The Issue Whether Respondent's beverage license should be suspended or revoked, or a civil penalty assessed, for an alleged violation of Section 562.12, Florida Statutes, pursuant to Section 561.29(1) Florida Statutes, as set forth in Notice to Show Cause issued by Petitioner. The hearing was originally scheduled for December 8, 1977, but respondent filed a motion for continuance which was granted by the Hearing Officer and the hearing was rescheduled for January 18, 1978. At the hearing, respondent moved to dismiss the charges on the ground that the Notice of Hearing issued on November 21, 1977, by the Hearing Officer was defective in that it did not adequately describe the petitioner's Notice to Show Cause or attach it to the Notice of Hearing. The motion was denied upon a determination that respondent had adequately been placed on notice as to the nature of the offense charged and due to the fact that the Notice to Show Cause had been sent by certified mail to respondent and that the receipt thereof on August 13, 1977, by an authorized agent of respondent was not contested. Further, respondent's motion for continuance indicates that her counsel was aware of the subject matter of the charges. Additionally, if such had not been the case, respondent had sufficient opportunity during the period in which the case had been continued to seek amplification or clarification of the issues involved in the case as set forth in the Notice of Hearing.
Findings Of Fact Respondent Jennie E. Harrell, d/b/a W. D. Harrell Fish Bait and Tackle, 515 South Roberts Street, Quincy, Florida, holds license Number 30-82, Series 1 COP, issued by petitioner which permits the sale of beer for consumption on the premises. The license was in effect during August, 1976. (Petitioner's Exhibit l) An occupational license for 1975-76 issued by the City of Quincy, Florida, Number 394, was issued to the Lake Talquin Fish Market, 515 South Roberts Street, Quincy, Florida, on October 15, 1975, to engage in the occupation of merchant. A similar license in the same name at the same address, Number 395, and issued on the same date, authorized the licensee to engage in the occupation or business of retail sale of gasoline. City occupational license 1976-77, Number 298 ,issued by the City of Quincy to Lake Talquin Fish Market at 517 South Roberts Street, to engage in the business or occupation of merchant, was issued on September 30, 1976. The Lake Talquin Fish Market is located at 517 South Roberts Street. The official records show that the license was issued to Jenny Harrell of 515 South Roberts Street, Quincy, Florida, and that the 1975-76 license Number 394 was issued in the same name. (Petitioner's Exhibits 2 and 10, supplemented by Petitioner's Composite Exhibit 3) On August 15, 1976, at approximately 10:55 a.m., State Beverage Officers Gary Sams and Fred Miller met with a reliable informant, one Guy Williams, in the vicinity of respondent's licensed premises at 515 South Roberts Street, Quincy, Florida. After searching Williams for any money or alcoholic beverages on his person, Sams gave him $7.20 and instructed him to attempt to purchase whiskey at respondent's place of business, W. D. Harrell Fish Bait and Tackle. The officers observed Williams drive to the building in question, but could not see his subsequent actions. He returned approximately fifteen to twenty minutes later with a partially filled one-half pint bottle of Seagram's Seven Crown whiskey. Williams had entered respondent's premises and asked a woman behind the counter if he could purchase a half-pint of whiskey. She told him he would have to go next door. He thereupon entered the adjacent premises, Lake Talquin Fish Market, and ordered a half-hint of Seagram's Seven Crown whiskey from a man there. The man went in the back of the store and returned with a sealed one-half pint bottle labeled Seagram's Seven Crown. Williams paid $2.50 for the bottle, took a drink from it, and found that it was, indeed, whiskey. The bottle was thereafter labeled for identification by the beverage officers and placed in the evidence room of petitioner's Tallahassee office. However, it was destroyed by petitioner prior to the hearing. (Testimony of Sams, Miller, Williams) On August 22, 1976, the two beverage agents again met with Williams at the same location at approximately 9:30 a.m. Following the same procedures as before, Sams gave Williams $4.00 and instructed him to go to respondent's state- licensed premises to attempt to purchase liquor. The same sequence of events as on August 15th occurred, involving a woman at W. D. Harrell Fish Bait and Tackle, and a man at the Lake Talquin Fish Market. This time the purchase was for a one-half pint sealed bottle of Seagram's Golden Dry Gin for which Williams paid $2.50. Again, he drank out of the bottle and verified that it was gin. This bottle was turned over to the beverage agents who verified that it was gin by its smell, and it was tagged and placed in petitioner's evidence room in Tallahassee. It, too, was destroyed by petitioner prior to the hearing. (Testimony of Sams, Miller, Williams) On August 23, 1976, criminal complaints were filed by petitioner's representatives against respondent and others, and, on August 24, a search warrant was issued authorizing a search of the premises of the Lake Talquin Fish Market at 517 South Roberts Street, and warrants were issued for the arrest of respondent and the individuals who had allegedly sold the alcoholic beverages to Williams. At approximately 5:15 p.m. on August 28, Agent Miller, together with local police officers, served the search warrant on one Isaac Ford at the Lake Talquin Fish Market. A search of the premises failed to reveal the presence of alcoholic beverages. The agents observed a well-worn path leading approximately 15 or 20 feet to an adjacent condemned frame house, and also an electric wire running from the store to the house. Further, they discovered a light switch in the store which controlled a light in the northeast room of the house. They observed a quantity of liquor and wine bottles on the floor of that room. It was noted that the house was secured by a padlock. Upon Inquiry, Ford stated that he did not have the key to the lock. The agents then asked respondent, who was at her place of business, if she had the key. She answered in the negative. When asked if the whiskey that had been observed in the house belonged to her, she said that it did not, but that she owned the house and wanted the whiskey off the premises. The agents thereupon forced entry into the house and seized 265 bottles of alcoholic beverages found inside. The bottles were sealed and strips indicating that tax had been paid were on the bottles. Sixteen of the bottles were assorted brands of wine; the remainder were liquor. (Testimony of Sams, Miller, Fader, Petitioner's Exhibits 5-13)
Recommendation That a civil penalty in the amount of $500.00 be imposed against Jennie E. Harrell, d/b/a D. Harrell Fish Bait and Tackle, License Number 30-82, pursuant to Section 561.29(1)(h) and (4),F.S., for violation of Section 562.12(1), F.S. DONE and ENTERED this 27th day of January, 1978, in Tallahassee, Florida. THOMAS C. OLDHAM Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Francis Bayley,. Esquire Department of Business Regulation The Johns Building Tallahassee, Florida 32304 Jack A. Harnett, Esquire Post Office Box 706 Quincy, Florida 32351 Charles A. Nuzum, Director Division of Beverage Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32304
Findings Of Fact Petitioner was employed by Morrison's Cafeteria, Clearwater, Florida, from July 29, 1981, until August 15, 1981, in the position of salad preparer. Respondent normally has four employees trained as salad preparers and on August 15, 1981, one was on regular leave and the second was on emergency leave. On August 15, 1981, Petitioner served as late salad preparer, i.e., she was scheduled to work the late shift from noon until the cafeteria closed at 8:15 p.m. Respondent's Clearwater cafeteria employs 53 people, with the manager and assistant manager the two top executives at the cafeteria. The manager works Monday through Friday, with Saturday and Sunday off, while the assistant manager works Wednesday through Sunday, with Monday and Tuesday off. On Saturday and Sunday the assistant manager serves as manager of the cafeteria. On Saturday, August 15, 1981, Petitioner wakened with the onset of her menstrual cycle, experiencing cramps and heavy bleeding. She told her husband that she did not feel too well and he replied to the effect that since she had been working every day for the past two weeks she should call Morrison's and tell them she would "appreciate" the day off. She asked him to call Morrison's to tell them she was not coming in but he had to leave for work and did not have time. Around 9:00 a.m. Petitioner called Morrison's. Robert Brown, the manager, had stopped by Morrison's to cash a personal check and took Petitioner's call. She advised Brown that she had cramps and did not feel too well. Brown reminded her that the cafeteria was short two salad preparers, did not have a replacement for her, and suggested she could stop by a drugstore to get medication to alleviate the cramps. She then told Brown that she would come in. She clocked in at approximately 10:30 Saturday morning and left at 2:10 p.m. In her testimony Petitioner stated she talked to the assistant manager, Mr. Dritsos, on the telephone and when she came in she told Mr. Brown she had cramps and was not feeling well, and that Mr. Brown told her to stop by the drugstore for medication. Petitioner also testified that her husband was present when she called Morrison's on Saturday, but the husband testified he left for work before Petitioner made the call. Both Brown and Dritsos denied Petitioner's version regarding to whom she spoke, and the fact that Saturday is Brown's day off lends credence to Respondent's version of the incident. Additionally, Petitioner's written statement, submitted shortly after the event, is inconsistent with some of her testimony; and, at the hearing, Petitioner's version of her husband's participation differed in several aspects from the testimony of her husband. Petitioner's version of events subsequent to her clocking in is that after she commenced her duties she felt moisture on her leg and went to the restroom to clean up the blood and change pads. She testified she had to go to the restroom two or three times for this problem and that her uniform became bloodstained. She then called her aunt to pick her up and while walking back to the salad department told Dritsos that she had to go home because she could not make it anymore. Dritsos suggested she stay until Mr. Brown got back (Transcript p. 9). Two other employees testified they heard Petitioner ask Mr. Dritsos if she could go home, but neither heard Dritsos's response. Neither of these witnesses nor any others saw any blood on Petitioner's uniform or body or were told by Petitioner that she had any problem other than she was not feeling well. Dritsos denied that Petitioner asked for permission to go home or that he either granted or denied her request to do so. Since Brown had left the cafeteria before these events occurred and was not due back until Monday, it is most unlikely that Dritsos would have suggested Petitioner wait until Brown returned. The most likely scenario is that Petitioner decided to leave, called her aunt to pick her up, told Dritsos she was leaving, proceeded to the time clock, punched her time card, and departed. Petitioner testified that she called Morrison's on Sunday and asked Dritsos what time she should come in. Dritsos denies receiving any communication from Petitioner or seeing her again before this hearing subsequent to her departure on Saturday, August 15, 1981. Petitioner's schedule was posted on the bulletin board at Morrison's, it did not change from day to day, and there was no reason for Petitioner to inquire what time she was scheduled to come to work. Accordingly, her testimony, that not only did she call Dritsos but also that he told her to call back the next day, is not credible. Prior to his departure from Morrison's Sunday night, Dritsos left a note to Brown telling him that Petitioner had walked off the job on Saturday, did not report to work on Sunday, and should be terminated. Brown discussed the case by telephone with Dritsos on Monday after he had read Dritsos's note. Monday was a day off for Dritsos and he was not at Morrison's that day. Brown testified that he received a phone call from Petitioner around 11:00 a.m. on Monday, August 17, inquiring when she should come to work. He told her she was terminated for walking off the job on Saturday and she could stop by to pick up her pay. Brown did not see Petitioner until she picked up her check the next Thursday. Petitioner testified she went in Monday and Brown told her she was terminated because she walked off the job. Petitioner's husband testified that he hired "Georgia Boy" to drive him to Morrison's Monday morning to find out why Petitioner was fired and that he walked up the door but turned around and returned to the car. He testified that Petitioner went into Morrison's on Monday. When asked why he thought on Monday morning that Petitioner had been fired, Mr. Croskey replied that because they would not let her come in Saturday (sic) and wouldn't let her come home Sunday (sic) "I just knew she was fired" (Transcript p. 40). Considering all this testimony, it is concluded that Petitioner did not go to Morrison's on Monday, but called Brown and was told she was fired; that her husband went to Morrison's on Monday to confront the manager with her firing but lost his nerve at the front door and did not enter the cafeteria. Petitioner was a probationary employee, as are all of Morrison's employees for the first 90 days of their employment. Morrison's is a cafeteria whose profitability depends on the efficiency of its operation. It was described in terms of an assembly line where each employee must perform his specific role, otherwise the assembly line loses its efficiency. Each person is trained for his specific job and when one is absent the void has to be filled. If a replacement cannot be brought in, the manager will take the place of one of the servers and have the one he replaced fill in the missing slot. This often requires instructing the person in the new duties while attempting to keep the assembly line moving at the proper tempo. This is one of the reasons for Respondent's rule that an employee may not leave before checkout time without the express permission of the manager (Exhibit 3). Failure to comply with these rules is grounds for dismissal. Morrison's Cafeteria at Clearwater has allowed both male and female employees to leave their jobs if sick. They do not grant permission to leave if the employee is suffering from a hangover caused by overindulgence on payday (or any other day). Mr. Brown has been employed by Morrison's some 25 years and he does not recall a female employee ever before asking to be relieved because of cramps. Petitioner acknowledged that she did not discuss her heavy bleeding with anyone at Morrison's on Saturday, August 15. Since 1976 Morrison's Cafeteria at Clearwater has terminated 65 employees for walking off the job without permission (Exhibit 4). Of these, 41 were males and 24 were females.
Findings Of Fact Respondent David Halfen applied for a permit from the Department of Environmental Regulation authorizing construction of a footbridge across Little Red Fish Lake in Section 7, Township 3 South, Range 19 West in Walton County, Florida. The footbridge would be 490 feet long and four feet wide with a raised area five feet high in the middle permitting small boat traffic underneath. The bridge would be constructed from treated pilings, timbers and planks and the pilings would be jetted down into the sub-strate or bottom of Little Red Fish Lake. Mr. Cliff Rohlke was accepted as an expert witness in water quality. He is employed by the Department as an Environmental Specialist with the specific duties of dredge and fill inspector. In this capacity he conducts field appraisals, reviews and makes reports of biological impacts of dredge and fill projects in conjunction with applications filed with the Department for dredge and fill permits. In this regard, Mr. Rohlke went to the site of the project and made an assessment of both the long and short-term impacts of the project on water quality in Little Red Fish Lake. Mr. Rohlke made a biological appraisal of the subject project in evidence in this proceeding as Exhibit 1. It was thus established that the short-term impacts of the project would be limited to minor turbidity and sub-strate disturbance related to the placement of the pilings. Long-term impacts will be insignificant. Based upon his long experience as a dredge and fill inspector and biologist, Mr. Rohlke established that no significant problems or impairment of water quality are associated with the construction of such a pier or footbridge by using treated pilings and timbers. Mr. Richard Fancher was accepted as an expert witness in water quality. He is the Environmental Supervisor of the Department's northwest district, supervising the Department's permitting and enforcement program in the area of dredge and fill permitting. In his years of experience with the Department, he has reviewed some 3,000 dredge and fill applications. He evaluated Mr. Halfen's application for the proposed footbridge. His review of the proposed project was conducted with a view toward whether it complied with the standards of Chapters 253 and 403, Florida Statutes and Chapter 17-3 and 17-4, Florida Administrative Code. He established that the water quality standards that the Department is charged with enforcing by these legal provisions would be complied with, with construction of the proposed project, in that the pilings for the pier or footbridge would be jetted into the sub-strate of the lake and turbidity curtains would be used to minimize the short-term deleterious effects of turbidity or sediment disturbance on the lake as a whole by confining such turbidity to the immediate area of the project. The project will not significantly affect fish and wildlife in the water body involved, nor impair water flow so as to be contrary to the public interest. Neither will any significant loss of fish or wildlife or fish or wildlife habitat be occasioned by installation of the subject bridge. Mr. Fancher was of the opinion that the bridge would impede and interfere with navigation to some extent, but not, in his opinion, so as to be contrary to public interest. Mr. Fancher, however, has not visited the site himself and has no direct knowledge as to how the lake is used in terms of navigation, fishing, water skiing and the like. Mr. Rohlke opined that navigation in terms of "normal boat traffic" would not be interfered with since on his brief inspection he saw no boats using the lake, and the bridge would have a single span raised to a five-foot elevation over the lake's surface for the purpose of permitting boats to pass under the bridge. Mr. Rohlke, however, spent only a period of less than an hour visiting the lake site and did not confer with any adjacent landowners to ascertain what uses they made of the lake. He did not measure the lake bottom depth but did acknowledge that it was of sufficient size to be used for both sailing and water skiing. He admitted that a portion of the lake would be cut off by the bridge, consisting of approximately two acres on the western side. The Petitioners, the Bannermans, as well as witnesses Klep and Hughes own property and homes on the western side of the lake and their access to the remainder of the approximately 50-acres of the lake would be partially cut off by the bridge. They would be denied some use and enjoyment of the majority of the lake. Mr. and Mrs. Bannerman have a home which fronts on the western edge of the lake. Mr. Bannerman has measured the lake and established that it is five to seven feet deep near the water's edge and approximately 12 to 15 feel deep in the center of the lake. He has a dock and a small boat on the lake and uses the boat for fishing and navigation of the lake. Fishermen frequently utilize the lake from a public access point. The lake is large enough to be used for normal recreational pursuits such as water skiing, sailing, and fishing. Mr. John Klep owns property bordering on the western edge of the lake. Access to the lake was an important consideration in his purchase of the property, and in his continuing use of it. The lake is in excess of six feet deep at his property and physically navigable. He does not wish his access to the entire lake to be restricted. Mr. Lyle Hughes has legal access to the lake conveyed to him by deed although his own property does not actually border the lake. Sailing has been his lifetime recreational pursuit and he desires to use the lake for sailing for himself and members of his family, especially the children in his family. The small sailboats for which the lake is suited generally have a mast of approximately 14 feet in height. Such a boat could not pass under the bridge if constructed as proposed, since the five-foot raised center span would only barely permit small power boats and their occupants to safely pass under it. In short, the subject bridge, while it permits small fishing and pleasure boats to pass under with their occupants, would preclude the adjacent landowners in the western end of the lake cut off by the bridge, from sailing beneath the bridge or water skiing on the lake, since their point of access for water skiing and other purposes is at their own property and it would be impossible to water ski in the lake since the bridge would not be navigable for water skiing boats and skiers. The only way sail boats could navigate under the bridge would be to use a motor, oars or paddles until the sailboat negotiates the bridge span, with attendant stepping and unstepping of the mast every time the boat passes under the bridge. This arrangement is totally impractical for those adjacent landowners to do in order to use the lake for sailing. Water skiers could not pass under a five-foot span for obvious reasons of safety. In short, it has been established that the proposed project comports with Department permitting requirements in terms of water quality impacts and impacts on fish and wildlife and fish and wildlife habitats. The project, however, has not been established to be in the public interest and not contrary to the public interest in terms of its impact on the rights of adjacent landowners to navigate the entire 52-acre lake which they presently have access to for the above-mentioned reasons. Any approval of the permit applied for must be in conjunction with a condition that the bridge be so constructed that sailboats can pass through without having to unstep their masts and water ski boats and skiers can pass through it, possibly through use of a movable span. An additional and more basic problem exists in approving this project as proposed. Department's Rule 17-1.203, Florida Administrative Code requires that a permit applicant execute and submit, with his application, an affidavit of ownership of the property involved in a dredge and fill project. The affidavit and rule requires that a permittee be either the record owner, lessee, record easement holder or an applicant to the record owner of the property for an easement to the property described in the application, and in the affidavit. Mr. Halfen submitted this affidavit with his application certifying that he was the record owner, lessee, or record easement holder of the property upon which the bridge was to be constructed and of the property landward of the construction site, and either had or would have the permission of all other persons with a legal interest in the property prior to undertaking the project. It is the policy of the Department to require the applicant to be the record owner of the submerged land, his lessee or easement holder and to submit the necessary affidavit of ownership or control. The rationale for this policy is so that the Department "will not knowingly issue a permit for dredging and filling or other activities which would constitute a trespass." 1/ The property involved at the project site is subject to an active title dispute being litigated in the Circuit Court. In dispute is the question of whether the title to the lake bottom is held by the Petitioners, the Bannermans or FDIC, Mr. Halfen or the State of Florida. The property was initially conveyed into private ownership by the President of the United States, Woodrow Wilson, in 1918 as shown by stipulated Exhibit 2 in evidence. The federal government thus conveyed the pertinent property, Lots 1 and 2 of Section 7 in Township 3 South of Range 19 West together with other unrelated land to one Carl Froholm. That conveyance transferred all of the land in Lots 1 and 2 without making reference to Little Red Fish Lake. It does not indicate any reservations of public rights in and to the waters located on that property. It does not indicate any reservation of title to the bottom of the lake to be held by the State or Federal governments. Thus, the legitimate title question now being litigated in the court, is whether the Petitioners, Mr. Halfen or the State of Florida own the lake bottom upon which the bridge will be constructed and not simply whether DNR approval for its use has been obtained. Resolution of that quiet title action is still pending and argument and legal authority has been extensively briefed and provided to the Hearing Officer in the form of the various parties' proposed findings of fact and conclusions of law and memoranda. 2/
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is, therefore RECOMMENDED: That the application by David Halfen for a dredge and fill permit, as described above, be granted, provided the plans and construction of the proposed bridge are sufficiently altered so as to permit water skiers and sailboats to safely and simply navigate and pass under or through the area of the proposed bridge and provided that Mr. Halfen, at the conclusion of the pending quiet title action, can establish that he has ownership or other right of control of the property on which the project will be built. DONE and ENTERED this 14th day of February, 1985, in Tallahassee, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of February, 1985.
The Issue Petitioner's charge of discrimination alleges that the Orange County School Board discriminated against her on account of her age and race when the school board dismissed her in July 1994. Although the school board told her that she was dismissed because she did not have a college degree, allegedly another (white) employee without a degree was not dismissed. Petitioner alleges that, in violation of policy, the school board did not assist her to find another position and that since her dismissal younger employees were hired in positions in which she could have worked. The issue in this case is whether Petitioner was discriminated against, as alleged, and if so, what relief is appropriate.
Findings Of Fact Petitioner Ada J. Sims is an African-American female born October 28, 1934. She resides in Orlando, Orange County, Florida. During the 1993/94 school year, Ms. Sims was employed as an occupational specialist by the Orange County School Board (OCSB). She was assigned to Cypress Creek High School. Ms. Sims worked for the OCSB for 26 years; the first 4 or 5 were in clerical positions, and the last 22 years were as an occupational specialist at various schools. Ms. Sims does not have a college degree. Sometime during the 1993/94 school year, Ms. Sims was offered and accepted an early retirement opportunity. She expressed her intent to retire effective December 1994. The last day of school was the end of May 1994. At that time Ms. Sims understood that she still had a job at Cypress Creek High School for the beginning of the 1994/95 school year. Sometime during the early summer in 1994, the superintendent of schools and the OCSB realized the need to reduce instructional positions in order to keep expenditures within an available budget. The certification area, "occupational specialist," was identified for the reduction in force. On or about July 19, 1994, Cypress Creek assistant principal Cathy Thompson spoke to Ms. Sims by telephone to inform her that she was no longer employed and that she should call the personnel department for further information. Ms. Sims was upset and called the personnel office. She also visited the office, wrote letters to the school board chairperson and superintendent, and contacted the Classroom Teacher Association. Ms. Sims felt that people were evasive and non-responsive. No one helped her find other employment. Sometime between August and December 1994, Ms. Sims began receiving her retirement benefits. Since then, she has been employed only part-time: briefly for a newspaper and now with Haitian Social Services. In her complaint of discrimination, Ms. Sims is claiming $15,000 in lost wages and $5,000 for "pain and suffering." Mary Bailey is employed by the OCSB Division of Human Resources. A former classroom teacher and principal, she has worked for the OCSB for 33 years. Ms. Bailey was the supervisor for the reduction in force which eliminated Ms. Sims' position. There were approximately 12-15 occupational specialist positions in the OCSB in May 1994. All but 2 or 3 were eliminated. In determining which positions were eliminated the incumbent's job history was reviewed to determine seniority. White and African-American employees were laid off. The only employees retained were those with college degrees who could obtain a teaching certificate and be placed in a regular instructional position. Ms. Sims, without a college degree, did not qualify for this placement. There was no consideration of age or race; the regular OCSB policy and collective bargaining agreement procedures were applied. No one offered Ms. Sims a clerical position or other non-instructional position; she was told she could apply for another position on her own. Elaine Manfriede, the white employee who Ms. Sims claims was retained, found a clerical position on her own. Ms. Manfriede's occupational specialist position was eliminated.
Recommendation Based on the foregoing, it is recommended that the Florida Commission on Human Relations enter its final order dismissing Ada J. Sims' charge of discrimination and Petition for Relief. DONE AND ENTERED this 12th day of October, 1998, in Tallahassee, Leon County, Florida. MARY CLARK 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 12th day of October, 1998. COPIES FURNISHED: Sharon Moultry, Clerk Human Relations Commission Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303 Ronald Blocker Orange County School Board Post Office Box 271 Orlando, Florida 32802 Ada Sims 1601 Crooms Avenue Orlando, Florida 32805 Frank C. Kruppenbacker, Esquire Post Office Box 3471 Orlando, Florida 32801-3471 Dr. Donald Shaw, Orange County Superintendent of Schools Post Office Box 271 445 West Amelia Street Orlando, Florida 33802-0271
Recommendation Based upon the findings of fact and conclusions of law recited above, it is recommended that Respondent's letter of denial of registration to Petitioner be rescinded and that Petitioner's application for registration be GRANTED. DONE AND ENTERED this 13th day of July 1978 in Tallahassee, Florida. COPIES FURNISHED: Secretary William J. Page, Jr. Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301 Jack T. Edmund Post Office Box 226 Bartow, Florida 33830 Anthony N. DeLuccia, Jr. District VIII Counsel Department of Health and Rehabilitative Services Post office Box 2258 Ft. Myers, Florida 33902 DIANE D. TREMOR Hearing Officer Division of Administrative Hearings 101 Collins Building Mail: 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675
The Issue The issue in this case is whether Respondent is guilty of absence without leave from his teaching duties and misconduct in office, and, if so, what penalty should be imposed.
Findings Of Fact During the 1992-93 school year, Respondent was employed by Respondent as a teacher. He was on annual contract with Respondent. During the 1992-93 school year, he taught with a temporary teaching certificate. Respondent was paid $23,635 annually at a rate of $17.23 hourly. The reason that Respondent taught with a temporary teaching certificate was that he had failed to pass both parts of the test that teachers must take in order to be certified. Respondent's temporary teaching certificate was effective only for the 1991-92 and 1992-93 school years and could not be renewed for the following school year. Respondent would thus not have been able to work as a teacher during the 1993-94 school year, after which he could again obtain another two-year temporary teaching certificate while he continued to take the examination. On or about April 8, 1993, Petitioner terminated Respondent after determining that he had been absent without leave from his teaching duties. Respondent was first assigned to Trout Lake in September, 1991. Trout Lake is a residential exceptional student education (ESE) facility operated by Tri-County Addictions, Inc. Consisting of 43 acres, the facility includes residential and school buildings, which are not within sight of each other. It takes about 10 minutes to walk between the residences and school building. Trout Lake serves an average of 18-24 students ranging in age from 13 to 18 years. The students have all been classified as Severely Emotionally Disturbed and often suffer from drug addiction. In general, the students present difficult management problems. Petitioner is contractually responsible for educating the Trout Lake students. Toward that end, Petitioner has routinely assigned one or two teachers to teach the students at the school building located on the Trout Lake campus. Immediate responsibility for the teachers rests with the principal at Avon Park High School, which is about five miles from Trout Lake. During the 1991-93 school years, the principal was Barbara Dean. Given the nature of the students, however, considerable responsibility for the success of Petitioner's involvement with the Trout Lake program rests with Petitioner's District ESE staff. Respondent was certified to teach social studies, not ESE. His orientation at Trout Lake consisted of following around his predecessor for three or four weeks. After the predecessor left, Respondent was by himself for the entire 1991-92 school year. Respondent's schedule at the beginning of the 1992-93 school year required his services from 7:15 am to 2:45 pm. His duties on Monday, Tuesday, Thursday, and Friday were different from those on Wednesday. Each weekday morning, the students began the day around 7:15 or 7:30 am with about an hour of peer counselling. Respondent actively participated in this activity, which took place at the residence. On weekdays except Wednesdays, the students were divided into two groups. One group went to school in the morning, immediately after peer counselling, while the other group remained at the residence for counselling from the counsellors employed by Trout Lake. In the afternoon, the group that had gone to school went to the residence for counselling, and the group that had remained at the residence went to school. The students who went to school in the morning typically left the residence for school at about 8:30 am. At about 11:30, after four periods of about 45 minutes each of social studies, science and health, mathematics, and English, the morning students rejoined the others at the residence for lunch. At around 12:30 pm, the afternoon students arrived at the school building and attended the same four courses until about 3:30 pm. The Wednesday schedule was different. The Trout Lake counsellors needed one weekday during which they could counsel all of the students together. Thus, on Wednesdays, all of the students went to school in the morning and were taught in classes twice as large as normal. From 11:00 am to about 11:30 am, the counsellors met with various groups. Then, lunch took place at the residence from about 11:30 am to about 12:30 pm. Beginning at about 12:30 pm, the counsellors conducted a staff meeting at which they discussed the students and any problems that they were facing. Respondent typically attended the lunch at the residence each weekday, as well as the Wednesday afternoon staff meeting. Unlike his predecessor, Respondent routinely attended the Wednesday afternoon staff meeting. Respondent believed that his attendance at the meeting helped him and the counsellors work better together to assist the students. The Wednesday afternoon staff meetings often lasted two or three hours and addressed many issues irrelevant to Respondent. For these reasons, Respondent normally spoke first at the meetings and left when he was finished, after no more than 40 minutes. Wednesday afternoons were Respondent's planning period. When he left the staff meeting, he could engage in planning activities for the remainder of the afternoon. The nature of planning, as well as the limited resources at the Trout Lake school building, demanded that Respondent leave the campus from time to time during his planning time in order to accomplish tasks relevant to his planning duties. Petitioner's witnesses testified that Respondent should have contacted Ms. Dean before leaving the Trout Lake school. In general, these witnesses attributed the authority for this practice to courtesy or professionalism. However, no such practice had existed when Respondent arrived at Trout Lake or during his first year there. Respondent understandably felt isolated at Trout Lake. He received no orientation from Ms. Dean or any of the ESE staff when first assigned to Trout Lake. He had to learn the customs hurriedly from his predecessor, and later from a paraprofessional. In addition, neither Respondent nor Ms. Dunham was able or expected to attend faculty meetings at Avon Park High School. Ms. Lethbridge visited the facility once every week to three weeks. Ms. Lethbridge's supervisor, Connie Tzovarras, visited the Trout Lake only one time between September, 1992, and March, 1993. From September, 1992, through mid-March, 1993, Ms. Dean visited Trout Lake twice. One time, she came when computers had been stolen. The second visit of Ms. Dean was when she evaluated Respondent. Ultimately, Ms. Dean received a letter of reprimand for her supervision of the Trout Lake teachers. Respondent testified that he sometimes left the school early on Wednesday afternoons, during his planning time, to perform school-related duties, such as gathering supplies or meeting with school personnel at other locations. Undoubtedly, these are appropriate activities for which Respondent may leave the campus. Given the customs of Trout Lake, Respondent's past experience during the 1991-92 school year, and the failure of Ms. Dean or any ESE staff to instruct Respondent differently, there was no requirement that Respondent advise anyone at Avon Park High School or the ESE District office of such departures for school business or that he sign out when leaving the campus on school-related business. The absence of a requirement of notice to someone at Avon Park High School or at least signing out before leaving campus on school-related business undermines Petitioner's case. There is considerable evidence that Respondent was not at the school building on Wednesday afternoons. But, with two exceptions, there is no evidence that Respondent ever left the campus on other than school- related matters. Given the remoteness of Trout Lake and its relative lack of on-site resources, Respondent necessarily had to leave the campus to carry out normal planning activities. If Respondent's departures from campus had been accompanied by a violation of some clearly defined policy, it would be reasonable to infer that Respondent was pursuing personal business. However, Petitioner has proved that two of Respondent's absences had nothing to do with school business. Evidently as part of a course that he was taking, Respondent was required to teach reading on two occasions to a group of elementary school students. After having discussed the matter with Ms. Dean, who advised him that he would need to take personal leave if the reading classes took place during the school day, Respondent proceeded on two occasions to visit the elementary school without obtaining leave. On each occasion, Respondent arrived at the Trout Lake school at about 9:15 am and thus was absent two hours without leave. By letter dated March 26, 1993, Petitioner advised Respondent that he was charged with misconduct in office, violation of School Board Policy 2.31, and violation of Section 231.45, Florida Statutes. The letter also cites a violation of Section 231.44, Florida Statutes, for absence without leave. The March 26 letter further informs Respondent that the Highlands County School Board, at its next meeting on April 8, 1993, would consider the recommendation of the Superintendent that Respondent's employment be immediately terminated. In the meantime, the letter states that Respondent was suspended with pay. On April 8, 1993, Petitioner terminated Respondent. Petitioner later advised Respondent that it had determined that he owed the School District over $700 for monies paid for which duties were not performed. Petitioner recovered this sum from Respondent by withholding them from his final paycheck. By letter dated May 19, 1993, Respondent requested a formal hearing on his termination.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Highlands County School Board enter a final order terminating Respondent's employment, as of April 8, 1992, and refunding to Respondent the difference between the amount actually withheld and $68.92. ENTERED on December 10, 1993, in Tallahassee, Florida. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings on December 10, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-2867 Treatment Accorded Proposed Findings of Petitioner 1-21: adopted or adopted in substance. 22-23: rejected as unsupported by the appropriate weight of the evidence. 24-26: rejected as irrelevant. 27: adopted. 28: adopted only as to the four hours missed when Respondent twice taught reading at an elementary school. 29-30: adopted. 31-33: rejected as unsupported by the necessary weight of the evidence to the extent of the implication that Petitioner proved that Respondent was, on these occasions, not engaged in school- related business. 34-35: rejected as recitation of evidence and subordinate. 36-40: adopted. 41-45: rejected as subordinate. 46 and 48: adopted as to the four hours described above. 47: rejected as irrelevant. 49: rejected as repetitious. 50: rejected as subordinate. 51-55: adopted or adopted in substance. Treatment Accorded Proposed Findings of Respondent 1-8: adopted or adopted in substance. 9: rejected as unsupported by the necessary weight of the evidence and as legal argument. 10-12: rejected as irrelevant. 13-21: adopted or adopted in substance. 22: rejected as recitation of evidence. 23: adopted or adopted in substance. 24: rejected as unsupported by the necessary weight of the evidence. COPIES FURNISHED: Gavin W. O'Brien Gavin W. O'Brien, P.A. 1806 Manatee Avenue West Bradenton, Florida 34205 Mark S. Herdman Kelly, McKee Post Office Box 75638 Tampa, Florida 33675-0638 Superintendent Richard Farmer Highlands County School District 426 School Street Sebring, Florida 33870-4048 Honorable Betty Castor Commissioner of Education The Capitol Tallahassee, Florida 32399-0400
Findings Of Fact The parties stipulated to the following facts: Petitioner is an employee of the Boromei-Mirabella Seafood Company, a licensed fish dealer located in Tampa, Florida. The scope of Petitioner's employment included the vehicular transport of fish for sale or purchase. While engaged in his employment, Petitioner was apprehended and arrested by officers of the Commission, and charged with violation of Rules 39-10.02(4) and 39- 10.02(5), Florida Administrative Code. Petitioner's arrest occurred in Highlands County, Florida, on or about December 11, 1980. Petitioner, for purposes of this proceeding, admits to the factual behavior alleged in the arrest citation issued by Respondent's offices. The rules challenged in this proceeding were promulgated by Respondent in accordance with the procedures set forth in Chapter 120, Florida Statutes, also known as the Administrative Procedure Act. The challenged rules became effective on August 11, 1979. Both rules cite Article IV, Section 9, of the Florida Constitution and Section 372.021, Florida Statutes, as "specific authority" for promulgation of the rules. In addition, Section 372.65, Florida Statutes, is listed in the Florida Administrative Code, as the "law implemented" by the two challenged rules.
Findings Of Fact Grace L. Waldron owns the property in Osceola County where the proposed project is located. Carl Wagner leases a portion of the property and operates a fish camp/bait and tackle shop on the property. On August 22, 1986, the Petitioners submitted an application, designated DER File No. 49-124177-4, to dredge an access canal which would connect an existing elongated borrow pit with Lake Cypress, and to construct two commercial piers, 300 feet long by 4 feet wide, with sixty finger piers, 12 feet long by 2 feet wide. The borrow pit, also called the "existing canal" is approximately 50 feet wide by 800 feet long. The dredging would create a dead end finger canal approximately 1160 feet in length. Approximately 5,800 cubic yards of muck, hard pan and clay would be dredged to create the canal and channel into the waters of the lake.. Lake Cypress is located in the Kissimmee "chain of lakes" a series of lakes connected by man-made canals or by the Kissimmee River. The system is a popular fishing and recreational area. It also has been adversely affected by intense development and volumes of effluent flowing into the lakes. Cypress Lake has very poor water quality. Chlorophyll a consistently runs around 90-160 milligrams per liter (mg/1). DER has a policy of allowing no wasteload allocation if chlorophyll a is greater than 60 mg/1. Biochemical Oxygen Demand (BOD) is also extremely high. A BOD level of 2-3 mg/1 is deemed acceptable. Samples taken by Petitioner's consultants in December 1986, reflected a BOD level of 9.8 mg/l in the lake and 27 mg/1 in the borrow pit. Some violations, though not as serious, were found in the Dissolved Oxygen (DO) standard of 5 mg/1. The creation of a finger canal will create a more serious water quality problem than currently exists. This is evidenced by experiences with such canals throughout the state. Dead-end canals prohibit effective exchange of water and after a period of build-up within the basin, a winter storm event or unusually heavy summer thunder-shower will create a sloshing effect, the toxic plug will be released and the polluted water will flush into the lake, creating a potential fish kill. After a period of buildup, boaters are reluctant to use dead-end finger canals as it is impossible to keep the boats clean. The proposed channel dredging would eliminate approximately 0.25 acres of densely vegetated littoral zone habitat. Such zones provide spawning, nursery and feeding habitat for a wide variety of fish species. Lesser concerns, but nonetheless negative impacts from the project, are a short term increase in turbidity from the dredging of the channel, and the effect on endangered or threatened species of birds found on or near the site. The U.S. Department of the Interior, Fish and Wildlife Service and the U.S. Environmental Protection Agency have commented negatively on the proposed project. These agencies have cited the same concerns with water quality, effect on the littoral zone and effect on wildlife described above, and explained in depth in the testimony of DER's expert witnesses. The Florida Game and Fresh Water Fish Commission, also commenting on the project, has a policy of encouraging development and use of public access facilities and discouraging all private channel construction. On Lake Cypress there exists a public boat ramp and launching facility approximately 300 feet to the north of the proposed project. Other access to the lake is provided through facilities on other lakes in the chain, although these facilities are a considerable driving distance from the proposed site. The public boat ramp on Lake Cypress does not have lights nor restrooms. Parking is limited and Waldron provides parking for boaters at his commercial establishment for $7.00 a year. Carl Wagner presented six pages of signatures obtained from his posting a "Petition" in support of the project at his bait and tackle shop. The Petition cites deficiencies in the existing public facility. Carl Wagner has lived and worked on the Kissimmee chain of lakes for 37 years. He worked for the South Central Florida Flood Control District maintaining pumps and locks for eleven years, and has fished and served as a fishing guide for the remainder. He has an intimate familiarity with the wildlife, fish species, drift and flow of the lakes and weather patterns in the area. His knowledge is valid, though not so technical as that of the various agency experts. His position is that he is just trying to make a living, that if the public ramp and facilities were adequate, he could make a living with a tackle shop, but the public access is not adequate. He concedes that the water quality is bad, but argues that the impact of his project would be so minimal as to be a mere "drop in the bucket". While the applicant has not suggested alternatives, the Department has suggested that a boardwalk could be constructed with a dock extending into the lake, with finger piers. This would avoid the need to dredge a canal and channel, but the environmental impact of the pilings and any navigational hazards have not been fully studied. The applicant has not Suggested mitigation measures to improve water quality, nor is it likely that such measures would be effective.
Recommendation Based on the foregoing, it is hereby, RECOMMENDED: That a Final Order be entered denying permit application number 49-1241774. DONE and RECOMMENDED this 19th day of August, 1987 in Tallahassee, Florida. MARY CLARK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of August, 1987. COPIES FURNISHED: Dale Twachtmann, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Daniel H. Thompson, Esquire Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Grace L. Waldron Post Office Box 1341 St. Cloud, Florida 32769 Carl W. Wagner Post Office Box 975 KenanSville, Florida 32739 Vivian F. Garfein, Esquire Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400
The Issue Whether a consumptive-use permit for quantities of water as applied for should be granted.
Findings Of Fact Application No. 7500022 requested water from three (3) wells for the purpose of drinking and for the purpose of irrigation. The center of withdrawals will be located at latitude 270 degrees 56' 32" North, longitude 82 degrees 48' 19" West, plus an average of 120,000 gallons per day from a private lake located at latitude 27 degrees 56' 50" North, longitude 82 degrees 48' 11" West in Pinellas County, Florida. In well "No. 1", used for irrigation, 105,000 gallons per day, average, well "No. 2", 165,000 gallons per day average, used for irrigation; and well "No. 3", 40,000 gallons per day, used for drinking; and the lake 120,000 gallons per day for irrigation. Notice was published in a newspaper of general circulation, to-wit: The St. Petersburg Times and Evening Independent on April 28 and May 15, 1975, pursuant to Section 373.146, Florida Statutes. Notices of said public hearing were duly sent by certified mail as required by law. The application and map of the premises, the legal description, the receipt of certified mail, and the copy of the notice were received without objection and entered into evidence as "Exhibit 1". The affidavit of publication was received without objection and entered into evidence as "Exhibit 2". One letter of objection was received from Mrs. Helen Woolsey and entered into evidence as "Exhibit 3". Witnesses were duly sworn and agreement was reached on each point enumerated as required by Rule 16J2.11, Rules of the Southwest Florida Water Management District and Chapter 373, Florida Statutes. The letter of objection was examined by the parties and by the Hearing Officer and was found to be without merit inasmuch as the author was mistaken as to the subject of the hearing.
