The Issue Whether Respondent properly denied the applications of Petitioner for Class I wildlife; and whether Respondent's previous granting of Class I licensure to Petitioner estops Respondent from denying the instant applications.
Findings Of Fact On July 15, 1998, Petitioner applied to the Commission for licenses, via three separate applications, to possess wildlife, particularly bears, leopards, and baboons at three separate locations. The applications cited the addresses of 127 West Hiawatha Street, 116 West Elm Street, and 6802 North Highland Avenue, all in Tampa, Florida, as the locations where Petitioner planned to possess the animals. Petitioner applied to possess bears (family ursidae), leopards (family felidae) and baboons (family cercopithecidae) at each location. All these animals are Class I wildlife. Respondent issued Notices of Denial of the three applications to Petitioner on September 22, 1998. Class I animals are dangerous animals that cannot be possessed for personal use, and are typically found in zoos. They are dangerous because of their ferocity and size. These animals may be aggressive towards anyone, including their keeper. Class II wildlife are potentially dangerous animals which should only be possessed by experienced individuals. Class III animals are of smaller size and are less aggressive. The goal of the Commission's classification system is to promote the safehousing of wildlife, and to protect the general public and the individual keeping the animals. In the application for 116 West Elm Street, Petitioner noted that he presently possessed five white-tailed deer, one muntjac, and one emu, all Class III wildlife. Petitioner did not possess authorization to house Class I wildlife at 116 West Elms Street, the year previous to the instant application. In the application for 127 West Hiawatha Street, Petitioner noted that he presently possessed two panthers and one bobcat, both Class II wildlife, and two alligators, which are Class III wildlife. Petitioner did not possess authorization to house Class I wildlife at 127 West Hiawatha Street the year previous to the instant application. In the application for 6802 North Highland Avenue, Petitioner noted that he presently possessed no wildlife at this location. Petitioner did not possess authorization to house Class I wildlife at 6802 North Highland Avenue the year previous to the instant application. Two of Petitioner's locations are contiguous: 127 West Hiawatha Street, and 166 West Elm Street. Petitioner's location at 6802 North Highland Avenue is approximately one block from the other two sites, and on the other side of the street. Elm and Hiawatha are not one property, but two separate residences and addresses. The Hiawatha and Elm Street addresses were treated as two separate locations by the Commission as they are separate addresses with separate applications. The Elm Street and Hiawatha locations are separated by a fence at the back of each property. Petitioner uses a ladder to traverse over the fence between the Elm Street and Hiawatha locations. The area where Petitioner wishes to house Class I wildlife is a residential area with small single-family houses located close together, with small yards, and near a major road. There are residential properties to the east of both the Hiawatha and Elm Street locations. Petitioner's neighborhood is densely populated, with single-family residential dwellings and small lots. Petitioner's locations are within approximately 100 yards from large intersections at Sligh Avenue and Florida Avenue. The three properties where Petitioner sought to keep Class I wildlife are zoned single-family residential. Approximately six people per week visit through Petitioner's facilities. Petitioner has received various permits, including Class I, from the Commission for over the past 15 years. It is possible to obtain a Class I license and not be qualified to possess animals at the address on the license. Pursuant to law, a permittee for Class I wildlife has to meet specific requirements including standard caging requirements and land area. The land area required to house Class I wildlife is 1/4 acre minimum. An acre of land is 43,560 square feet. One-quarter of an acre is 10,890 square feet. The 1/4 acre minimum area for Class I wildlife is critical because it allows for a larger buffer for dangerous animals. Respondent wildlife inspectors visit applied-for sites to determine whether the facility meets the caging requirements, whether wildlife are housed safely and ensure the public is not at risk. Respondent inspections are made to determine whether caging is strong enough to contain animals safely and to verify the owner or possessor does not exceed the number of permitted animals. Wildlife officers regulate and enforce the caging of captive wildlife, both exotic and native. It is necessary to have cages meet the rules to protect the safety of the animal, the neighbors, and the keeper. Respondent's Lieutenant Stephen Delacure, who has been a Commission Wildlife Officer or Inspector for approximately ten years, has been to Petitioner's three locations in Tampa at least 15 times over the past four years. Delacure has never seen any Class I animals at any of Petitioner's three locations. On November 12, 1998, Delacure and Lieutenant Krause inspected all three of Petitioner's locations pursuant to his application. Delacure inspected the three locations for appropriate caging and land area for bears, leopards, and baboons. Delacure measured all locations with Petitioner present and indicated that he gave Petitioner "the benefit of the doubt" as to the measurements. Delacure measured the total area for 127 West Hiawatha Street to be 103 feet by 39 feet (front and depth) (4,017 square feet). Delacure measured the total area of 116 West Elm Street to be 87 feet by 69 feet (6,003 square feet). Therefore, Delacure found the combined area for 127 West Hiawatha Street and 116 West Elm to be 10,020 square feet. Delacure measured the total area of 6802 North Highland Avenue to be 102 feet by 42 feet (4,284 square feet). Delacure found no adequate caging for Class I bears, baboons, or cats at 127 West Hiawatha Street. In addition, Delacure found no caging for Class I wildlife at 116 West Elm Street nor 6802 North Highland Avenue. The November 1998 inspection was the basis for the issuance of the amended notice of denial for failure to meet land area requirements and to meet caging requirements. Respondent denied Class I licenses to Petitioner because of inadequate land area and caging. Class II licenses do not say "all" for possession purposes, as these licenses are defined by specific animal families. However, Class III licenses may say "all" for possession purposes. The Respondent changed Class I licenses to animal specific from the "all" designation to ensure that the animal possessor is familiar with the handling of that family or species of animal as nutritional, health, and handling requirements are different for each animal family. Linda Coomey is a building inspector for the City of Tampa, having done this job for 15 years. Coomey inspects zoning and code enforcement. Coomey has been to Petitioner's locations 12-13 times over the last eight years. Coomey calculated the area of 127 West Hiawatha Street as 38 feet by 103 feet (3,914 square feet). Coomey calculated the area of 116 West Elm Street as 65 feet by 80 feet (5,200 square feet). Therefore, Coomey found the combined area of 127 West Hiawatha Street and 116 West Elm Street is 9,114 square feet. The area of 6802 North Highland Avenue was calculated by Coomey as 50 feet by 104 feet (5,200 square feet). These measurements were taken from the Hillsborough County plat maps and Coomey does not consider any error in measuring the square footage as acceptable. The Hillsborough County Property Appraiser's Office found the area of the three properties to be as follows: 127 West Hiawatha Street, 38 feet by 103 feet (3,914 square feet); 116 West Elm Street, 65 feet by 80 feet (5,200 square feet); and 6802 North Highland Avenue, 50 feet by 104 feet (5,200 square feet). None of these individual areas is equal to or greater than 1/4 acre, nor does the combining of the areas of 127 West Hiawatha Street and 116 West Elm Street (3,914 square feet and 5,200 square feet, for a total of 9,114 square feet) meet or exceed 1/4 acre. The Hillsborough County Tax Collector's Office reports 127 West Hiawatha Street as being .09 acres; 116 West Elm Street as being .12 acres; and 6802 North Highland Avenue as being .12 acres. Therefore, the Hillsborough County Tax Collector's Office found the combined area of 127 West Hiawatha Street and 116 West Elm Street is .21 acres. Per Petitioner, 127 West Hiawatha Avenue is 39 feet by 103 feet (4,017 square feet) in total area, and Respondent's officers informed Petitioner he did not have the required acreage. Respondent informed Petitioner on more than one occasion that Petitioner could have a Class I license that allows a person to borrow an animal and not be allowed to posseses Class I animals on the license holder's property. On September 6, 1991, Petitioner was issued a license for 127 West Hiawatha Street, which cited that Petitioner could possess the following: Class I, felidae, cercopithecidae, and ursidae; Class II, felidae and cercopithecidae; Class III, all excluding venomous reptiles. On July 23, 1993, Petitioner was issued a license for 127 West Hiawatha Street, which cited that Petitioner could possess the following: Class I, none; Class II, felidae; Class III, all excluding felidae. On June 29, 1993, Petitioner was issued a license for 116 West Elm Street, which cited that Petitioner could possess the following: Class I, ursidae, cercopithecidae, and felidae. On June 29, 1993, Petitioner was issued a license for 6802 North Highland Avenue, which cited Petitioner could possess the following: Class I, ursidae, felidae, and cercopithecidae; Class II, all excluding venomous reptiles; Class III, all excluding venomous reptiles. On June 29, 1994, Petitioner was issued a license for 116 West Elm Street, which cited Petitioner could possess the following: Class I, felidae, cercopithecidae, and ursidae; Class II, all, excluding venomous reptiles; Class III, all excluding venomous reptiles. On June 29, 1994, Petitioner was a issued a license for 6802 North Highland Avenue, which cited Petitioner could possess the following: Class I, felidae, cercopithecidae, and ursidae; Class II, all, excluding venomous reptiles; Class III, all excluding venomous reptiles. On July 4, 1994, Petitioner was issued a license for 127 West Hiawatha Street, which cited Petitioner could possess the following: Class I, none; Class II, felidae; Class III, all excluding venomous reptiles. On June 27, 1996, Petitioner was issued a license for 127 West Hiawatha Street, which cited Petitioner could possess the following: Class I, none; Class II, felidae; Class III, all, excluding venomous reptiles. On August 9, 1996, Petitioner was issued a license for 116 West Elm Street, which cited Petitioner could possess the following: Class I, felidae, cercopithecidae, and ursidae; Class II, felidae and cercopithecidae; Class III, all excluding venomous reptiles. On August 9, 1996, Petitioner was issued a license for 6802 North Highland Avenue, which cited Petitioner could possess the following: Class I, felidae, cercopithecidae, and ursidae; Class II, felidae and cercopithecidae; Class III, all excluding venomous reptiles. This was the last instance where Petitioner was licensed to possess Class I wildlife. On September 16, 1997, Petitioner was issued a license for 127 Hiawatha Street, which cited Petitioner could possess: Class I, none; Class II, felidae; Class III, all. On September 16, 1997, Petitioner was issued a license for 116 West Elm Street, which cited Petitioner could possess: Class I, none; Class II, none; Class III, all, excluding venomous reptiles. On September 16, 1997, Petitioner was issued a license for 6802 North Highland Avenue, which cited Petitioner could possess: Class I, none; Class II, none. Lieutenant Dennis Parker is an inspector for Respondent, having worked for Respondent 26 years. Parker has consistently inspected Petitioner's facilities for more than 15 years. Parker measured 127 West Hiawatha Street "from curb to curb" in 1992 pursuant to Petitioner having a bear on the premises. Petitioner immediately received notice from Respondent that his acreage was inadequate via a "field revocation." Petitioner was ordered to remove the Class I animals. Petitioner was mistakenly provided a Class I license for ursidae before the Commission measured 127 West Hiawatha Street, under Parker's assumption that Petitioner had adequate acreage. A Class I license requires 1/4 acre or more to possess a Class I animal on that property. Petitioner's license for Class I ursidae was based on Petitioner's borrowing a bear for exhibition, with the bear being kept at a licensed facility not owned by Petitioner. Petitioner used 127 West Hiawatha Street as the mailing address for the license. Respondent had never inspected or authorized caging for bears at 127 West Hiawatha Street. Petitioner originally obtained bears without the knowledge and/or consent of Respondent, then a complaint was filed with Respondent. Petitioner recently had an animal escape from the 116 Elm Street location. Petitioner presently possesses Class I animals. Petitioner's properties do not meet the regulatory requirement for acreage size to house Class I wildlife pursuant to Rule 68A- 6.022 (formerly 39-6.022), Florida Administrative Code. Petitioner is one of thousands of persons who has authority to possess animals, but does not have an approved facility address to house the animals. Moreover, assuming arguendo that the properties are combined, Petitioner's properties at 127 West Hiawatha and 116 West Elm fail to meet the mandatory requirements for acreage to house Class I wildlife, pursuant to Rule 68A-6.022, Florida Administrative Code.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Fish and Wildlife Conservation Commission enter a final order upholding the Commission's Amended Notice of Denial. DONE AND ENTERED this 18th day of February, 2000, in Tallahassee, Leon County, Florida. WILLIAM R. PFEIFFER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 18th day of February, 2000. COPIES FURNISHED: Joseph R. Fritz, Esquire 4204 North Nebraska Avenue Tampa, Florida 33603 Preston T. Robertson, Esquire Florida Fish and Wildlife Conservation Commission 620 South Meridian Street Tallahassee, Florida 32399-1600 Allan L. Egbert, Ph.D., Interim Director Florida Fish and Wildlife Conservation Commission 620 South Meridian Street Tallahassee, Florida 32399-1600 James Antista, Acting General Counsel Florida Fish and Wildlife Conservation Commission 620 South Meridian Street Tallahassee, Florida 32399-1600
The Issue Whether Respondent violated the Florida Civil Rights Act of 1992, as alleged in the Charge of Discrimination filed by Petitioner on October 29, 2002.
Findings Of Fact Petitioner is an Hispanic woman who was employed by Respondent from December 1997 until her termination on October 2, 2002. She worked in Alachua County Animal Services (Animal Services) as an animal control officer. Animal Services control officers are supervised by the Animal Services field supervisor who reports to the director of Animal Services. Petitioner received a bachelor's degree in 1983 in agriculture with a concentration in animal production and agricultural management courses, has experience in animal nutritional research, and has one published paper in that field.2/ Prior to working for the Alachua County, Petitioner managed a small pest control business. By the time she applied for the supervisory position, she had obtained Florida Animal Control Association (FACA) Level I, euthanasia, and chemical immobilization certifications. An animal control officer is responsible for enforcing state laws and county ordinances regarding small animals. Animal control officers impound animals at-large, issue warnings and citations, handle citizen complaints, and investigate animal bites and cruelty to animals. Petitioner served as interim Animal Services supervisor for a little over one month in June 2000. When the position of Animal Services field supervisor became vacant in December 2001, Petitioner applied for the job. Penny Lefkowitz, a newly hired Animal Services officer, also applied for the job. At that time, Ms. Lefkowitz had seven years of animal control experience in Arizona as lead officer. In that capacity, she was a sworn officer with firearm authority, a field training officer, and handled over 1,000 calls per year in that position. She held National Animal Control Association (NACA) Level I and II certifications. She was euthanasia- certified and had 25 years' experience breeding dogs and horses. Ms. Lefkowitz has a high school diploma. Ms. Lefkowitz was placed in the interim field supervisor position for a period of approximately three months, during which time she received supervisory pay. The record is not clear whether there was a separate application process for the permanent position following the appointment of the interim supervisor position. In any event, Respondent hired Bill Burris as Animal Services supervisor in March 2002. At the time he applied, Mr. Burris had nine years of animal control experience in Arkansas, where he was the animal control officer and shelter assistant. He held a high school G.E.D. Additionally, he held NACA Level I, II, and III certifications. Petitioner's Charge of Discrimination regarding failure to promote only references Ms. Lefkowitz's appointment to the interim director position, "[i]n December 2001, a newly hired officer, white female with less experience was hired as interim supervisor." It does not reference Mr. Burris as being hired in the director position. Her Petition for Relief alleges, "[t]hose less qualified individuals were hired and promoted in violation of county/company policy." Thus, it is not clear that Respondent hiring Mr. Burris for the permanent position is properly within the scope of this case. Nonetheless, the evidence presented at the hearing regarding Mr. Burris' qualifications is addressed herein. Mr. Burris held the position of field operation supervisor from March 2002 until his resignation in September 2003. Based upon the evidence in the record, at the time the decision was made to place Ms. Lefkowitz in the temporary supervisory position, she and Petitioner met the qualifications for the job. Ms. Lefkowitz had significantly more supervisory and field experience than Petitioner. At the time he was placed in the job, Mr. Burris met the qualifications for the job and had significantly more supervisory experience than Petitioner. Petitioner held a college degree, which neither Ms. Lefkowitz or Mr. Burris had. However, according to Mr. Burris, a college degree was not a minimum requirement of the job, but two years' animal control or animal shelter experience were required. There is nothing in the record to contradict his testimony in this regard. When Mr. Burris became field supervisor, he held a staff meeting and told the animal control officers he supervised that he would start fresh as far as performance and discipline issues. He handed them an empty folder and informed them that he would only consider their past performance if he saw a pattern that caused him to look at past personnel records. Mr. Burris called staff meetings to discuss policies that were not up-to-date or in need of updating. Prior to the staff meeting, Mr. Burris sent a memorandum to the animal control officers informing them that there would be a staff meeting. Officers were expected to attend and were excused only if they were on an emergency call. If an officer was absent from a meeting, Mr. Burris would promptly notify them in memorandum format as to what happened at the meeting. When changes were made in policies or procedures, Mr. Burris would put a copy of the policy changes in every officer's box. Each officer had his or her box where they would receive their mail. Each officer was expected to check that box daily. The boxes were accessible to everyone so that when there was a confidential document, such as payroll information, that document was placed in an envelope and then put in the officer's box. Petitioner's mid-year performance review was due in April 2002, approximately six weeks after Mr. Burris became the supervisor. Petitioner received an overall rating of "exceeded expectation." There are five categories of performance ratings, and "exceeded expectation" is the second highest category. That rating was consistent with ratings Petitioner received from previous supervisors. On April 24, 2002, Mr. Burris held a staff meeting to discuss a new policy regarding issuance of warnings and citations. The new policy required officers to give animal owners in violation of vaccination or licensing requirements 15 days to come into compliance. Previous to this, some officers had given animal owners 30 days to come into compliance. Under extenuating circumstances and upon seeing reasonable attempts to achieve compliance, the officer could extend an owner's deadline by 15 more days. Testimony is conflicting as to whether Petitioner attended this meeting. Petitioner insists she was not at this meeting. Mr. Burris insists that she was and that this issue was discussed in great detail. In any event, Mr. Burris put the new policy in writing a few days after the April 24, 2002, meeting, and the new written policy was given to all the officers. The weight of the evidence establishes that even if Petitioner did not attend the April 24, 2002, meeting, she would have been notified of the policy change shortly thereafter. On April 29, 2002, Petitioner issued a warning to a dog owner, which allowed the dog owner 30 days to achieve compliance with licensing and vaccinations for 24 dogs. According to Petitioner, she considered 30 days to be ample time for the owner to come into compliance. Petitioner maintains that at the time she issued this warning, she was not aware of the change in policy from 30 to 15 days. She acknowledges that Mr. Burris later explained the change in policy to her. It is clear that Mr. Burris informed Petitioner of this policy change and directed her to follow these procedures. In June or July 2002, Mr. Burris designed a policy and procedure manual incorporating all policies and procedures. A manual was issued for each truck used by the animal control officers. On July 31, 2002, Mr. Burris issued a memorandum entitled, "Bite Priority," to the animal control officers. Following a staff meeting where this memorandum was given to the officers, an informal discussion took place around the dispatch area. During this informal discussion, Petitioner questioned Mr. Burris as to whether he had ever read a document called the rabies compendium. Mr. Burris described Petitioner as speaking in a disrespectful, challenging tone. Ms. Lefkowitz witnessed the exchange and described it as disrespectful and condescending.3/ This statement made in front of other officers was inappropriate. The "Bite Priority" memorandum reads, in pertinent part, as follows: All Bites will be priority. Stand-by officers will be required to respond if the bite is after hours during their on-call shift. Bites will not be passed on to the next day. Shifts are 10 hour shifts, not 9 1/2 hours, if you end up working over you are compensated. Officers will not pass calls off to the stand-by person. Priority calls will be taken by Officers during their regular shift. The remainder of the memorandum dealt with off-premise bites. In early August 2002, Mr. Burris decided to "work the roads on a Saturday to take up some of the slack" because the animal control officers were overworked. Late one afternoon, Mr. Burris attempted to reach Petitioner on the radio, but was unable to do so. He asked the dispatcher to contact Petitioner. Petitioner acknowledges that she was contacted by the dispatcher and received Mr. Burris' request to fill up the truck she was driving and to leave the keys and the fuel card on Mr. Burris' desk. Petitioner had already filled up the truck that day in the late morning. She did not fill up the truck again at the end of the day, but described the truck as being seven-eighths full at the end of her shift, after making ten to 12 calls after stopping for fuel. Petitioner believed her actions complied with Mr. Burris' instructions. Mr. Burris described finding the truck the next morning as half-full of gas. Mr. Burris concluded that Petitioner did not follow his instructions. Mr. Burris' conclusion in this regard was not unreasonable. The truck incident gave rise to Mr. Burris' first written warning about her conduct. On August 5, 2002, Mr. Burris issued a memorandum to Petitioner for "failure to follow verbal instruction." The memorandum noted a safety concern in that he was not able to reach Petitioner by radio and his concern that she did not follow his directive. On August 6, 2002, Mr. Burris called Petitioner into his office to discuss the written memorandum. Mr. Burris described Petitioner's behavior when he handed her the memorandum to be disrespectful. As a result, Mr. Burris went to the director's office to explain the circumstances surrounding this incident. This resulted in a meeting in the director's office at which the director, Mr. Burris, and Petitioner were present. Petitioner acknowledges that she made the statement, "I guess one out of a hundred is unacceptable" during this meeting, and that she said it using a sarcastic tone. Later on August 6, 2002, Mr. Burris issued Petitioner another in-house written warning, the subject of which was "improper conduct" about her conduct in the director's office, which read in part: I informed Dr. Caligiuri of Blanca's discourtesy and or improper conduct. I had Blanca meet with me in Dr. Caligiuri's office to discuss her comment and the way in which it was stated. During our conversation in Dr. Caligiuri's office Blanca used mild sarcasm, expressing, "I guess one time out of a hundred is unacceptable" as we discussed the importance of responding to her radio. At this time, I do not want to write this up as a group I #19 Discourtesy to another employee or a Group II #7 Improper conduct which would effect the employees relationship with co-workers. However, if this behavior continues I will be left with no alternative. I know Blanca is capable of doing her job in a professional manner. I only want this as a written documentation of what occurred on this day, to prevent future occurrences of this same behavior. Petitioner refused to sign the August 6, 2002, memorandum. On August 13, 2002, Animal Services received a call about a dog bite at a residence. Animal control officer Jay Butts was dispatched on the call. When he arrived, he saw two or three dogs inside the home, and he could not determine which dog was involved in the reported bite. The owner of the dog was not at home. He left without leaving a written warning because, "I did not have the correct owner or dog, so I didn't know which dog or which owner to leave a written warning to. . . So I wanted to come back and find out which dog actually was involved in the bite." The following morning, Mr. Butts received information from the Health Department regarding the dog's owner and learned that the dog was not currently vaccinated or licensed. Mr. Butts returned to the residence where the bite occurred. He posted a notice to the dog's owner. Apparently the owner was still not home because he posted a warning which included the following necessary corrective action: "Your dog must be placed into quarantine by 5:00 pm on 8-14-02 at our shelter or a licensed vet. If you do not have this done today your animal will be impounded and you will receive a citation of $200.00 per day." The warning required the owner to correct the violation by 5:00 p.m. that day. Officer Butts proceeded to handle other calls until his shift was over. He did not make contact with the dog's owner before his shift ended. His shift ended before 5:00 p.m. The dog's owner called Animal Services after 5:00 p.m. on August 14, 2002. Petitioner took the call. After speaking to the dog's owner, she called a veterinarian and learned that the dog's vaccination had expired by a few months. She did not pick up the dog. She gave the following reason: Yeah, it happened on property. The dog was confined to his property. We had contacted the owner. And basically even though the vaccination had expired, even a one-year vaccination is good for three years. This is a known fact of any vaccine, any rabies vaccine manufactured in the United States, a one-year vaccine has an efficacy of three years. So I take all that matter into consideration when I have to make a decision as to what to do with a bite dog. Petitioner told the dog's owner that he had to comply with the written warning given by Mr. Butts. According to Petitioner, she told the dog's owner that he had to quarantine the dog off the property either at the shelter or at a veterinarian clinic. She also informed him that the only person who could reverse that decision was her supervisor. The next morning, August 15, 2002, the dog's owner called Mr. Burris. Mr. Burris spoke to the dog's owner and then questioned Petitioner to get her side of the story. He then instructed Petitioner to pick up the dog. She did not pick up the dog as instructed; another officer picked up the dog later that day. Mr. Burris gave a verbal warning to Officer Butts regarding his handling of the dog-bite incident. Mr. Butts had received previous disciplinary actions, including suspensions, prior to Mr. Burris becoming the field supervisor. However, on August 20, 2002, Mr. Burris initiated a Notice of Proposed Disciplinary Action (Notice) to Petitioner in which he recommended a three-day suspension without pay. The reasons referenced in the Notice were willful negligence in the performance of assigned duties or negligence which would endanger the employee, other employees, or the public; and refusal to perform assigned duties or to comply with written or verbal instructions of a higher level supervisor. The narrative of the Notice referenced the dog-bite incident and the August 6, 2002, improper conduct memorandum. Mr. Burris explained his decision to give different disciplinary actions to Officer Butts and Petitioner: Q What should she have done with the dog? A She should have impounded it immediately. If the owner refused her, she should have issued him a citation for failure to comply. Q Jay Butts participated in this. We had some testimony about that. Jay Butts participated in this event two days prior and one day prior to Ms. Carbia getting involved. Why wasn't Butts given any suspension on the same matter? A Jay Butts was given the same verbal consultation that Officer Carbia had received. The only thing Jay Butts could have done differently would have perhaps left a posted notice the day of or given a notice to the roommate with generic information. Jay Butts received consultation pertaining to that. He did not receive disciplinary action because he never made any contact with the owner. The officer that made contact with the owner and had the first opportunity to take the dog was Officer Carbia. Q So there is a difference in the seriousness of her offense and Jay Butts' offense? A Absolutely. Q Hers was more serious? A Yes. As a result of the Notice, a grievance hearing took place on August 26, 2002, in the director's office. Wayne Mangum, who at that time was the union steward, Mr. Burris, and Petitioner were there, as well as the director, Dr. Caligiuri. During the meeting, Petitioner explained her position. At some point in the meeting, Dr. Caligiuri made a comment to the effect that 80 years ago women could not vote.4/ Petitioner found that comment to be discriminatory toward women. When asked whether Dr. Caligiuri's demeanor in that meeting was aggressive or not cordial, Mr. Mangum replied that his demeanor was "uncordial." In any event, Dr. Caligiuri's comment was offensive and inappropriate. During the August 26, 2002, meeting, Mr. Burris instructed Petitioner to discontinue striking the word "within" from the form used when giving an animal owner a time frame within which to bring in an animal to be impounded. She had not been instructed regarding that previously. Mr. Burris received a copy of a warning form dated August 28, 2002, on which Petitioner had crossed out the word "within" contrary to his instructions. He took no action at the time since he thought it might have been a "slip of the pen." He then received another warning form dated September 9, 2002, regarding a dog bite which Petitioner had again altered by crossing out the word "within." Petitioner had written on the form that the warning had been posted. Posting is a procedure officers follow when the animal owner cannot be found. The notice is posted on the door of the residence for the owner to find upon returning home. Based upon his telephone call to the dog's owner and the information on the form, Mr. Burris was of the belief that the form had not been posted, and that Petitioner's indication on the form that it had been posted was inaccurate. Mr. Burris met with Petitioner regarding this incident. Petitioner acknowledged at hearing that she spoke to the dog's owner, but was intimidated and confused when questioned by Mr. Burris about whether or not she had spoken to the owner. Petitioner contends that she did not lie to Mr. Burris, that initially the owner did not come to the door but later did come to the door. According to Petitioner, she simply neglected to cross out the word "posted" or ask the owner to sign the form. On September 18, 2002, Mr. Burris signed and provided a Notice of Proposed Disciplinary Action to Petitioner which proposed her termination from employment. The stated reasons for the proposed action were willful negligence in the performance of assigned duties or negligence which would endanger the employee, other employee, or the public; deliberate falsification and or destruction of county records; and refusal to perform assigned duties or to comply with written or verbal instruction of a higher level supervisor. The Notice referenced the August 28, 2002, warning notice with the word "within" crossed out; the September 10, 2002, warning notice with the word "within" crossed out; the written word "posted" on a warning when she had personally spoken to the dog's owner; and the meeting on August 26, 2002, which resulted in her three-day suspension. The Notice concluded: This is the same type of circumstance concerning the same written instruction after meeting with Blanca and her union rep. This time Blanca was untruthful in her statements, even after I gave her three opportunities to tell me that she had personally spoken to the dog owner. By writing "posted" on the notice which indicates the owner was not home, she falsified a county document. Blanca hand delivered the notice to the dog owner and did not impound the dog when she had the opportunity. Petitioner was terminated from her employment with Respondent effective October 2, 2002. There is no evidence in the record that Petitioner complained to anyone that she felt she was discriminated against on the basis of her gender or national origin. The only evidence presented regarding her national origin was Petitioner's brief testimony: Q Were there any other Hispanics employed at animal services during the time frame that Mr. Burris was there? A No. Do you feel that your national origin had something to do with the way Mr. Burris treated you? A Certainly just—basically I felt that I was treated differently, yeah.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the Florida Commission on Human Relations enter a final order dismissing the Charge of Discrimination and Petition for Relief. DONE AND ENTERED this 27th day of July, 2004, in Tallahassee, Leon County, Florida. S BARBARA J. STAROS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of July, 2004.
Conclusions An Administrative Law Judge of the Division of Administrative Hearings has entered an Order Relinquishing Jurisdiction and Closing File in this proceeding. A copy of the Order is attached to this Final Order as Exhibit A.
Other Judicial Opinions REVIEW OF THIS FINAL ORDER PURSUANT TO SECTION 120.68, FLORIDA STATUTES, AND FLORIDA RULES OF APPELLATE PROCEDURE 9.030(b)(1)(C) AND 9.110. TO INITIATE AN APPEAL OF THIS ORDER, A NOTICE OF APPEAL MUST BE FILED WITH THE DEPARTMENT’S AGENCY CLERK, 2555 SHUMARD OAK BOULEVARD, TALLAHASSEE, FLORIDA 32399-2100, WITHIN 30 DAYS OF THE DAY THIS ORDER IS FILED WITH THE AGENCY CLERK. THE NOTICE OF APPEAL MUST BE SUBSTANTIALLY IN THE FORM PRESCRIBED BY FLORIDA RULE OF APPELLATE PROCEDURE 9.900(a). A COPY OF THE NOTICE OF APPEAL MUST BE FILED WITH THE APPROPRIATE DISTRICT COURT OF APPEAL AND MUST BE ACCOMPANIED BY THE FILING FEE SPECIFIED IN SECTION 35.22(3), FLORIDA STATUTES. YOU WAIVE YOUR RIGHT TO JUDICIAL REVIEW IF THE NOTICE OF APPEAL IS NOT TIMELY FILED WITH THE AGENCY CLERK AND THE APPROPRIATE DISTRICT COURT OF APPEAL. MEDIATION UNDER SECTION 120.573, FLA. STAT., IS NOT AVAILABLE WITH RESPECT TO THE ISSUES RESOLVED BY THIS ORDER. FINAL ORDER NO. DCA 11-GM-145 CERTIFICATE OF FILING AND SERVICE I HEREBY CERTIFY that the original of the foregoing has been filed with the undersigned Agency Clerk of the Department of Community Affairs, and that true and correct copies have been furnished by U.S. Mail to each of the persons listed below on this day of » 2011. By U.S. Mail The Honorable Bram D. E. Canter Administrative Law Judge Division of Administrative Hearings The Desoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 By Electronic Mail Catherine D. Reischmann, Esq. Debra S. Babb-Nutcher, Esq. Gregg A. Johnson, Esq. Brown, Garganese, Weiss & D’agresta, P.A. 111 N. Orange Ave., Ste. 2000 Orlando, Florida 32802 creischmann@orlandolaw.net dbabb@orlandolaw.net gjohnson@orlandolaw.net Reginald L. Bouthillier, Jr., Esquire Greenberg Traurig, P.A. 101 East College Avenue Tallahassee, Florida 32301-7742 bouthillierr@gtlaw.com \ Paula Ford tga Agency Clerk Department of Community Affairs 2555 Shumard Oak Blvd Tallahassee Florida 32399-2100 Thomas W. Reese, Esquire 2951 61st Avenue South St. Petersburg, Florida 33712-4539 twreeseesq@aol.com Marcia Parker Tjoflat, Esq. Pappas, Metcalf, Jenks & Miller, P.A. 245 Riverside Ave., Ste. 400 Jacksonville, Florida 32202 mpt@papmet.com M. Lynn Pappas, Esq. Pappas, Metcalf, Jenks & Miller, P.A. 245 Riverside Ave., Ste. 400 Jacksonville, Florida 32202 Ipappas@papmet.com Linda Loomis Shelley, Esq. Fowler White Boggs & Banker, PA. P.O. Box 11240 Tallahassee, Florida 32302 Ishelley@fowlerwhite.com Lynette Nort, Esq. Assistant General Counsel Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100 Lynette.Norr@dca.state.fl.us FINAL ORDER NO. DCA 11-GM-145
The Issue The issue in the case is whether the allegations of the Administrative Complaint are true, and if so, what penalty should be imposed.
Findings Of Fact At all time material to this case, the Respondent was licensed as a veterinarian in the State of Florida, license no. VM0004187. The Respondent worked as a veterinarian at Animal Hospital Hyde Park, a combination animal hospital and kennel facility. The facility encompassed approximately 5,000 square feet, and was located at 800 West Kennedy Street, Tampa, Florida. During the Respondent's tenure at Animal Hospital Hyde Park, another veterinarian, Marianne Keim, owned the facility. Ms. Keim operated a boarding business, a grooming center, and a veterinary clinic, all located within Animal Hospital Hyde Park. There is no evidence that the Respondent had an ownership interest in Animal Hospital Hyde Park. The Petitioner presented testimony suggesting that the Respondent was the "responsible veterinarian" for Animal Hospital Hyde Park, and as such was responsible for the actions of all facility employees. The testimony is not supported by the greater weight of the evidence and is rejected. There is no evidence that the Respondent was responsible for the operation of the facility. There is no evidence that the Respondent presented himself to the public or to facility staff as a veterinarian generally responsible for boarded animals. The evidence establishes that the Respondent provided veterinary services by appointment only for animals brought to the facility. The Respondent also provided veterinary services by appointment on a "house call" basis. There is no evidence that the Respondent generally provided routine medical services to animals being boarded. Boarded animals received medical treatment from the Respondent only when an animal owner, after being advised by kennel staff of a medical problem, gave approval for the Respondent to treat the identified problem. After receipt of the authorization, kennel staff would take the ill animal to the Respondent's examination room. After receiving the medical attention, the animal would be returned by kennel staff to the boarding area. On February 9, 1996, the Respondent examined two dogs, Casey and Chloe, owned by Mr. and Mrs. Robert Yuill. The Yuills had moved to the Tampa area in January of 1996. The apartment facility where the Yuills lived did not permit large animals inside the housing units. At the time the Respondent met Mr. Yuill, the dogs had been living in the back of Mr. Yuill's Ford truck for three to four weeks. The Respondent examined the animals on February 9, 1996. Both dogs were overweight. At the February 9 examination, Chloe had an ear infection. The Respondent offered to medically treat the infection. Mr. Yuill declined, noting that he had appropriate medication remaining from the animal's former veterinarian. At the February 9 examination, Casey had a foot problem. The Respondent suggested Epsom salt soaks, and subsequently treated the foot with an antibiotic. There is no evidence that the February 9 examination and medical treatment provided at that time, or as follow-up care for problems identified during that examination, was inappropriate or failed to meet acceptable standards of care. From March 23, 1996, to August 12, 1996, the Yuill dogs were boarded at Hyde Park Animal Hospital. Upon admission to the kennel, the dogs remained overweight. The Yuills advised the kennel staff that the dogs were to receive food specifically designed to promote weight loss. The Yuills provided the food to the kennel. In April of 1996, the Respondent performed a successful spay surgery on Chloe, complicated only by the dog's obesity. There is no evidence that the spay surgery or any related follow- up was inappropriate or failed to meet acceptable standards of care. The Yuills took the dogs from the kennel for the Memorial Day weekend. The Yuills testified that the animals were dirty, ungroomed, appeared lethargic, and were infested with fleas. Nonetheless, they returned the animals to the facility at the close of the weekend. The Yuills testified that they advised Ms. Keim of the situation when the animals were returned to the kennel at the end of the Memorial Day weekend. Ms. Keim denies that the dogs were not in acceptable condition upon their release for the weekend, and denies being advised of any problem. From Memorial Day weekend until August 10, 1996, the Yuill dogs remained in the kennel facility, unvisited by the Yuills. The Yuills testified that they refrained from visiting the animals after Ms. Keim advised them that family visits were resulting in psychological and behavioral problems for the animals. Ms. Keim denies that she ever advised the Yuills to refrain from visiting the animals. On August 10, 1996, the Yuills came to remove the dogs after being advised that Ms. Keim was closing the facility. Prior to releasing the animals, Marianne Keim weighed Chloe at 54.5 pounds. Casey was too heavy for Ms. Keim to lift and was not weighed. According to Ms. Keim's testimony, the Yuills owed a balance of approximately $1,300 at the time the dogs were removed from the facility. Ms. Keim asserted at the hearing that the bill remains unpaid. The Yuills dispute her recollection. Shortly after retrieving the dogs from the Animal Hospital Hyde Park, the Yuills contacted the Board of Veterinary Medicine and was advised to take the animals for examination by Dr. Jerry Alan Greene at the Academy Animal Hospital. Dr. Greene examined the animals on August 13, 1996. Dr. Greene photographed the dogs and performed a number of tests at the expense of the Petitioner. According to the tests, there was an indication that the dogs had hookworms, but there was no other indication of disease or other illness. Blood test results provided no indication of illness. Hookworms can occur when an animal comes into contact with fecal material from another animal. There is no evidence that hookworms resulted from any negligence or poor medical practice by the Respondent. Dr. Greene stated that Ms. Yuill had remarked on Chloe's thirst and possible dehydration. There is no evidence that the dog was dehydrated. Dr. Greene testified that Chloe had otitis externa, an ear infection. According to Dr. Greene's testimony, Chloe's weight upon examination was 46 pounds. Dr. Greene opined that the dog was grossly underweight. The Respondent presented the testimony of Dr. Richard Goldston. The testimony of Dr. Goldston is credited. Based on his review of the photographs, including bone structure and coat of the animal, Dr. Goldston opined that the dog, though perhaps thin, was of a healthy weight. The dog's coat appeared to be healthy. No bones were observed to protrude from the dog's frame. Chloe also had an ailment identified as an "acral lick granuloma," on her lower leg. The condition, a swollen reddish lump generally surrounded by saliva-stained skin, results from excessive licking of an area. There was credible testimony that the licking behavior can initially result from boredom. Although an acral lick granuloma can be visually identified upon examination, there is no debilitation such as limping that would draw attention to the animal. The condition does not result in pain or discomfort to the animal, other than itching. The itching results in further licking, which aggravates the condition. There is no evidence that the Respondent was aware of the granuloma. There is no evidence that boarding staff advised him or sought approval from the Yuills to have the condition treated. According to Dr. Greene's testimony, Casey remained overweight and had a slight foot problem. He advised the Yuills to treat the problem area with Epsom salt soaks. Several boarding kennel employees testified at the hearing. All were very familiar with Casey and Chloe, noting that their familiarity was related to the dogs long-term boarding status. According to the boarding employees, the dogs were healthy and energetic while at the kennel.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Business and Professional Regulation enter a Final Order DISMISSING the Administrative Complaint filed in this case. DONE AND ENTERED this 29th day of March, 1999, in Tallahassee, Leon County, Florida. WILLIAM F. QUATTLEBAUM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of March, 1999. COPIES FURNISHED: Paul F. Kirsch, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Charles E. Lykes, Jr., Esquire 501 South Fort Harrison Avenue, Suite 101 Clearwater, Florida 33756 William Woodyard, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 John Currie, Executive Director Board of Veterinary Medicine Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue On July 22, 1992, the State of Florida Commission on Ethics issued an order finding probable cause that Respondent, Winston W. "Bud" Gardner, as a member of the Florida House of Representatives, violated Section 112.313(4), Florida Statutes, by accepting an all-expense paid weekend trip to Key West in May, 1988, for himself and his wife, when he knew or should have known that the trip was given to influence his official actions. The issue here is whether that violation occurred, and if so, what discipline or penalty is appropriate.
Findings Of Fact Respondent was elected to the Florida House of Representatives in 1978, where he served until his election to the Florida Senate in November 1988. Respondent served in the Senate until November 1992. On May 20, 1988, Respondent and his wife, together with a group of other persons departed Tallahassee in private airplanes for a weekend trip to Key West, which the participants called the "Conch Conference". The group, with one exception, was comprised of lobbyists, legislators and their spouses or companions. Among the lobbyists on the trip were William McCue, who lobbies for insurance interests; Gary Guzzo, who lobbies primarily for insurance and health care service industries; Paul Sanford, who lobbies for several insurance companies, Southern Bell, S. E. Toyota distributors and others; Prentiss Mitchell, who lobbies for insurance interests, as well as the Glass Packaging Institute and the Florida Fruit and Vegetable Association; Michael Huey, who lobbies for various interests; Charles Hood, who represents Georgia Pacific; John Williamson, who represents CSX Transportation; and Robert Coker, who lobbies for U. S. Sugar. Gary Guzzo recalls these legislators on this or a prior year's trip to the Keys: the Respondent, Frank Messersmith, Carl Carpenter, Beverly Burnsed, Jon Mills, Ron Johnson, Sam Bell and Chris Meffert. (Guzzo, p.9) House Sergeant at Arms, Wayne Westmark, also attended. The prior year's trip to the Keys to unwind had been a success, so the trip was scheduled again at a hectic time during the closing weeks of the legislative session. Respondent recalls being invited by a group of lobbyists as he came off the floor of the House into the rotunda. (Gardner, pp.6-7) He knew his hosts were lobbyists and knew generally whom they represented. (Gardner, p.21) The lobbyists paid all the expenses of the legislators and their spouses, including food, lodging and entertainment. At least two lobbyists, including Guy Spearman who represents Anheuser-Busch, provided private planes which the group used to travel to and from Key West. The cost of the trip was approximately $673 per person. Because the lobbyists paid for both Respondent and his wife's expenses, the value to Respondent was $1,346. (Gardner Letter, p.4) In Key West, activities available to the legislators at the lobbyists' expense included diving, deep-sea fishing and golf. The Respondent and his wife went deep-sea fishing for a half-day on Saturday, went shopping, had dinner, and returned with the group to Tallahassee on Sunday. The lobbyists shared the cost of the trip equally and billed the expense to their clients, or in one case, to their law firm's governmental affairs expense account. Mr. Huey only billed clients who had issues pending before the Legislature at the time. Similarly, Mr. Mitchell billed only one client. The Respondent did not reimburse any of the lobbyists, nor did he offer to reimburse them or reciprocate by purchasing similar trips for them. He knew the lobbyists were not paying out of their own pockets. It is generally considered "bad form" to talk about business on trips such as this, but it was difficult to refrain entirely from talking about matters in which everyone present was interested; and legislative business invariably came up. Mr. Huey was sure he talked to Respondent about some legislative issues in Key West. (Huey, p.19) None, including Mr. Huey, can remember any specific issues, and it is unlikely that significant direct advocacy occurred on the trip. Lobbyists promote the interests of their clients before the Legislature, primarily by obtaining passage of bills or amendments which would help their clients and by defeating bills which would injure their clients. Influencing legislators is at the core of the lobbyist's vocation; it was the job of the testifying lobbyists to try and influence legislators. The trip came right before the final two weeks of the legislative session when most bills are passed. The persons selected for the trip were considered compatible and "fun" people, but they were also in leadership roles. The lobbyists were "senior type lobbyists". (Mitchell, p.11) Mr. Mitchell's clients had matters affecting their interests pending before the Legislature at the time, as did Mr. Huey's, Mr. Hood's, Mr. Coker's, Mr. Williamson's, Mr. Sanford's, Mr. McCue's, and Mr. Guzzo's. At the time of the trip, the Respondent was a member of the House of Representatives. He had been Chairman of the Finance and Taxation committee the year before and was, at the time of the trip, Chairman of the Rules and Calendar Committee. He also served on the Appropriations, Rules and Calendar, Education K-12 and Joint Legislative Information Technology Resource Committees. (Stip. No. 2) Rules Chair is a powerful position. In addition, since most bills go through the Appropriations Committee, this is an important committee assignment. Because Respondent had served in the House for ten years at the time of the trip, and because of his committee assignments, he was obviously in a position to help or harm the interests of the lobbyists. Mr. Mitchell and Respondent were friends, but their friendship centered on their business relationship. Mr. Mitchell stated, What we have to do in this process is when these folks come in, these freshmen, I have been around there for 23 years and nobody has been there longer than I have, so I have seen them all come in as freshmen, we try to make a determination as to who these people are going to be and whether they have leadership capabilities and certainly Bud is evidence by where he is today, we recognize that early on, so he became a good friend for that reason. (Mitchell, p.25, emphasis supplied) Mr. Huey's friendship with Respondent was also professional in nature. This was not a pleasure trip motivated by friendship between the Respondent and his hosts. The lobbyists hoped their expenditures would yield access and trust. These intangible returns are best described in their own words: I guess its hard to quantify. I think the opportunity to learn more about the specific issue or issues in general which may overall impact your clients is an opportunity that probably doesn't --there is no way that that information just gets sent out generally to the people who lobby, so the chance to be with legislators who are in particular positions and what have you, gives you maybe a chance to learn a little more about where the process is going to end up, not that they are disclosing anything to you that they wouldn't disclose to anybody else, but it gives you the chance to ask them. So I think the primary thing that you're doing is hopefully getting some more time to access the folks under circumstances that you may be able to explain your position under less time -- with fewer time constraints on them than trying to catch them in their office when they are on the phone and trying to talk to three other people in their office. (Huey, p.21) Flying an airplane or playing golf or whatever, it's a way in which we get to know those legislators and not that -- it's not that you may even discuss any business, but certainly flying an airplane and someone sitting over in the right seat, you have got an opportunity to talk to him. But even more important than that is that once you get back from a trip or once you get through playing golf with one of those guys, whether you talk business or not, certainly the next day if you were at the Capitol and you walked by his office, he is going to be more accessible to me than he would you if you had never met the guy. That's the reason we do an awful lot of entertaining and spending time with these fellows.. (Mitchell, p.26) * * * This process down here is so -- it's fairly sophisticated and fairly complicated and there's a lot of demands on legislators' time and, to be honest with you, sometimes if you're not known and I'm not to a lot of legislators, they don't know me personally, and without some sort of contact and identity that's already established, you're just another face in the crowd that they see every day, all day long and, you know, I guess in some respect it's similar to a salesman, you cultivate your customer if you can and try to get to know him and him to know you. It's just part of human nature, I think. (Hood, p.19) Well, you know, its like selling. You know, you get to know your customer better. I mean, we deal with these people, like you say, on a daily basis, and its just getting to know the legislators better so that you can talk with them. (Williamson, p.15) Well, you know, one of my responsibilities is to try to represent our company's interests in the legislative process. And in order to do that, I have to have a certain credibility with members. I've got to have a certain relationship with members, that they know me and they can count on me, that in the heat of the process over there, they can come to me and say, "Robert, I've got this issue that has come up. Tell me how it impacts agriculture. Tell me how it impacts your company." At the same time, when I find something in the process that is in our company's best interest and want to go and talk to somebody, it's nice to be able to know that they know me, and they will take time to talk to me about it. So from our company's standpoint, we felt like over the years the time that I spent and the resources that I invested in this process was worthwhile. (Coker, p. 17) Well, I think if a legislator knew me and knew that I was an honest person, that I had been with him and -- let's say we went dove hunting and killed a dove, and the legislator thought he shot the dove, and I said, "Mine, mine," and I did that every time a dove fell out of the air. He's going to say, "Wait a minute. This is a person you just can't trust." If I was playing golf with him or anything of that nature, if they saw that I was a person that had their same, if you will, likes and desires as far as recreational activities, I guess it was just a personal bond there. We became closer, and they would believe when I was dealing with them in a business fashion that I would have the same ethics that I had with them when I was dealing with them on a personal basis. Q So if I'm right here, it helps to establish a relationship? A A personal relationship. Q And that would be to your advantage if you had a personal relationship? A Certainly. (McCue, p.10) There is a direct nexus between that trust/access and the desired influence: I think my primary function as a lobbyist is to, first, monitor all legislation to determine what effect it may have on my clients, either positive or negative. After making that determination, you either try to kill or amend the bad legislation or promote the good legislation, good in the sense of the manner in which it affects your clients. In order to do that, I think that I have to provide good, correct information to the legislators and the staff people. I have to do everything in my power to make sure that my credibility with both those groups remains at the highest level possible and that I have access to those people in order to make sure my message has gotten to those people. And hopefully, if they believe that my position is a correct one, then they will accept that and go in the direction that I would like them to with respect to their vote. (Sanford, pp.6-7, emphasis added) As a ten-year veteran of the House of Representatives when this trip was taken, Respondent had been the guest of various lobbyists and/or their employers on a number of occasions. In his letter to the Ethics Commission, he writes: I think all the commission members should have an understanding of these first impressions. You are elected the first week in November and immediately take office. The Organization Session is two weeks later, but in those years, even before the Organization Session we were invited on our first trip - the party caucus - usually held away from Tallahassee. Most of the festivities associated with the caucus were paid for by the local community and lobbyists. That was immediately followed by the Organization Session which was also an escape from reality with its endless line of parties and receptions also paid for by lobbyists. Before the end of November we had received our initial notification of the Walt Disney World Legislative Weekend scheduled for February. Usually in January we received an invitation to another legislative weekend sponsored by a local community such as Dade County or Broward County or Duval county or Brevard County. That was usually scheduled for March or April so as to gain the most influence during the upcoming legislative session scheduled to begin in April. That was also an all expense paid trip for legislators and their families paid for by businesses from the local community and lobbyists. Lobbyists who contributed were allowed to attend. Also about this time was the Agriculture Weekend Getaway down around Lake Okeechobee, all paid for by agriculture lobbyists. By the time the first legislative session was ready to start, a new legislator was a seasoned traveler. (Letter, pp.1-2) Referring to the Disney weekend, Respondent points out that he is "sure that the $80,000 to $100,000 cost to Disney for the weekend was not a totally benevolent gesture on their part." (Letter, p.2) Regarding the Brevard weekend, Respondent quotes an April 1987 Florida Today newspaper as saying that the legislative weekend is an idea. "...that may in time prove to be worth more than the $50,000 or so that will be spent...", and he asks "[d]o you think the contributions to support these weekend getaways by lobbyists from outside the regional areas were nothing more than a benevolent gesture, also?" (Letter, pp.2-3) The Respondent also points out that one of the newspaper's lobbyists "took a special charter to Tallahassee to bring the Speaker of the house to Brevard so that he could have some 'quality' time with him." (Letter, p.3) These statements made by the Respondent reveal that he knew that the intent of the lobbyists was to influence him in the performance of his official duties. He observed that legislative weekends were usually scheduled for March or April "so as to gain the most influence during the upcoming legislative session scheduled to begin in April." (Letter, p.2, emphasis added) The Respondent also states: During my first year in the legislature I discovered that the Speaker Designate was a flying enthusiast. I was Commanding Officer of VMA-142 in Jacksonville. I worked for over a year to obtain permission to take the future Speaker up in a two seat jet attack aircraft. I wanted a good committee assignment when he became Speaker. (Letter, p.3, emphasis added) From the very beginning of his legislative career Respondent recognized the effectiveness of gaining access to powerful persons to influence their decisions.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: That the Commission on Ethics enter its final order and public report finding that Winston W. "Bud" Gardner violated Section 112.313(4), F.S., and recommending a civil penalty of $1,346. DONE AND RECOMMENDED this 7th day of April, 1993, in Tallahassee, Leon County, Florida. MARY CLARK 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 7th day of April, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-4946EC The following constitute specific rulings on the findings of fact proposed by the parties. The Advocate's Proposed Findings Adopted in paragraph 1. Adopted in paragraph 2. Adopted in substance in paragraph 3. The exact number was not established. Adopted in paragraph 4, except that it was not established that Guy Spearman was on the trip. Another lobbyist was mentioned, Bernie Parrish, but the evidence here does not establish that he was on the trip either. Adopted in substance in paragraph 5; although Guzzo's testimony related to both years' trips. Adopted in paragraph 6. Adopted in paragraph 7. Adopted in paragraph 8. Adopted in substance in paragraph 9, although not all billed their clients, as found in paragraph 9. Adopted in paragraph 10. Adopted in paragraph 11. Part II 1.-4. Adopted in summary in paragraph 12. 1.-6. Adopted in substantial part in paragraph 17. 7.-9. Adopted in paragraph 13. See Part I, paragraph 9, above. Adopted in paragraph 14. 12.-13. Adopted in paragraph 15. Rejected as unnecessary. Adopted in paragraph 10. 18.-19. Adopted in paragraph 16. 20.-23. Rejected as unnecessary. 24.-25. Adopted in substance in paragraphs 17 and 18. Part IV 1. Adopted in paragraph 5. 2.-4. Adopted in paragraph 10. 5.-6. Rejected as unnecessary. Adopted in paragraph 19. Adopted in paragraph 20. Adopted in paragraph 21. Adopted in paragraph 22. Adopted in substance in paragraph 23. Adopted in paragraph 24. 13.-15. Rejected as cumulative or unnecessary. Respondent's Proposed Findings of Fact 1.-2. Rejected as unnecessary. Addressed in Conclusions of Law paragraph 27. Addressed in Preliminary Statement. Adopted in paragraph 14. Adopted in paragraph 2. Adopted in substance in paragraph 13. Rejected as unnecessary. Adopted in part in paragraph 5, otherwise rejected as irrelevant. 10.-11. Rejected as irrelevant. Adopted in part in paragraph 5. While relaxation was the reason for the venue, it was not the trip's primary purpose as established by the greater weight of evidence. Adopted in part in paragraph 17. Access was, however, the primary rather than secondary purpose. Adopted in paragraph 12. Rejected as contrary to the evidence. Rejected as unnecessary. 17.-19. Adopted in substance in paragraph 13. Rejected as unnecessary. Actually, this reply by Respondent further evidences his knowledge of the lobbyists' clients' reason for paying for the trip. Adopted in paragraph 8. Adopted in part in paragraph 9, otherwise rejected as contrary to the weight of evidence. Rejected as unnecessary. Adopted in part in paragraph 7. The exact number of lobbyists contributing was not established. Rejected as irrelevant. Rejected as unnecessary. The cost of the trip is relevant, but Respondent's belief that the cost was "fairly minor" is either not credible (if calculated to disavow his knowledge of the intent to influence) or simply inconclusive. "Fairly minor" is meaningless. 27.-30. Adopted in paragraph 19. 31.-32. Rejected as unnecessary or irrelevant. The lobbying need not occur on the trip for the influence to be exercised. 33.-36. Adopted in substance in paragraph 11. Rejected as unnecessary or contrary to the weight of evidence. The friendships were professional, according to the evidence. Adopted in paragraph 17. Rejected as irrelevant, except for the statement that Respondent never felt as though anyone was trying to influence him in any way, which statement is rejected as contrary to the greater weight of the evidence, including evidence from Respondent's own statements. COPIES FURNISHED: Virlindia Doss Assistant Attorney General Department of Legal Affairs The Capitol, PL-01 Tallahassee, Florida 32399-1050 Leonard J. Dietzen, III, Esquire Parker, Skelding, Labasky & Corry 318 North Monroe Street Post Office Box 669 Tallahassee, Florida 32302 Bonnie Williams Executive Director Ethics Commission Post Office Box 6 Tallahassee, Florida 32302-0006 Phil Claypool General Counsel Ethics Commission Post Office Box 6 Tallahassee, Florida 32302-0006
The Issue Whether the Administrative Complaint should be dismissed on the grounds asserted by Respondent in his Motion to Dismiss/Motion to Remand for New Probable Cause Hearing, as amended? If not, whether Respondent committed the violations alleged in Administrative Complaint? If so, what disciplinary action should be taken against him?
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: Respondent is now, and has been since December 12, 1986, certified by the Commission as a law enforcement officer. He holds certificate number 12-86- 002-03. Respondent is a police officer with the Port St. Lucie Police Department (hereinafter referred to as the "PSLPD"). He began his law enforcement career with the PSLPD in 1986. At around 2:00 or 3:00 a.m. on July 28, 1989, Respondent and two of his PSLPD fellow officers, Officer Raymond Steele and Officer Richard Schichtel, were at a convenience store when they received a call over their police radios that there was a reported burglary in progress on Damask Street. All three officers responded to the call in separate marked patrol cars. Steele lead the way. Behind him was Respondent. Schichtel was in the rear. As they were travelling eastbound on Port St. Lucie Boulevard, they approached from behind a slow-moving, orange Volkswagon Beetle occupied by two white males. Steele safely passed the slow-moving vehicle. As Respondent attempted to pass, the Volkswagon suddenly and unexpectedly turned left in the path of Respondent's patrol car, which was travelling at a high rate of speed. Respondent took evasive action. He avoided hitting the Volkswagon, but lost control of the patrol car. The patrol car spun around and skidded across the roadway. It finally came to rest after making contact with a concrete wall. Respondent was shaken by the accident. He had hit his head against the cage inside the patrol car 1/ and had momentarily lost consciousness. He had no visible injuries, however, and, upon regaining consciousness, did not believe that his condition was such that he required medical attention. Schichtel, who was following behind Respondent, stopped at the accident scene to render assistance. Steele, who was ahead of both of them, proceeded to the location of the reported burglary. A few minutes later, while Schichtel was still present, Christian Selph, the driver of the Volkswagon that Respondent had attempted to pass, arrived on the scene. Selph walked up to Respondent and asked him if he was okay. Respondent responded that he was fine and that there was no need for Selph to remain. Selph thereupon left the accident scene and continued on his way. 2/ Respondent tried to move his patrol car from where it had come to a stop, but his efforts were unsuccessful. Respondent radioed his supervisor, Sergeant Steve Claus, told Claus where he was, and requested Claus to meet him at that location. Complying with Respondent's request, Claus proceeded to the accident scene. Schichtel left the accident scene to join Steele at the location of the reported burglary. Schichtel arrived at the location of the reported burglary as Steele was about to leave. He informed Steele that Respondent had been involved an accident. He then returned to the accident scene with Steele following behind him. Respondent was not provided, nor did he request, medical attention following the accident. Based upon what they had observed and what they had been told by Respondent, it did not appear to any of those who arrived on the scene following the accident that Respondent was in need of such attention. The accident was investigated by Officer Charles Taylor of the PSLPD. Taylor collected physical evidence at the scene and interviewed Respondent, Schichtel and Steele before completing his accident report. Taylor interviewed Respondent at approximately 5:00 a.m. the morning of the accident. In a clear and coherent manner, Respondent related to Taylor how the accident had occurred. He made mention of the Volkswagon, its two white male occupants and its role in the accident. He further stated that the Volkswagon did not stop at the scene of the accident. 3/ During his interview with Taylor, Schichtel likewise reported that the Volkswagon did not stop at the scene of the accident. Within weeks of the accident, Respondent's and Schichtel's superiors received information that Selph, the driver of the Volkswagon, did stop of the scene of the accident after the accident had occurred. A PSLPD internal affairs investigation into the matter was conducted. After learning that the investigation had commenced, Respondent, who at the time was president of the union that served as the collective bargaining representative of the PSLPD's rank and file police officers, informed Schichtel about the investigation, advised him of his rights under the law enforcement officers' "Bill of Rights," and indicated that the union would be providing him an attorney if he so desired. Following this discussion between Respondent and Schichtel, Schichtel sent a memorandum to Lieutenant W.D. Hart of the PSLPD, dated August 18, 1989, which provided in pertinent part as follows: I did not see the VW, and assumed that it fled the area. The VW did return to the scene, but I am unsure if this was before I left to respond to the burglary or after I returned. The only conversation I recall was one of the occupants of the VW saying to Officer Dobler, "You didn't have your blue lights on did you?" I assumed that Officer Dobler had obtained the necessary information from them. After he released them from the scene, he told me that they were not pertinent to the accident, and for me not to mention that they stopped. I was unsure of his reasoning, but felt that it was his business. I feel that Officer Dobler was very shook up after the accident, and did not realize what he was doing until it was too late. I feel partially responsible for not stepping in and handling the situation, but I felt I should not override a senior patrolman. I am very sorry for my actions, and I know what I did was wrong. I was in a situation I did not know how to handle, and used poor judgment. I feel confident that if I am faced with a similar situation in the future, I will know how to handle it properly. The PSLPD suspended Schichtel for five days for having falsely stated to Taylor that the Volkswagon had not stopped at the scene of the accident. Respondent, on the other hand, was terminated by the PSLPD in accordance with the unanimous recommendation of the review board that considered his case. Respondent appealed his firing. Pursuant to a settlement agreement, Respondent was subsequently rehired as a police officer by the PSLPD. The Commission received notice of Respondent's termination on May 10, 1990. A case file was prepared and the matter was assigned to Commission employee Linda Hodges, who at the time was working on approximately 300 other cases. Hodges requested additional information from the PSLPD on June 26, 1990. The requested information was received on July 20, 1990. It was not until May 17, 1991, that Hodges completed her work on Respondent's case and prepared and mailed Respondent a letter notifying him that his probable cause hearing would be held on July 24, 1991. Respondent, through his attorney, requested a continuance of the hearing. The request was granted and the hearing was rescheduled for October 23, 1991. Respondent was notified of such action by letter from the Director of the Division of Criminal Justice Standards and Training, dated August 19, 1991, the body of which read as follows: This notice will serve to advise you that a Panel of the Criminal Justice Standards and Training Commission will meet in regular session on October 23, 1991, 8:30 a.m., at the Gainesville Hilton, 2900 Southwest 13th Street, Gainesville, Florida. The above noted-case will be presented to the panel to determine if probable cause exists to initiate a formal legal proceeding to revoke your Law Enforcement certification. The hearing will be conducted in accordance with the provisions of the Administrative Procedures Act, Chapter 120, Florida Statutes. Due to the preliminary nature of the hearing, no witnesses will be subpoenaed and the Panel will judge probable cause based upon written materials. You may attend the hearing or submit documents which refute, explain, or mitigate the allegation(s) against you. The documentation must be submitted to the attention of Linda Hodges no later than September 5, 1991. Should probable cause be found a later hearing will be made available to you prior to the final resolution of this matter. If you require specific information regarding the alleged misconduct, please contact me or Linda Hodges, Standards and Training Specialist in the Bureau of Standards, at 904-487-4922. Please notify this office if you are planning to attend the hearing. Prior to the scheduled probable cause hearing, Respondent unsuccessfully sought to examine the materials in the Commission's file on him to determine its completeness. He then attempted to obtain an injunction to prevent the Commission from holding the probable cause hearing. Respondent withdrew his request for an injunction based upon the representation made by Commission staff that, if a finding of probable cause was made at the October 23, 1991, hearing, Respondent could ask for a new probable cause hearing at which he would have the opportunity to present additional material information to the probable cause panel. Respondent's case was heard by the probable cause panel on October 23, 1991, and probable cause was found. Neither Respondent nor his attorney appeared before the probable cause panel. Schichtel's case was presented to the probable cause panel the very same day. No probable cause was found in his case. The Commission issued an Administrative Complaint against Respondent on December 18, 1991. Respondent requested a formal hearing on the allegations set forth in the Administrative Complaint. After a finding of probable cause was made in his case, Respondent was allowed to review his Commission file. In his opinion, the file contained inaccurate and incomplete information. Respondent sought a new probable cause hearing to present additional information to the probable cause panel. His various requests were denied. On January 19, 1993, the instant matter was referred to the Division of Administrative Hearings for the assignment of a hearing officer to conduct the formal hearing Respondent had requested on the allegations set forth in the Administrative Complaint issued against him by the Commission. Although Respondent is still employed as a police officer by the PSLPD, he has been assigned administrative duties pending the outcome of this disciplinary proceeding. While the final hearing in this case was held almost three years from the date the Commission had been made aware by the PSLPD of Respondent's alleged misconduct, the passage of time has not adversely affected in any material way Respondent's ability to defend himself against the allegations made against him, nor has it otherwise impaired the fairness of this proceeding.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Criminal Justice Standards and Training Commission enter a final order (1) finding the evidence insufficient to prove that Respondent is guilty, as charged, of having failed to maintain "good moral character" in violation of Section 943.1395, Florida Statutes, and (2) based upon such a finding, dismissing the Administrative Complaint issued against him. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 23rd day of June, 1993. STUART M. LERNER 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 23rd day of June, 1993.
The Issue Whether the Florida Fish and Wildlife Conservation Commission (“the Commission”) correctly determined that a sailboat owned by Jeffrey Sundwall was a “derelict vessel” within the meaning of section 823.11(1)(b)1., Florida Statutes (2017),1 and thus subject to sections 376.15(3)(a) and 705.103, Florida Statutes.
Findings Of Fact Based on the evidence adduced at the final hearing, and the record as a whole, the following Findings of Fact are made: The Parties The Commission is empowered to remove, or cause to be removed, derelict vessels from Florida’s public waters. §§ 376.15(3)(a) and 823.11(3), Fla. Stat. A vessel is considered to be “derelict” if it is left, stored, or abandoned “[i]n a wrecked, junked, or substantially dismantled condition upon any public waters of this state.” § 823.11(1)(b)1., Fla. Stat. Mr. Sundwall was the registered owner of a 28-foot sailboat named the Sea Joy. Facts Specific to the Instant Case Lieutenant Andy Cox of the Commission found the Sea Joy anchored off Wisteria Island in the Florida Keys on March 27, 2017. The Sea Joy had an expired registration decal, and a large amount of seaweed on the outboard motor, which probably rendered the motor inoperative. The Sea Joy had been left open and exposed to the elements, and Lieutenant Cox observed one-inch deep, green water inside the vessel. Lieutenant Cox also determined that the Sea Joy had no working bilge pumps or battery power. Lieutenant Cox initiated a derelict vessel investigation. While the Commission did not take custody of the Sea Joy at that time, Lieutenant Cox affixed a large, red sticker to the Sea Joy announcing that the vessel’s owner had 5 days before the Commission disposed of it pursuant to its authority under chapter 705. Lieutenant Cox met with Mr. Sundwall on approximately March 28, 2017, in a Florida Keys jail and served him with three infraction citations. Lieutenant Cox also provided Mr. Sundwall with a written notice indicating the Commission considered the Sea Joy to be a derelict vessel. On July 24, 2017, the County Court for Monroe County issued an Order requiring the Monroe County Sheriff’s Office and the Commission to preserve the Sea Joy as essential evidence in a criminal case against Mr. Sundwall. Thus, the Sea Joy could not be “destroyed, removed, altered, moved, or otherwise disposed of.” After Hurricane Irma struck Florida in September of 2017 and wrecked several hundred vessels, the Commission partnered with the Coast Guard in an effort to identify and remove derelict vessels. If an owner of a derelict vessel waived his or her ownership interest, then the State of Florida would not charge for a vessel’s removal and disposal.2 Wisteria Island is owned by the FEB Corporation. In November of 2017, the Commission found the Sea Joy hard aground on the shore of Wisteria Island, and the Sea Joy could not be moved without mechanical assistance. The Sea Joy had no mast or sail, and the vessel was still left open and exposed to the elements. In sum, the Sea Joy was nothing more than a hull at that point. Contemporaneous photographs and video of the Sea Joy indicate that it was resting on “wrack lines” left by the tide. Those wrack lines demonstrated that the Sea Joy was on public waters at high tide.3 In response to a request for reconsideration from the State of Florida, the Monroe County Court issued an Order on December 12, 2017, allowing the State to remove the Sea Joy from Wisteria Island. On December 17, 2017, the Commission transported the Sea Joy to a marina in Marathon, Florida. 2 The Commission’s attorney announced during the final hearing that the Commission would not seek to recover the costs of removing and disposing of the Sea Joy from Mr. Sundwall. Ordinarily, the owner of a derelict vessel is responsible for all costs associated with its removal and destruction. See §§ 376.15(3)(a), 705.103(4), and 823.11(3)(b), Fla. Stat. However, in the aftermath of Hurricane Irma, the State of Florida assumed all of those costs. 3 This finding is based on the testimony of Major Robert Rowe of the Commission, and the undersigned found him to be a credible and persuasive witness. Officer David Bellville of the Commission met with Mr. Sundwall on January 4, 2018, at the Stock Island Detention Center in Key West. Officer Bellville served Mr. Sundwall with a notice stating that he had 30 days to take possession of the Sea Joy or it would be destroyed pursuant to the Commission’s authority under chapter 705. Officer Bellville also served Mr. Sundwall with an election of rights form stating he had 21 days to protest the Commission’s proposed action. Mr. Sundwall declined to waive his property interest in the Sea Joy and ultimately executed the election of rights form and a request for an administrative hearing on January 20, 2018. Mr. Sundwall’s hearing request was postmarked on January 23, 2018, and received by the Commission on January 29, 2018. Because Mr. Sundwall’s documents were received after the 21-day deadline, the Commission had the Sea Joy destroyed on February 21, 2018, and issued an Order on March 6, 2018, dismissing Mr. Sundwall’s hearing request with prejudice. Mr. Sundwall appealed the Commission’s Order to the First District Court of Appeal, and the appellate court issued an opinion in Sundwall v. Florida Fish & Wildlife Conservation Commission, 271 So. 3d 1239 (Fla. 1st DCA 2019), on May 16, 2019, reversing and remanding the Commission’s dismissal: After Hurricane Irma struck Florida in 2017, the Florida Fish and Wildlife Conservation Commission (FWC) identified Mr. Sundwall as the owner of a boat declared derelict upon the waters of Florida. See § 823.11, Fla. Stat. (2017) (defining derelict vessels and empowering FWC to deal with them). Mr. Sundwall was incarcerated at the time. FWC sent Mr. Sundwall notice of the declaration, an explanation of his rights, an Election of Rights form, and a form for a Petition for Administrative Proceeding. The notice stated that a failure to make any election within twenty-one days from receipt of the notice would constitute a waiver of the right to a hearing. Mr. Sundwall signed a receipt for these documents on January 4, 2018. The twenty-first day after that fell on January 25, 2018. He signed the Election of Rights form, requesting a hearing; and also completed the Petition for Administrative Proceeding, dating both of his signatures January 20, 2018. There was no certificate of service or institutional date stamp on any of the papers, nor any institutional mail log indicating when he gave the papers to prison officials. The envelope was postmarked January 23, 2018. FWC stamped it as received on January 29, 2018. FWC dismissed the petition with prejudice because FWC did not receive it within twenty-one days and Mr. Sundwall did not request an extension within that period. FWC's order of dismissal acknowledged that the envelope from Mr. Sundwall was postmarked January 23, 2018. However, FWC relied on Florida Administrative Code Rule 28- 106.104(1), which defines filing as receipt by the agency clerk during normal business hours. In his pro-se brief, Mr. Sundwall relies on the January 20 date of his signatures and the January 23 postmark date, arguing that he is entitled to the benefit of the prison mailbox rule under Haag v. State, 591 So. 2d 614 (Fla. 1992). FWC does not dispute that argument, but argues that Mr. Sundwall provided no proof that he placed his papers in the hands of prison officials before expiration of the deadline; i.e., no institutional mail stamp or log and no certificate of service. The record does not reflect whether Mr. Sundwall’s institution utilizes dated mail stamps or logs, but one reason there were no certificates of service is because none of the forms that FWC supplied to him contained a certificate of service. In a literal sense, however, Mr. Sundwall "provided" FWC a postmarked envelope that evidences timeliness. He argues on appeal that FWC calculated the time erroneously, and he points out that the envelope was postmarked on January 23. The postmark date was before expiration of the twenty-one-day period for requesting a hearing, and therefore the petition necessarily was submitted to prison officials before the deadline. FWC acknowledged the postmark date in its order of dismissal, and the postmarked envelope is in the record. We therefore reverse the order of dismissal and remand for further proceedings on Mr. Sundwall's petition.[4] Ultimate Findings There is no dispute that the Sea Joy was a “vessel” within the meaning of section 327.02(46), Florida Statutes. When it was beached on Wisteria Island, the Sea Joy was a “derelict vessel” within the meaning of section 823.11(1)(b)1. It was left or abandoned in a wrecked, junked, or substantially dismantled condition upon the public waters of this state. While the Sea Joy no longer exists, the photographic evidence and the witness testimony conclusively demonstrate that it was wrecked or substantially dismantled by the time it ran aground on Wisteria Island. The photographic evidence also demonstrated that the Sea Joy was upon the State of Florida’s public waters at high tide. Mr. Sundwall made several factual arguments during the final hearing. For instance, section 823.11(1)(b)3. defines a “derelict vessel” as one that is “[d]ocked, grounded, or beached upon the property of another without the consent of the owner of the property.” Mr. Sundwall testified that he had permission for the Sea Joy to be on Wisteria Island. Mr. Sundwall’s argument is not persuasive because the Commission determined the Sea Joy to be a 4 To whatever extent that Mr. Sundwall is seeking damages from the Commission for the Sea Joy’s destruction, he must pursue that claim before a different tribunal. DOAH’s role in this matter is limited to making findings as to whether the Sea Joy was a “derelict vessel” within the meaning of section 823.11(1)(b)1. and thus subject to sections 376.15(3)(a) and 705.103. derelict vessel pursuant to section 823.11(1)(b)1., not section 823.11(1)(b)3. However, even if the Commission had deemed the Sea Joy to be derelict pursuant to section 823.11(1)(b)3., Mr. Sundwall’s testimony that he had permission to keep the Sea Joy on the shore of Wisteria Island was uncorroborated and unpersuasive. In preparation to take control of the Sea Joy, Mr. Sundwall asserted that a friend of his had attempted to inspect the Sea Joy while it was beached on Wisteria Island. He claimed that the Commission forced Mr. Sundwall’s friend away from the wrecked vessel. Because the Commission was dealing with several hundred displaced vessels in the aftermath of Hurricane Irma, it is very unlikely that the Commission would have been in a position (or to have been inclined) to prevent any willing person from removing the derelict Sea Joy from Wisteria Island or inspecting it. Moreover, the undersigned generally found Mr. Sundwall’s testimony on this point to be unpersuasive and self-serving. Mr. Sundwall’s witnesses did not present any persuasive testimony to corroborate his assertions. Mr. Sundwall also argued that the instant case is part of the Commission’s ongoing effort to retaliate against him for undermining a criminal investigation. Even if that were the case, there is no evidence that the Commission left the Sea Joy anchored off Wisteria Island or caused it to become a derelict vessel. Mr. Sundwall asserts that he has been denied due process. However, the facts refute that assertion because: (a) he was given notice of the Commission’s proposed action to dispose of the Sea Joy; (b) he had an opportunity to request a hearing; (c) his case was referred to DOAH; and (d) a formal administrative hearing was conducted on February 7, 2020, at which he fully participated.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Fish and Wildlife Conservation Commission issue a Final Order deeming the Sea Joy to have been a “derelict vessel” within the meaning of section 823.11(1)(b)1. and that the Commission was authorized under section 376.15(3)(a) to relocate or remove the Sea Joy. DONE AND ENTERED this 1st day of June, 2020, in Tallahassee, Leon County, Florida. S G. W. CHISENHALL 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 1st day of June, 2020. COPIES FURNISHED: Brandy Elaine Elliott, Esquire Florida Fish & Wildlife Conservation Commission 620 South Meridian Street Tallahassee, Florida 32399 (eServed) Jeffrey Ray Sundwall, 829113 Jackson Correctional Institution 5563 10th Street Malone, Florida 32445 Eric Sutton, Executive Director Florida Fish and Wildlife Conservation Commission Farris Bryant Building 620 South Meridian Street Tallahassee, Florida 32399-1600 (eServed) Emily Norton, General Counsel Florida Fish and Wildlife Conservation Commission Farris Bryant Building 620 South Meridian Street Tallahassee, Florida 32399-1600 (eServed)
