25 & 26(9); 28(9); 29 & 30(10); 32 & 33(12); 34(14); 35(12); 36(14); 43(15); 44 & 45(16); 46(17); 47 & 48(18); 49 & 50(16); 51(19); 54(21); and 65(30). 2. Proposed findings of fact 1, 8, 14, 17, 27, 31, 37, 38, 41, 42, 55, 56, 60, and 61 are subordinate to the facts actually found in this Recommended Order. 3. Proposed findings of fact 18, 39, 40, 52, 53, 57-59, and 62-64 are irrelevant, primarily for the reasons stated in Finding of Fact 30. COPIES FURNISHED: Virginia B. Wetherell Executive Director Department of Natural Resources 3900 Commonwealth Boulevard, MS-10 Tallahassee, FL 32399-3000 Kenneth Plante, General Counsel Department of Natural Resources 3900 Commonwealth Boulevard, MS-10 Tallahassee, FL 32399-3000 L. Kathryn Funchess Assistant General Counsel Department of Natural Resources 3900 Commonwealth Boulevard, MS-35 Tallahassee, FL 32399-3000 Robyn A. Deen Sidney F. Ansbacher Attorneys at Law Brant, Moore, Sapp, MacDonald & Wells Post Office Box 4548 Jacksonville, FL 32202
The Issue Whether Respondent Petras Jakstas committed the violations alleged in the Termination and Dismissal Notice, and, if so, the appropriate discipline that should be imposed.
Findings Of Fact The City is a municipality governed by a city council. A city manager oversees the City’s operations. On January 22, 2007, Respondent was hired as a Parks Service Technician I. He successfully completed the Parks Service Technician Apprenticeship Program and was promoted to his current classification of Parks Service Technician II on February 2, 2008. Respondent’s job responsibilities include, but are not limited to, the collection of trash and the emptying of trash receptacles. Respondent is a native of Lithuania. While Respondent does not speak “perfect English,” the record indicates that Respondent speaks and understands English at a level of proficiency which allows him to function in an environment where only English is spoken or written without the necessity of an interpreter. The Clearwater Civil Service Board has adopted rules and regulations which govern the conduct of all City employees. Chapter 13 of the Clearwater Civil Service Board Rules and Regulations (Civil Service Rules) provides the framework for suspending, demoting, and dismissing City employees. Chapter 13, section 6 of the Civil Service Rules, provides that the “City Manager or designee may discharge an employee for one or more of the causes listed under Section 3 of this Chapter or in accordance with the established performance and behavior management program . . . or for other good cause.” On or about March 20, 2018, Respondent received from the City a termination and dismissal notice advising that his employment with the City of Clearwater was being terminated effective “Wednesday, March 21, 2018, at the end of the day.” The notice of termination and dismissal cites the following violations as cause for the termination of Respondent’s employment: Personal Responsibility Standards, We will follow all City policies and procedures. We will comply with all City and our respective Department, division, and section rules and standard operating procedures. We will cooperate and participate in City processes. We will resolve to accept personal accountability and responsibility for our actions. We will perform our work assignments with established standards and comply with written or verbal instruction from the supervisory or management group. Integrity Standards, Violation of the provisions of Chapter 13, Section 3, of the City Civil Service Rules and Regulations. Excellence Standards, We will treat everyone with dignity, respect, and courtesy. We will present a professional image through actions, dress, speech and behavior. We will strive for excellence and continuously learn and make improvements. We will learn from mistakes, modify behavior and recommend procedural changes to improve operations and processes. The notice of termination and dismissal, in addition to the generally referenced “Integrity Standards” violation, also specifically provides that Mr. Jakstas violated Civil Service Rules, chapter 13, section 3, to wit: (b) Failure to perform satisfactorily within established guidelines. (e) Commitment of a flagrant offense, including harassment or discrimination or abusive conduct or language toward coworkers, City officers, or the public. (g) Commitment of or participation in any activity or action which undermines public confidence or otherwise significantly impairs the employees’ ability to perform his/her job productively. (l) Failure to conform to the dictates of corrective action, including but not limited to failure or inability to comply with an agreed upon “development plan,” or when the City believes that an employee is willful in refusing to adhere to established rules, regulations, or guidelines. The gravamen of the charges against Respondent derive from his alleged violation of Civil Service Rules, chapter 13, section 3(b), (e), (g), and (l). The City’s current proceeding against Respondent is as a result of Respondent’s flirtatious statement to a current female City employee, which occurred while Respondent was working under a “Development Plan,” which was implemented because he harassed a former City employee and used City property while doing so. PERFORMANCE & BEHAVIOR MANAGEMENT PROGRAM The City developed its PBMP in order “to provide a method of working with employees whose performance or behavior does not meet the City’s standards.” The philosophy of the program “is based upon the belief that, in most cases, employees can change behavior and improve performance when standards and expectations are clear and when employees are given opportunities to change.” Whenever practicable, “the City will provide intervention, coaching, and corrective guidance or counseling . . . for employees . . . in order to bring their performance or behavior up to standard.” The program recognizes, however, “that some behaviors that are serious and are direct violations of City Policy may warrant immediate disciplinary action up to and including termination.” According to the PBMP manual, there are three categories of performance and behavior: Personal Responsibility, Integrity, and Excellence. As to each, the manual notes that: These categories are based on employees’ willingness or ability to meet standards of behavior or performance. Willingness refers to the employees’ decision to meet expectations, follow rules and policies, and perform work that meets efficiency and quality standards. Ability refers to the employees’ capability and skills in performing job tasks. The first two categories, Personal Responsibility and Integrity, are considered “will do” categories because they typically involve situations wherein the employee has a choice and makes a decision about whether or not to meet the standards. The third category, Excellence, is considered a “can do” category, because it most often refers to a situation where the employee is not able to perform up to standard because of a lack of resources, skill, or capability. City of Clearwater expectations for each of these three categories are stated below. Personal Responsibility (“Will Do” Issues) City of Clearwater employees will be held personally accountable for the actions they take in meeting the customer service needs of the City and the community the organization serves. Employees are expected to take full responsibility for their conduct and job performance and exhibit commitment to fulfilling their responsibilities to the best of their ability. Integrity (“Value and Ethics” Issues) As public employees representing the citizens of Clearwater, employees are expected to commit to the highest standards of personal and professional integrity. The City expects employees to communicate openly and continually demonstrate honesty, fairness, and respect for others. Employees should do what is ethically appropriate. Employees are expected to adhere to City policies. Excellence (“Performance/Can Do” Issues) City of Clearwater employees have an obligation to provide the highest quality of service and results to our customers. This commitment to excellence involves developing the job knowledge and skills needed to perform the tasks required and to continually improve the City’s ability to meet the needs of the community we serve. The PBMP manual generally lists 75 Personal Responsibility Standards, 14 Integrity Standards, and 41 Excellence Standards. Regarding the Integrity Standards, the PBMP manual notes in bold print that “immediate formal discipline, up to and including termination, may be recommended” for a violation of these standards. The PBMP manual does not set forth any such illumination for the other standards. As previously noted, certain PBMP standards are referenced in the termination and dismissal notice provided to Respondent by the City. THE DEVELOPMENT PLAN The initial step of PBMP entails supervisor coaching and counseling of employees as a strategy for helping employees to meet supervisor, department, or City expectations or standards. In instances where an employee has committed a serious offense of the PBMP standards and expectations, the City may place an employee on a development plan, a decision-making leave without pay, or both. On October 23, 2017, Respondent was placed on decision-making leave without pay for the two-day period of October 24 and 25, 2017. On October 26, 2017, when Respondent returned to work he was placed on a development plan. Both actions resulted from an incident involving former City employee Ms. Kelsey Souto. Ms. Souto previously worked for the City, and during the course of her employment Respondent developed a physical attraction to her. There is no evidence suggesting that Ms. Souto was in any way interested in Respondent. Sometime around the early part of 2017, Ms. Souto relocated from Florida to Idaho. The undisputed evidence is that Respondent tracked Ms. Souto’s whereabouts and began to send her letters, jewelry, and at one point, he even mailed her a rooster. Ms. Souto found Respondent’s behavior to be extremely upsetting as evidenced by the Petition for Protective Order that she swore- out against Respondent wherein she requested, on or about August 24, 2017, that the District Court for the State of Idaho enjoin Respondent from engaging in “malicious harassment, stalking, [and] telephone harassment.” On September 28, 2017, Respondent submitted to the City a request for vacation days and included therewith a notice of hearing regarding the Protective Order that was filed against him by Ms. Souto. The hearing was scheduled for September 29, 2017. Respondent attended the hearing in Idaho and “agreed to entry of a protection order.” The exact date is not clear from the record, but it is undisputed that sometime between September 28, 2017, and October 26, 2017, the City learned two things from Respondent. First, the City learned that Respondent used a City of Clearwater Parks and Recreation envelope to mail a letter to Ms. Souto as part of his campaign of harassment against her; and second, the City learned the full details of Respondent’s harassment activities directed towards Ms. Souto. Given this information, on October 26, 2017, the City, pursuant to its PBMP, placed Respondent on a written development plan. The development plan contains a section titled “Specific Examples of Behavior or Performance Observed (completed by Supervisor).” In this section, Respondent’s supervisor noted the following with respect to the circumstances surrounding Respondent’s interaction with Ms. Souto: Approximately one year ago, your manager was contacted by the owners of the beach concessions, Mr. and Mrs. Chandler, to inform him that you were showing an interest in one of their workers, but she was not interested in you. You were persistent with this female and you had sent her a gift of a wedding ring by mail. When the Chandlers contacted your manager, they stated they did not want to make a formal complaint with the City, but wanted to speak with you about the situation and return the ring. The City has learned that despite this female moving out of state, you have continued to pursue her. On Thursday, September 28, 2017, you turned in a vacation request to your supervisor along with a notice of hearing for a protection order filed against you in the District Court of the Fifth Judicial District of the State of Idaho. This protection order was filed by the female who formerly worked for a beach concessions and it cited malicious harassment, stalking, telephone harassment as the reasons for her petition to the court. The petitioner described in the protection order that she met you while she worked as a manager at Barefoot Beach House on Clearwater Beach. She explained that City employees were provided free soft drinks by an established lease agreement and you as well as other City employees, would go to the restaurant for that reason. She further explained that beginning approximately five years ago, you would regularly bring her candy, gifts, and treats and she would often politely decline your offerings or put them out for all her employees. She stated that you would come in several times throughout your workday waiting in long lines, just so that she could wait on you. The petitioner stated that she moved to Idaho in 2016 and somehow you obtained her contact information on-line and you began sending her certified letters about every other month. Additionally, she said at Christmas time she received a diamond ring and gold necklace from you of which she returned to you. Most recently, on August 23, 2017, she stated that she received notification from the post office that you had sent her a live rooster as she recognized your handwriting on the notice and card. She further described that you sent her emails and text messages, so she blocked your phone number. On October 4, 2017, your supervisor was provided a copy of a City of Clearwater Parks and Recreation envelope [which] shows you used City material to mail her a certified letter on August 15, 2016. When meeting with your Director, you admitted to using City materials for personal use and acknowledged it was a bad thing to do however; you did not take full responsibility of the seriousness of your inappropriate behavior and conduct which led to the protection order filed against you, stating that you “were only trying to have fun. Based on the information involving Ms. Souto, the City specifically identified in Respondent’s development plan certain standards and expectations that Respondent had not met, including the following: “We will treat everyone with dignity, respect, and courtesy; [w]e will present a professional image through actions, dress, speech and behavior; and [w]e will learn from mistakes, modify behavior and recommend procedural changes to improve operations and processes.” Reference in the development plan to these specific standards and expectations, as well as inclusion of an extensive narrative regarding his harassment of Ms. Souto, put Respondent on notice that future instances of conduct of a similar nature would not be in compliance with the terms of his development plan. The development plan contains a signature line where the employee is to sign. Below the employee’s signature line is the following statement: “My signature indicates I have read and understand the Development Plan outlined above, and agree to comply with all City standards and policies, although I may not agree that a violation has occurred.” Respondent signed the development plan on October 26, 2017. The development plan notes that its duration is for six months. In addition to signing the development plan, Respondent also wrote the following on the plan: “I will not misuse City prop[erty] again. No mean no! Sorry I recognize my fault! I will make better choices in my life. I recognize my fault.” SEA BLUES FESTIVAL On Saturday, February 24, 2018, Respondent was working at the Sea Blues Festival, which is a cultural event sponsored by the City. Madai Gutierrez, who is employed by the City as a recreation specialist, also worked the festival on that date. Ms. Gutierrez’ job responsibilities involve overseeing matters related to patron ticketing and gate operations. Her job duties do not include overseeing or otherwise supervising Respondent or workers who are similarly classified. Ms. Gutierrez’s credibly testified that on the day in question, while in the backstage area of the festival, Respondent summoned her to the area where he and a coworker were picking up trash. Ms. Gutierrez, thinking that Respondent had an inquiry about a matter pertaining to the event, walked over to Respondent where he told her, “You’re so beautiful. You have the eyes like an eagle.” Respondent’s statement to Ms. Gutierrez was a discourteous statement that lacked dignity and respect, the statement failed to comport with the development plan goal of maintaining a professional image through “speech,” and by making the statement, Respondent demonstrated a failure to modify his behavior as required by the development plan. Respondent’s statement to Ms. Gutierrez was sufficiently similar in character to the conduct Respondent displayed towards Ms. Souto. Mr. Gutierrez testified that Respondent’s statement made her feel “weird and creepy,” and she immediately left the area after hearing the same and went to her ticketing trailer. On the day of the incident, Ms. Gutierrez reported Respondent’s conduct to her supervisor. On Monday, February 26, 2018, she then prepared a written statement detailing her interaction with Respondent. Respondent admits that he spoke to Ms. Gutierrez but states that it “was about work.” (Tr. 200:9) In further explaining himself, Respondent testified, “I told them that I never said in this way and -- and that we were talking about -- strictly about work.” (Tr. 200:16-18). In this statement, Respondent is referring to his conversation with Ms. Gutierrez on February 24, 2018. At the time of his interaction with Ms. Gutierrez, Respondent was still working under the limitations of the development plan and this would certainly provide sufficient motivation for Respondent to not be truthful regarding his interaction with Ms. Gutierrez. Ms. Gutierrez testified that on occasion she will instruct a City worker whose job includes responsibility for trash collection to empty an overflowing trash receptacle. However, Ms. Gutierrez specifically testified with clarity and certainty that at no time during the Sea Blues Festival did she ever instruct Respondent, or any other trash worker, to empty a trash can. Ms. Gutierrez’s testimony regarding what was said to her by Respondent is found to be more credible than Respondent’s denial. Respondent’s assertion that he had a “work-related” conversation with Ms. Gutierrez on February 24, 2018, is not credible and is rejected. I NEED AN INTERPRETER Respondent claims that the City knew that he needed a language interpreter but failed to provide one during the discipline determination meeting resulting from the incident involving Ms. Gutierrez. The job position occupied by Respondent is covered by the Agreement between City of Clearwater, Florida, and Communications Workers of America, Local 3179 (Fiscal Years 2017–2018) (collective bargaining agreement). Article 11, section 4 of the collective bargaining agreement provides, in part, that “[w]henever an employee who is a Union member is noticed of any meeting that could result in discipline, the employee will be granted a minimum of two (2) business days before the meeting to arrange for Union representation.” The right to union representation at any such meeting is commonly referred to “Weingarten” rights. NLRB v. J. Weingarten, Inc., 420 U.S. 251 (1975). On March 7, 2018, the City informed Respondent that a discipline determination meeting was scheduled for March 14, 2018, to discuss the alleged incident involving Ms. Gutierrez and its possible impact on his continued employment with the City. Respondent attended the meeting along with his union representative Phil Hughes of the Communications Workers of America. There are no provisions in the Civil Service Rules, the PBMP manual, or the collective bargaining agreement, which require the City to provide a foreign language interpreter for an employee who is represented by his union at a disciplinary meeting. Respondent cites no authority in support of his contention that the City was obligated to provide him with such services and furthermore there is no factual basis in the record otherwise indicating that Respondent even requested such services from the City once the current termination and dismissal proceedings commenced.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Civil Service Board of the City of Clearwater enter a final order terminating Mr. Jakstas’ employment. DONE AND ENTERED this 12th day of December, 2018, in Tallahassee, Leon County, Florida. S LINZIE F. BOGAN 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 12th day of December, 2018. COPIES FURNISHED: Edward C. Castagna, Jr., Esquire Castagna Law Firm, P.A. Suite 702 611 Druid Road Clearwater, Florida 33756 (eServed) Owen Kohler, Esquire City of Clearwater 112 South Osceola Avenue Clearwater, Florida 33756 (eServed) Nichole A. Kerr, Esquire Castagna Law Firm, P.A. Suite 702 611 Druid Road Clearwater, Florida 33756 Ted Starr, Esquire Starr Law Offices 8181 U.S. Highway 19 North Pinellas Park, Florida 33781 Rosemarie Call, City Clerk City of Clearwater Post Office Box 4748 Clearwater, Florida 33758-4748
The Issue The issue is whether Respondent obtained a real estate salesperson's license by fraud, misrepresentation, or concealment, in violation of Section 475.25(1)(m), Florida Statutes, and, if so, what penalty should be imposed.
Findings Of Fact By application attested July 10, 1996, Respondent requested licensure as a real estate salesperson. Question 9 of the application asks: Have you ever been convicted of a crime, found guilty, or entered a plea of guilty or nolo contendere (no contest), even if adjudication was withheld? This question applies to any violation of the laws of any municipality, county, state or nation, including traffic offenses (but not parking, speeding, inspection, or traffic signal violations), without regard to whether you were placed on probation, had adjudication withheld, paroled, or pardoned. If you intend to answer "NO" because you believe those records may have been expunged or sealed by court order pursuant to Section 943.058, Florida Statutes, or applicable law of another state, you are responsible for verifying the expungement or sealing prior to answering "NO." * * * Your answer to this question will be checked against local, state and federal records. Failure to answer this question accurately could cause denial of licensure. If you do not fully understand this question, consult with an attorney or the Division of Real Estate. Respondent checked the "no" box and did not offer any explanation on the application form. Petitioner issued Respondent a license. After placing it for a month with another broker, Respondent placed the license with Sun Coast Realty Group, Inc., a broker-corporation trading as Century 21--Sun Coast Realty Group, in Fort Myers. Respondent's license remained active until October 6, 1997, when he requested that Petitioner inactivate the license until the pending disciplinary charges were resolved. Respondent's broker testified at the hearing. He testified that the customers were happy with Respondent, who dealt very honestly with the customers. The broker explained that Respondent, not the broker, elected to discontinue practicing real estate sales until the disciplinary matters were resolved, and the broker would rehire him, if Respondent retains his license, following the conclusion of this proceeding. On or about December 19, 1977, Respondent pleaded no contest and was convicted of a misdemeanor of disorderly conduct or breach of the peace in connection with a bar fight in which he was engaged in Connecticut. Then aged 20, Respondent was employed as a bouncer at the bar at which a fight broke out. Several arrests ensued. Respondent did not throw the bar stool that resulted in the injuries. Respondent was fined about $50. About 12 years later, on or about February 1, 1989, Respondent pleaded no contest to misdemeanor battery in Lee County. The court withheld adjudication and placed Respondent on probation for one year. Respondent served the probation without incident. No one was seriously injured in the incident. About three years ago, Respondent attended Charter Glade, where he remained 10 days for substance-abuse treatment. He attended his follow-up therapy, and now speaks to his pastor at church for additional advice. Respondent has not consumed alcohol since then, and he has a wife and two children. Respondent's claim that he did not disclose the criminal matters because he thought they had been sealed or expunged is discredited. Respondent concealed these matters. He did not follow the advice on the application form to ensure that these matters were sealed or expunged. He testified inconsistently at first as to his age at the time of the first incident. On the other hand, Respondent has eliminated the main source of his past problems: alcohol. He has also demonstrated his integrity in the practice of real estate sales.
Recommendation It is RECOMMENDED that the Florida Real Estate Commission enter a final order finding Respondent guilty of a violation of Section 475.25(1)(m), Florida Statutes, imposing an administrative fine of $1000, and suspending Respondent's license for 18 months, with full credit against the suspension for the period since October 6, 1997, that Respondent has voluntarily rendered his license inactive due to the pendency of this proceeding. DONE AND ENTERED this 8th day of December, 1998, in Tallahassee, Leon County, Florida. ROBERT E. MEALE 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 Filed with the Clerk of the Division of Administrative Hearings this 8th day of December, 1998. COPIES FURNISHED: Laura McCarthy Deputy Chief Attorney Department of Business and Professional Regulation Division of Real Estate Post Office Box 1900 Orlando, Florida 32802-1900 Edward McBride Cardillo, Keith & Bonaquist, P.A. 3550 East Tamiami Trail Naples, Florida 34112-4905 Lynda L. Goodgame, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 James Kimbler, Acting Division Director Division of Real Estate Department of Business and Professional Regulation Post Office Box 1900 Orlando, Florida 32802-1900
