Findings Of Fact At all times material hereto, John L. Eifert (Respondent) was certified by the Criminal Justice Standards and Training Commission (Petitioner). Respondent was certified on July 17, 1981, being issued Certificate Number 74043. On or about June 14, 1984, Officer Goodwin of the Miami Beach Police Department (Miami Beach P.D.) was involved in an automobile accident. Officer Goodwin was off-duty at the time. The officers dispatched to the accident scene found, among other things, on the driver's side of Officer Goodwin's vehicle, evidence bags from the Miami Beach P.D. and a clear plastic bag. The evidence bags were clearly marked as Miami Beach P.D. evidence bags. The clear bag and one of the evidence bags contained a white substance that the officers suspected was cocaine. Officer Goodwin was arrested for driving under the influence of alcoholic beverages and/or narcotics. All the bags found in Officer Goodwin's vehicle at the accident scene were seized and placed into evidence. The white substance in the bags was subsequently tested. The tests revealed that the white substance was cocaine. The cocaine found in Officer Goodwin's vehicle was the same cocaine that he had seized in a narcotic's case. He had obtained the cocaine from the evidence room under false pretenses, indicating that he was going to testify in court and needed the cocaine for his testimony. There was no court hearing. Officer Goodwin obtained the cocaine for his own personal use; he intended to consume the cocaine himself. Officer Goodwin was Respondent's fellow officer with the Miami Beach P.D. and friend. They had gone through the police academy together in 1981, and they were motorcycle officers together. Prior to the accident, at approximately 9:30 a.m. on June 14, 1984, Officer Goodwin had visited Respondent at Respondent's off-duty job. Respondent was moonlighting as a security guard at a bank. Officer Goodwin had been ingesting cocaine prior to the visit, had not slept in approximately 24 hours, and was paranoid. Officer Goodwin wanted to use Respondent's residence to consume more cocaine. Because of his paranoid behavior and because he was a friend, Respondent agreed for Officer Goodwin to go to his residence and convinced Officer Goodwin to wait for him there. When Officer Goodwin arrived at Respondent's residence, he continued to ingest cocaine. Also, he placed some of the cocaine in individual plastic bags. Officer Goodwin hid the cocaine filled plastic bags in Respondent's residence. When Respondent came to his residence at approximately 4:45 p.m. that same day, he found Officer Goodwin more paranoid than before. Officer Goodwin refused to remain at Respondent's residence and left shortly before 5:00 p.m. Before leaving, Respondent agreed for Officer Goodwin to leave the cocaine filled plastic bags in his residence. Officer Goodwin informed Respondent where he had hid the bags. Respondent located the cocaine filled bags. Without getting any sleep, Respondent continued with his social activities planned for the remainder of the evening. At approximately 10:00 p.m., Respondent went to his second moonlighting job. On June 15, 1984, around 3:30 a.m., Officer Goodwin called Respondent at his second moonlighting job. Officer Goodwin informed Respondent that he had been arrested and requested that Respondent dispose of the cocaine and told him where to leave it. Unbeknownst to Respondent, Officer Goodwin was calling from police headquarters and was attempting to return the remaining cocaine to the Miami Beach P.D. Instead of following Officer Goodwin's instructions, Respondent went home around 3:50 a.m. and disposed of the cocaine by dumping it into the bay behind his residence. Respondent believed that he was helping Officer Goodwin, a friend. Subsequently, around 6:00 a.m., Respondent received another telephone call from Officer Goodwin. Respondent informed him what he had done with the cocaine. Officer Goodwin was upset about what Respondent had done. Goodwin admitted at hearing that, due to the quantity of cocaine that he had ingested, beginning June 13, 1984, and continuing into June 14, 1984, he had very little independent recollection of what happened that day. His information, as to what happened that day, is mostly from reading his statements that he had made regarding the incident, police reports, and transcripts of depositions. Further, Goodwin also admits that his recall prior to going to Respondent's residence is fair. Officer Goodwin entered into a plea agreement regarding the accident and the cocaine. The plea agreement provided, among other things, that he give testimony, regarding the incident, forever in whatever the forum may be and that he relinquish his certification from Petitioner. Presently, Goodwin is in charge of a drug treatment center for Metro- Dade County. He has been in this position for five years. In June 1984, Respondent resigned from the Miami Beach P.D. Consistent with the policy of the Miami Beach P.D. at that time, no investigation was instituted against Respondent by Internal Affairs of the Metro-Dade Police Department due to his resignation. Respondent does not deny that he permitted Goodwin to take the cocaine to his residence, that he permitted Goodwin to leave some of the cocaine at his residence, and that Goodwin left some of the cocaine at his residence. Furthermore, Respondent does not deny that the cocaine remained at his residence after Goodwin left and that he disposed of the cocaine by dumping it into the bay. At the time of his resignation, Respondent and the Miami Beach P.D. agreed that, whenever inquiries were made regarding Respondent, the Miami Beach P.D. would make neither negative nor positive comments about Respondent. The intent of this agreement was to allow Respondent to keep his record clean. However, the reverse occurred. He was effectively prevented from getting jobs in law enforcement. Subsequently, Respondent and the Miami Beach P.D. agreed to full disclosure regarding Respondent and the cocaine incident. In 1987, Respondent began to obtain employment in law enforcement. From September 1987 to January 1989, Respondent was employed as a police officer with the Indian Creek Village Police Department. From February 1989 to May 1989, he was employed as a police officer with the Florida City Police Department. Respondent resigned from both positions. In January 1990, Respondent was rehired by the Florida City Police Department (Florida City P.D.). At the time of hearing, he was still employed with the Florida City P.D. Respondent's personnel file reflects that, during his tenure as a police officer, Respondent has had one reprimand. The reprimand occurred after his resignation from the Miami Beach P.D. However, Respondent's personnel file also reflects that, during his tenure as a police officer, Respondent has had numerous commendations and letters commending his performance. He has been subjected to pressure and dangerous encounters and has performed in an exemplary manner. At hearing, several individuals, law enforcement and non-law enforcement, supported Respondent either through testimony or letters. Respondent's former pastor and the Mayor of the City of Florida City testified in support of him. Both regarded Respondent as having high moral character. Moreover, the Mayor's position was that the incident in June 1984 would have no effect on his opinion of Respondent. Additionally, the former Police Chief of the City of Miami Beach at the time of the incident in June 1984 did not find it odd or unusual for Respondent to still be in law enforcement. To him, Respondent had made a mistake, paid for the mistake, and had turned his life around. By letter, Respondent's immediate supervisor of five years with the Florida City P.D. supported him. Also, a special agent with the Florida East Coast Railway Police, who has known Respondent both personally and professionally for approximately nine years, supported Respondent. Petitioner filed the administrative complaint against Respondent on August 9, 1993. Respondent has no prior disciplinary action against him by Petitioner.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Criminal Justice Standards and Training Commission enter a final order Reprimanding Respondent; and Placing Respondent on probation for one (1) year under terms and conditions that the Commission deems appropriate. DONE AND ENTERED in this 2nd day of January, 1997 in Tallahassee, Leon County, Florida. ERROL H. POWELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of January, 1997. COPIES FURNISHED: Richard D. Courtemanche, Jr. Assistant General Counsel Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Michael Braverman, Esquire Braverman and Grossman, P.A. 2780 Douglas Road, Suite 300 Miami, Florida 33133-2749 A. Leon Lowry, II, Director Division of Criminal Justice Standards and Training Post Office Box 1489 Tallahassee, Florida 32302 Michael Ramage General Counsel Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
The Issue The issue for determination is whether the Town of Indian River Shores is entitled to a coastal construction control line permit to construct a beach access seaward of the coastal construction control line in Indian River Shores, Florida.
Findings Of Fact The Town of Indian River Shores (Town) is an incorporated municipality located on a five-mile stretch of the Atlantic Ocean in Indian River County, Florida. The Town has a population of approximately 2,700 residents. The Town's Public Safety Department has the combined functions of law enforcement, fire protection, and life support (lifesaving). All of the Officers of the Public Safety Department are cross-trained and cross-designated as police officers, firefighters, and emergency service specialists who are either paramedics or emergency medical technicians (EMTs). The Officers are on eight-hour shifts; each shift has approximately four to five Officers on duty, i.e., a police officer, a firefighter, a paramedic, and an EMT. When fully staffed, the Public Safety Department consists of 25 Officers. Because of the small number of Officers and their varied duties, restrictions and limitations are placed on their deployment. One of the vehicles used by the Public Safety Department in the performance of duties is an all terrain vehicle (ATV). The Public Safety Department has one ATV which is used on the beach for patrol and rescue purposes and for moving rescue and lifesaving equipment to and from the beach. In order to access the beach, the Public Safety Department must travel across the dune, primarily through private property (Corrigan Beach) located approximately 3.4 miles from the office of the Public Safety Department. The Town determined that this location was unsatisfactory for beach access due to the property being offered for sale, the great distance of the property from the Public Safety Department's office, and the dune being breached each time the ATV is taken onto the beach. The Town determined, however, that Beachcomber Lane, a public street within the Town, was the best choice for beach access and entry by the Public Safety Department. Beachcomber Lane is approximately 1,000 feet in total length and extends from Highway A1A to the bluff of the Atlantic Ocean. The Pubic Safety Department is located approximately 1,500 feet from Beachcomber Lane. The residents of Beachcomber Lane include Peter Broom, Jeremy R. Geffen, and Duane Jackson. At various times, the Public Safety Department has also used Beachcomber Lane as an access to the beach on emergency bases. Currently, a public raised wooden walkway, with steps, leads over the dune and onto the beach at the Atlantic Ocean end of Beachcomber Lane. In order for the Public Safety Department to obtain beach access by way of Beachcomber Lane, an access ramp will have to be constructed seaward of the coastal construction control line (CCCL). Such construction requires, among other things, a permit from the Department of Environmental Protection (DEP). To design and present the plan to the DEP for a proposed beach access by way of Beachcomber Lane, the Town obtained the services of Coastal Technology Corporation (Coastal Technology), an engineering firm. On July 24, 1996, Coastal Technology filed an application on behalf of the Town with the DEP for a permit to construct a beach access ramp seaward of the CCCL. The application process included the submission of detailed drawings and other documents required by DEP. In the application, Coastal Technology described the construction, in pertinent part, as follows: 6. The proposed work consists of the removal of Brazilian Pepper . . . and installation of a 100 foot (approximate) long, 10 foot wide stabilized emergency access ramp. To minimize the impact to the existing native vegetation, the proposed emergency access ramp will be located approximately 8 feet from the north Right-of-Way within the area of the existing Brazilian Peppers. . . . A 2-inch layer of washed concrete sand will be placed between the limestone and paver blocks for a proper leveling of the previous paver blocks. The paver blocks will be TURFSTONE . . . which . . . have been permitted by DEP at other locations. . . . The openings in the TURFSTONE will be filled with excavated beach sand from the proposed access ramp footprint. Any remaining sand . . . will be placed at the seaward end of the proposed access ramp. To mitigate for any potential impact to native vegetation, 6 sea grapes will be installed . . . and any sea oats removed during excavation will be kept alive and replanted within those areas void of sea oats. Three 6-inch by 6-inch pressure treated posts will be installed with a chain fence. A locking chain fence will be used to prohibit the general public from accessing the beach through the emergency access ramp. In the application, Coastal Technology presented the justification for the construction, in pertinent part, as follows: 7. The proposed access ramp at Beachcomber Lane is specifically for the use by the Town of Indian River Shores for emergency access to the beach. The access ramp will have a locking chain only accessible by the Public Safety Department and has been designed to accommodate four-wheel drive patrol and EMT vehicles. . . . Beachcomber Land [sic] site was chosen by the Town because of : 1) the relative stability of the shoreline at that location; and, [sic] 2) accessibility from the Indian River Shores Town Hall which is on the west side of A1A across from Beachcomber Lane. The application indicated that the proposed beach access ramp was being constructed for emergency access to the beach. However, prior to the filing of the application, both emergency and routine patrol access by the Public Safety Department were discussed as uses for the access ramp at public meetings by the Town's public officials in which the subject of the access ramp was brought up. Such use for the beach access ramp was contemplated by the Town from the very inception of the plan for the access ramp. Routine patrol is defined by the Public Safety Department to be patrolling approximately every other day for one or two hours. By notice dated August 7, 1996, the DEP requested public comment on the Town's application for the CCCL permit. By letter dated August 21, 1996, residents of Beachcomber Lane, including Mr. Broom, Mr. Geffen, and Mr. Jackson, provided the DEP with their comments on the Town's application. On September 3, 1996, the Town's application for the CCCL permit was considered complete by the DEP. On November 6, 1996, at the request of DEP, the Town conducted a public meeting to obtain public comments regarding the proposed beach access ramp. The residents of Beachcomber Lane were notified of the public meeting, and among the residents attending the meeting were Mr. Broom, Mr. Geffen, and Mr. Jackson. At the public meeting, the Town clearly stated that the proposed beach access ramp would be used by the Public Safety Department for both emergency and routine patrol purposes with the ATV. Also, the Director of the Public Safety Department indicated that, based upon information collected regarding criminal activity and suspected criminal activity along the beach, routine patrol was needed.2 The application process culminated in the issuance of a Final Order by the DEP on November 27, 1996, granting the CCCL permit, with special permitting conditions in addition to the standard conditions. The CCCL permit granted by the DEP was Permit No. IR-507. The proposed beach access ramp to be constructed is approximately 100 feet in length and 10 feet in width. The construction will utilize turf blocks which permit grass and foliage to grow through the blocks on the access-way. A provision of the DEP Final Order requires the removal of exotic plants (Brazilian Pepper), which are not native plants, and the replanting of native vegetation adjacent to the access-way. On December 6, 1996, public notice of DEP's issuance of the CCCL permit to the Town was published in the Town's local newspaper. The Town agrees to abide by the special conditions, as well as the standard conditions, to the issuance of the CCCL permit. The beach access ramp on Beachcomber Lane will be used by the Town's Public Safety Department for public service purposes, including emergency rescue, training, and routine patrol. Beachcomber Lane is the appropriate location for the beach access ramp. The DEP has determined that the construction of the beach access ramp meets all the requirements of the DEP for the issuance of the CCCL permit. The DEP has determined the proposed beach access ramp to be a minor structure. The construction of the proposed beach access ramp will cause no significant adverse impact or cumulative impact on the beach dune system. The design of the proposed beach access, with the conditions added by the DEP, minimizes adverse impact of the access ramp. Native vegetation will be maintained and replenished around the proposed beach access ramp. The proposed construction of the beach access ramp will not result in a significant adverse impact to the beach and dune system. No net excavation in the sandy soils seaward of the control line will result from the construction. No structurally induced scour will result from the construction because the proposed structure is designed to break- away during a storm. The potential for wind and waterborne missiles during a storm is minimized by the construction. Public access to the beach is not interfered with by the beach access ramp. The construction of the beach access ramp will occur in a nesting habitat of the marine turtle, i.e., loggerhead, leatherback and green turtle. The DEP addressed protection of the nesting area through one of its special conditions to the issuance of the CCCL permit. The special condition included "no construction, operation, transportation or storage of equipment or materials seaward of the dune crest during the marine turtle nesting season" which is March 1 through October 31 of each year. With this special condition, the construction, itself, will have no adverse impact on the marine turtle or the turtle nesting. The Town agrees to abide by this special condition.3 The access ramp, itself, will have minimal impact on the marine turtles and will not cause a "take" of the turtles. Furthermore, the use of the ATV by the Public Safety Department will have no adverse impact on the marine turtles or the turtle nesting. At hearing, the DEP made another recommendation for the issuance of the CCCL permit, involving the marine turtle. Prior to the issuance of the Final Order, the DEP was not fully aware that the proposed beach access ramp was to be used for both emergency and routine patrol access. Having considered the circumstance of routine patrol, the DEP further recommends that a survey of turtle nesting be conducted after construction, but prior to routine use, on the Town's entire five-mile stretch along the Atlantic Ocean to mark turtle nesting areas for their protection and to place certain restrictions on the use of the ATV vehicle. This recommendation will not prohibit or hinder the construction of the beach access ramp.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection enter a final order granting the Town of Indian River Shores the Coastal Construction Control Line Permit No. IR-507, with the special conditions as may be required by the Department for the protection of marine turtles. DONE AND ENTERED this 8th day of December, 1997, in Tallahassee, Leon County, Florida. ERROL H. POWELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 8th day of December, 1997.
Findings Of Fact On September 13, 1989, petitioner, Donald Ray Ballard, filed an application with respondent, Department of State, Division of Licensing (Department) for a Class "A" private investigative agency license and Class "C" private investigator's license. Pertinent to this case, the application, which was attested to by petitioner, averred that he had never been convicted for any violation of the law. By letter of February 8, 1990, the Department timely denied petitioner's application predicated on its contention that petitioner had been convicted of four felonies on April 28, 1980, to wit: sale of cocaine, possession of cocaine, possession of a short barreled rifle, and possession of narcotics paraphernalia. Petitioner filed a timely request for formal hearing, which contested the fact that he had ever been so convicted, and the matter was referred to the Division of Administrative Hearings to conduct a hearing pursuant to Section 120.57(1), Florida Statutes. At hearing, the Department introduced into evidence certified copies of a judgment, order and commitment entered by the Circuit Court for Palm Beach County, Florida, on April 28, 1980, and bearing Case No. 79-2970 CF B 02. Those documents reflect that one Donald Ballard entered a plea of guilty to the offense of sale of cocaine (Count I), possession of cocaine (Count II), possession of a short barreled rifle (Count III), and possession of narcotics paraphernalia (Count IV). The documents further reflect that such person was found guilty on Counts I and II and that imposition of sentence was withheld, and that adjudication of guilt and imposition of sentence was withheld as to Counts III and IV. As to each count, such person was placed on probation for a period of 5 years, to run concurrently with each other, under the supervision of the Florida Department of Corrections. Petitioner denies that he and the Donald Ballard so charged and convicted are the same person. Officer Stephen Lobeck, the officer who arrested the person charged and convicted, as heretofore discussed, identified petitioner within a 90 percent degree of certainty as the same person he arrested. Melanie Eggleston, who was employed as a probation parole officer with the Florida Department of Corrections from 1980 until April 1985, positively identified petitioner as the same Donald Ballard she supervised as a probationer following his conviction for drug dealing. Given such credible identification, and the fact that the term of probation for the person she supervised was due to terminate in April 1985, it is more likely than not that the respondent is the same Donald Ballard who was convicted on April 28, 1980, as heretofore discussed. In concluding that respondent was so convicted on April 28, 1980, it has been unnecessary to consider the arrest record of the Sheriff's Office, Palm Beach County, Florida, for August 3, 1979 (Respondent's exhibit 3, page 2) or Officer Lobeck's arrest report (Respondent's exhibit 2). These documents are hearsay, as discussed supra at footnote 3, but due to the provisions of Section 120.58(1)(a), Florida Statutes, are, nevertheless, admissible in administrative proceedings to supplement or explain competent evidence. Harris v. Game and Fresh Water Fish Commission, 495 So.2d 806 (Fla. 1st DCA 1986). Here, the persuasive testimony of Officer Lobeck and Ms. Eggleston, provided competent proof of petitioner's identity as the Donald Ballard who was convicted on April 28, 1980. Were the arrest record considered, as supplementing that proof, it would be supportive of the ultimate conclusion reached. In this regard, the arrest record identifies the subject as Donald Ray Ballard; his local address as 149 Granada Drive, Palm Springs, Florida; his occupation as disabled veteran; his date of birth as December 2, 1931; his social security number as 240-40-4932; and his general description as that of a white male, height 5'7", weight 144 pounds, black hair, brown eyes, and medium complexion. Petitioner's general description is grossly consistent with the description contained in the arrest record, his residence address at the time was 149 Granada Drive, Palm Springs, Florida, and he is a disabled veteran. Further, while the identification petitioner produced at hearing referenced a date of birth of December 3, 1931, the proof also reflects that he had, on other occasions, been attributed with a date of birth of December 2, 1931. Specifically, the two DD214 forms he attached to his application to evidence his military service, as well as his transcript from Indiana Technical College, reflect a date of birth of December 2, 1931. Finally, petitioner's social security number has been variously reported as 240-40-4937 and 240-40-4937A. But for the last digit, petitioner's social security number is consistent with the social security number contained on the arrest record. 4/ On balance, the arrest record is supportive of the competent proof which identified petitioner as the Donald Ballard convicted on April 28, 1980.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered denying petitioner's application for a Class "A" private investigative agency license and Class "C" private investigator's license. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 27th day of March 1991. WILLIAM J. KENDRICK 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 27th day of March 1991.
The Issue Should discipline be imposed on Respondent's Florida Educator's Certificate No. 878226, based upon the allegations in the Amended Administrative Complaint, Case No. 034-0140-Q, before the State of Florida, Education Practices Commission?
Findings Of Fact Respondent holds Florida Educator's Certificate No. 878226, covering the areas of chemistry, which is valid through June 30, 2004.2/ At all times pertinent hereto, the Respondent was employed as a science teacher at Gulf Coast High School Charter, in the Escambia County School District. STIPULATED FACTS Gulf Coast High School (GCHS) conducted a field trip to Pensacola Beach on May 10, 2002. No certified lifeguards were employed by GCHS for the May 10, 2002 beach field trip. GCHS conducted a similar field trip to Pensacola Beach in April 2001. For the April 2001 (trip), GCHS claims it employed two certified lifeguards. Fifty-eight students attended the May 10, 2002 beach field trip. The following eight GCHS employees accompanied the students to the beach: Russell D. Bourne, Transportation Supervisor --"Mr. Bo" Deanna Jones, Science Teacher Felicia Churchwell, English Teacher Anthony Bassett, Social Studies Teacher Alphonso Lewis, Behavioral Tech Minnie Robertson, Secretary/Attendance Clerk Ray Steven White, Student Services Specialist Melvin Burnett, Behavioral Tech Mr. Burnett left the field trip around lunch time, before the drowning took place. For each student attending the beach field trip, parents signed a field trip authorization form and attached a $5.00 payment for expenses. The beach field trip form specifically stated the student would be going to the beach and that a "certified lifeguard would be on duty." Although the field trip was planned by Assistant Principal Kevin Jones, the person in charge at the beach was Felicia Churchwell, a second-year English teacher. Ms. Deanna Jones took no part in planning the field trip. Both Assistant Principal Kevin Jones and Trip Supervisor Churchwell attended last year's beach trip (the 2001 trip) and knew lifeguards were on duty at that time. Neither Assistant Principal Kevin Jones, nor any other employee of GCHS polled students to ascertain whether students could or could not swim. Neither Assistant Principal Kevin Jones, nor any other employee of GCHS polled employees to ascertain whether the employees attending the field trip could or could not swim. Prior to leaving the school on May 10, 2002, the fifty-eight students were shown the safety video: A Safe Visit to the Beach. The video described the meaning of the beach flag system and provided information on how to manage dangerous surf conditions such as rip tides. Aside from a viewing of the video, Assistant Principal Kevin Jones' only other precautionary instruction to the students was that they were not to go into the water deeper than their navels. The students boarded two GCHS buses and were taken to the gulf side of the beach near the entrance to Fort Pickens. They arrived at the beach at approximately 10:30 a.m. Ms. Deanna Jones immediately advised Ms. Churchwell and other staff that no lifeguards were on duty and yellow flags were flying. Ms. Churchwell stated that she was not concerned that a lifeguard was not present. Students remained in the water for nearly an hour and a half before being called out of the water for a lunch break. All students left the water for lunch. The students were permitted to return to the water following the lunch break at approximately 12:45 p.m. Two staff members, Ms. Deanna Jones and Mr. Alphonso Lewis, stayed at the pavilion. Mr. Lewis was cleaning up from lunch and Ms. Jones was watching the students who were still eating. The remaining staff members returned to the beach to monitor the students who were either sitting or standing near the water's edge observing the students. Some students began to go out into deeper water, venturing beyond the sandbar approximately ten to fifteen yards from shore. At that time Social Science teacher Anthony Bassett began to yell to the students to get out of the water. Students Isaiah Baker, Colan White, Johnny Smith, Ryan Dumas and the decedent, Earl Beasley, were together in the water. No staff person observed the decedent in any danger. No staff person observed the decedent drown. Staff at the beach determined the decedent was missing only after students leaving the water indicated the decedent was missing. Initially GCHS staff believed the decedent could have been in the rest room. When the decedent could not be located, Anthony Bassett called 911. No GCHS personnel, except Alphonso Lewis, entered the water to search for the decedent. Mr. Lewis traveled to the sand bar, but was discouraged from going further by another GCHS employee due to the dangerous surf. Mr. White searched the water visually through the zoom feature on his camera. Rescue personnel arrived with jet skis about ten minutes after the 911 call was made. The decedent's body was found submerged ten to fifteen minutes later approximately fifty yards off shore. Rescue personnel performed CPR at the scene and Life Flight took the decedent to Gulf Breeze Hospital. Earl Beasley was pronounced dead thirty minutes later. ADDITIONAL FACTS On February 26, 2002, Respondent commenced her employment at GCHS. During employment at GCHS Respondent had not been told about school policies in relation to serving as a chaperone on a field trip for the student body. The persons responsible for planning the May 10, 2002 outing for the school were Kevin Jones, the assistant principal, and Felicia Churchwell, an English teacher. Mr. Jones and Ms. Churchwell did not delegate to Respondent any planning or organizational responsibilities associated with the field trip. In that connection, Respondent was not called upon to determine whether the students could swim. Respondent was not called upon to arrange for a lifeguard to be in attendance at the outing. Assistant Principal Jones did not attend the field trip. Ms. Churchwell was placed in charge of the field trip and served as supervisor at the beach. Respondent had no supervisory authority or control over other persons who served as chaperones on the field trip. Respondent was required by Assistant Principal Jones to attend the field trip as a chaperone. Assistant Principal Jones had informed Respondent of the duty to act as chaperone a couple of days before the field trip. It was the intent of Assistant Principal Jones that all students who would participate in the field trip watch the video on safety. After the students watched the video Mr. Jones told the students that they should not go deeper in the water than their belly buttons. Earl Beasley did not view the safety video. But he was allowed to go on the field trip. There is no indication in the record that Respondent participated in the decision to allow Mr. Beasley to participate in the outing without a knowledge of the instruction presented in the safety video. When the party arrived at the beach, there was a lifeguard stand but no lifeguard. The lifeguard stand had a sign displayed indicating that the lifeguard was not on duty. A yellow flag was displayed reminding swimmers to proceed with caution. When Respondent told other chaperones, to include Ms. Churchwell about the absence of the lifeguard, those other persons responded that they knew that the lifeguard was not on duty. Before lunch Respondent spent time down by the water watching students in her role as chaperone. Some students were in the water, others were not. Some students were observed violating the assistant principal's instruction not to go deeper than their belly buttons. Respondent called out to those students who exceeded the depth allowed. The students came closer to the shore where they could understand what was being said. Respondent then told them that Mr. Jones had said that they could not go above their belly buttons. Beyond the time at which she had offered this reminder to stay within the bounds for depth, Ms. Churchwell allowed the students to return to the deeper water. Later in the morning Respondent reminded the students another time to not go so deep in the water. By that point the water was becoming more choppy. A short time later the students were called for lunch. The students went to a location behind the sand dunes away from the beach, where a picnic area was located to have their lunch. The students were required to remain out of the water for a period of time beyond the point in time when they ate their lunch. From the picnic area, one could not see the immediate shoreline because of the dune height. Respondent remained in the picnic area after lunch to watch some students who had remained in that area. Respondent became aware that Earl Beasley was missing when people began to approach the picnic area by coming across the boardwalk that topped the dune. These persons were trying to find the missing student in the restroom areas adjacent to the picnic area. Respondent was told words to the effect that Earl Beasley was in the water and in distress. Having been told about Mr. Beasley's circumstances, Respondent returned to the beach. She observed that the water was even rougher than it had been before. Respondent was prepared to assist in the attempt to rescue Mr. Beasley. She decided against this course given the water conditions. The efforts of others to save Mr. Beasley were not successful.
Recommendation Upon consideration of the Findings of Fact and Conclusions of Law reached, it is RECOMMENDED: That a final order be entered dismissing Counts 1 through 3 of the Administrative Complaint, upon a finding that Respondent has not violated Section 1012.795(1)(f) and (i), Florida Statutes (2002), nor has she violated Florida Administrative Code Rule 6B-1.006(3)(a).3/ DONE AND ENTERED this 13th day of April, 2005, in Tallahassee, Leon County, Florida. S CHARLES C. ADAMS 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 13th day of April, 2005.
The Issue Should the Criminal Justice Standards and Training Commission (the Commission) impose discipline on Respondent in association with his law enforcement certificate?
Findings Of Fact The Commission has the power to certify and revoke the certification of law enforcement officers. § 943.12(3), Fla. Stat. (2006). Respondent is a certified law enforcement officer. At times relevant to the inquiry he served in that capacity in New Smyrna Beach, Florida. Based upon the record, it is inferred that his employment was in association with what has been identified as the Volusia County Beach Patrol (Beach Patrol). That organization was constituted of law enforcement officers and other employees, to include an ocean rescue life guard and EMT. The latter employment position was referred to in the organization as a Beach Safety Specialist. The accusations against Respondent in this case involve conduct seen by and directed to two females, Captain Tamara Marris, a law enforcement officer and Beach Patrol Specialist Christine Dobmeier. Both worked for the Beach Patrol at times relevant to the inquiry. The incidents that form the basis for this complaint took place in a building (the station) utilized by the Beach Patrol. The basic design of the building is set out in Petitioner's Exhibit numbered one, admitted. The drawing or diagram is not to scale. It does reflect the location of a locker room, the door to that locker room, a bathroom and an office in the building. It also shows the location of Respondent's locker within the locker room. The door into the locker room is kept shut. It has a combination lock on it that must be unlocked to gain access to the locker room. In the summer 2004, Respondent and Captain Marris finished their duty shift at the beach and returned to the station. They were the only employees in the station at the time. Respondent was in the locker room, which was not intended to be a dressing room. The bathroom is the place where people change their clothes from the duty clothing into other attire. Respondent was facing his locker wearing only a towel when Captain Marris entered the locker room. While in the locker room Respondent's genitals were exposed to her view. On this first occasion Captain Marris thought that the exposure was just an accident. On a second occasion when the two officers, Captain Marris and Respondent were closing the shift, Captain Marris walked into the locker room and Respondent dropped the towel he was wearing exposing himself, that is exposing his genitals. The second incident took place in approximately August 2004. There was a third incident at the station between Respondent and Captain Marris. This time before Captain Marris entered the locker room, she said some words to the effect, "Hey, are you decent," to which Respondent replied, "Yeah, come on in." When she entered the room, Respondent dropped his towel to pull up his shorts and she saw his genitals again. In her mind, with the third incident having transpired, she concluded that Respondent's actions were deliberate. As a consequence beyond that point, when Captain Marris needed to put her work gear away in the locker room, she would wait until Respondent left the station. On the third occasion which occurred sometime around September 2004, Respondent and Captain Marris were alone as they had been on the prior two occasions. When Captain Marris determined in her mind that the Respondent was acting intentionally in exposing his genitals, she considered this to be vulgar or indecent. She did not believe that anything in the conduct was legitimate. Certainly by the third occasion, if not before, Respondent's conduct could be seen as intentional and without legitimate purpose. Christine Dobmeier was subject to Respondent's inappropriate conduct. She was a full-time ocean life guard and EMT in the position Beach Safety Specialist. She had similar experiences with Respondent to those between Respondent and Captain Marris. As Ms. Dobmeier recalls, ordinarily the male personnel would wear "life guard baggies" at work. At times the male employees would wrap a towel around the life guard baggies. This reference is understood to mean some form of pants or shorts worn by the male personnel which they would cover with a towel. In July or August 2004 around closing time, Ms. Dobmeier entered the locker room where Respondent was located. He was wearing a towel when she entered the room. At that moment his towel fell exposing his genitals. She stated, "I am so sorry" and walked out. On that occasion the door to the locker room had been open when she entered. A couple of weeks later Ms. Dobmeier entered the locker room. This time the locker room door had been closed. She did not bother to knock because most people in her experience would change their clothes in the bathroom. She pushed the lock mechanism which made a loud noise. She entered the room and saw Respondent, who was wearing only a T-shirt. Respondent was facing his locker. When Ms. Dobmeier entered the room he turned toward her, exposing his genitals. Ms. Dobmeier apologized for seeing Respondent in his undressed state and immediately left the room. There was a third incident involving Respondent and Ms. Dobmeier, a few weeks after the second incident. This time Ms. Dobmeier knocked on the locker room door and Respondent told her to enter the room. When she did he was standing naked and she walked right back out. Later, Ms. Dobmeier asked Respondent about the third incident and said, "Why did you tell me to come in," and Respondent in reply, as Ms. Dobmeier explains, "Just kind of laughed." After the third incident Ms. Dobmeier felt that the Respondent intended the conduct in exposing himself. There was a fourth incident in the locker room. This time Ms. Dobmeier knocked on the locker room door and did not hear anything in response. She activated the locking mechanism and Respondent was found in the room with his penis erect facing her. He asked Ms. Dobmeier whether he, as Ms. Dobmeier states, indicating Respondent, "Was as large as my boyfriend." This is understood to mean a comparison between Respondent and Ms. Dobmeier's boyfriend as to their genitals. No other persons were in the station when this encounter took place. Ms. Dobmeier considered the Respondent's exposure of his genitals as vulgar. As a result of the last encounter Ms. Dobmeier decided not to enter the locker room while Respondent was at the station. At the beginning of 2005 there was another incident. This time Respondent grabbed Ms. Dobmeier's breast after a swim drill. The incident took place in the locker room with the door open and 10 to 12 lifeguards in the main area outside of the room. Only Respondent and Ms. Dobmeier were in the locker room when he performed this act. His action was not invited or acquiesced to. Ms. Dobmeier responded by telling Respondent, "Don't ever touch me again" and walked away.
Recommendation Upon consideration of the facts found and the conclusions of law reached, it is RECOMMENDED: That a final order be entered finding violations of the statutes and rule referred to and revoking Respondent's law enforcement certificate. DONE AND ENTERED this 17th day of October, 2006, in Tallahassee, Leon County, Florida. S CHARLES C. ADAMS 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 17th day of October, 2006.
The Issue Did Respondent, Robert Skidmore, III, violate section 112.313(6), Florida Statutes (2011),1/ by using his position as county commissioner to ask a county staff member to approve a zoning application for Beach Road Boutique? Did Mr. Skidmore violate section 112.313(6) by asking a county employee to look for and selectively enforce code violations against J.J.'s Restaurant?
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following Findings of Fact are made: At all times relevant to this proceeding, Mr. Skidmore was a Charlotte County commissioner. Beach Road Boutique Zoning Scott and Jill Hemmes, constituents of Mr. Skidmore, owned a business known as Beach Road Boutique in Charlotte County. They sought to obtain a state alcoholic beverage sales license. In order to obtain a license, the applicant must demonstrate local zoning approval. Charlotte County Commission employees enforce and apply zoning regulations in the county. Erin Mullen-Travis is the licensing manager for Charlotte County Planning and Development. During 2011, she was the code compliance and licensing manager. Ms. Mullen-Travis has worked for Charlotte County over 26 years. One of Ms. Mullen-Travis's duties as code compliance and licensing manager was the review and approval of the zoning requirements on applications of establishments wanting alcoholic beverage licenses. Ms. Mullen-Travis first denied the zoning application of Beach Road Boutique on February 17, 2011. Mr. and Ms. Hemmes sought Mr. Skidmore's assistance getting approval for their zoning application. Mr. Skidmore called Ms. Mullen-Travis about the application. Mr. Skidmore told Ms. Mullen-Travis that he had some nice people in his office and that he needed help getting zoning approval for them. In her 26 years of employment with Charlotte County, Mr. Skidmore was the only county commissioner who had ever directly sought her assistance with constituent matters. Other commissioners had always gone through the chain-of-command. He identified the applicant, and Ms. Mullen-Travis explained why the zoning had not been approved. Ms. Mullen-Travis felt intimidated by Mr. Skidmore. Mr. Skidmore, however, did not threaten Ms. Mullen-Travis or explicitly offer any reward available to him because of his position as county commissioner. He did, however, implicitly offer a reward, if she helped the Hemmes. It is common knowledge in Charlotte County that Ms. Mullen-Travis is a NASCAR fan. Among other things, she drives a car with Dale Earnhardt and NASCAR badges and decals. During the call, Mr. Skidmore asked Ms. Mullen-Travis about her affinity for NASCAR. He also offered to get her an autographed photo of Rusty Wallace (a NASCAR driver) and tickets to a race. He told her that he had gone to school with Rusty Wallace's son. This is true. And Ms. Mullen-Travis could not have known it without Mr. Skidmore telling her. Given the context, Ms. Mullen-Travis accurately considered that the tickets and photo were offered in exchange for her approval of the application to the benefit of the Hemmes. Also, the call was made in Mr. Skidmore's official capacity. Charlotte County has a Home Rule Charter (Charter). Section 2.3(A)(1) of the Charter makes the county administrator responsible for all administrative matters and operations. Section 2.3(C)(1) states: "Except for purposes of inquiry and information, the members of the board of county commissioners shall not interfere with the performance of the duties of any employee of the county who is under the direct or indirect supervision of the county administration." Also, the long-established practice was for commissioners to only contact agency directors. Mr. Skidmore's call to Ms. Mullen-Travis was contrary to the Charlotte County Charter and the practice under it. Therefore, it was not an authorized act pursuant to his duties or authorities as a county commissioner. Mr. Skidmore and Ms. Mullen-Travis were the only participants in the call. He denies the conversation. Ms. Mullen-Travis's account is more credible. This is based upon her contemporaneous communications about the call, the common recollection of all witnesses of a NASCAR component to the conversation, the fact that she could not otherwise have known Mr. Skidmore went to school with Rusty Wallace's son, the relative personal interests of the witnesses in the outcome of the proceeding, and the demeanor of the witnesses, particularly of Mr. Skidmore's. Shonna Jenkins worked as a contractor licensing investigator for Charlotte County for a little over seven years. She held that position in 2011 and reported to Ms. Mullen-Travis. Mr. Skidmore had obtained Ms. Jenkins cell phone number. He had a practice of calling her directly to check on contractor licensing matters. He also contacted Ms. Jenkins to ask her to approve the Beach Road Boutique zoning application. J.J.'s Restaurant After a meeting held on March 3, 2011, Mr. Skidmore flagged Ms. Jenkins down in the parking lot. He asked her to "do him a favor," and "go shut them [J.J.'s Restaurant] down. I want them out of this f**ing town." Mr. Skidmore wanted Ms. Jenkins to find code violations for J.J.'s Restaurant. Mr. Skidmore said that he would make sure that Ms. Jenkins got a pay raise or a pay grade increase for this. Either the ex-boyfriend or ex-husband of Mr. Skidmore's wife and father of her child had an interest in J.J.'s Restaurant. There was conflict between the two families. Mr. Skidmore had also requested the Charlotte County director of Growth Management, Jeff Ruggieri, to take code enforcement actions against J.J.'s Restaurant. Ms. Jenkins was intimidated and feared her job with the county was in jeopardy if she did not do as Mr. Skidmore asked. Ms. Jenkins reported the conversation to Ms. Mullen-Travis and Joanna Colburn, a licensing investigator, immediately afterwards. Ms. Jenkins was visibly upset and shocked. She also contemporaneously documented the incident. Ms. Jenkins is and has been frank about her dislike for Mr. Skidmore. This hostility, as well as the mental and emotional difficulties Ms. Jenkins suffered as a result of her employment and dealings with Mr. Skidmore, does not undermine her testimony. In light of the witnesses' demeanor and corroborating evidence, her testimony is credible. In addition, although evidence established Ms. Jenkins was taking several medications, the record does not indicate that the medications in any way affect a person's memory or veracity. Mr. Skidmore's requests to Ms. Jenkins and Mr. Ruggieri to act against J.J.'s Restaurant were in violation of the Charlotte County Charter and, therefore, not authorized acts pursuant to his duties or responsibilities as a county commissioner.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order and public report be entered finding that Respondent, Robert Skidmore, III, twice violated section 112.313(6) and that he be fined $5,000 for each violation for a total of $10,000, together with public censure and reprimand. DONE AND ENTERED this 27th day of February, 2015, in Tallahassee, Leon County, Florida. S JOHN D. C. NEWTON, II 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 27th day of February, 2015.
The Issue Does a statement by an agency that its regulatory authority is limited by Section 161.58, Florida Statute, constitute a non- rule policy? Does a statement by an agency that fees levied under authority of Section 161.58, Florida Statutes, by county governments for beach driving do not constitute revenue for purposes of invoking its regulatory jurisdiction pursuant to Florida Administrative Code Rule 18-21.005 (Rule 18-21.005) constitute a non-rule policy?
Findings Of Fact Petitioners Petitioner Shirley Reynolds (Reynolds) resides and owns beachfront property overlooking the Atlantic Ocean in New Smyrna Beach, Volusia County, Florida. Reynolds does not own to the mean high water line, and her property is not adjacent to the sovereign submerged lands held by the Trustees. Reynolds “shares riparian rights with the public.” Reynolds has owned her oceanfront home since 1981. She has observed beach driving by the general public on the beach and in the shallow water in the vicinity of her home. She enjoys the beachfront for “regular recreational, traditional recreational purposes.” Petitioner Diann Bowman (Bowman) resides and owns property that extends to and adjoins the mean high water line of the Atlantic Ocean in New Smyrna Beach, Volusia County, Florida. Bowman has observed the general public driving on the beach and in shallow waters of the Atlantic Ocean in the vicinity of her property. Bowman goes swimming in the ocean, builds sand castles by the edge of the water with her grandchildren, and walks on the beach with friends. Petitioners did not have any requests for leases or applications for action pending before the BOT, and Volusia County had not made an application to the Trustees for any activity permit or lease. Petitioner Bowman was not even aware of Reecy's e- mail, and could not articulate how she was affected by it. Although Reynolds testified at length about the impacts of beach driving and beach concessions between her home and the ocean, she failed to show how she was affected by Reecy's statements that the BOT does not regulate beach driving. In response to counsel’s question of what personal interest she has in whether or not the Trustees require authorization to use state land for motor vehicle traffic in front of her home, she responded, “[I]f and when they ever deal with it, it will certainly raise the consciousness of the human safety element.” Petitioners testified regarding the adverse impacts of beach driving on their property and their enjoyment of their property. Beach driving has an adverse impact upon the property values and upon their enjoyment of their property. Respondents The BOT is an agency of the State of Florida, consisting of the Governor and Cabinet. (Art. IV, s. 4 (f), Fla. Const.) The BOT holds the title to the State’s sovereign submerged lands acquired at statehood “for the use and benefit of the people of the state,” pursuant to Chapter 253, Florida Statutes. (§§ 253.001, 253.03, and 253.12, Fla. Stat.) Private use of such lands generally requires consent of the BOT and must not be contrary to the public interest. The BOT is required to manage and conserve state-owned lands, including sovereignty lands, by law and is granted rulemaking authority to that end. The Department functions as the staff for the BOT, and issues leases and other authorizations for private parties to use sovereign submerged lands under Chapter 253, Florida Statutes, and Chapter 18-21, Florida Administrative Code. In carrying out its duties with relationship to the BOT, the Department implements policy as determined by the BOT, to include taking some final agency actions. The Department would be the agency through which the BOT would initiate rulemaking. The Department does not have delegated authority to adopt rules for the BOT. Ken Reecy (Reecy) is a Senior Management Analyst Supervisor in the Department’s Division of State Lands. One of Reecy’s job duties is to provide responses to requests for BOT’s public records housed in the Division of State Lands of the Department. On August 5, 2003, Ross Burnaman e-mailed Eva Armstrong of the Department the following public records request: Hi Eva-I am hoping that you can assist me with this inquiry for public records. I'm looking for any Trustees authorization for the use of state lands (including uplands and submerged lands) for beach driving by the general public or commercial vendors. While I'm aware of Section 161.58, Florida Statutes, I'm of the opinion that Trustees' authorization is still required for beach driving on state lands. Most local governments that allow beach driving (e.g. Gulf County, Volusia County) charge a fee for that activity. That would appear to trigger, Rule 18-21.005(b)(2), FAC, and the requirement for a lease. As I understand it, public beach driving is allowed in parts of the following counties: Nassau, Duval, Flagler, St. Johns, Volusia, Gulf and Walton counties. Thanks in advance for you assistance. Best regards, Ross Burnaman (phone number deleted) Ms. Armstrong passed this request to Ken Reecy of the Department who replied to Mr. Burnaman with the following e-mail message: Mr. Burnaman Concerning your request as to any authorization by the Board of Trustees for beach driving and fees triggering Rule 18- 21.005(b)(2)[sic]: We are unaware of any instance in which the issue of beach driving has been brought before the Board of Trustees for authorization. Further, in discussions with staff from our legal department, it is felt that s. 161.58 sufficiently covers the issue and that authorization from the Board is not necessary. We are also of the opinion that fees counties charge for beach driving would not trigger Rule 18-21.005(b)(2)[sic]. If you have any further questions on this issue, please contact Suzanne Brantley in EIP's Office of General Counsel (phone number deleted) The e-mail above contains two potential policy statements; one concerning a statute and the other concerning a rule. The analysis of each differs slightly. The BOT was authorized at one time to regulate all the uses of state sovereignty lands, to include regulation of driving on the state's beaches, i.e., that portion of land seaward of the mean high water line (hereafter: beach.) The BOT restricted the operation of private vehicles on the beaches via rule. The Legislature of the State of Florida enacted Section 161.58, Florida Statutes, which authorized those counties which had traditionally permitted driving on the beach to regulate the operation of privately owned vehicles on the beaches in their counties. Several of the counties which had traditionally permitted driving on the beach permitted privately owned vehicles to be operated on the beach in their counties and charged a small fee to defray the costs of providing parking, life guards, and traffic direction on the beaches. The BOT attempted to intervene in those counties which charged fees for beach driving on the basis that the fees being charged were "revenue" producing. The Legislature of the State of Florida amended Section 161.58, Florida Statutes, to specifically authorize the counties to collect reasonable fees to defray their costs of regulating beach driving. The statements that are challenged have not been adopted as a rule. Reecy testified at the hearing. Reecy only intended to give Burnaman information related to his public records request. The portion of Reecy's e-mail that is being challenged was intended to explain why no records were found. Reecy responded because Burnaman had sent follow-up e-mails to Reecy’s supervisor, Armstrong, the Director of the Division of State Lands. Reecy knew that Armstrong had a practice of providing information to the public when it was requested. Reecy is not charged with implementing or interpreting Florida Administrative Code Rule 18-21 and does not process applications for leases or other authorizations from the BOT. Reecy's statement that no records were found is not a policy statement and has not been alleged to be one by Petitioners. Reecy conferred with Department legal staff before issuing his statement about Section 161.58, Florida Statutes. Reecy did not state that Section 161.58 exempted counties from getting BOT authorization for beach driving, as Petitioners state in their Petition, for several reasons: first, Reecy is not the person on the BOT’s staff who makes such determinations; second, there was no factual determination pending, i.e., no request for declaratory statement or request for an exemption or authorization; and third, the statute cited and its history indicate that the Legislature has vested the exclusive authority to regulate beach driving in those counties in which it traditionally occurred to county government in those counties. James W. Stoutamire (Stoutamire) is the principal Department employee who is charged with interpreting and applying the BOT’s rules. Stoutamire was the person to whom authority had been delegated to make such policy determinations. Burnaman's request was not presented to Stoutamire, and Reecy did not consult with Stoutamire. Although it is a statement concerning general law, Reecy's first statement regarding Section 161.58, Florida Statutes, does not assert agency jurisdiction or exempt a specific factual predicate from agency jurisdiction. Reecy also discussed Burnaman’s reference to Florida Administrative Code Rule 18-21.005(1)(b)2. with the Department's legal staff. Reecy's references to the section mistakenly cites it as Rule 18-21.005(b)2. Regardless of Reecy's intent, his answer constitutes an interpretation of the rule as applied to the fees charged by counties for beach driving. The BOT's rules provide what types of private activities must have consent prior to their being undertaken on sovereign submerged lands. They do not contain a list of all of the many public activities that occur on Florida’s beaches, shores, and waters that do not require consent. The BOT's rules in Chapter 18-21 are not intended to prevent air or noise pollution, promote public safety, protect property values, provide peace and quiet, or protect quality of life. These are the concerns about which Petitioners testified as diminishing their peaceful enjoyment of their property rights. Beach concessions above the mean high water line do not fall within the Trustees jurisdiction or control.
