The Issue Whether Respondents committed a discriminatory housing practice with regard to their tenant, Petitioner Harry Byrd, when they terminated his tenancy at the LaCoste Family Apartments?
Findings Of Fact Petitioner Harry H. Byrd is disabled due to an automobile accident more than a decade ago in which he suffered critical abdominal, chest and head injuries. He has recovered from these severe injuries with the exception of central nervous system deficiencies. The deficiencies are manifested in at least two ways: impairment of his mobility and impediment of speech. Impairment of Mr. Byrd's mobility requires he use the assistance of a walker or a wheelchair in order to move about. Generally able to communicate when speaking, on occasion, the impediment makes it difficult for his speech to be understood. In August of 1992, Mr. Byrd rented one of the apartment units, Unit No. 11, of LaCoste Family Apartments at 140 West Terry Drive in Pensacola, Florida. LaCoste Family Apartments is owned by LaCoste Family Apartments, Inc., a Florida corporation located in Escambia County. R. H. LaCoste was an officer and a shareholder in the corporation until his death sometime prior to the hearing in this matter. Sandra LaCoste Spann, also know as Sandra LaCoste, is the daughter of R. H. LaCoste and, for the past 15 years, has been the general manager of the apartments. As general manager, Ms. Spann is solely responsible for the day-to- day operations of the apartments, which number approximately 30 units. Her responsibility includes handling complaints and evictions. When Mr. Byrd rented the apartment, pursuant to LaCoste Family Apartment policy, he did not enter a written lease. His tenancy, therefore, was month-to-month. Ms. Spann told Mr. Byrd that at the end of seven months, if the tenancy were satisfactory, he would be offered and required to sign a year's lease in order to remain a tenant. Seven months has been chosen by management as a probationary period prior to entering a written lease because a tenancy on a month-to-month basis that lasted less than 7 months could result in the imposition of bed taxes pursuant to the Escambia County Bed Tax Ordinance. During the probationary period usually applied to a new tenant, LaCoste Family Apartments assesses the tenancy. At the end of the seven months, it does not offer the tenant a lease and provides notice of termination of the tenancy if dissatisfied with the tenant for any number of reasons, for example, if problems are encountered with payment of rent. Along Terry Street, there are sixteen apartment units located in four buildings. Parking for these apartments is on the north side of the buildings. As is the case in the building housing Unit 11, the parking facilities are simply an area to the north of the building; individual parking spaces are not separated physically or visually in any way. Typically, when prospective renters arrive at the apartments, Ms. Spann accompanies them to view the apartment. She also shows them the parking area in front of the apartment building. Just prior to August of 1992, Ms. Spann showed Unit 10 to Mr. Byrd. He had been inquiring about renting for several months. Ms. Spann recommended that Mr. Byrd not rent Unit 10, the entry to which was on the south side of the building, a building's-length away from the parking area. Rather, she recommended that he wait until Unit 11 became available, which she expected to happen shortly. Unit 11's front door faces the parking area making it easily accessible to the area, a feature Ms. Spann thought important to Mr. Byrd in light of his disability. Mr. Byrd followed Ms. Spann's recommendation. In the middle of August, 1992, he moved into Unit 11. Other than a request that the door to the bathroom be removed so that he could maneuver in and out of the room with as much ease as possible, Mr. Byrd made no special requests to management. Management honored the request and removed the door. Mr. Byrd only once complained about any problems with the apartment. It concerned difficulty with a doorknob. Mr. Byrd did not complain to the management about problems he was having with parking. Despite not complaining about parking difficulties, Mr. Byrd did, in fact, encounter several. Most of the difficulties he was able to solve himself. The parking area is on an incline. The incline, if an automobile is parked front end first closest to the apartment building, slopes from the front of the car to the back. When Mr. Byrd backed his 1987 Pontiac out of the parking area, the muffler struck the ground. He began to park at a 45 degree angle. Not only did this solve the muffler problem, but it assisted Mr. Byrd in putting his walker into the backseat or retrieving it while trying to keep his balance entering and exiting the car. The management did not have a problem with Mr. Byrd parking at a 45 degree angle. There were other parking issues Mr. Byrd was forced to face. Occasionally, his neighbors would park their cars in ways that made it difficult for him to park. When they saw him driving in, however, they moved their cars to accommodate him. Their courtesy kept the issue from being a problem for Mr. Byrd. On one occasion, however, Mr. Byrd's neighbors had a party. Cars were parked right next to his. He was unable to enter his own automobile because of the other cars and, therefore, was unable to leave the premises. Mr. Byrd did not complain about the incident to the neighbors or to management. Instead, he talked to Barbara Hoard, a representative with the Human Relations Commission. Ms. Hoard suggested that Mr. Byrd write a letter to management requesting a handicapped parking space. In addition, Ms. Hoard contacted Sergeant Richard L. Benfield, a parking enforcement specialist with the Escambia County Sheriff's Office. On March 9, 1993, Ms. Hoard asked Sergeant Benfield to check the LaCoste Family Apartments to see if handicapped parking facilities were required or would need to be provided. On March 10, 1993, Sergeant Benfield examined the premises. He determined that there were no requirements under state law or county ordinance that required LaCoste Family Apartments to provide a marked handicapped space. He then contacted Mr. R. H. LaCoste and informed him of the findings. Sergeant Benfield did not speak with Manager Sandra Spann. On March 11, 1993, Mr. Byrd, wrote the letter suggested by Ms. Hoard. Addressed to Mr. R. H. LaCoste, the letter, in part, states, Due to the disability caused when I was injured in a car accident ten years ago, I am in need of a reserved parking space in front of my apartment, Unit 11. This accommodation will allow me to have unrestricted access to my apartment. I hereby wish to request this reasonable accommo- dation and am placing this request to you in writing. Pet.'s Ex. No. 2. Mr. Byrd attempted to deliver the letter in person to Mr. LaCoste, first, at the apartment management office. Finding Mr. LaCoste not present, Mr. Byrd drove to Mr. LaCoste's home. Mr. LaCoste was not at home, but Mr. Byrd made the delivery to his wife, Mrs. LaCoste, with whom he spoke for about 10 minutes. The following day, March 12, 1995, Mr. Byrd received a notice signed by Sandra Spann. The notice stated, "Your rental is terminated and ... no further rent will be accepted." It also stated that Mr. Byrd was not under a lease, that Ms. Spann needed possession of the apartment and that, since Mr. Byrd was "on a month to month basis, by law [he was being given] this fifteen day written notice to vacate the premises." Pet.'s Ex. No. 3. The coincidence of the delivery of the "termination" notice the very day after Mr. Byrd's written request for a reserved space and two days following Sergeant Benfield's visit to the premises and discussion with Mr. LaCoste, led Mr. Byrd to conclude the tenancy was being terminated because he had made the request. Furthermore, he felt he was being discriminated against because of his handicap. These conclusions were bolstered in Mr. Byrd's mind by the fact that he had never been late in paying his rent, one of the primary reasons management would consider terminating a tenancy during or at the end of the seven-month probationary period. Despite the coincidence, however, Mr. Byrd's tenancy was not terminated because of the request for a reserved parking space. The letter requesting the reserved parking space had not been seen by Ms. Spann prior to the delivery of the "termination" notice to Mr. Byrd. Nor did Ms. Spann speak to her father or her mother about the letter until after she had delivered the notice. She did not learn of the letter until approximately 2 hours after she delivered the notice to Mr. Byrd's apartment, when her father arrived at the apartment complex around 10 in the morning on March 12. Furthermore, Ms. Spann did not learn of Sergeant Benfield's visit to the complex until her conversation with her father about Mr. Byrd's letter the morning of March 12, again some two hours after delivery of the notice. The timing of the termination letter was prompted by a complaint from Bernice Smart, a tenant of the complex for over four years. Ms. Smart informed Ms. Spann that she would move out if something was not done about Mr. Byrd. Ms. Smart was not the only tenant to complain about Mr. Byrd. In mid- autumn of 1992, Ms. Spann began receiving complaints from Mr. Byrd's fellow tenants. In the late fall complaints averaged about two a week. But, by January of 1993, the complaints grew more frequent. As Ms. Spann testified, Every time I'd turn around, go over, walk through the apartment complex, someone would always stop me and say that ... Harry [Byrd] had been bothering them and they wished I could make him quit coming over to their house and disturbing them. (Tr. 115). In addition to Ms. Smart, complaints about Mr. Byrd harassing them were made by tenants John Stallworth, Larry Hebert, Sam Thomas, and Keith McCaslin. Mr. McCaslin's sister, Cathy Shands, testified that while she lived in her brother's apartment, Mr. Byrd would come to visit, "a little too often." (Tr. 148). He called Mr. McCaslin on the phone, sometimes two or three times a day. In the meantime, Ms. Spann had had her own difficulties with Mr. Byrd. In addition to being general manager of the apartment complex, Ms. Spann also works with the family's electrician's business. She normally arrives at work at 6:30 in the morning to get the employees of the business off to their assignments. Shortly after he moved in, Mr. Byrd began calling in the morning around 7 a.m. while Ms. Spann was busy with the electricians. Sometimes the conversations would take 15 or 20 minutes because of her difficulty in understanding Mr. Byrd over the phone. Finally, she told him he would have to call her at another time if the purpose of calling was simply to talk. On other occasions, after Ms. Spann had back surgery in January of 1993, when Ms. Spann was visiting her boyfriend's apartment, Mr. Byrd would knock on the door, "wanting to know what took us so long to get to the door or what I was doing over there at that time of the night." (Tr. 116.) These visits by Mr. Byrd occurred as late in the evening as 10 o'clock. The experience by the LaCoste Family Apartments with Mr. Byrd is not the only experience of the apartment with disabled persons. Respondent, R. H. LaCoste, himself was handicapped, being a leg amputee with loss of 90 percent of his strength in both arms. In addition to Mr. Byrd, the complex has enjoyed the tenancy of at least four other handicapped tenants. One of these tenants, Mary K. Hardy, uses a walker. She has known Ms. Spann for six years and has never been treated by her with any discrimination. In fact, Ms. Spann has gone out of her way to see that Ms. Hardy was accommodated in light of her handicap. In sum, Mr. Byrd's tenancy was terminated, not because of the request for a reserved handicapped parking space or due to any discrimination, but because of numerous complaints received from other tenants that Mr. Byrd harassed them and because of Ms. Spann's personal experience with Mr. Byrd as a difficult tenant who acted inappropriately.
Recommendation Accordingly, it is RECOMMENDED: That the Florida Commission on Human Relations enter a final order dismissing Petitioner's claim of discrimination. DONE and ORDERED this 22nd day of August, 1995, in Tallahassee, Leon County, Florida. DAVID M. MALONEY 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 22nd day of August, 1995. APPENDIX Petitioner did not submit proposed findings of fact. Respondent's proposed findings of fact: Proposed Findings of Fact Nos. 1 - 56, and 58 -64, insofar as material, have been adopted. With respect to Finding of Fact No. 57, the finding is accepted insofar as it relates to state law enforced by Sergeant Benfield. To the extent the finding is a conclusion of law that no parking space would have been able to have been reserved for Mr. Byrd, the finding is rejected. It may very well have been that Section 760.23(9), Florida Statutes, required a reserved space as a "reasonable accommodation ... necessary to afford [Mr. Byrd] equal opportunity to use and enjoy [the] dwelling." By the time Mr. Byrd made the request, however, his tenancy was soon to terminate. Findings of Fact No. 66 - 78, are rejected as irrelevant given the recommendation in this order. COPIES FURNISHED: Austin B. Gran, Esq. Post Office Box 12691 Pensacola, FL 32501 Michael J. Stebbins, Esq. RAY, KIEVET & KELLY Post Office Box 13490 Pensacola, FL 32591-3490 Dana Baird General Counsel 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32303-4149 Sharon Moultry, Clerk Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32303-4149
The Issue Whether petitioners and intervening petitioners, or any of them, have standing or party status because removal of the dam would cause injury in fact of sufficient immediacy of a kind within the zone of interests protected by Section 403.91 et seq., Florida Statutes (1985)? If so, whether NWFWMD's permit application conforms to the requirements that Section 403.918, Florida Statutes (1985), Chapter 17-12, Florida Administrative Code, and Rules 17-3.001, 17- 3.121, 17-4.242 and 17-4.290(5) and (6), Florida Administrative Code, set out? Whether NWFWMD has given reasonable assurances that removal of the dam would not cause water quality violations by lowering dissolved oxygen concentrations below allowable levels, or by causing eutrophication or turbidity or an increase in heavy metals, including chromium or other battery constituents, in excess of allowable levels? Whether removal of the dam would be in the public interest, taking into account the diversity of aquatic life, including aquatic weeds, and whether fish spawning will be enhanced or hindered, whether heavy metals would reach Apalachicola Bay and affect oyster beds or marine productivity, what effects on the property of others would be, what the effects would be on fishing and other recreation, public safety for canoers and others, navigation generally, mosquito breeding and odors?
Findings Of Fact The Dead Lakes are a wide place in the Chipola River. Near Wewahitchka, a forest of towering cypress trees once flourished in the periodic inundation of the Chipola River. But when a sinkhole collapsed the river banks, widening the Chipola River and the lower reaches of Stone Mill Creek, a tributary, to form the Dead Lakes, the trees growing in the riverbed also sank. Permanent immersion eventually killed many of the trees. The dead, moss-draped remnant the loggers left inspired the name of the lakes, which stretch for some ten miles through Gulf and Calhoun Counties. The Rise and Fall of the Dead Lakes The level of the Dead Lakes depends not only on how much water flows in, but also on how much flows out. Before man's intervention, the rate of outflow depended all year round on the stage or height of the Chipola Cutoff, the fork of the Apalachicola River into which, just below the Dead Lakes, the Chipola River drains, as well as on the stage or height of the Chipola River above the Dead Lakes. When the Apalachicola River and, therefore, the Chipola Cutoff were high, a backwater or damming effect tended to keep the level of the Dead Lakes up. Although pristine conditions no longer obtain, the relative elevations of the Chipola and Apalachicola Rivers still affect the water level in the Dead Lakes, at certain stages. The Chipola River drains approximately 1,280 square miles in northwest Florida and southeast Alabama. Although the Chipola is spring fed, the flow of water into the Dead Lakes depends ultimately on rainfall in the basin, which varies seasonally. At Altha, the lowest flow ever recorded was 330 cubic feet per second, and the highest flow on record there was 25,000 cubic feet per second. The Apalachicola River, which arises out of the confluence of the Flint and Chattahoochee Rivers, drains a much larger area. Its flow has been altered by the Jim Woodruff Dam and other dams further north that the Army Corps of Engineers constructed, and now uses to generate electricity, and in an effort to keep at least nine feet of water in the Apalachicola River channel, for the benefit of commercial traffic. Although intended to bolster low flows, the Jim Woodruff Dam was first used to impound a reservoir, Lake Seminole, for the purpose. In combination with dry conditions, the result was record low water levels in the Dead Lakes of about ten feet NGVD during the years 1954 through 1958. Lakes Dammed Alarmed at this change in the Dead Lakes, people in the area decided a dam should be built. Not one of the 88 owners of property on the lake objected. The Legislature created the Dead Lakes Water Management District (DLWMD), Chapter 57-1115, Laws of Florida (1957); and the DLWMD constructed a stop log, low head weir just below and parallel to the bridge on which State Road 22A crosses the water flowing out of the lakes. The 787-foot weir was completed in late 1959 or early 1960 on the right of way of the St. Joseph and Iola Railway, alongside the bridge, not far upriver from the point where the clear water leaving the Dead Lakes joins the muddy waters of the Chipola Cutoff. The weir was designed to maintain the Dead Lakes at elevations up to 18.2 feet, in times of low flow. The stop log feature allowed adjustments so that elevations of less than 18.2 feet could also be maintained. In 1962, however, the stop log portion of the weir gave way, and that part of the weir was reconstructed, as the remainder had originally been constructed, with interlocking sheet pile, which, braced and buttressed with I- beams, did not allow any draw down of the lakes below 18.2 feet NGVD. No work has been done on the dam since 1962, and experts predict it will fail in about ten years if not attended to. The DLWMD installed four culverts about seven or eight feet high and twelve feet wide to the west of the weir in 1974, in order to restore draw down capability, as a means of controlling aquatic weeds. The DLWMD caused a channel to be excavated to these culverts, which were equipped with gates that could be raised and lowered with a screw mechanism. Although the invert elevation of the culverts is 10.5 at the upriver end and 10.3 feet at the other end, the Dead Lakes can only be drawn down to about 14 feet because of "base flow" and because of the configuration of the bottom, upriver of the culverts. With the gates of the draw down structure closed, the height of the weir (18.2 feet NGVD) is the limiting factor. Effect of Removal For about one-fifth of the year neither the weir nor the draw down structure determines how high the water in the Dead Lakes is, because interaction between flows in the Chipola River and in the Chipola Cutoff, the fork of the Apalachicola River which eventually rejoins the main river channel, keeps the Dead Lakes at or above the weir crest. During this part of the year, usually beginning in December and ending in March, Respondent's Exhibit No. 2, p. 20, the absence of the dam that NWFWMD seeks a permit to remove would make no difference. But, during times of low flow, with the dam out, the water level in the lakes would fall well below the current floor. Only one percent of the year, however, on average, would the lakes fall as low as the levels they reached in the 1954 to 1958 period. Eighty-five percent of the time the water level would be at or above 12 feet NGVD, without the dam, and the median elevation would be 14.75 feet NGVD, less than a foot above the lowest levels now reached. Without the dam, the lakes would cover more than 3,660 acres, the area covered at 14 feet NGVD, for half the year. The Dead Lakes now cover at least 5,500 acres half the time, or did before the draw down gates began staying open. No Control Over Control Gates As of the last day of the hearing, the testimony was that two of the draw down gates were open and two were closed. For some months preceding the hearing, private citizens opened and closed the gates willy nilly, although it was a good deal easier to close them than to open them, because they are quite heavy and the screw mechanisms are broken. With the dam's transfer to the NWFWMD for the purpose of seeking the permit here in contention, the DLWMD has become defunct, de facto if not de jure. According to Forest Revell, however, as quoted by Sheriff Harrison, the last word from the DLWMD on the gates was an order that they remain open. They were locked open in May of 1986 when Edward Baily, 67 years of age, found himself unable to start his outboard motor as he drifted north of the draw down structure in a small boat with his wife. The current dragged them through a culvert. Mrs. Bailey survived, but her husband did not. Charles Alford Gaskins had been sucked through a culvert some time before Mr. Edwards' fatal accident. Sheriff Al Harrison closed the gates to protect the divers who retrieved Mr. Bailey's corpse, but later opened them in obedience to the DLWMD's reportedly final order on the subject, not without, however, bringing the matter to the attention of a former member of the DLWMD board, Mr. McCarty at the NWFWMD, and various other officials, including then Governor Graham. All disclaimed authority to order the gates closed, and nobody posted any warning. In order to close the gates to protect the divers, the sheriff found it necessary to cut the locks, which were not replaced when the gates were reopened. At the time of the hearing, whether the gates were open or closed was "up to the vandals." All In Favor Sponsored by James Harold Thompson, then Speaker of the House of Representatives, House Bill No. 1262 became law with the Governor's approval on June 19, 1984. Chapter 84-380, Laws of Florida (1984). After the enactment of Chapter 84-380, Laws of Florida (1984), NWFWMD began applying for the permits necessary to remove the Dead Lakes dam, including the dredge and fill permit at issue here. So far it has obtained the requisite permit from the Army Corps of Engineers and a permit from the NWFWMD itself. The Florida Department of Natural Resources has no objection to taking the dam out. Florida's Game and Fresh Water Fish Commission, the United States Department of the Interior's Fish and Wildlife Service, and the United States Environmental Protection Agency also approve. The Department of Environmental Regulation is the state environmental agency to which the NWFWMD has made the application for the permit at issue in these proceedings. As stated in its notice of intent, DER, which actively participated at the formal hearing, supports removal of the Dead Lakes Dam. Also favoring removal of the dam is the Board of Commissioners of Calhoun County, which participated in the formal administrative proceeding as an intervenor. On March 13, 1984, Calhoun County had a "straw vote" on whether the Dead Lakes Dam should be removed. Those in favor of removal prevailed, 1,575 to 276. The County Commission endorsed removal by resolution on March 27, 1984, Respondent Intervenor's Exhibit No. 3, and subsequently voted to intervene in these proceedings in support of NWFWMD's application for a permit to remove the dam. The voters of Gulf County also favored removal of the dam in a referendum held there. The vote was 1,550 for and 594 against. The Gulf County Commission, too, endorsed removal by adopting a resolution, No. 84-7, Respondent's Exhibit No. 35, but Gulf County has not sought intervention in these proceedings. The same is true of the Cities of Marianna and Blountstown, whose City Councils have also passed resolutions in support of removal of the dam. Respondent Intervenor's Exhibits Nos. 4 and 5. Many of the owners of land on the Dead Lakes are not registered to vote in Gulf or Calhoun Counties, or in Marianna. Also participating as a party in support of removal of the dam is the Chipola Basin Protective Group, a corporation not for profit organized in July of 1983 in an effort to conserve and preserve natural resources in and around the Chipola River. Some 100 people are members, including some who own land on the Dead Lakes and others who own property elsewhere on the Chipola River and "use these natural resources." All Opposed Opposing the permit application are a number of property owners whose waterfront access to the Dead Lakes, although in times of low flow already impaired in many cases, would become still more difficult, if the water in the lakes dropped below the levels at which the dam now keeps it. The east side of the lakes are timberland in single ownership. On the west side, both permanent homes and weekend cottages have been built, and there are a number of fish camps and the like whose revenue depends on access to and fishing in the Dead Lakes. Daniel Monroe Sullivan began fly fishing in the Dead Lakes in 1935, and has fished there regularly since, except for 1939 through 1945 when he went off to the war, where he lost both knees. He "put everything [he] had" into the old Rowell landing, which he purchased in 1975, from Mr. Rowell, who since 1960 had let him keep a trailer on the property. The parcel has frontage on the Dead Lakes of 286 feet and is 394 feet deep. Improvements include a six-stall boathouse with handrails, and a floating dock. Mr. Sullivan has things arranged so that he can lower himself into a boat and set out, or could until people started opening the gates of the draw down structure. Now, at low water, some 300 yards of mud separate the boathouse from the Dead Lakes. Mr. Sullivan's physical condition makes it impossible for him to trailer a boat by himself and launch it from one of the three or four ramps where the water is always deep enough even with the gates open. Just north of Mr. Sullivan, Tullis D. Easterling, who also first fished the Dead Lakes more than 50 years ago, owns two lots, comprising about an acre and a half, with 212 feet fronting the western shore of Dead Lakes. He has a mobile home, a cook shack and other improvements, including a shed for three boats and a 60 to 70 foot dock, which extended 40 feet out into the water, when it was built. With two of the draw down gates closed, he can still use the dock, which is no small convenience for a man 77 years old. At low water, with the gates open, 300 yards of mud separate his dock, too, from the Dead Lakes. From his property north of Mr. Easterling's place, Charles L. Nowlin was able to launch his boat by backing his trailer down a sort of ramp he fashioned with patio blocks. He has about 400 front feet, "when there's water," and a two bedroom cottage on the property. Usually the water is from 2 to 2.5 feet deep in the "natural slip" in which he keeps his boat, but in 1985 and in again in 1986 the slip went completely dry at times. He had to launch his boat elsewhere and pole into a neighbor's dock. Thomas C. Brock, a 64-year-old retiree, has a two bedroom cottage on the Dead Lakes, and a 45-foot dock at the end of which the water was 4 to 4.5 feet deep at the time of the hearing. At low water, however, with all the draw down gates open, "you can plant a turnip patch" in front of his place. Once the lakes attain a height of 15 feet, Mr. Brock can reach his dock by boat. An avid fisherman, Mr. Brock fishes on the Dead Lakes regularly, having first fished there in 1945. James W. Quick and his wife live year round in a home on the Dead Lakes. Retired from the Air Force, he fishes continuously. At the time of the hearing, the water was 3.5 to 4 feet deep at the end of the Quicks' 80-foot pier, but last summer the pier was 300 yards from the water and you had to go another 100 yards into the water before it got knee deep. Oscar G. Clark has owned the property next to the Quicks since 1951. He bought the place for the fishing, which has long been his main recreation. Fishing on the Dead Lakes is what he mainly does since his wife died. He has a ramp and space for four boats under a boat shed, and has no trouble using the ramp in high water, but the last two years in a row the water has been too low seven or eight months running. James C. and Dorothy Taylor own a house on the west side of the Dead Lakes, on the Chipola River channel. The water is 12 to 14 feet deep only some ten feet beyond the end of their dock, which extends 28 feet into the lake. The depth of the water at the end of the Taylors' dock ordinarily fluctuates between 2.5 and 4 feet, but three or four times since 1981, the water's edge has receded two feet beyond the end of the dock. The Taylors' neighbors on the channel, Messrs. Linton and Bidwell are in essentially the same situation. Paris Wayne Carter, a Wewahitchka businessman, bought a place on the Dead Lakes two years ago, with a dock that ordinarily extends 25 feet out into the water, where the water is ordinarily two to five feet deep. But last year at low water with the gates open, he walked 300 yards from his boat dock to the water's edge. James Carroll Stokes, who is totally and permanently disabled, sold his house and used the proceeds to buy six acres on the west arm of the Dead Lakes. He lives there now in a mobile home. He has 18 hookups on the property for recreational vehicles, and charges campers $8.00 a night. When the lakes are at 18 or 19 feet, the boat ramp he has is half out of the water, but at low water with the draw down gates open the ramp cannot be used to launch boats, which affects his business adversely. In 1980, the year Leland Taylor bought the Jerry Gates Fish Camp, business was pretty good. The fish camp consists of five cabins and a house on five acres with 1,200 feet on the lake, and has eight boats and six motors. Even at low water with the gates open, he can get from the end of his 300 foot pier, where he keeps two of the boats, to the middle of the Dead Lakes, but, under such conditions, the boat shed where most of the boats are kept is separated from the water by 200 feet. With the opening of the draw down gates, business has slackened considerably. Mr. Taylor has had to telephone people planning to come to his camp to fish to tell them the water level would not allow it. Juanita Dill put the Cypress Lodge up for sale over two years ago. The Cypress Lodge was once a thriving business. Gulf Life agents 40 to 50 strong used to come every year to go fishing, but business fell off sharply in the last few years, and Ms. Dill has closed the placed down. The evidence did not establish that the decline in business was on account of problems with access to the lakes, as opposed to poorer fishing. But interrogatories adduced as evidence at hearing established that Ms. Dill, Max W. Kilbourn, Jim Gross, R. F. Martin, G. W. Hobbs, J. M. Whittaker, Lee Thompson, Duncan Smith, J. C. Blanton, C. D. Ramsey, Sr., Theodore Elchos, and V. D. Hilton, "have already suffered loss of their access to navigable water." For 45 or 50 years, Clyde Finch Brogdon has owned 165 acres with about three quarters of a mile fronting on the Dead Lakes. Mr. Brogdon raises sheep and cattle on the property. When the water recedes, the animals stray into the mud and bog down. He has to pull them out with a tractor and a length of line. Mr. Brogdon also has a boat ramp on his property that stops well short of the water when the lakes are down. Snails or something die and stink when the water recedes. For a day or two afterwards there is an expanse of "souring mud." Water Quality The clear "fast flowing Chipola River slows and spreads to form the strangely beautiful Dead Lakes," Respondent's Exhibit No. 40, but remains relatively free of suspended solids both in the Dead Lakes and when the river narrows again near the dam, until its confluence with the muddy Chipola Cutoff. In the long run, removal of the dam would lessen turbidity below the dam by increasing the volume of clear water mixing with the Chipola Cutoff during periods of low flow. In the long run, removal of the dam would lessen turbidity even in times of high flow because it would virtually eliminate the erosion now occurring in the vicinity of the draw down structure. In the short run, removing the dam would occasion a temporary increase in turbidity. The plan is to station equipment on the bridge (instead of on a barge) to "vibrate out" the sheet piles and to remove the steel from the site, leaving the riprap on the bottom to damp turbidity and curtail the movement of sediment. If the vibration shears a sheet pile, however, the contractor will have to go one foot beneath the bottom and cut the pile there. Under a proposed special permit condition, the contractor will not start work until the water level upriver of the dam is within one foot of the water level downriver, in order to avoid a sudden rush of water. This will help keep turbidity down and is also important for the safety of the bridge. Dissolved Oxygen In August of 1984, with flows low enough so that the Dead Lakes Dam had impounded the waters of the Dead Lakes, investigators took water samples from the Dead Lakes and from "the Chipola River above the influence of the dam." DER's Exhibit No. 8. Analysis of a sample taken from the bottom, at a point where the lake was nine feet deep, revealed 3.3 milligrams of dissolved oxygen per liter. A sample taken only one foot below the lake surface was not much better: 3.5 milligrams of dissolved oxygen per liter. By comparison, the upriver samples yielded results of 7.0 milligrams of dissolved oxygen per liter, or higher. The samples demonstrate the negative net effect impoundment has on dissolved oxygen levels, even though impoundment makes for more aquatic weeds, which add more dissolved oxygen to the water than they remove. The Dead Lakes Dam is in part responsible for these depressed levels of dissolved oxygen in the summer months, and its removal would alleviate the situation. By slowing or stopping the flow of the Chipola River, the dam increases precipitation of organic sediments, which gather on the bottom and compete with living organisms for the limited amount of dissolved oxygen available. Not only would removal of the dam decrease precipitation by increasing the velocity of the flow, it would cause a greater expanse of lake bottom to be uncovered, permitting oxidation of sediments exposed to sunlight and air. As a consequence, when the water again covered the sediment, the sediment would require less dissolved oxygen. Eutrophication Water hyacinths (Eichornia crassipes), limnophila (Limnophila sessiflora) and Brazilian elodea (Egenia densa), which are species of aquatic weeds not indigeous to Florida, all grow in the Dead Lakes, although they are under control and do not present a serious problem. Indeed, some vegetation, even of this kind, is advantageous. Exotic aquatic weeds flourish at the expense of native species, however, and, in overabundance are detrimental to game fish. Herbicides have proven effective against them, except perhaps in the case of Brazilian elodea which, however, such fluctuations as now occur in the level of the lakes seem to keep in check. The impounding effects of the Dead Lakes Dam create favorable conditions for the exotic, aquatic weeds' growth; the lakes tend to grow more shallow and weeds spread. The dam causes accumulation of the nitrates that enter the Chipola from agricultural operations upriver. Without the dam, no abundance of aquatic weeds could persist. Periodic draw downs or natural fluctuations are a good means of controlling most weed species. Water hyacinths, which can germinate in a draw down, are the exception. With the dam removed, sedges and slender rushes would grow up quickly and, in 10 to 20 years, a cypress forest would reestablish itself closer to the river channel, shading the river. Not only cypress, but also willow and button bush would grow up and keep sunlight from aquatic weeds underneath. Heavy Metals From 1970 until it went out of business in 1979, the Sapp Battery Company (Sapp) operated a battery salvage facility on the bank of Little Dry Creek, an intermittent tributary that empties into the Chipola several miles upriver of the Dead Lakes, north of Altha. While it operated, Sapp disposed of heavy metals, including lead, zinc, mercury and cadmium, improperly, so that these materials made their way into the Chipola River, caused at least one fish kill, and apparently caused the elevated levels of heavy metals found in the tissues of native mussels and corbicula alike. Finfish as well as mollusks exhibited these elevated levels at one time. Although several intervening ox bows or deep bends have been "deposition areas," there are no impoundments in the Chipola River between the Sapp site and the Dead Lakes. In 1984, the U.S. Environmental Protection Agency secured the site of the battery salvage facility, and heavy metals have not entered the Chipola River from that source since. Any manganese still in the water may be geologic in origin. A gladiola farm nearby may contribute to mercury in the river by dipping bulbs in mercurial fungicides. Cadmium is found in phosphate fertilizer, and both manganese and zinc are also used in agriculture. Heavy metals tend to bind to fine clay grains which precipitate out of the water and end up in the sediment and this seems to have happened in the Chipola River, including the Dead Lakes, where occasional sediment samples have revealed high concentrations of heavy metals. But the water itself is now free of measurable quantities of heavy metals. No heavy metals were detected in a sample of the water column taken on April 3, 1987, just above the Dead Lakes. The evidence rules out the hypothesis that removal of the Dead Lakes Dam would let water contaminated with heavy metals escape into the Chipola Cutoff and ultimately into Apalachicola Bay, with its extensive oyster beds. The only conceivable mischief along these lines would be the transport downstream of contaminated sediment into a marine environment in which chemical reactions binding heavy metals would be altered or reversed, releasing them into the water. But the weight of the evidence suggests that, for better or worse, contaminated sediments bound for a marine environment have probably already migrated downriver. In times of low flow, the dam slows or stops the river, precipitating all manner of suspended solids, including materials on the periphery which may never be resuspended or reach the estuary. On the other hand, accumulations of muck up to 12 inches deep in the river channel are regularly resuspended, as the water rises above the weir crest and the current scours the channel bottom. In times of high flow, rocks, fine sand and shells lying on the upriver side of the Dead Lakes Dam are stripped clean of all organic sediment. The dam has not prevented the movement of large quantities of sediment downstream. Public Interest Removing the Dead Lakes Dam would enhance the public safety. When the dam is underwater, as it is, on average, more than two months a year, it is a submerged barrier presenting a considerable hazard to the unwitting boater. Although the application does not contemplate removing the draw down structure, removal of the dam would take away the incentive to open the draw down gates. Even if the gates remained open, moreover, and the water was high enough to flow through the culverts, the absence of the dam would reduce the rate of flow through the draw down structure and the attendant danger. Apart from the matter of safety, the evidence did not show that removal of the dam would have any effect on the public health, although Sheriff Harrison did testify to parts of dead fish being strewn on the ground near the dam where fishermen gathered. Petitioners raised the possibility that the river would leave isolated pools of water as it receded, pools in which mosquitos might breed. But the weight of the credible testimony was that gambusi or other fish trapped in such pools would eat the mosquito larvae; and that the mosquito population should not increase, in the absence, at least, of some man-made interference with drainage. Andromadous Fish On balance, taking the dam out should enhance the conservation of fish and wildlife, including endangered or threatened species, and their habitats. During spawning season, with the dam in place, fishermen gather on the downriver side of the Dead Lakes Dam and catch substantial numbers of roe-laden fish. They are "all bottled up trying to get in." At one time, Alabama shad, striped bass and Gulf of Mexico sturgeon were found in the Dead Lakes and still further north in the Chipola River. During the summer months these andromadous fish seek a "thermal refuge" in cooler fresh water. Now only the Alabama shad swims north of the dam. Before the dam went in, striped bass occurred in fairly substantial numbers north of where the dam now is. Evidently they cannot navigate the dam now. Even when the water is well above the weir crest, certain species that swam upriver to spawn before the dam was built no longer do so. Either they swim too close to the bottom, or they are unable to contend with currents through the draw down structure and over the weir. Beginning last century and as late as 1970, commercial fishermen took Gulf of Mexico sturgeon, some of which weighed as much as 350 pounds each. By 1983, the number of Gulf of Mexico sturgeon had dropped to 380 fish, and the number fell to 69 in 1986. Now the Gulf of Mexico sturgeon is in category two under the federal endangered species law. The Dead Lakes Dam closes off 80 miles of the Chipola River to this dwindling population. The temperatures in the Chipola River are more constant and the flows more stable than those in the Apalachicola River to which the sturgeon are now relegated. Only 17 percent of the open river system formerly available to the Gulf sturgeon is still accessible. Removal of the dam may also increase the numbers and widen the distribution of the greyfin redhorse, the snail bullhead, the spotted bullhead and the dusky shiner. Respondent's Exhibit No. 27. Fish who do reach the Dead Lakes to spawn come when the water is above the weir crest, and go to the shallow periphery to deposit their eggs. At such times, it is not the dam that determines the height and configuration of the Dead Lakes, and its removal would not interfere with this spawning. On the contrary, removal of the dam would help matters. During times of low flow, the dam slows or stops the water occasioning precipitation of soft organic material in the shallows. When spawning time comes, roe can sink into this material and fail to hatch for want of oxygen. Little Effect On Birds Restoration of a more natural hydroperiod would let certain trees reestablish themselves in areas now covered year round, improving the habitat for nesting birds. Newly uncovered land would be seasonally available to deer, turkey and squirrel, but less hospitable for alligators and others. Aquatic organisms trapped in sloughs would become food for predators, like the wood stork. During periods of low flow, the black bear and the indigo snake would have additional foraging. The little blue heron, the snowy egret and the tricolored heron might benefit from removal of the dam as might, theoretically, the limpkin, although there is no proof the limpkin is present in the area. If bald eagles are present, removal of the dam would work to their disadvantage, but no record exists of their nesting or making any other use of the area. Thousands of ducks flocked to the Dead Lakes regularly as recently as 1964 or 1965. Now perhaps a tenth that many come, mainly wood ducks and a few mallards. On the other hand, the number of ospreys has increased since the dam went in. This may in part be attributable to protection they have received under the game laws in recent years. For most birds and other air breathing wildlife, removal of the dam would not have a significant effect one way or the other. Fish Stories Fishing is the main recreational use to which the Dead Lakes are put. The short-term effect of impounding the Dead Lakes during times of low flow was an increase in the number of fish who multiplied or congregated to avail themselves of the newly prolonged enlargement of their aquatic habitat. Over time, however, other effects have become evident and taken their toll. If the numbers of fish have not fallen dramatically, their average size has. Diminished oxygen attributable to the impoundment has increased fish mortality by its direct effect on the fish, as well as indirectly by its effect on organisms further down the food chain. Hardest hit among the fish have been some of the most sought after: shellcracker, large mouth bass, blue gill and channel catfish, among others. Removing the dam would improve the fishing. Fishing on the Dead Lakes was once almost too good to be true, to hear the old-timers tell it. As late as 1959, there were 20 fish camps on the lake. Mr. Brock remembers seven "major" ones in the 1940s. Now six are open, if that. Sixty years ago, Sam Casey fished the whole summer, and for many summers after that, but now he doesn't bother after the willow fly season is over. Cyrus Royce Lewis also began fishing on the Dead Lakes in the 1920s, and now he, too, goes almost exclusively during late spring and early summer, when may flies and willow flies hatch. After that, it's no use, he finds. Expert fishermen like Mr. Sullivan, Mr. Easterling, Mr. Brock, Mr. Quick, and Mr. Leland Taylor, who testified he caught a ten-pound bass last spring, still catch fish regularly, but the fishing is not what it once was. It is a lot harder to catch fish now, and some owners of property on the lakes, including Charles Cook Bridges, want to see the dam out so the fishing will improve. In the 1950s, you might see 200 boats tied to each other fishing over a five-acre shellcracker bed. The Game and Fresh Water Fish Commission roped off some of the beds to protect spawning fish; the game warden had to sleep in his boat to guard the beds. As late as 1964 there were single shellcracker beds that covered three acres of lake bottom. Now you only see "pocket beds," maybe half the size of the courtroom in Calhoun County Courthouse. The first time Alton Coxwell, now 55 years old, went fishing on the Dead Lakes was with his mother who put an umbrella over him. When, as a small child, he began getting bait for his uncle, his uncle sold all of it to people going fishing on the Dead Lakes. Before the Second World War, Willy Rowell alone had 300 boats but nobody had outboard motors to speak of. People fished with flies, or catawba worms and crickets then. Nowadays Mr. Coxwell sells lots of earthworms. He put retail sales of earthworms at 21,000 for Thursday the week of the hearing. But only two to five percent of these earthworms were used as bait in the Dead Lakes. Nineteen years ago, more than 20 percent of the earthworms Mr. Cox sold were used for bait in the Dead Lakes. In 1977, the Bay County Bass Club had four tournaments on the Dead Lakes, but for the last two or three years they have held only one tournament a year on the Dead Lakes. They have considered not scheduling any more there. Two fishermen in each of 23 to 27 boats, all of whom are familiar with the Dead Lakes, participate in these tournaments. Jim Bozeman of Wewahitchka caught 14 pounds of bass in his first tournament in 1977, but did not finish in the top three. Last tournament the winner caught less than five pounds of bass. The biggest bass caught in a 1977 tournament on the Dead Lakes weighed 7 pounds 4 ounces. In last year's tournament on the Dead Lakes, the biggest fish weighed three pounds. The biggest bass (eight pounds) that Mr. James C. Taylor ever caught he took in July of 1978. The Chipola River is more productive both above and below the Dead Lakes. Increased fishing pressure cannot account for the decline in numbers and the even more remarkable decline in the size of game fish in the lakes. Indeed, the weight of the credible evidence was that less fishing occurs on the Dead Lakes now than 10 or 20 years ago when the fishing was better. Since 1981, the number of permits sold for fishing on the Dead Lakes has declined. The fisheries' biologists corroborated the testimony that, after an initial beneficial effect, the impoundment of the Dead Lakes has had an adverse effect on the numbers and weight of fish in the Dead Lakes. Very likely the low dissolved oxygen levels in the summertime keep many fingerlings from surviving to grow larger. Mr. Leland Taylor's testimony that he has never seen mature fish floating dead on the lakes is consistent with the hypothesis that many do not survive the critical fingerling stage. Removal of the dam would increase fish production. While the volume of water in the Dead Lakes and therefore the fish habitat would shrink further in low flows than it does with the dam in place, the fish would have access to habitat downstream without having to contend with the dam. Invertebrates Other aquatic life has waned with impoundment of the Dead Lakes, including snails of the kind that leave a white, snail-wide streak of eggs on trees growing at the water's edge. When they hatch, they fall into the water and become food for the shellcrackers, but their numbers have been declining since 1966. The drought in 1955, which like last year's, was among the most severe the Chipola River has experienced, did not affect the diversity of aquatic life in the Dead Lakes adversely. In August of 1984, a sampling of benthic organisms, bloodworms and the like, in the Chipola River near State Road 71 above the Dead Lakes yielded 1,256 individuals comprising 33 species, with a Shannon-Weaver diversity index of 4.07. A sample taken at the same time in the Dead Lakes near the dam yielded 304 individuals representing only eleven species, and a Shannon-Weaver diversity index of 2.38. A contemporaneous sample taken downriver from the dam had a comparable Shannon-Weaver diversity index (2.41), although 18 species were present. Of 975 organisms in the downriver sample, 575 were tubificid worms, a species which does not contribute significantly to fish productivity. Although less water during drier periods would mean less bottom area for benthic organisms, some of these organisms depend on periodic fluctuation. Even those that require constant immersion can survive, when the water level falls slowly enough for them to adjust. The loss of some organisms would not necessarily diminish the diversity of species. Historically prolific throughout the Chipola River, native mussels are now found only in the upper reaches of the river. Removal of the dam would restore the environment in which they prospered before the impoundment. The impoundment has affected larger invertebrates adversely too. Dr. Nowlin testified he had not seen any crawfish lately. Higher dissolved oxygen in the lakes would increase the diversity of species of macro- and benthic invertebrates alike. Mr. Stokes, Mr. Brogdon, Mr. Leland Taylor and others testified about the stench of souring mud that persisted for a day or two after each of the abrupt draw downs which the erratic opening of the control gates occasions. As Mr. Brogdon testified, the odor arises because "something dies." Removal of the dam will bring an end to the sudden, random outrushing of impounded water through the draw down structure. Without the dam, the water level will fall and fall further, but the drop will be more gradual so that organisms that need water to survive will have a chance to migrate and remain submerged. A more gradual lowering would also mean that less bottom would be newly exposed in the same interval of time. For both these reasons, removal of the dam should make odors associated with changes in the level of the Dead Lakes less, not more, of a problem. Public Welfare And The Property Of Others The Dead Lakes dam serves no flood control function. In times of low flow, it creates a reservoir, but the weight of the evidence was that such a reservoir is not needed. Nothing in the record suggests that removal of the dam would affect any significant historical or archaeological resources. There are two public boat ramps on the Dead Lakes, one at Oak Grove in Calhoun County and one in the Dead Lakes Recreational Area. Removal of the dam would render both of them useless for much of the year, unless they were extended. With the dam gone, fishermen and other recreational boaters would be able to navigate the Chipola River from a point in Jackson County down to its confluence with the Chipola Cutoff and from there down the Apalachicola River to Apalachicola Bay and the Gulf of Mexico, during much of the year. Boaters coming upriver could enter the Dead Lakes under a wider range of conditions. The dam, of which neither buoys nor anything else gives warning, presents a considerable navigational hazard. On the other hand, removal of the dam would impede navigation for riparian owners, who would need to extend their docks or boat ramps or take other measures to gain access to the water during times of low flow. Bound up with the environmental effects of removing the dam are certain economic realities. The weight of the evidence established that the value of most of the private residences, permanent and others, along the west shore of the lakes, would tend to decrease with removal of the dam, because removal would aggravate the access problem most of these landowners now have. On the other hand, other environmental consequences of removing the dam, notably better fishing, will have a beneficial economic effect, tending to increase land values not only for riparian landowners but also for owners of other property in the area. For riparian owners of land lying on the Chipola River above the Chipola Cutoff and below the Dead Lakes, the economic consequences of removing the dam would all be good. Jim Bozeman lives on the bank of the Chipola Cutoff 4.5 miles downriver from the dam on the site where his father has a public boat landing. Still further downriver are two other major businesses of this kind. With installation of the dam closing off the Dead Lakes, the Bozemans' business, which includes renting boats and motors as well as launching others' boats, fell off. Removal of the dam should have the opposite effect. Ten fish camp properties have docks or ramps on the Dead Lakes between the dam and Cypress Creek, as do 41 or 42 private landowners. Land upriver from Cypress Creek fronts the river channel, and lies beyond the influence of the dam. If the dam is removed, these property owners will have to extend their docks in order to have access to the water year round. In some cases, extending boat ramps may be an alternative. There is a statutory exemption from permitting requirements for private docks of up to 500 square feet. DER generally permits private docks no wider than six feet if they are built in T- and L- shapes, whatever their length. The environmental authorities do not favor excavating channels. The remains or "skeletons" of early docks reflect adaptations to fluctuations in the level of the lakes of the magnitude likely to recur upon removal of the dam. There are multi-tier docks on the lakes today. Only a few inches of water at the end of a dock will allow access to the lakes by boat, although it may be impossible to use the motor close to the dock. The prosperity of the fish camps depends more on the size of the fish population than on the length of the dock necessary to reach the fishing boats. William Setterich, who owns Stokes Fish Camp, which is located midway along the western shore of the Dead Lakes, wants to see the dam removed. It will mean more mud in front of his fish camp more of the time and he would have to spend some more money on the dock, but the prospect of better fishing would justify the investment.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petition of Daniel M. Sullivan, et al in Case No. 84- 4468, and the "Petition" of Raymond Drainville in Case No. 85-0129, be dismissed. THIS RECOMMENDED ORDER entered this 8th day of July, 1985 in Tallahassee, Leon County, Florida. WILLIAM B. THOMAS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of July, 1985. COPIES FURNISHED: Carroll L. McCauley, Esquire Ms. Victoria Tschinkel Post Office Box 3567 Secretary Panama City, Florida 32401 Department of Environmental Regulation Mr. Raymond Drainville Twin Towers Office Bldg. 2027 N. Roberts Circle 2600 Blair Stone Road Cantonment, Florida 32533 Tallahassee, Florida 32301 William J. Rish, Esquire Post Office Box 39 Port St. Joe, Florida 32456 B. Suzi Ruhl, Esquire 203 N. Gadsden Street Suite 7 Tallahassee, Florida 32301 Patria Fitzpatrick, Esquire Post Office Box 2464 Panama City, Florida 32402 J. David House, Esquire 119 River Street Blountstown, Florida 32424 Douglas L. Stowell, Esquire Gary J. Anton, Esquire P. O. Box 1018 Tallahassee, Florida 32302 Susan Swihart, Esquire Asst. General Counsel Twin Towers Office Bldg. 2600 Blair Stone Road Tallahassee, Florida 32301
The Issue The issue is whether Respondent should reimburse Petitioner for the attorneys' fees and costs Petitioner expended in its successful defense of Respondent's Stop-Work Order.
Findings Of Fact Hernandez, Inc., was a contractor based in the Jacksonville, Florida area, and was in the business of installing dry wall, among other construction-related activities. Its principal owner, Jorge Hernandez, founded the company in 1981. The Department of Financial Services is the state agency responsible for enforcing the Workers' Compensation Law. This duty is delegated to the Division of Workers' Compensation. The Division is a state agency. It is not a nominal party. On February 5, 2004, Hernandez, Inc., was engaged in installing drywall in the Bennett Federal Building in Jacksonville, Florida, using its own personnel, who were leased from Matrix, Inc., an employee leasing company, and two subcontractors, GIO & Sons (GIO), of Norfolk, Virginia, and U&M Contractors, Inc., (U&M), of Charlotte, North Carolina. The leased employees were properly covered by workers' compensation insurance provided by the lessor. Prior to contracting with GIO and U&M, Hernandez, Inc., asked for and received ACORD certificates of insurance, which on their face indicated that the subcontractors had both liability coverage and workers' compensation coverage. It is the practice of Hernandez, Inc., to ensure that certificates of insurance are provided by subcontractors. The office staff of Hernandez, Inc., at all times prior to going out of business, tracked the certificates and ensured that they were kept current. Hernandez, Inc. had relied on hundreds of these ACORD certificates in the past. During times pertinent, neither GIO or U&M maintained workers' compensation insurance on their employees that complied with the requirements of Section 440.38(7), Florida Statutes. On February 5, 2004, Katina Johnson, an investigator with the Division's Jacksonville office, made a routine visit to the Bennett Federal Building with another investigator. She observed personnel from Hernandez, Inc., and its subcontractors GIO and U&M, installing dry wall. She also determined that Hernandez, Inc., had a contract to install dry wall as a subcontractor participating in the construction of the Mayport Naval Station BEQ. U&M worked at both the Bennett Federal Building site and the Mayport BEQ site as a subcontractor of Hernandez, Inc. Ms. Johnson discovered that neither U&M nor GIO had workers' compensation coverage for its employers. Ms. Johnson asked for and received the certificates of insurance that Hernandez, Inc., had obtained from GIO and U&M, which facially suggested that Hernandez, Inc., had determined that its subcontractors had appropriate coverage. Nevertheless, she issued a SWO on February 26, 2004, to Hernandez, Inc., as well as GIO, and U&M. By the SWO, Hernandez, Inc., was charged with failure to ensure that workers' compensation meeting the requirements of Chapter 440, Florida Statutes, and the Florida Insurance Code, was in place for GIO and U&M. She also issued an Order of Penalty Assessment that eventually became an Amended Order of Penalty Assessment dated March 19, 2004. The SWO stated, in bold print, that Hernandez, Inc., was, "Ordered to Stop Work and Cease All Business Operations in the State." Hernandez, Inc., was, at the time, also engaged in construction at the new Jacksonville Library and at the Carlington Apartments, both of which were located in Florida. By the terms of the SWO, Hernandez was required to stop work in those sites also. The Division had no evidence that might cause it to believe that Hernandez, Inc., was operating in violation of the law at those sites. The SWO contained with it a Notice of Rights advising that a formal or informal administrative hearing might be had and required that a petition for a hearing be filed within 21 days of receipt of the SWO, if a hearing was desired. Hernandez, Inc., was not informed that it had the right to an immediate hearing. Hernandez, Inc., timely filed a petition demanding a formal hearing. In an effort to get back to work, Hernandez, Inc., entered into an agreement with the Division, whereby it paid a partial penalty of $46,694.03, but admitted no liability. The formal hearing did not take place until August 16, 2005. Ms. Johnson had the power to issue a stop-work order. She did not have to get approval from a neutral magistrate or from the Division. Because she was a recent employee of the Division, she conferred with her supervisor Robert Lambert before taking action, and he approved her action in writing. In February 2004, it was the policy of the Division to issue SWO's for all work sites even though it concluded that a violation had occurred in only the site or sites visited. The Division policy did not require an investigation into all worksites as a prerequisite to shutting down all worksites. The policy requiring a contractor to cease work at all worksites was not adopted as a rule. In February 2004, the Division asserted that compliance with Section 440.10(1)(c), Florida Statutes, required a general contractor to look beyond an ACORD certificate of insurance to determine if subcontractors had complied with the requirement to maintain the required workers' compensation coverage ". . . under a Florida endorsement using Florida rates and rules pursuant to payroll reporting that accurately reflects the work performed in this state by such employees." This policy was not adopted as a rule and was subsequently abandoned. The Division, in implementing this policy, asserted that a general contractor must actually review the policy of a subcontractor presenting an ACORD certificate and determine if it was in effect and if it complied with Florida law. This policy was not adopted as a rule and the policy was subsequently abandoned. The Division further asserted that the employees of the subcontractor of a general contractor were to be viewed as if they were employees of the general contractor, when contemplating workers' compensation coverage. This policy was not adopted as a rule. Ms. Johnson acted in conformance with the Division's policies in effect at the time the SWO was issued. The net worth of Hernandez, Inc., was a negative $1,821,599, on December 31, 2003. Hernandez, Inc., was struggling financially in February 2004, but was on the way to recovery until the SWO was issued. On November 30, 2004, the net worth of Hernandez, Inc., was a negative $1,161,865, and this figure included the sum of $978,000 that Mr. Hernandez put into the business. Accordingly, Hernandez, Inc., was a small business party for purposes of Subsection 57.111(4)(a), Florida Statutes, during times pertinent. The SWO, which terminated work at all Hernandez work sites, torpedoed any chance the company had to continue in business. Mr. Hernandez mortgaged his house, which he subsequently lost to creditors, in an effort to keep Hernandez, Inc., in business. All of his efforts failed. The failure was a direct result of the actions of the Division. The Division's interpretations of the law that precipitated their policies, and thus the failure of the business, were both wrong and unreasonable. Subsequent to the hearing and Recommended Order in Department of Financial Services, Division of Workers' Compensation v. Hernandez, Inc., Case No. 04-1174 (DOAH October 3, 2005), the Chief Financial Officer entered a Final Order styled, In the Matter of: Hernandez, Enterprises, Inc., Case No. 75492-05-WC (Florida Department of Financial Services, January 25, 2006). The Final Order noted that the contractor, Hernandez, Inc., complied with the extant law when it, ". . . demanded and received proof of insurance. . . . " The Final Order also noted that there was no authority produced by the Division that would permit the imposition of a fine on Hernandez, Inc. The Final Order further recited that there was no statutory duty on the part of a contractor to ensure (emphasis supplied) that its subcontractors had secured workers' compensation coverage for its employees. It noted that, ". . . without some formal delineation of the specific obligations of a contractor in ascertaining proof of insurance from a subcontractor, the Department cannot impose a penalty upon the facts presented in the instant case." The Division was ordered to rescind the SWO issued February 26, 2004, and the Amended Order of Penalty Assessment dated March 19, 2004, and was further ordered to repay the amount of $46,694.03, which had been paid to persuade the Division to abate the SWO. The action was initiated by the Division, which is a state agency. At the time the SWO was initiated, there was no reasonable basis in law and fact to do so. The actions of the Division were not "substantially justified." Hernandez, Inc., prevailed in the hearing because the Chief Financial Officer entered a Final Order in its favor and the Order has not been reversed on appeal and the time for seeking judicial review of the Final Order has expired. Hernandez, Inc., is, therefore, a "prevailing small business party." Hernandez, Inc., paid its law firm, Holbrook, Akel, Cold, Stiefel & Ray, P.A., $51,815.50 in attorneys' fees, and paid $8,837.00 in costs, in its successful defense of the Division's actions.
Findings Of Fact The Respondent, Home Owners Direct Sales, Inc., is now and was at all times alleged herein a registered real estate entity. Respondent, Roger L. Davis is now a registered real estate broker and from July 30, 1976 to the present time, has been a registered real estate broker, President and active firm member of Respondent, Home Owners Direct Sales, Inc. Respondent Davis, by and through agents of Respondent Home Owners Direct Sales, Inc., solicited from property owners in the Dade, Broward and Palm Beach County areas the payment of a fee in return for listings to sell their property in a magazine which was published by Home Owners Direct Sales, Inc. The complaint alleges that in its solicitation efforts, Respondents advised property owners that the magazine would be published monthly and contain the property owners listing; that such representations were false and known to be false when made; that subscribers relied upon such representations which prompted them to simultaneously pay a listing fee; that none of said fees received subsequent to July 1, 1976 were held or maintained in a trust account and that by reason thereof, the Respondents are guilty of fraud, misrepresentation, concealment, false pretenses, false promises, etc. within the meaning of Subsection 475.25(1)(a), Florida Statutes, and Respondent Home Owners Direct Sales, Inc. by and through President Davis is additionally guilty of collecting an advance fee without depositing 75 percent thereof in a trust account in violation of Subsection 475.452, Florida Statutes, all in violation of Subsection 475.25(1)(d), Florida Statutes. The complaint alleges further that the Respondents, as a means to assure the receipt of said deferred payments, recorded the deferred payment contract amount as liens against the real property interest of those who chose this method of payment for the service to be performed by Home Owners Direct Sales, Inc. Based thereon, the complaint alleges that the Respondents have placed upon the public records of the county, a lien which purports to affect the title of, or encumber, real property for the purpose of collecting a commission or to coerce the payment of money to the broker in violation of Subsection 475.42(1)(j) Florida Statutes, and derivatively in violation of Subsection 475.25(1)(d), Florida Statutes. Further, the complaint alleges that approximately 207 contracts were recorded in Broward County as liens of which there presently remains outstanding approximately 187 liens against the real property interests of those who chose the deferred payment method of compensation to Respondent Home Owners Direct Sales, Inc.; that Respondent has failed to take any steps to remove said liens from the public records and that by reason thereof, Respondent Home Owners Direct Sales, Inc. by and through its President, Roger L. Davis, is guilty of false pretenses, dishonest dealing, trick, scheme or device in a business transaction in violation of Subsection 475.25(1)(a), Florida Statutes. The complaint also alleges that Ronald Kavin, during times material, was a registered real estate salesman in the employ of Home Owners Direct Sales, Inc.; that pursuant to the terms of his (Kavin) employment agreement, Respondent Home Owners Direct Sales, Inc. by and through its President, Roger L. Davis, paid the sums of $250 and $150 by checks dated September 16 and 29, 1976, respectively to salesman Kavin which were returned for nonsufficient funds. Based thereon, the complaint alleges that the Respondents are guilty of dishonest dealing in violation of Subsection 475.25(1)(a), Florida Statutes. Based thereon, the complaint concludes that the Respondents are guilty of a course of conduct or practices which show that they are so dishonest and untruthful that the money, property transactions and rights of investors and those with whom they may sustain a confidential relation may not be safely entrusted to them, all in violation of Subsection 475.25(3), Florida Statutes. An examination of the record compiled herein reveals that sometime during the month of March, 1975, a corporate brokerage agreement was entered into between Jeff Davey, James McKay and Marylin Benjamin. As a means of doing business, the parties utilized a previously established Florida corporation, Macoda, Inc. James McKay was President of the corporation and Jeff Davey and Marylin Benjamin were Vice Presidents with Benjamin also serving as active broker. Jeff Davey was the son-in-law of President McKay who advanced the initial funds for capitalizing the corporation. Jeff Davey was charged with publishing and distributing the magazine, ensuring that signs were placed on the property of owners who utilized the service, and taking photos of such properties. Messr. McKay envisioned establishing a profitable, ongoing venture for his son-in-law and daughter. As originally conceived, the corporation planned to publish a magazine which would illustrate real property that was available for sale by owners in Dade, Broward and Palm Beach counties. The procedure simply stated involved putting the sellers of property in contact with buyers so that a viewing time could be arranged between them. Further negotiations between seller and prospective buyer were usually handled solely between them without any input or assistance from the personnel of Respondent Home Owners Direct Sales, Inc. During the early days of the corporate venture, monies collected from advertisers and all publication expenses, office expenses and salaries were handled by Jeff Davis and/or James McKay. In the early months of the operation, Messrs. Davey and McKay, pursuant to guidance and counseling from their accountants and lawyers, collateralized the listing fee contracts and used them as receivables to defray the steadily mounting negative cash flow resulting from the business operations. Sometime in December, 1975, Jeff Davey left the country for personal reasons. Thereafter, Messr. McKay took a more active role in the publication of the magazine and took sole charge of financial matters and policy decisions. The best guesstimate is that during this period, the venture was operating at a deficit of approximately $200,000 and was committed to substantial fixed overhead expenses. Mr. McKay who was retired and wealthy, contacted Respondent Roger L. Davis, who was then the publisher of a business and financial opportunity magazine and engaged his services to try to sell the business. Respondent Davis advertised the business in his financial opportunity publication for the asking price of $50,000. After several months of screening prospects, it became apparent to Respondent Davis that he would be unsuccessful in his efforts to locate a prospective buyer for the business and so advised the owner, Messr. McKay. During June or July of 1976, Respondent Davis offered to purchase the business for the outstanding obligations which amounted to approximately $12,000. At the outset of his assumption, Messr. Davis satisfied outstanding obligations of approximately $7,000 which were due to the printer. That amount also represented outstanding bills for rent, phone, salaries and other current expenses. Respondent Davis testified that when he purchased the business in June, 1976, the books were in a shambles and it was extremely difficult to determine what receivables the corporation was due and what obligations were due and owing. His testimony which was corroborated by his ex-wife, Ann Davis, reveals that he (Davis) made an honest good faith effort to satisfy all outstanding obligations with the limited funds available. He was able to obtain extensions from the printer so that approximately 15,000 copies of the magazine's November issue was printed. Respondent Davis found difficulty in physically laying out the magazine due to his lack of experience in layout work. By this time, Davis had exhausted all of his available revenues from the service and he had no funds to hire personnel to perform those functions. He contacted several property owners who had a listing agreement with Respondent Home Owners Direct Sales, Inc. after he took over its operations and was able to determine that approximately 50 - 60 property owners had in fact sold their houses and therefore no longer needed the service. He also testified that he was not responsible for filing the liens on the property of owners who utilized the deferred payment plan with Respondent Home Owners Direct Sales, Inc. He related several instances wherein he, when confronted by a property owner and was advised that an outstanding lien was affecting the title to their property, gave a release or satisfaction for the lien. When Respondent Davis took over the operations of the business, he retained the services of Ronald Kavin for office and sales manager in overall charge of initiating sales. His overall responsibilities included training salesmen, making appointments for sales persons and assuring that they kept appointments. Approximately September 16, 1976, Messr. Kavin approached Respondent Davis for $250 which he needed to pay a garage repair bill. Messr. Davis credibly testified that he advised Messr. Kavin that although he had no money, he would issue him a check which should not be deposited until he assured him that sufficient funds were on deposit in the bank to cover the check. Approximately two weeks later, Messr. Kavin again approached Messr. Davis for $150 to defray expenses which he had incurred in his duties as office manager. Again Respondent Davis explained that while he had no money, he expected to obtain some money shortly from an investor whom he had arranged financing for some property which he owned and that he (Kavin) should not attempt to negotiate the check until he had prior clearance from Davis that he had sufficient monies on deposit in the bank. Messr. Kavin attempted to negotiate both checks which were returned for nonsufficient funds.
Recommendation Based on the foregoing findings and conclusions, I hereby recommend that the registration of the Respondent corporation, Home Owners Direct Sales, Inc. and the license and registration of Respondent Roger Davis be placed on probation for a period of one year. RECOMMENDED this 22nd day of May, 1978, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Louis B. Guttmann, III, Esquire Florida Real Estate Commission 400 West Robinson Avenue Post Office Box 1900 Orlando, Florida 32802 Roger L. Davis, Esquire c/o "A" Inc. 1980 North Atlantic Boulevard Cocoa Beach, Florida 32931 ================================================================= AGENCY FINAL ORDER ================================================================= FLORIDA REAL ESTATE COMMISSION FLORIDA REAL ESTATE COMMISSION, An agency of the state of Florida, Plaintiff, PROGRESS DOCKET NO. 3218 BROWARD COUNTY DOAH CASE NO. 77-2065 HOME OWNERS DIRECT SALES INC. and ROGER L. DAVIS, Respondents. /
Findings Of Fact Frank Bowder began his employment with Exports, Inc., under the tutelage of Kenneth L. Kellar, President and sole stockholder of Exports, Inc., at the office in Washington state approximately 20 years ago. He became very knowledgeable about the company's business, and approximately 15 years ago he was sent by Kellar to operate the company's Florida office. He was given the title of general manager of the Florida office and remained an excellent employee until his recent death. Kellar considered Frank Bowder to be an excellent manager of the product of Exports, Inc., but recognized that Frank Bowder had a large turnover of employees. His wife Mae Bowder was also an employee of Exports, Inc., and was considered by Kellar to be "the best cleaning woman there is." She was in charge of cleaning and maintenance duties at the Florida office. At some point Mae Bowder began representing to people that she was the office manager of the Florida office. That information was brought to Kellar's's attention on several occasions, and he corrected that information by explaining that she was simply in charge of maintenance. At some point Mae Bowder's son, Wayne Evans, became employed by the Bowders in the Florida office and was given the title of warehouse manager. Within the last several years, Frank Bowder allowed his wife to "become" the office manager. When Kellar found out, he fired her because he believed that she was "not office material." Approximately a year later Kellar found out that Mae Bowder was once again the office manager. He spoke to Frank about it, and Frank explained, essentially, that Mae was giving him so many problems at home about it that he had to hire her back. Kellar fired her once again. Sometime thereafter, Kellar found out that Frank was ill. He came to the Florida office and discovered Mae Bowder once again employed as "office manager." He again discussed the matter with Frank and determined the extent of Frank's illness, which was terminal. He told Frank that Frank was too ill to be running the office full time and told Frank that he should only come to the office a few hours a day. Frank responded that he did not know what to do about his wife. Kellar then went to Mae Bowder and discussed with her the fact that he only wanted Frank to be at the office a few hours a day and that it was too difficult for Frank to continue working full time. He also told Mae Bowder that she should be staying home and taking care of Frank because Frank was so sick. Mae Bowder specifically asked Kellar if he were firing her, and Kellar responded "no" but that she should be staying home to take care of her husband. Mae Bowder "got in a huff," threatened two of the female office personnel, and left. Kellar did not see her again until the final hearing in this cause. Kellar began investigating the operations of the Florida office at that point and began discussing with the other employees there how the office had been managed. He discovered problems. He was told that the Bowders gave highly preferential treatment to Wayne Evans in comparison to the other employees. He discovered that Mrs. Bowder did not like to hire black employees, and the black employees who were hired were not given keys to the office. There was a stated policy by Mrs. Bowder to not hire people with children. Specifically, one black employee did not tell Mrs. Bowder that she had a child when she was hired. When she later became pregnant, Mrs. Bowder was furious. The employee was given one month for unpaid maternity leave and when she called at the end of that month, Mrs. Bowder told her she had been laid off. When she called two months later, the time by which her baby who was sick could be left with someone else, Mrs. Bowder returned her call a week later telling her she could come back to work because another black employee had left. Lastly, the other employees reported that Mrs. Bowder would yell and curse at them, threaten to hit them with an upraised hand, and even pushed and shoved an employee on one occasion because that employee had made a mistake in her work. The employees had previously not made these complaints because they could have only complained to the general manager who was the husband of the person about whom they would be complaining. Kellar brought an employee from the Washington office down to the Florida office to assist Frank Bowder and continued to pay Frank Bower his salary until he died. No evidence was offered that Kellar would not have continued to pay Mae Bowder her salary if she had reduced her hours in order to take care of Frank rather than walking out when Kellar tried to discuss the matter with her. No one else was present when Kellar and Mae Bowder had their discussion at the time when Mae Bowder resigned. Later that day, according to her son, Kellar made a comment that the Bowders had been the last of the married couples working for the company. Such a statement, if it were made, is susceptible of many interpretations, including sadness for the end of an era. Kellar did not fire Mae Bowder.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is therefore, RECOMMENDED that a Final Order be entered finding Exports, Inc., not guilty of committing an unlawful employment practice and dismissing Petitioner's Petition for Relief filed in this cause. DONE and RECOMMENDED this 26th day of May, 1989, in Tallahassee, Florida. LINDA M. RIGOT 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 26th day of May, 1989. COPIES FURNISHED: James R. McGlynn, Esquire 4633 10th Avenue North Lake Worth, Florida 33463 Kenneth L. Kellar President/Owner Exports, Inc. Post Office Box 449 Blaine, WA 98230 Donald A. Griffin, Executive Director Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1925 Dana Baird, General Counsel Florida Commission on Human Relations Building F, Suite 240 Tallahassee, Florida 32399-1925
The Issue The issue is whether Respondent, Polk County Sheriff's Office, violated the Florida Civil Rights Act of 1992, as amended, Section 760.10, Florida Statutes (1993), as alleged in the Petition for Relief filed by Petitioner, Shelia Davis. Specifically, Petitioner alleged that Respondent retaliated against her by using "insubordination" as a cover-up for her termination for reporting a fellow officer beating a handcuffed inmate and discriminated against her because of her marital status.
Findings Of Fact Based upon observation of the witnesses and their demeanor while testifying, the documentary materials received in evidence, and the entire record compiled herein, the following evidentiary, relevant, material and ultimate facts are determined. Respondent, Polk County Sheriff's Office (Sheriff), at all times material to this cause, was an "employer" as that term is defined under Florida Civil Rights Act of 1992, as amended, Section 760.02(7), Florida Statutes. Petitioner, Shelia Davis (Ms. Davis), at all times material to this cause, was an "aggrieved person" as that term is defined under Florida Civil Rights Act of 1992, as amended, Section 760.02(10), Florida Statutes. Ms. Davis alleges in her Petition that on May 29, 1998, the Sheriff terminated her in retaliation for her preparing an incident report on January 3, 1998. Ms. Davis also alleged that her termination was also because of her marital status, in violation of the Florida Civil Rights Act (Act), Chapter 760.10 Florida Statutes. In 1994, Ms. Davis was hired by the Sheriff as a Book- In Clerk and remained employed by the Sheriff until her termination on May 29, 1998. While employed by the Sheriff, Ms. Davis married Curtis C. Young (Young) in 1997, in Pasco County. Ms. Davis and Young subsequently divorced at some point in time before April 1998. In December 1997, the Sheriff initiated an administrative investigation into allegations that Ms. Davis was passing confidential information about inmates to her then husband, Young. The administrative investigation continued through April 1998. On January 3, 1998, while on duty Ms. Davis observed and reported to Sergeant Petote an incident of Officer Sanders allegedly beating a handcuffed inmate. Sergeant Marshall, Ms. Davis' supervisor at that time, was made aware of the reported incident, and he made jokes of the use of the slang term "Jacked Up" used by Ms. Davis in her report to Sergeant Petote. The following day, January 4, 1998, Ms Davis was working in the Booking Area information desk. During her tour of duty, Ms. Davis got into an argument with a civilian. After a discussion between Ms. Davis and Sergeant Marshall, he relieved Ms. Davis of duty in the Booking Area and reassigned her to duty in the control tower. From the testimony of the conversation between the two, tension became evident. As a result, Sergeant Marshall reported Ms. Davis as being "insubordinate," relieved Ms. Davis from duty, and sent her home for the remainder of the night shift. The above incident was reported to Lieutenant Tom Cockroft who instructed Sergeant Marshall to suspend Ms. Davis for the remainder of the January 4, 1998, tour of duty. Upon informing Ms. Davis of her suspension, another argument ensued between Ms. Davis and Sergeant Marshall. On January 5, 1998, based on the report by Sergeant Marshall and the concurrence of Lieutenant Cockroft, Ms. Davis was charged with violating the Sheriff's General Orders G.O. 26.1.E.,8.,a (Respect Toward Supervisors); G.O. 26.8.,b.,2. (Abusiveness); and G.O. 26.1. E.,8.,d. (Compliance and Execution of Lawful Orders). Ms. Davis, at some time prior to January 1998, began to participate in the Polk County Crime Stoppers, a program designed to permit civilians to report known and suspected criminals and criminal activities. It was the policy of Crime Stoppers to give monetary rewards to those persons whose information and tips resulted in or assisted in the arrest of persons committing or who had committed criminal acts. Ms. Davis became aware that her ex-husband, Young, may have been incarcerated in the Pinellas County Jail under an alias. Sometime during the month of April 1998, Ms. Davis contacted the Pinellas County Sheriff's Office and related that she may have information regarding an inmate jailed under an alias, i.e. her ex-husband, Young. Upon becoming aware that Ms. Davis was an employee of the Sheriff, Lieutenant Jacobs of the Pinellas County Sheriff's Office advised Ms. Davis to work through the Sheriff and not directly with the Pinellas County Sheriff's Office in the future. The Pinellas County Sheriff's Office informed the Sheriff of Ms. Davis' contact, and Lieutenant Blackwelder, of the Sheriff's Administrative Investigation Department, engaged in a joint effort to confirm the identification of the Pinellas County Jail inmate, believed to be Young. Lieutenant Blackwelder ordered Ms. Davis to cease calling the Pinellas County Sheriff's Office regarding Young. At this meeting an argument ensued. Subsequent to the above meeting with Lieutenant Blackwelder and the order to discontinue interference with the investigation by the Pinellas County Sheriff's Office, Ms. Davis telephoned the Pinellas County Sheriff's Office regarding Young for the intended purpose of collecting a Crime Stoppers reward. Ms. Davis acknowledged making contact via her cell phone on her off-duty hours with the Pinellas County Sheriff's Office after being ordered by Lieutenant Blackwelder to cease all contact. This course of conduct resulted in an allegation that Ms. Davis violated G.O. 26.1.E.,8.,d. (Compliance and Execution of Lawful Orders) and G.O. 26.1.E.,8.,a. (Respect Toward Supervisors). On or about April 22, 1998, Lieutenant Cockroft suspended Ms. Davis with pay for the violations hereinabove. In May 1998, a pre-disciplinary hearing regarding the above-cited charges was held, and all charges were sustained resulting in termination of Ms. Davis' employment with the Sheriff on May 29, 1998. Ms. Davis filed a discrimination complaint with FCHR in October 1998, and in 1999, FCHR informed Ms. Davis that her complaint was unsubstantiated.
Recommendation Based on the Findings of Fact and Conclusions of Law hereinabove, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order DISMISSING Petitioner's discrimination complaint herein filed. DONE AND ENTERED this 16th day of September, 2002, in Tallahassee, Leon County, Florida. FRED L. BUCKINE 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 16th day of September, 2002.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made. Council 79 is a labor organization whose business is to represent employees in matters involving public employers concerning contractural negotiations and the administration of bargaining agreements. Council 79 employed 15 or more employees for each working day in each of 20 or more calendar weeks during 1987 and 1988. Council 79 has elected officers. Blondie P. Jordan, a black female, is the elected president and chief executive officer of Council 79. Jordan has the authority to employ persons to assist her in carrying out the duties of Council 79. Until the fall of 1988, Cox, a white male, was one of those employed by Council 79, under Jordan. Cox was employed as the Regional Director of Region III (also referred to as Tampa Region) of Council 79, and reported to Jordan. Council 79, under Jordan, also employed several other white males in positions of authority. Those included: Charles Brannon, employed in March, 1988, as the Assistant to the President, who in the absence of Jordan ran the day to day operations of Council 79 Headquarters; Ted Buri, Regional Director in Tallahassee; John Crosby, Business Manager; Mark Neimeisser, lobbyist; and Ben Patterson, Chief Attorney. Council 79 has an Executive Board over which Jordan presides, but through which the Council is governed and operated. During 1987 and 1988, Nancy Serrano, Jimmy Newell, Wesley Leon and Craig Lehning were members of the Executive Board from Region III. Serrano, Leon and Lehning belonged to a group referred to as the "Solidarity Group" that opposed Jordan. During 1987 and 1988, Serrano, Newell, Leon and Lehning at Executive Board meetings complained to Jordan about the operation of Cox's office in Tampa, particularly about the office staff and Cox not being responsive to the membership of the local unions. However, during this same period of time there were presidents of local unions who complained to Jordan about how these same Executive Board Members were not being responsive to the local union, specifically in regard to how these Executive Board members were attempting to close the Regional Director's Office in Tampa, and advised Jordan that Cox and his staff were working well with the local unions. Also, one member of Cox's staff complained to Jordan about having to drive Cox to meetings and run the office while Cox absence attending to personal business. There was no written documentation that Jordan ever discussed these complaints with Cox or any of his staff, and even though Cox admitted to having heard these complaints, although not from Jordan, he dismissed them as being political because there were coming from the Solidarity Group that opposed Jordan. Notwithstanding Jordan's testimony to the contrary, there is insufficient evidence to show that Jordan discussed any of these complaints with Cox or that Jordan counseled or advised about correcting the problems before November 3, 1988. Apparently, Jordan left the day to day operation of Region II, including the Regional Office, to the discretion of Cox, and expected Cox to correct problems in the Region without being counseled or advised by Jordan unless Cox determined that Jordan's intervention was necessary or appropriate. Likewise, there was no documentation that Cox had ever been reprimanded or counseled about his performance. In fact, the only written documentation concerning Cox's performance (other than an incomplete report by Linoria Anthony which was not received as evidence) of any problems with Cox's performance was the report written by David McGhee to Jordan on November 1, 1988, after McGhee replaced Cox, having been appointed Acting Regional Director of Region III on September 14, 1988 by Jordan. On September 12, 1988, Cox was scheduled to attend a meeting with employees from the City of Fort Myers which McGhee, Neimesser and Escudero were also to attend. Cox was to meet privately with McGhee, Neimesser and Escudero before meeting with the employees from Ft. Myers. Before the meeting, Cox was observed around the pool area by Neimesser. Cox did not attend the private meeting with McGhee, Neimesser and Escudero but did attend the meeting with the Ft. Myers employees. On September 13, 1988, Neimesser reported to Jordan that Cox had failed to attend the private meeting. On September 14, 1988, as instructed by Jordan, Brannon informed Cox that he was relieved of his duties as Regional Director. Cox was not given an opportunity to explain his failure to attend the private meeting in Ft. Myers, Florida before relieving him of his duties as Regional Director. Although Cox was relieved of his duties as Regional Director, he continued in the employment of Council 79 assisting McGhee in negotiating contracts and other matters. By letter dated September 14, 1988, Jordan appointed David McGhee Acting Regional Director of Region III. McGhee, a black male, employed by the International which Council 79 was affiliated. McGhee was the Assistant Area Director for International and its staff person with responsibility for Region III. McGhee assumed the responsibilities of Acting Regional Director for Region III on September 14, 1988.. McGhee is not now nor has he ever been on the payroll of Council 79. McGhee is continues to be the Acting Regional Director for Region III, and in addition to reporting to Jordan, reports to Gilbert Escudero, a Hispanic male, Area Director for the International and to Gerald McEntee, a white male, president of the International. On September 19, 1988, Cox voluntarily entered Horizon Hospital for treatment. Upon entering Horizon, Cox described his condition as being depressed and unable to function. Cox also described a previous history of excessive alcohol intake to the point of intoxication every weekend since his early twenties. However, there was insufficient evidence to show that Cox was suffering from alcoholism. Cox did not advise Jordan or McGhee or anyone else in authority with Council 79 that he was entering Horizon for treatment, or more specifically that he was being treated for alcoholism. Although Jordan and other employees of Council 79 may have known that Cox consumed alcohol, even to the point of intoxication on occasions, there is insufficient evidence to show that either Jordan or any other employee of Council 79 were aware that Cox had a problem with alcohol, or more specifically that Cox was suffering for alcoholism. As requested by Jordan, McGhee, by letter dated November 1, 1988, reported the problems he had encountered in the Regional Office since assuming the duties of Acting Regional Director. The report basically advised Jordan of the the problems that had been reported earlier by Serrano, Newell, Leon and Lehning. Additionally, McGhee reported on Cox's failure to negotiate contracts with the city of North Port and Local 167, Hillsborough County before they expired on September 30, 1988. As requested by Jordan, Linoria Anthony prepared a report concerning Cox's failure to negotiate contracts for several local unions in Region III with their employers. However, this report, initially offered as evidence, was withdrawn because Council 79 was unable to furnish a complete copy. On November 3, 1988, Charles Brannon was instructed by Jordan to secure Cox's resignation or to terminate his employment with Council 79. Cox resigned after being given the choices by Brannon. Upon resigning, Cox was to be given certain concessions, including one month's severance pay. Council 79 failed to honor this agreement with Cox, and he obtain a judgment in the County Court of Hillsborough County which was eventually satisfied. While Jordan's decision to effectively terminate Cox's employment (discharge) without first counseling or advising Cox on the problems in Region III as reported to her, and giving him an opportunity to correct those problems may not have been the correct or morally right decision, there is sufficient competent, substantial evidence to establish facts to show that Jordan did not terminate Cox's employment because of his race (white) or alleged handicap (alcoholism).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, accordingly, RECOMMENDED that the Commission enter a Final Order finding that Petitioner, Robert Cox, was not discharged due to his race or alleged handicap in violation of Section 760.10, Florida Statutes, and that the Petition For Relief be Dismissed. DONE and ENTERED this 9th day of July, 1992, in Tallahassee, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of July, 1992. APPENDIX TO RECOMMENDED ORDER The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statute, on all of the Proposed Findings of Fact submitted by the Respondent in this case. Rulings on Proposed Findings of Fact Submitted by the Petitioner The Petitioner did not file any Proposed Findings of Fact. Rulings on Proposed Findings of Fact Submitted by the Respondent The following proposed findings of fact are adopted in substance as modified in the Recommended Order, The number in parenthesis is the Finding(s) of Fact which so adopts the proposed finding(s) of fact: 1(1); 2(2); 3(3); 4(4); 5(4); 6(5); 7(6&7), 9(6); 10(9); 11(10); 12(11); 13(12); 14(13); 16(16&17); 17- 18(18); 19-20(14) and 21(19). Proposed finding of fact 8 is rejected as not being supported by competent, substantial evidence in the record, except for thesecond phrase, that complaints did not stop, which is adopted in substance in Finding of Fact 6. Proposed finding of fact 15 is neither material nor relevant. COPIES FURNISHED: Margaret Jones, Clerk Human Relations Commission 125 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1570 Dana Baird, Esquire General Counsel 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1570 Robert Cox, Pro se 8514-#3, Daffodil Drive Hudson, FL 34667 Ben R. Patterson, Esquire Patterson and Traynham 315 Beard Street Post Office Box 4289 Tallahassee, FL 32315
The Issue Whether Respondent acted as a real estate agent without being licensed in violation of section 475.42(1)(a), Florida Statutes, and, if so, what penalty should be imposed.
Findings Of Fact Based on the oral and documentary evidence presented at the administrative hearing, the following findings of facts are made: COMPLAINT This complaint was instituted when Mr. Manning became aware of a $250.00 payment to a Keller Williams real estate agent (KW agent). Upon inquiring, Mr. Manning was told the fee was to pay the KW agent for securing the third tenant of his rental property located at 12522 Belcroft Drive, Riverview, Florida (property). Mr. Manning was not informed that this process would be engaged, and he was caught off guard when the payment came to light. Mr. Manning was also concerned that he was not receiving consistent payments for the rental of his property. PARTIES Petitioner is the state agency charged with the responsibility of regulating the real estate industry pursuant to chapters 455 and 475. Petitioner is authorized to prosecute cases against persons who operate as real estate agents or sales associates without a real estate license. At all times material, Respondent was not a licensed real estate broker, sales associate or agent. Respondent is a co-owner of J & D Associates, a property management company that he owns with his wife, Ms. Woltmann. Additionally, J & D Associates was not licensed as a real estate broker, sales associate or agent. PARTICULARS In 2012, Mr. Manning was serving in the U.S. Air Force, and was stationed in the Tampa Bay area of Florida. At some point, Mr. Manning received military orders to report to Texas for additional cross-training. Mr. Manning wanted to sell his property, and he was referred to Ms. Woltmann, a Florida licensed real estate agent. Mr. Manning and Ms. Woltmann met and discussed the possibility of selling Mr. Manning’s property. Ms. Woltmann performed a market analysis and determined that Mr. Manning would have to “bring money” to a closing in order to sell his property. Mr. Manning made the decision that he would rent his property. Thereafter, Ms. Woltmann introduced Mr. Manning to Respondent. Mr. Manning assumed that Respondent was a licensed real estate agent. If he had known that Respondent was not a licensed real estate agent, Mr. Manning would not have hired Respondent. On or about April 26, 2012, Respondent executed a “Management Agreement”5/ (Agreement) with Mr. Manning, regarding his property. The Agreement provided in pertinent part the following: EMPLOYMENT & AUTHORITY OF AGENT The OWNER [Mr. Manning] hereby appoints J & D Associates as its sole and exclusive AGENT to rent, manage and operate the PREMISES [12522 Belcroft Drive, Riverview, Florida]. The AGENT is empowered to institute legal action or other proceedings on the OWNER’S behalf to collect the rents and other sums due, and to dispossess tenants and other persons from the PREMISES for cause. * * * RESPONSIBILITIES OF THE AGENT: In addition to the forgoing authorizations, the AGENT will perform the following functions on the OWNER’S behalf. Collect all rents due form [sic] the tenants. Deduct from said rent all funds needed for proper disbursements of expenses against the PROPERTY and payable by the OWNER, including the AGENT’S compensation. Collect a security deposit received from a tenant of the PROPERTY and place it into an escrow account as required by the laws of the State of Florida. COMPENSATION OF THE AGENT: In consideration of the services rendered by the AGENT, the OWNER agrees to pay the AGENT a fee equal to FIFTY PERCENT (50%) OF THE FIRST MONTH’S RENT AND ten percent (10%) per month of the monthly rent thereafter during the term of the tenancy as management fees for the PROPERTY. In the case of holding over the lease beyond the terms of the lease by the same tenant, the Fifty (50%) up front [sic] fee shall also be waived and only the TEN PERCENT (10%) per month fee shall apply. The Fifty (50%) fee shall apply to new tenants only. In the case of a tenant moving out within the first three months of the tenancy, then the fee for obtaining a new tenant and new lease shall be only FIFTEEN PERCENT (15%) of the first month’s rent from the new tenant and TEN PERCENT (10%) of the monthly rent thereafter. (Emphasis added via underline.) At various times, Respondent provided Mr. Manning a list of eligible tenants. Also, Respondent would provide his opinion as to who would be the best candidate to rent the property. Mr. Manning would, “nine times out of ten,” go with Respondent’s recommendation for the rental tenant. In June 2012, “Richard L. Sovich J & D Associates, Agent For Elijah Manning,” executed a “Residential Lease for Single Family Home and Duplex” with a tenant. On the signatory page, the following printed form language is found on the upper half of the page: This Lease has been executed by the parties on the date indicated below: Respondent’s signature is over the “Landlord’s Signature line, “As” “Agent.” On the lower half of the signatory page, the following printed form language is found; the handwritten information is found in italics: This form was completed with the assistance of Name Richard Sovich Address 1925 Inverness Greens Drive Sun City Center, Fl 33573-7219 Telephone No. 813/784-8159 Ms. Woltmann testified that she had a listing agreement for each time she listed Mr. Manning’s property for rent. With each listing agreement, Ms. Woltmann was able to list the property in the multiple-listing system (MLS)6/ while she was associated with the Century 21, Shaw Realty Group. The three listings, as found in Respondent’s composite Exhibit E, included (along with other information) the list date, a picture of the property taken by Ms. Woltmann, and the dates the property would be available: May 5, 2012, for the rental beginning on June 1, 2012, at $1,550.00 per month; November 1, 2012, for the rental beginning on December 1, 2012, at $1,550.00 per month; and March 14, 2014, for rental beginning on May 1, 2014, at $1,600.00 per month. Each time the property was rented, Ms. Woltmann changed the MLS listing to reflect the actual lease dates: June 16, 2012; December 13, 2012; and May 19, 2014, and each was rented at the monthly rental price listed. Ms. Woltmann claimed that the rental price had to be lowered for the second rental. However, the documentation that she confirmed she inputted into the MLS at the time the property was rented, reflects the rental price was not lowered during the second rental period.7/ The rental price was actually raised for the third rental period. Ms. Woltmann also claimed she procured the first two tenants for Mr. Manning’s property and waived (with the consent of her broker agent) her lease fee each time. Three years ago (2014) during the Manning lease periods, Ms. Woltmann “left abruptly” the real estate company she was working for and that company “is now closed.” Yet, she testified that those listing agreements “should be there” if she went back to her broker and asked for them. Based on inconsistencies in her testimony, Ms. Woltmann’s testimony is not credible. Mr. Manning received payments from Respondent for approximately three years totaling “about $45,000.” Mr. Manning paid Respondent “maybe four or five thousand dollars. Maybe a little bit less” for his service. Respondent admitted he received compensation from the rental of Mr. Manning’s property for approximately three years, but denied that he procured any tenants for the property. It is determined that the testimony of Respondent and his wife Ms. Woltmann, is not credible and persuasive. Neither can be considered “disinterested.” The testimony of Mr. Manning is more credible. As the investigator supervisor, Mr. McAvoy is knowledgeable about the purpose of conducting unlicensed activity investigations. Its purpose is “to investigate matters surrounding unlicensed activity within the real estate profession . . . so to protect the public from possible harm surrounding those transactions.” Each investigator is required to record the amount of time spent in an investigation. An investigation was undertaken regarding Mr. Manning’s complaint. Petitioner incurred $49.50 in investigative costs during this case.
Recommendation Upon consideration of the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Florida Real Estate Commission finding Richard Sovich in violation of section 475.42(1)(a), Florida Statutes, as charged in the Administrative Complaint; and imposing an administrative fine of $500, and $49.50 as reasonable costs. DONE AND ENTERED this 5th day of May, 2017, in Tallahassee, Leon County, Florida. S LYNNE A. QUIMBY-PENNOCK 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 5th day of May, 2017.
