Findings Of Fact Lorraie P. Strickland is the proprietor of a bowling alley in Panama City, Florida, called the Bowlarama, an is licensed to sell beer on the Bowlarama premises. Ms. Strickland does in fact buy beer from various distributors and sell it at retail at the Bowlarama. In 1975, as in preceding years, the Bowlarama hosted a tournament conducted under the auspices of the Professional Bowlers Association. By hosting the tournament, Ms. Strickland incurred expenses of approximately eighteen hundred dollars ($1,800.00). This tournament was part of a series or tour. The Professional Bowlers Association caused a "PBA Tour Program" to be printed, for use throughout the tour. The program consists of 80 pages, exclusive of inserts by local tournament hosts. The PBA Tour Programs offered for sale at the Bowlarama in 1975, contained 16 pages bound into the middle of the national publication. Almost the entire insert was devoted to advertising by local advertisers, whom Ms. Strickland had solicited. She used the revenue from this advertising to defray the costs of the tournament. Charles Hoskins is president of petitioner, a licensed beer distributor. Mr. Hoskins was one of the persons Ms. Strickland asked to purchase an advertisement in the PBA Tour Program insert. Mr. Hoskins telephoned his attorney and inquired whether making the purchase on behalf of petitioner would create a legal problem. Being advised that it would not, Mr. Hoskins purchased a full page advertisement on petitioner's behalf for one hundred dollars ($100.00). There was no evidence that this price was greater than the price charged any other local advertiser for a full page advertisement. At Ms. Strickland's behest, Mr. Keith Adams composed the advertisement for petitioner and the four beers distributed by petitioner, which appeared in the 1975 PBA Tour Program. The inside of the front cover of the 1975 PBA Tour Program was devoted to an advertisement for a beer which petitioner does not distribute. The 1974 PBA Tour Program insert contained advertisements for three of petitioner's local competitors. Mr. Grady Leon Broxton, Jr., an employee of respondent, inspected the Bowlarama on February 19, 1976. Although he found beer of the kinds distributed by petitioner and no other kinds, the Bowlarama buys beer from petitioner's competitors as well as from petitioner. After a hiatus of approximately five years, petitioner began selling beer to the Bowlarama about three weeks before Ms. Strickland approached Mr. Hoskins about the advertisement. The earlier sales by petitioner to the Bowlarama ceased when Ms. Strickland told Mr. Hoskins to stop deliveries, giving as her reason that she had caught one of petitioner's employees stealing from her. The deliveries began again after Mr. Hoskins told Ms. Strickland that the employee in question had retired.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That petitioner dismiss the notice to show cause. DONE and ENTERED this 22nd day of February, 1978, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Mr. Francis Bayley, The Johns Building 725 South Bronough Street Tallahassee, Florida 32304 Mr. Franklin R. Harrison, 406 Magnolia Avenue Panama City, Florida 32401
Findings Of Fact The Petitioner takes exception to the findings of fact contained in the Recommended Order at paragraphs 12, 19, and 27, wherein the Hearing Officer found that the evidence did not prove that the Respondent had committed the violations charged as referenced in each finding. This conclusion is not supported by competent and substantial evidence as required by section 120.57(1)(a) 10., Florida Statutes. The Hearing Officer was convinced that the multitude of forms utilized by the Respondent in selling the non-insurance products (motor clubs) to Hulan Mitchell, Jenna Chester and Michele Humose demonstrated that they had given their informed consent. However, the Hearing Officer overlooked the blatant misrepresentation and false statement contained in the "premium" receipts issued to each of the insureds. Although the Hearing Officer is free to determine the credibility of the witness' testimony, the Hearing Officer cannot ignore or reject unrefuted competent and substantial evidence in the record that clearly and convincingly demonstrates that the premium receipts are a misrepresentation of fact or false statement. No witness testimony is necessary to make this finding. The documents speak for themselves and were not otherwise questioned or refuted. The record unequivocally established the following: Hulan Mitchell - The "premium" receipt (Pet. Ex. "1") issued to Mr. Mitchell indicates a total premium of $378. The actual cost of the "insurance" was $328 with a downpayment of $98 required. See Premium Finance Agreement (Pet. Ex. "1") This is absolutely unrefuted on the record. The premium receipt includes $50 for the cost of the motor club, which is not a policy of insurance and accordingly is not "premium". Also the downpayment required, purportedly for insurance, included $50 for the motor club ($98 + $50 = $148). Furthermore, based on clear documentary evidence in the record, Mr. Mitchell was again subject to a misrepresentation of fact (undisputed) wherein on July 9, 1993 he received a letter (Pet. Ex. "1") threatening to cancel his "insurance" policy because he did not pay a $48 balance due on the motor club. Accordingly the record clearly indicates that the Respondent has made a false or misleading statement with reference to the insurance transaction for Mr. Mitchell. The fact that the Hearing Officer held that Mr. Mitchell knew (despite his testimony otherwise) that he had purchased a motor club, does not negate the fact that the Respondent made a false or misleading statement. JENNA CHESTER - The deceptive premium receipt practice was visited upon Ms. Chester on two occasions. First on February 1, 1994 a "premium" receipt (Pet. Ex. "2") was issued in an amount of $670 for "total premium" due and a required downpayment of $261. The actual cost of the "insurance" was $585 with a required downpayment of $176. See Premium Finance Agreement (Pet. Ex. "2") The "premium" receipt and downpayment included a non-insurance fee for a motor club in the amount of $85. On May 23, 1994 Ms. Chester went to the Respondent to repurchase coverage which had been cancelled. At that time, another "premium" receipt was issued to her in the amount of a "total premium" of $719 and a required downpayment of $286 (Pet. Ex. "2") The actual cost of the insurance was $619 and a required downpayment of $186. See Premium Finance Agreement (Pet. Ex. "2") The additional $100 was for the non-insurance motor club which was sold to Ms. Chester. Although the Hearing Officer held that Ms. Chester knew she was purchasing this motor club (despite Ms. Chester' s testimony otherwise) this does not negate the fact that the Respondent has made false or misleading statement in this insurance transaction with Ms. Chester. Michelle Humose - The unrefuted documentary evidence indicates that on May 5, 1994, Ms. Humose was issued a "premium" receipt (Pet. Ex. "3") indicating a "total premium" in the amount of $926 and a required downpayment of $348. The actual cost of the "insurance" was $826 with a required downpayment of $248 See Premium Finance Agreement (Pet. Ex. "3") The additional $100 included in the "premium" receipt was for the non-insurance motor club sold to Ms. Humose. Again despite the Hearing Officer's finding contrary to Ms. Humose's direct testimony that she did not know she was purchasing a motor club, the Respondent has clearly and convincingly made a false or misleading statement with respect to this insurance transaction with Ms. Humose. It is implicit in the Findings of Fact by the Hearing Officer that each referenced transaction took place as described herein. The Hearing Officer merely failed to explicitly state in the Recommended Order that the unrefuted documentary evidence establishes a prima facie misrepresentation of fact. Indeed, the exact factual scenario established herein was determined to constitute a misrepresentation in In the Matter of: Kenneth Michael Whitaker, Case Number 93-L-432DDH (Final Order dated July 3, 1995). It was specifically determined "that the Respondent's standard business practice of combining the costs of insurance coverages with the costs of the auto club memberships and then calling such costs "total premium" on receipts issued to customers constituted a misrepresentation and was deceptive." Also, it was further determined "that the Respondent's standard business practice of deducting all or part of the ancillary product fee up front resulted in false statements on other documents that the full downpayment for premium or financing of premium had been made, when in actuality it had not." Whitaker Final Order at pp's 9-10. The Department determined that this activity was a violation of section 626.611(9), Florida Statutes. This finding was also affirmed on appeal in Whitaker v. Department of Insurance and Treasurer, Case No. 95-2702, (21 FLW 1353, Slip Opinion dated June 13, 1996). The court upheld this violation when it summarized the practice in the opinion as follows: Appellant took all or part of the ancillary product from the required premium downpayment and gave the consumer a receipt which listed the full downpayment as "Total Premium". The receipt did not reveal that part of the "premium" went to purchase an ancillary product. Whitaker Slip Opinion at pp's 3-4. This type of fraudulent and deceptive practice also constitutes a violation of section 626.9541(1)(b), Florida Statutes, by placing before the public a representation or statement which is untrue, deceptive or misleading. The Hearing Officer has already considered the unrefuted facts on the record and was clearly in error to make a finding otherwise. Accordingly, pursuant to section 120.57(a)(a) 10., Florida Statutes, which reads in part: The agency may not reject or modify the findings of fact, including findings of fact that form the basis for an agency statement, unless the agency first determines from a review of the complete record, and states with particularity in the order, that findings of fact were not based upon competent substantial evidence or that the proceedings on which the findings were based did not comply with essential requirements of law. the Department may modify the findings of fact. In this case there was no competent and substantial evidence to make a finding that the Respondent did not make a false or misleading statement with the premium receipts issued in this cause. A review of the entire record demonstrates unrefuted documentary evidence which supports the modified findings of fact contained herein. Therefore, Petitioner's exceptions to findings of fact 12, 19 and 27 are hereby GRANTED. RULINGS ON EXCEPTIONS TO CONCLUSIONS OF LAW The Petitioner takes exception to conclusions of law at paragraphs 30 and 31, based on the Hearing Officer's rejection of unrefuted facts established on the record, i.e., deceptive and misleading premium receipts. Conclusions of Law 30 and 31 are revised to reflect that the premium receipts issued to insureds constitute fraudulent and deceptive practices as well as placing before the public a representation or statement which is untrue, deceptive, or misleading. Conclusion of Law 30 is modified as follows: In this case, the Respondent was charged with violating sections 626.611(4), 626.611(5), 626.611(7), 626.611(9), 626.611(13), 626.621(2), 626.621(6), 626.9541(1)(b), 626.9541(1)(e), 626.9541(1)(k)1., and 626.9541(1)(z), Florida Statutes. Boiled down to the essentials the Department alleged that Respondent violated the provisions listed above by unlawfully selling insureds motor club memberships without their informed consent, made false and misleading statements regarding the coverage provided and falsely represented and illegally required insureds to purchase motor club membership as part of their purchase of automobile insurance and that Respondent engaged in the prohibited practice of "sliding" additional coverages or products into the purchase of the insured without the informed consent of the insured. This revision is necessary because the Hearing Officer failed to include sections 626.9541(1)(b) and 62.9541(1)(e), Florida Statutes, as alleged violations. Conclusion of Law 31 is likewise revised as follows: The Department failed to establish by clear and convincing evidence that Respondent attempted to "slide" coverage or ancillary products involved in this case. Likewise, the evidence did not clearly or convincingly demonstrate that Respondent did not obtain the informed consent of her customers prior to selling them the auto club memberships involved here. However, based on the unrefuted evidence in the record, the Respondent has violated sections 626.611(9) and 626.9541(1)(b), Florida Statutes, by issuing "premium receipts" which falsely and deceptively represented "total premium" which included a fee for a non-insurance product, ie. motor club membership. Accordingly, the Respondent is guilty of three counts of violating sections 626.611(9) and 626.9541(1)(b), Florida Statutes. The Petitioner's exceptions to conclusions of law 30 and 31 are hereby GRANTED. RULING ON EXCEPTIONS TO RECOMMENDATION The Petitioner takes exception to the recommendation that the Administrative Complaint be dismissed. The Penalty Guidelines contained in Chapter 4-231, Florida Administrative Code, should be applied in this case. There are three documented violations (one for each count) of engaging in fraudulent and dishonest practices as prohibited in section 626.611 (9), Florida Statutes, and placing before the public a representation or statement which is untrue, deceptive or misleading in violation of section 626.9541(1)(b), Florida Statutes. Under the penalty guidelines, a violation of section 626.611(9), Florida Statutes, requires a suspension of 9 months per count. Under the penalty guidelines, a violation of section 626.9541(1)(b), Florida Statutes, requires a suspension of 6 months per count. Based on Rule 4-231.040, Florida Administrative Code, the highest penalty per count should be assessed, therefore the appropriate penalty is three counts at 9 months for a total suspension period of 27 months. Since the total required suspension exceeds 2 years, the appropriate sanction is the revocation of the Respondent's licenses in accordance with section 626.641(1), Florida Statutes. The violation of section 626.9541(1)(b), Florida Statutes, permits the assessment of an additional fine on top of any other administrative sanction, pursuant to section 626.9521, Florida Statutes. This section permits fines for wilful violations of up to $10,000 per violation not to exceed $100,000. The Petitioner recommends that a fine of $3,000 be assessed against the Respondent. However, insufficient grounds have been demonstrated to justify the assessment of a $3,000 administrative fine. Therefore, Petitioner's exceptions to the recommendation are hereby GRANTED, except for the Petitioner's argument for an additional sanction in the form of a $3,000 administrative fine which is hereby DENIED. PENALTY Rule 4-231.160, Florida Administrative Code, prescribes the aggravating and mitigating factors which the Department shall consider and, if warranted, apply to the total penalty in reaching the final penalty. Aggravating factors in this matter, as delineated in Rule 4-231.160, Florida Administrative Code, are the willfulness of the Respondent's conduct and the existence of secondary violations established in Counts I-III of the Administrative Complaint. Only minimal mitigating factors exist which are outweighed by the aggravating factors. The existence of these aggravating factors would increase the Respondent`s total penalty, thereby resulting in a higher final penalty. Increasing the Respondent's total penalty would be pointless, however, for section 626.641(1), Florida Statutes, limits a licensee's period of suspension to a maximum of 2 years. The Respondent's 27-month total penalty already exceeds the two-year statutory limit. Consequently, the Department has determined that a revocation of the Respondent's insurance agent license is warranted and appropriate in this matter, and is necessary to adequately protect the insurance-buying pubic. IT IS THEREBY ORDERED: All licenses and eligibility for licensure held by TARA JEANNE SMITH, are hereby REVOKED, pursuant to the provisions of sections 626.611, 626.621, 626.641(2) and 626.651(1), Florida Statutes, effective the date of this Final Order. As of the date of this Final Order, the Respondent shall not engage in or attempt or profess to engage in any transaction or business for which a license or permit is required under the Florida Insurance Code, or directly or indirectly own, control or be employed in any manner by an insurance agent or agency. Any party to these proceedings adversely affected by this Final Order is entitled to seek review of this Final Order pursuant to section 120.68, Florida Statutes, and Rule 9.110, Florida Rules of Appellate Procedure. Review proceedings must be instituted by filing a Notice of Appeal with the General Counsel, acting as the agency clerk, at 612 Larson Building, Tallahassee, Florida 32399-0333, and a copy of the same and the filing fee with the appropriate District Court of Appeal within thirty (30) days of rendition of this Order. DONE and ORDERED this 4th day of September, 1996, in Tallahassee, Florida. BILL NELSON Treasurer and Insurance Commissioner COPIES FURNISHED: Tara Jeanne Smith 2588 Panther Creek Road, Apt. A Tallahassee, Florida 32308-5628 Charles J. Grimsley, Esquire Charles J. Grimsley and Associates, P.A. 1880 Brickell Avenue Miami, Florida 33129 Diane Cleavinger, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Stephen C. Fredrickson, Esquire Division of Legal Services 200 E. Gaines Street Tallahassee, Florida 32399-0333
Recommendation Based upon the findings of fact and the conclusions of law, it is, RECOMMENDED: That the Department of Insurance enter a Final Order finding Respondent not guilty of violating Chapter 626, Florida Statues and dismissing the Administrative Complaint. DONE and ENTERED this 12th day of July, 1996, in Tallahassee, Leon County, Florida. DIANE CLEAVINGER, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SunCom 278-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of July, 1996. APPENDIX The facts contained in paragraphs 1, 2, 3, 4, 7, 8 and 16 of Petitioner's Proposed Findings of Fact are adopted. The facts contained in paragraphs 5, 6 and 9 of Petitioner's Proposed Findings of Fact are subordinate. The facts contained in paragraphs 10, 11, 12, 13, 14, 15, 17, 18, 19, 20, 21, 22 and 23 of Petitioners' Proposed Findings of Fact were not shown by the evidence. The facts contained in paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 24, 25 and 26 of Respondent's Proposed Findings of Fact are adopted. The facts contained in paragraph 23 of Respondent's Proposed Findings of Fact are subordinate. COPIES FURNISHED: Stephen C. Frederickson, Esquire Division of Legal Services 645A Larson Building Tallahassee, Florida 32399-0333 Charles J. Grimsley, Esquire Charles J. Grimsley and Associates 1880 Brickell Avenue Miami, Florida 33129 Bill Nelson Commissioner Department of Insurance and Treasurer The Capitol, Plaza Level Tallahassee, Florida 32399-0300 Dan Sumner Department of Insurance and Treasurer The Capitol, Plaza Level Tallahassee, Florida 32399-0300
The Issue Whether Respondent's employment as a bartender/waitress at the Tarpon Springs Golf Course was terminated by the City of Tarpon Springs in accordance with the City's Personnel Rules and Regulations?
Findings Of Fact An Employer-Employee Relationship From December 20, 1995 until her termination on November 14, 1996, Deborah Monley was employed by the City of Tarpon Springs as a part-time bartender/waitress at the City's municipal golf course. Her duties at the course's "inside" bar consisted of serving beer and wine and food such as hot dogs and packaged snacks. Prior to the initial date of her employment with the City, the golf course was privately owned with Ms. Monley as the employee in charge of the course's inside bar. The City kept Ms. Monley as an employee when it acquired the golf course on December 20, 1995, making that day her first as a City employee. Management and Staffing During the time covering the events pertinent to this case, the golf course was supervised by Mike Hoffman, the Golf Course Manager. He was assisted by Michael Houlis. As an assistant manager, Mr. Houlis was primarily responsible for the food and beverage operations of the golf course. Since Ms. Monley was a food and beverage employee, her supervision fell in the first instance to Mr. Houlis, although Mr. Hoffman had ultimate supervisory authority over her position. The bar operated seven days a week. In the fall of 1996, it was staffed in the main by three employees who were assigned regular shifts. Ms. Monley, normally on duty four days a week, worked the most hours of the three. A second employee, Tom Bowman, worked two to three days per week. Peggy Johnson, the last of the three regular employees, worked one day a week. From time-to-time, the City would call on Pearl Standahl to fill in for the three regular employees on an as-needed basis. But whether Ms. Standahl would provide assistance or not in any given instance was nothing upon which the City could rely with certitude. The City's arrangement with her allowed her to decline for whatever reason whenever requested to work. As obstacles arose on different occasions to the ability or convenience of any one of the three regular employees to be at work, another would cover for the absent employee. If, for example, an emergency came up for one, another employee would fill in or if one employee needed to switch a day, another would usually be willing to accommodate the switch. Management did not object to these informal arrangements among the employees so long as the snack bar was covered by any of the three regular employees or Ms. Standahl. Autumn of 1996 The events critical to the facts of this case occurred in the fall of 1996. The Tournament In late October, one of the major annual events for the golf course was under way: a tournament involving a group of golfers from North Carolina. A reciprocal event was held each year in North Carolina at another time of the year for members of the Tarpon Springs Golf Course. These reciprocal golf tournaments had been annual events for some 25 years. During the tournament in 1996, Ms. Monley met and became friendly with one of the seventy or so North Carolina golfers. He was identified at hearing only as "Terry." Ms. Monley attended some of the tournament's events in Terry's company over the several days the tournament lasted. A Request for Time Off On Monday, October 28, 1996, Ms. Monley asked Mr. Houlis if she could take off Friday, November 14, 1996 and Monday, November 17, 1996 as vacation days so that she would be able to enjoy a long weekend in North Carolina. Aside from her developing relationship with Terry, Ms. Monley felt that she deserved the time off. The only real time away from work she had had in the recent past was sick leave following surgery. Although she had wanted to use accrued vacation leave, she had been required to work the entire summer sometimes five or six days a week from 7 a.m. until 6 or 7 p.m., because, in her view, the bar was not then adequately staffed. In response to the request, Mr. Houlis advised Ms. Monley that there was "no problem" as long as there was someone to cover for her on the two days she would have otherwise worked. Mr. Houlis planned on asking Tom Bowman if he could cover for Ms. Monley. Domestic Violence On the evening of October 29, 1996, Ms. Monley and her two children were subjected to or present at home during acts of domestic violence committed by Ms. Monley's former boyfriend. Ms. Monley called the police. After responding, one of the officers advised Ms. Monley that she should obtain a "domestic violence" injunction against her ex-boyfriend as soon as possible the next day, October 30. October 30 The following day, October 30, 1996, was a Wednesday. Wednesday is a busy day of the week at the golf course. Typically, the course is crowded in the early morning. The snack bar is busy as golfers arrive and enjoy coffee or a breakfast snack while they wait for their tee time. At home early that morning, Ms. Monley faced a difficult decision. Her eight-year-old son was not feeling well and did not go to school. Ms. Monley feared that her ex- boyfriend might come to the house. He had been on prescription medication, drinking, and irate the night before when the domestic violence had occurred. She worried that he could pose a danger to her son. She also knew that she was expected at work on what promised to be a busy day. Furthermore, she had to obtain the "domestic violence" injunction as soon as possible. She decided she would go to work, ask to be allowed to leave after the morning rush (around 8 to 8:30 a.m.), obtain the injunction and return home well before noon, all the while hoping her ex-boyfriend would not have come by. She hoped, too, that arrangements to cover her position at the course could be made by Mr. Houlis during the time she handled the morning rush. To assist her son in case her former boyfriend showed up while she was at work or seeking the injunction, Ms. Monley instructed her twelve-year-old daughter, whom she regarded as unusually mature for her age, to remain at home with the eight-year-old. Ms. Monley reported to work as scheduled. She met with Mr. Houlis and advised him of the domestic violence the evening before. She also told him that her son was ill at home and that she needed to leave work to attend to him as well as obtain the injunction. Mr. Houlis told Ms. Monley that he would attempt to have another employee cover for her as soon as possible so that she could leave. Ms. Monley left to attend to her job, but she did not think Mr. Houlis appreciated the gravity of the situation or its exigent nature. Nonetheless, Mr. Houlis called Tom Bowman right away. He did not reach him but left a message on his answering machine. Mr. Bowman was good about returning calls so Mr. Houlis felt that he would hear from him in a reasonable amount of time. Mr. Houlis was fully aware that Ms. Monley needed time off during the day, but he was not aware of the direness of her predicament. He felt that Ms. Monley had informed him of the circumstances in a "casual" way rather than in a way that indicated that she needed to leave as soon as possible, if not immediately. While Mr. Houlis attempted to reach Mr. Bowman, Pearl Standahl arrived at the course, not for work, but to play golf. Ms. Monley asked her to fill in for her. Ms. Standahl refused. At approximately 10:30 a.m., Styllianous Splinis (known as "Stan") entered the bar area. Stan Splinis is a City employee who works at the golf course handling all the money that constitutes golf course revenue and manning the pro shop where most of the money is received. Mr. Splinis, however, is not under the supervision of golf course management. Instead, he is supervised by the City Clerk. Although he had occasionally filled in at the bar, bartending is not part of his regular duties. He has been informed by the Clerk's office that the City Clerk disapproves of his doing so. By the time of Mr. Splinis' entry into the bar area the morning of October 30, 1996, Ms. Monley had become agitated. Mr. Houlis did not appear to her to be making much of an effort to get a replacement. Ms. Standahl had preferred to play golf rather than help her out in a moment of real need. But most of all, she was worried about the safety of her children and the need to obtain the injunction. Ms. Monley believed, moreover, that Mr. Houlis was not making much of an effort because of a previous private encounter in which she had rebuffed what she interpreted as Mr. Houlis' romantic interest in her. What she saw as indifference stemming from resentment was exacerbated during the recent tournament for the North Carolina golfers. Mr. Houlis, at the time having trouble with his girlfriend, inquired about Ms. Monley's relationship with her boyfriend, who would soon be charged with domestic violence. Ms. Monley believed that Mr. Houlis stopped talking to her when he learned that she had met Terry during the tournament. (Mr. Houlis disputes Ms. Monley's interpretation and assumptions; he believes that their relationship outside of work had never been anything more than casual friends.) As soon as Mr. Splinis appeared, Ms. Monley's state of agitation turned to action. She locked up her cash drawer, handed Mr. Splinis the key, and left work without clearing her departure with Mr. Houlis. In Ms. Monley's absence, Mr. Splinis took over at the bar. He informed Mr. Houlis of Ms. Monley's departure and worked the rest of her shift. When Ms. Monley reached her home, her ex-boyfriend was present. As she feared, he was threatening her son. She called 911. By the time the police arrived, the ex-boyfriend was gone. One of the police officers who responded, John Ulrich, spoke to Ms. Monley after an unsuccessful search of the neighborhood. Officer Ulrich advised Ms. Monley to remain at home. Later in the afternoon, Mr. Houlis called Ms. Monley to check on her. He, too, told her to stay home and assured her that her position was covered for the afternoon. Ms. Monley did not attempt to obtain an injunction. She remained home for the rest of the day with her children. October 31 The following day, Ms. Monley, acting on the advice of the police, went to the State Attorney's office to swear out a warrant for her ex-boyfriend's arrest. The warrant was issued. Ms. Monley decided to abandon any attempt to obtain the injunction, thinking that the warrant was at least as effective at curbing her former boyfriend's threatening behavior as the injunction would be. October 31 was also a day Ms. Monley was scheduled to work. When she arrived at the golf course, Mr. Hoffman and Mr. Houlis asked her to meet with them. Still not appreciating the seriousness of Ms. Monley's situation the day before, they told her that while sympathetic to her situation, they believed she should not have left work without permission and without following proper procedure for closing out the cash drawer. They also advised her that she was subject to discipline. No discipline, however, was decided upon or meted out. Ms. Monley left the meeting upset. As she emerged from the room, she bumped into Officer Ulrich. Officer Ulrich had come to the golf course to check on Ms. Monley in follow-up of her case and to tell her that the State Attorney would be considering the filing of charges. She was informed of the time of the deliberations since her presence would be needed. Ms. Monley, in tears, said to Officer Ulrich something to the effect of, "See, I told you I would get in trouble for leaving work." Officer Ulrich entered Mr. Hoffman's office and undertook to explain to management the real danger in which he perceived Ms. Monley to be. He entered the room where the meeting had just taken place and said to both Mr. Hoffman and Mr. Houlis something like, "I wouldn't want to be the one who had prevented Ms. Monley from obtaining an injunction." Mr. Houlis paid the officer no real attention because, in his view, the officer did not understand the other side of the story, that being management's concerns about a departure with neither notice nor observance of proper procedure. Early November On November 1, 1996, or thereabouts, Tom Bowman gave management the required ten days notice of his resignation effective a few days before the commencement of Ms. Monley's planned vacation in North Carolina. This development, unforeseen when Ms. Monley had first requested time off, meant to Mr. Houlis that it would be difficult to schedule replacements for Ms. Monley on the two days she asked to be on leave. In the meantime, Ms. Monley, believing that there should be no difficulty in covering her vacation days, purchased discount non-refundable airline tickets for the planned trip. When Ms. Monley heard that Tom Bowman was quitting, she was not concerned that it would be a problem because she thought Peggy Johnson, Pearl Standahl or Stan Splinis could cover for her. On November 3, 1997, a few days after Mr. Bowman's announcement, Mr. Houlis told Ms. Monley that her request for vacation was denied. (The parties are in agreement about this fact. See Respondent's Proposed Order of Findings of Fact and Conclusions, pgs. 8 and 11.) Mr. Houlis needed Ms. Johnson to cover some of the time Mr. Bowman would have worked had he stayed. He thought it would be difficult for Ms. Johnson to cover both Mr. Bowman's normal working days and the two days Ms. Monley would be gone because it would be too much work for Ms. Johnson at her age. Ms. Standahl was never a sure replacement and Mr. Splinis stepping up as a replacement was frowned on by the City Clerk's office. November 7 On November 7, Peggy Johnson returned to work after leave she had taken. Ms. Monley asked her if she could cover for her on November 14 and 17. Ms. Johnson replied that she could as long as management approved. Since the vacation time request had been disapproved by Mr. Houlis, Ms. Monley went directly to Mr. Hoffman to ask him about the request for time off. Ms. Monley told Mr. Hoffman that Ms. Johnson could cover her shifts but she neglected to tell Mr. Hoffman that her request had already been denied by Mr. Houlis. Mr. Hoffman replied, "As long as the shifts are covered, no problem." Ms. Monley felt reassured. She now had Mr. Hoffman's conditional consent. She remained, moreover, convinced despite Mr. Houlis' misgivings that the two days could be covered among Peggy Johnson, Pearl Standahl and Stan Splinis. In the worst case, Ms. Monley felt that Mr. Houlis, himself, could cover the bar, if necessary. By now, Ms. Monley had formed the intent to go to North Carolina no matter what. Among other reasons for her determination were that she felt she had given appropriate notice, had made informal arrangements to have the shifts covered which management usually sanctioned, had purchased non-refundable airline tickets in reliance on the timely request, thought she had been denied a vacation in the past when she clearly deserved one, and had obtained the general manager's conditional consent. Finally, she could see no real reason when she examined all the circumstances why her position could not be covered on the two days she wanted to be off. Ms. Monley's determination did not take into account several factors. She had not been given unequivocal permission by the Golf Course Manager to take the time off. The agreement with Peggy Johnson was explicitly subject to management's approval, approval Mr. Houlis was not likely to give. And Mr. Houlis, Ms. Monley's immediate supervisor, had told her that the request was denied. When Mr. Houlis saw Peggy Johnson on November 7, after Ms. Monley had spoken to her, he approached her to ask her to cover for Bowman after November 11. Ms. Johnson told him about the arrangement she had just made with Ms. Monley. In the wake of this information, Mr. Houlis conferred with Mr. Hoffman about the dilemma. The two agreed that Ms. Monley would not be able to take the days off. The Eve of the Trip and Plans Carried Out Mr. Hoffman and Mr. Houlis heard from several golf course employees that Ms. Monley intended to take off the two days that she had requested for vacation, November 14 and 17, no matter what Mr. Houlis' position might be. On Thursday, November 13, 1997, the day before the trip was to commence, Mr. Hoffman called Ms. Monley into his office to make sure that she understood management's position. In the presence of Mr. Houlis, Golf Course Manager Mike Hoffman, the head of management at the course and Ms. Monley's ultimate on-site supervisor, informed her that she did not have permission to take the vacation days requested. He told her clearly that she was expected to be at work on both the fourteenth and the seventeenth of November. Ms. Monley went to North Carolina as planned. Return to Work On November 19, 1996, Ms. Monley reported to work. She was told her conduct on October 30 and November 14 and 17 was under review. On November 20, 1996, Ms. Monley was given notice of her termination in a letter signed by Golf Course Manager Mike Hoffman. The cited basis for termination was Rule 18, Section 5 of the City's Personnel Rules and Regulations. The notice stated: On October 30, 1996, you abandoned your station around 10:00 a.m. and did not return until your next scheduled work day. You left without notifying your supervisor of your departure, even though he was readily available and accessible. In addition, on October 30, 1996, you left your cash draw without properly accounting for it and closing it out. On November 14, 1996, and November 17, 1996, you failed to report for duty as scheduled. Your absences on these dates were with the full knowledge as communicated by your supervisor on November 13, 1996, that your presence was required on these scheduled dates. Petitioner's No. 1. After her termination, Ms. Monley looked for jobs in the food industry, mainly in positions dealing directly with the public. For example, she applied at Chili's for a job as a waitress. In March of 1997, however, Ms. Monley, then more than four months pregnant, abandoned her search for work serving food since it had become futile in her condition.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED That the Civil Service Board for the City of Tarpon Springs dismiss the October 30, 1996, incident as a ground for discipline and, with regard to the November absences, discipline Ms. Monley short of dismissal: suspension without pay from November 20, 1996, until the Board's consideration of this recommended order, with reinstatement as a City employee in a position outside the City Golf Course. DONE AND ENTERED this 22nd day of October, 1997, in Tallahassee, Leon County, Florida. DAVID M. MALONEY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of October, 1997. COPIES FURNISHED: Thomas M. Gonzalez, Esquire Kelly L. Soud, Esquire Thompson Sizemore & Gonzalez, P.A. Post Office Box 639 Tampa, Florida 33601-0639 William Newt Hudson, Esquire 23 West Tarpon Avenue Tarpon Springs, Florida 34689
The Issue Whether the proposed entry road, golf course, and associated surface water management system for Marshall Creek Development (the Project), is consistent with the standards and criteria for issuance of an Environmental Resource Permit (ERP), as set forth in Rules 40C-4.301 and 40C-4.302, Florida Administrative Code. Whether the proposed consumptive use of water for irrigation of the Marshall Creek Golf Course and the proposed temporary consumptive use of water for household-type use is consistent with the standards and criteria for issuance of a Consumptive Use Permit, as set forth in Rule 40C-2.301, Florida Administrative Code.
Findings Of Fact THE PROJECT OVERVIEW The Site The proposed entry road, golf course, and associated surface water management system are the initial phase of the Marshall Creek Development of Regional Impact (DRI). The Marshall Creek DRI site is located north of St. Augustine between U.S. Highway 1 and the Tolomato River, across from International Golf Parkway. Across from the Marshall Creek DRI's frontage on U.S. Highway 1 lies the Florida East Coast Railway and industrial and commercial development. The Marshall Creek DRI site is approximately 1,343 acres. Several out-parcels are located in the eastern part of the Marshall Creek DRI site. The out-parcels are currently developed with single family residences. Access to the out- parcels is currently provided by Shannon Road, a county road that runs from U.S. 1 through the Marshall Creek site to the out- parcels. The out-parcel owners will be given easement rights over the proposed road system. The Applicant has not been able to obtain options for purchase of the out-parcels. Development restrictions require that buffers be placed between the out- parcels and any new construction. Overview of the Entry Road The entry road will be approximately one mile long, and will run from U.S. Highway 1 at its intersection with International Golf Parkway to the current location of where Shannon Road crosses Stokes Creek. The Marshall Creek DRI allows only one full intersection onto U.S. Highway 1. Overview of The Golf Course The golf course will be an 18-hole course, with driving range. Its design incorporates a surface water management system (System) for the course. The System is intended to provide water quality treatment, water quantity attenuation, and water for golf course irrigation. The golf course irrigation will be supplemented by water withdrawn from a deep (Floridan aquifer) well. Plans for the initial phase of the golf course development also include construction of two "way stations" (golf course comfort stations), a sales center, a temporary clubhouse, and a construction trailer. Water for those facilities will be supplied by shallow (surficial aquifer) wells. Overview of Project Development In addition to the golf course, the DRI will include a village center, comprised of recreational, civic, commercial facilities, golf course clubhouse, sales center, swim and tennis facilities, and a variety of distinct residential neighborhoods or villages buffered from one another by the preserved wetlands and upland buffers. The village center is an integral part of the Marshall Creek DRI and is intended to be a community focal point to provide an identity for the project and a community gathering destination for its residents and visitors. Approximately 2,600 units of single-family residences are planned, with the lower density residential development located along the eastern portions of the property to preserve the tree canopy in the upland maritime hammock areas. Along U.S. 1, retail and commercial uses are planned south of the entry road, and office development is planned north of the entry road. A 12- acre school site and a 10-acre public park are planned adjacent to the north of the entry road. The DRI Development Order limits the total number of acres of wetlands which can be impacted to 35 acres for all phases of the DRI. This means that no more than 17.81 acres of wetlands can be impacted in the future phases. THE ENTRY ROAD DETAIL The route of the road, as described above, is displayed on Sheets 24 and 25 of Hines Exhibit No. 10. A surface water management system for the entry road will convey stormwater through 5,200 linear feet of curb and gutter roadway, storm inlets and concrete pipes to a wet detention stormwater pond. The wet detention pond impounds water for stormwater treatment by holding back runoff from the 16-acre drainage basin to allow chemical, biological, and physical removal of pollutants. In addition, the wet detention pond provides for the post- development peak rate of discharge to prevent it from exceeding the pre-development peak rate of discharge. The wet detention pond discharges to Stokes Creek, a designated Class II water body. Therefore, the surface water management system is designed to provide an additional fifty percent treatment volume (i.e., 1.5 inches of runoff instead of 1 inch of runoff). The surface water management system does not discharge to a land-locked system. The entry road is not located within a stream or water course with an upstream drainage basin of five or more square miles. A ditch will be constructed on the north side of the entry road to capture runoff from undeveloped areas north of the entry road which currently flows to Stokes Creek. This ditch will direct the water in its natural state around the entry road and detention pond back to Stokes Creek. This redirected runoff will have a negligible effect on the wetlands in the upstream area of Stokes Creek because the water will not be contaminated; it will be reintroduced into Stokes Creek; and the wetlands where it would have gone are primarily hydrated through rainfall and groundwater saturation. The proposed entry road will impact a number of wetlands. As one proceeds along the proposed entry road and the portion of the loop road to be constructed in Phase I, the road will impact areas F-4, F-111, F-112, F-8A, F-29, F-33, F-35, and F-36. F-4 is an isolated wetland less than 0.5 acre in size. F-111 is an isolated forested wetland of 0.09 acre. F-112 is an isolated wetland of 0.12 acre. F-8A is an isolated wetland 0.23 acre. F-20 is an isolated wetland of 0.27 acre. F-33 is an isolated wetland of 0.22 acre. F-35 is an isolated wetland of 0.17 acre. F-36 is an isolated wetland of 0.43 acre. ENTRY ROAD IMPACTS As stated above, the DRI mandates that the proposed entry road enter the Marshall Creek site opposite the present intersection of U.S. Highway 1 and International Golf Parkway. This is south of the existing intersection of U.S. Highway 1 and Shannon Road. There are several safety considerations in the planning of the entry road. These issues include the radius of the roadway curves, roadway design-speed, site distance along the road, and provision for adequate traffic stacking for entry into U.S. Highway 1. The water diversion ditch north of the entry road was redesigned to completely avoid one isolated wetland. Hines and the District presented extensive unrebutted testimony that the District's design criteria for the surface water management system serving the entry road are met. The road's proposed location is a compromise between the necessity to design the road for safe travel and to avoid the wetlands. One of the considerations in designing a safe road at this location is the fact that a public school and park will be accessible in the initial portion of this road. The damage done to the wetlands is offset by the mitigation plan proposed by Hines. Therefore, I find that the proposed impacts to areas F-4, F-111, F-8A, F-20, F-29 and F-33 are consistent with the standards and criteria in Rules 40C-4.301 and 40C-4.302, Florida Administrative Code, and are acceptable as proposed without further mitigation or alteration. One of the concerns raised by the Petitioners is the diminished hydration to the Stokes Creek area as a result of the water diversion ditch planned to the north of the proposed entry road between U.S. Highway 1 and the road intersection with the loop road just north of impact area F-33. The Petitioners also raised concerns about the diversion of surface waters into the surface water management system proposed by Hines which will be used to irrigate the golf course. To address these concerns, I find it necessary that Hines place culverts under the proposed road at impact areas F-35 and F-36. The culvert at F-35 need not consider animal transit. However, the construction of the box culvert at F-36 must make provision for deersized animals to transit the creek bed. This is to mitigate the concerns of the Petitioners regarding interference with game trails in these wetlands, and to avoid road kills by interrupting those routes. I do not find it necessary to make allowances for animals at F-33. The planned culvert is sufficient; however, where the entry road crosses Marshall Creek where Shannon Road currently is located, I find that a culvert of sufficient size to accommodate the passage of deer and bear needs to be installed for the reasons mentioned above. Secondary impacts from construction and use of the entry road and its surface water management system will not cause violations of water quality standards or adverse impacts to functions of wetlands or other surface waters. The surface water management system for the entry road complies with Rule 40C- 42.023(2)(a), Florida Administrative Code, giving rise to the presumption that the discharge from the system complies with state water quality standards. Further, the anticipated concentrations of pollutants from the surface water management system are expected to comply with Class II water quality standards. Water quality standards for all constituents are met. The total mass of pollutants discharging from the site will be less after development than in the pre-development condition. Levels of coliform bacteria and biological oxygen demand will be improved in the receiving waters because of the extended residence time in the ponds. Adverse drawdown of wetlands will not occur because portions of the pond and diversion ditch will be hydrologically isolated from nearby wetlands by construction of pond liners and cutoff walls. THE GOLF COURSE Surface water treatment and attenuation for the golf course is provided by a series of 11 wet detention ponds. Surface water from the golf course will not run directly into the wetlands receiving water without prior treatment from the stormwater management system. Three of the ponds are interconnected and are designed to retain water not only for water quality treatment and attenuation, but also to serve as a source of golf course irrigation water. Of the 11 ponds, 10 discharge to Marshall Creek and one discharges to Stokes Creek. Both water bodies are classified as Class II waters. Discharge points from the stormwater treatment system are designed to minimize impacts to wetlands. Portions of the pond near wetlands will be constructed with impermeable cutoff walls to prevent drawing down the groundwater beneath these wetlands. The stormwater will not discharge to a land-locked system. The golf course is not located within a stream or water course with an upstream drainage basin of five or more square miles. The primary source of golf course irrigation will be ponds L-1, Y-1 and Y-2, collectively the Irrigation Ponds, with a deep well serving as a supplemental source. A total demand of 135 million gallons per year (mgy) of irrigation water is anticipated during the first three to four years. The Irrigation Ponds are anticipated to produce only 40 mgy; initially for irrigation. Therefore, approximately 95 mgy will be needed from the deep well. As the Marshall Creek DRI becomes more developed, the increased impervious surfaces in the drainage basins will produce more surface water runoff for the Irrigation Ponds. The Irrigation Ponds will receive approximately two and one-half times the amount of surface water needed for irrigation. As the stormwater increases, the groundwater will be used solely as emergency backup. In addition to the golf course irrigation, 0.73 mgy of shallow (surficial aquifer) water is to be used for household- type (potable and sanitary) uses for two-way stations and three temporary facilities in the vicinity of the village center/golf clubhouse. In the vicinity of the village center/golf clubhouse, these uses will only be for one year because JEA (a public supply system) plans to provide potable water to the site by May of 2000. At the anticipated rate of 400 gallons per day of withdrawal from each of the surficial aquifer wells, the drawdown effect from the surficial aquifer wells is expected to be about 0.01 foot of drawdown at the greatest point. Several isolated wetlands less than 0.5 acre in size will be impacted by the golf course. They are: F-40 0.2 acre, F-55 0.06 acre, F-56 0.17 acre, F-57 0.21 acre, F-58 0.36 acre, F-63 0.16 acre, F-64 0.04 acre, F-65 0.05 acre, F-66 0.28 acre, F-66 0.28 acre, F-67 0.08 acre, F-73 0.09 acre, and F-74 0.48 acre. The functional values of these isolated wetlands are low. They are not used by threatened or endangered species. They are not connected by standing or flowing surface water at seasonal high water level to one or more wetlands to make the combined acreage greater than one-half acre. They are not located in an area of critical state concern, and are of minimal value to fish and wildlife individually or cumulatively. Several isolated wetlands greater that 0.5 acre in size will be impacted by the golf course. They are F-53, F-62, F-69, F-71, and F-79. These wetlands are generally dominated by trees, and are a little deeper than the isolated wetlands less than 0.5 acre in size, and provide moderate functional value. Wetland F-82 is a 0.41-acre portion of a larger isolated swamp impacted by golf hole No. 4. This area has historically been impacted by drainage and wildfire. This area is a common habitat on-site. Hines proposes to fill in and eliminate this small portion of a much larger wetland. A detailed reduction and elimination analysis was performed for the wetland impacts associated with the golf course. The impacts to Wetlands F-53, F-55, F-56, F-57, F-58, F- 62, F-63, F-64, F-65, F-66, F-67, F-68, F-71, F-73, F-74, and F- 79 are associated with the construction of a group of core facilities close to each other, including the village center, lake system, golf clubhouse, driving range and starting and finishing holes on the golf course. The location of these facilities was moved to the current proposed site because of the relatively high upland vegetation values in the area outside of the core area; the relatively low quality of existing wetland vegetation in the core area; and the need for the facilities to be centrally located in the development. The location of these facilities in close proximity to one another because marketing analysis has found that a segment of the population wants to live on small lots in close proximity to mixed land uses; separating the uses would be detrimental to the economic viability of the commercial center; and the village green and clubhouse are essential architectural elements to define the center of the development. Impact on Wetland F-69 results from direct and secondary impacts from construction of Irrigation Pond Y-2. The location was dictated by the drainage area and the irrigation requirements of the golf course. Because the environmental benefits to be achieved would be small in comparison to the cost of modifying the Project, and because the modification of F-69 would result in significant changes to the type or function of the proposed Project, the modifications are not considered practicable. The impact on Wetlands F-41 and F-40 results from direct and secondary impacts from construction of Pond I-2, adjacent to golf hole No. 17. Wetland F-40 is a relatively low quality isolated wetland less than 0.5 acre in size, and Wetland Impact F-41 is a 0.1-acre impact to a relatively low quality wetland which has previously been ditched. The environmental benefits of avoiding these impacts would be small compared to the cost of lining the proposed stormwater pond. Because the environmental benefits that could be achieved through avoidance of these impacts would be small in comparison to the cost of the modifications, the modifications are not considered to be practicable. The impact on Wetland F-82 is for 0.41 acre of fill, resulting from building the fairway for the golf hole No. 4. If the golf hole were moved further to the north, upland access to the northeast portion of the Marshall Creek DRI would be precluded. Moving the golf course hole to the west would result in a loss of nine premium house lots, and a reduction in value of an additional 15 lots, for anticipated economic loss in excess of one million dollars. Hines designed the golf hole fairway 50 feet narrower than preferred to reduce the wetland impact. Wetland F-82 has historically been impacted by drainage. Eliminating the impact would provide only a minor environmental benefit compared to the economic cost of moving the golf hole. The alternative of moving the golf hole is not practicable. GOLF HOLE NO. 6 Wetland impact area F-105 is a 2.5-acre portion of a freshwater wetland located adjacent to the Tolomato River which Hines proposed to fill for the construction of golf hole No. 6. Golf hole No. 6 would run parallel to the shoreline in a north- south direction. The golf hole would be approximately 575 feet from tee to green, and the majority of the hole would be located in wetlands. As proposed, construction of the golf hole would destroy the existing wetlands. The reason for construction of golf hole No. 6 in the proposed location is Hines' desire to create a so-called "signature" hole immediately adjacent to the Tolomato River marsh. Hines presented evidence that having such a signature hole would increase the amount that it might charge for green fees, and enhance the overall desirability of the course as a place to live and a place to play golf. The specific value of the signature hole, according to Hines, is 6 million dollars over 11 years. Adverse secondary impacts would result from building golf hole No. 6 as proposed. The marsh adjoining the proposed hole is a feeding area for wading birds to include the little blue heron, tri-colored heron, snowy egret, roseate spoonbill, wood stork, black skimmer, and bald eagle. Human activity at the location will impact adversely the feeding of some of these species. Another adverse secondary impact is the destruction of the existing buffer between the marshland and upland area at golf hole No. 6. This wooded area provides a corridor for the movement of wildlife along the edge of the marsh. Creation of a hole in the existing buffer will disturb or eliminate this movement. Hines assessed the alternative location for golf hole No. 6 in which wetlands impacts would be eliminated by locating the hole and uplands immediately to the south of the proposed location. This new location would still allow the hole to be located along the Tolomato River and permit Hines to have a signature hole. Hines estimated that building the golf hole in its alternative location would require a redesign of the residential lot plan and the loss of six building lots at an estimated value of $1,140,000. However, the alternative design would eliminate the impacts to the wetlands and save in construction and mitigation costs so that net cost of relocating the hole would be $848,000. Assuming that the value of the real estate that would be lost is correct, the loss of this income would be an insignificant change in the rate of the return for the project, and would have no effect on the economic viability of the project. An alternative location suggested by Petitioners is to build golf hole No. 6 parallel to the axis of golf hole No. 7. The alternative site for the green for golf hole No. 6 is in the vicinity of Hines' proposed location of the tee boxes for golf hole No. 6 and with the hole east and west rather than north and south. Although the Petitioners did not suggest the location of the tee box for the alternative site, it is assumed that it would be in the vicinity of the southern-most out-parcel, a short distance from the green on golf hole No. 5. This second alternative location for golf hole No. 6 requires changes in Hines' plans for the secondary road network in the development. I find that Hines' original plan to fill and destroy the wetlands to construct golf hole No. 6 is not consistent with standards and criteria in Rules 40C-4.301 and 40C-4.302, Florida Administrative Code. I find the alternatives proposed by Hines and Petitioners are viable economical alternatives to Hines' proposal and retain the advantages of a signature hole while preserving the wetlands. To permit the vistas which a "signature" hole requires, Hines should be permitted to reduce the existing vegetation along the marsh in the vicinity of the green of golf hole No. 6. However, in order to address the secondary impacts on the movement of animals along the shore, a 25-foot buffer should be maintained from the edge of the marsh shoreward along the shoreline. Hines should be permitted to trim or replace the scrubs to maintain a height of no less than 3 feet and to thin the trees to create and maintain a view of the marsh. This 25- foot minimum buffer should be maintained all along the Tolomato River and Marshall Creek. This buffer would be consistent with District's rules and the other conditions of the DRI. SECONDARY IMPACTS TO WATER RESOURCES As part of its evaluation of wetland impacts caused by construction and operation of the entry road and golf course, the District considered secondary impacts resulting from use of those facilities. Specifically, traffic on the entry road may kill animals crossing the road, and may reduce wildlife usage of areas adjacent to Wetland Impact areas F-20, F-12, F-8A, F-11, and F-33. Clearing areas C-2 and C-5 may reduce wildlife usage as a result of operation of the golf course. No upland buffer is proposed adjacent to the wetland areas located adjacent to Wetland Impact areas F-82 (golf hole No. 4) and F-105 (golf hole No. 6), C-2 (golf hole No. 3) and C-5 (golf hole No. 8), and the use of those golf holes is considered a secondary impact for purposes of wildlife usage and water quality impacts. Golf cart crossings at C-2, C-9, C-11, and C-13 are elevated crossings and the tree canopy will be maintained. The wildlife functions access would be impacted by the project as proposed. To prevent secondary wetland impacts in other portions of the site, Hines has agreed to preserve upland buffers between wetlands and adjacent upland uses. The upland buffers will be of native vegetation, where existing, or of planted trees in areas that have been disturbed. The buffers will be at least 25 feet, with some areas having larger buffers. With regard to potential secondary impacts to uplands currently used by listed aquatic and wetland dependent species, there is no evidence that these animals use the uplands for nesting or denning or as critically important feeding habitat. However, there is evidence that in the past alligators have nested in wetlands adjacent to Marshall Creek; these wetlands will be protected by upland buffers. One aquatic and wetland-dependent species which could potentially use the site is the Florida Black Bear. The Florida Black Bear has known populations in the area and ranges over a wide variety of habitat.1 However, there is nothing unique about the Project site for Florida Black Bear use, and the habitat on- site is not the type preferred by bears for denning. Petitioners presented evidence of possible travel corridors for Florida Black Bear across the site. Those travel corridors included both wetland and upland areas. The buffers mentioned above along the Tolomato River will address travel corridors for the bears and ameliorate human impacts on the marsh. WILDLIFE In addition to analyzing the functions and values to wetlands based upon vegetation, soils, and hydrology, Hines investigated actual usage of the site by wildlife by conducting a wildlife survey. Prior to conducting the wildlife survey, Hines' representatives contacted the Florida Game and Freshwater Fish Commission and obtained approval of survey types and methodologies to be used. After reviews of the literature and a reconnaissance study, Hines conducted four types of surveys: upland transects, wetland transects, gopher tortoise transects, and aquatic grass bed surveys. Additionally, Hines' environmental consultants performed wetland jurisdictional determinations on the site, and looked for wading birds while conducting those surveys. In all, Hines' environmental consultants spent in excess of 690 hours on the site, but no listed aquatic and wetland-dependent species were found on the site. Wading birds such as osprey, brown pelican, little blue heron, bald eagle, snowy egret, and wood stork, were observed in the salt marsh areas to the east of the site, but were not observed on-site. Two abandoned alligator nests were found in the Marshall Creek wetlands. For purposes of permit evaluation, the District assumed that wading birds and bald eagles will opportunistically use foraging and roosting sites in the Project area. Likewise, the District assumed wetlands may be used by alligators for nesting, and that avifauna, West Indies Manatee, Loggerhead Sea Turtle, Green Sea Turtle and Leatherback Sea Turtle occur in the Tolomato River adjacent to the Project. One federally-listed plant species was reported by a lay witness on an out-parcel, a Golden Leather Fern. However, that particular plant was identified by an expert as a common Phlebodium Aureum. The Golden Leather Fern is not on-site. WETLAND MITIGATION Mitigation will be undertaken to offset adverse direct and secondary impacts to wetland functions caused by the Project. The mitigation plan includes wetland and upland preservation, wetland and upland enhancement, wetland creation, and wetland restoration. All wetland impacts and all wetland mitigation occur in the Tolomato River drainage basin and on the project side. Wetland creation will occur in Wetland Mitigation Areas M-18, M-19, M-20, M-21, M-22, M-23, M-24, M-25 and M-26, and will consist of scraping down upland areas to achieve wetland hydrology and planting wetland vegetative regeneration. In order to achieve successful recreation of wetland functions, the created wetlands are to be located adjacent to existing wetland areas, which will assist in achieving proper hydrology and vegetation regeneration. The following created wetlands will be forested or have a forested component: M-6, M-9, M-21, M-22, M-24, M-25, and M-26. The following created wetlands will be herbaceous in whole or in part: M-18, M-19, M-21, M-22, M-23, M-24, M-25 and M-26. The total created wetland acreage is 11.34 acres. Hines also proposes to restore or enhance the wetland functions lost by prior wetland impacts to Wetland Mitigation Areas M-5, M-15 and M-16. Restoration of Mitigation Area M-5 will consist of removing fill associated with the existing Shannon Road and planting wetland vegetation. Enhancement will also occur in area M-5 through plugging existing ditches to allow rehydration of areas previously drained. Restoration areas M-15 and M-16, adjacent to Wetland Impact F-105, and part of that wetland system, will be planted with wetland herbaceous materials and have a forested component. Although the fill relating to construction of golf hole No. 6 should be denied, this restoration and enhancement could be a part of creation of the buffer in this area. Restoration and enhancement comprise 3.27 acres of overall mitigation. Hines will place 102.73 acres of wetlands under a conservation easement pursuant to the provisions of Section 704.06, Florida Statutes. These wetlands include an extensive network of connected wetlands associated with the Tolomato River, portions of Stokes Creek and Marshall Creek, and isolated wetlands throughout the DRI site. Additionally, 38.06 acres of adjacent upland buffers will be placed under a conservation easement pursuant to the provisions of Section 704.06, Florida Statutes. Approximately 6.68 acres of the upland buffer area have been previously been disturbed and will be enhanced by conversion to maritime hammock vegetation. The upland buffers will be a minimum of 25 feet, with some areas greater than that. In future phases, many of the upland buffers will be used for treatment of rear lot runoff in order to meet stormwater requirements, which will not significantly alter the habitat or buffering functions of those wetland areas to the adjacent wetlands. The mitigation plan is intended to provide mitigation for both the direct impacts from wetland dredging and filling and the secondary impacts related to golf hole No. 6 as originally proposed by Hines. Shannon Road currently crosses wetland BBB with an unculverted crossing at the location of M-5. The box culverts under the crossing at F-36 will be two and one-half feet tall and 12 feet wide, providing good connectivity on either side of the road. However, its height is insufficient for a pathway for animals. Adding only six inches in height would be sufficient to permit transit of deer-sized animals. The Shannon Road crossing at F-33 will be improved with larger culverts that will restore hydrology to the area and reduce secondary impacts associated with the road. Bridging that wetland crossing area would not provide significant wildlife benefits due to the shallow nature of the wetland systems in that area at present. By deferring to one of the alternatives proposed for area acres by Hines or the Petitioners the amount necessary of mitigation is reduced. Because the proposed fill associated with golf hole No. 6 is not found to be consistent with the rules and not approved, Hines should be permitted to adjust the extent of its mitigation plan accordingly. Of the 309.99 acres of wetlands on the Project site, 102.73 will be preserved, 14.16 will be lost, and 1.75 will be distributed. To off-set adverse impacts, 11.34 acres will be created and 3.27 acres will be enhanced or restored. Additionally, 38.06 acres of upland will be preserved. To ensure that the wetland creation areas are successful, Hines will monitor the wetland mitigation areas for five years. There are no impacts to wetland functions which are not likely to be successfully recreated, because the wetlands being impacted are not particularly unique and because the mitigation plans ensure the proper hydrology for successful wetland creation. Success will be achieved by providing viable and sustainable ecological and hydrological functions in that: the impacts are to lower quality wetlands on site; and (2) the mitigation incorporates all elements of the mitigation in appropriate places. The wetland mitigation and monitoring is anticipated to cost approximately $460,000. Chase Bank of Texas has extended a line of credit to Hines for a $530,000 letter of credit to be issued to the District to ensure completion of the mitigation and monitoring. WATER QUANTITY CONSIDERATIONS The entry road and golf course stormwater management systems (collectively, the "System") are designed so that the post- development peak rate of discharge will not exceed the pre- development peak rate of discharge for the past 25-year, 24-hour design storm. There are no land-locked receiving waters for the System, so there is no requirement that the System be designed to match post-development runoff volumes to pre-development runoff volumes. The System is not located on a stream or water course with an upstream drainage area of five square miles or greater, and therefore the flood plain encroachment criteria of Section 10.5(c), Applicant's Handbook, does not apply. The System will not be impounding water in streams or water courses, so the provisions of Section 10.5(d), Applicant's Handbook, do not apply. By not increasing the discharge rate off-site, the System will not result in off-site flooding. To prevent on-site flooding, Hines developed the Project to be flood-free as required by St John's County ordinances, and construction and operation of the System will not result in on-site or off-site flooding. With regard to whether water quantity adversely impacts the value of functions provided by wetlands and other surface waters, there are three considerations: (1) overland flow; groundwater drawdown; and (3) groundwater recharge. As to overland flow, there will be no net loss of surface water to Stokes Creek or Marshall Creek. With regard to adverse groundwater drawdown, such drawdown has been prevented through implementation of a system of cut-off walls to prevent the System from drawing down nearby wetlands. Groundwater flow patterns will be maintained. Project impacts to groundwater recharge will be insignificant because the entry road will represent about a one percent loss of recharge area; and 96-97 percent of the golf course area will remain pervious surface, available for recharge. For added assurance that wetland hydrology will not be adversely affected, Hines is required to monitor the wetlands adjacent to Pond L to ensure that the wetland hydrology is maintained, and to institute remedial measures if they are needed. WATER QUALITY The System complies with the applicable design standards for wet detention systems set forth in Chapter 40C- 42.026, Florida Administrative Code, and Section 20 of the applicable Applicant's Handbook. Hines will implement an erosion and sediment control plan during construction of the project to prevent migration of sediments. The System will comply with the numeric water quality standards for Class II waters, and the system will remove more than 95 percent of annual pollutant loading. Background water quality sampling data indicate that the receiving waters for the System do not currently meet Class II water quality standards for two parameters under pre- development conditions. The first parameter, total and fecal coliforms (a type of bacteria), is common in undeveloped sites such as the existing Marshall Creek site. Under post-development conditions, the total and fecal levels will have a net improvement because the residence time for stormwater in the System exceeds the life span of these bacteria. The second parameter that does not currently meet Class II standards is dissolved oxygen. Under post-development conditions biochemical oxygen demand (BOD), will be reduced by 82 percent as compared with pre-development conditions. Also, numerous design features have been incorporated to improve oxygen levels in the stormwater discharge, including depth criteria, length-to-width ratio of ponds, cascading flow over the discharge weir, aeration at the bottom of the discharge structure, and aeration in the spreader swale as the discharge enters the wetland. Together, these factors assure that there will be a net improvement in the water quality of receiving waters for dissolved oxygen. Hines will undertake measures to prevent significant damage to Class II waters. These measures include oversized surface water management systems, additional residence time for stormwater treatment, an integrated golf course chemical management plan, and a water quality monitoring plan. Construction and operation of the System will not have a negative effect on Class II receiving waters. Hines will undertake measures to prevent significant water quality damage to the immediate Project area and adjacent areas, including an erosion control plan, construction and operation of the surface water management system, limits on the chemicals to be used on the golf course, and distance of the golf course from adjacent properties. Construction and operation of the System will not have an adverse impact on the water quality of the immediate Project area or adjacent areas. INTEGRATED CHEMICAL MANAGEMENT PLAN Prior to application of any chemicals, pesticides, herbicides, or nutrients on the golf course, Hines will have to summit to and obtain approval from the District of an Integrated Chemical Management Plan (ICMP). The goals of the ICMP are to minimize the use of chemicals on the golf course and common landscaped areas and to minimize the potential for adverse impacts to surface or ground-water quality. The ICMP is to be prepared after construction of the golf course to make the ICMP as site-specific as possible, based on: soil conditions; selected plants; and optimal products to use to minimize environmental impacts. Required components of the ICMP include: application of only granular slow-release fertilizers to allow granular nutrient uptake; use of only EPA-approved products with short half-lives; soil testing; spot application only of pesticide use with no preventive maintenance; only proper pesticide applications for specific problems can be used, and only in the amount necessary to deal with the pest; watering, mowing, water schedules, tailored to reduce the need for chemicals; use of chemicals with a reduced tendency to leach; and use of chemicals which do not have a tendency to bioaccumulate in the environment. The chemical control plan specifically refers to pesticides. The Petitioners raise the issue that this does not address fungicides and nematocides. It should be made clear that the chemical control plan addresses all chemical use without regard to the targeted pest or problem. An analysis was made as to whether chemicals entering the ground would affect water quality in nearby wells. The estimated travel time in the surficial aquifer in the area of the golf course is estimated to be 1,100 days to travel 200 feet.2 Given use of chemicals with half lives of 70 days or less, the chemicals will breakdown prior to contact with adjacent wells. Likewise, there will be no violation of state groundwater quality standards. WATER USE The quality of water proposed for golf course irrigation is consistent with the results from an irrigation demand model prepared by the University of Florida Supplemental Irrigation Requirement model. The proposed quantity is consistent with the water allocations for other golf courses in the area. As such, the proposed use is in such quantity as is necessary for economical and efficient utilization. The golf course stormwater management system has been designed to be the primary source of irrigation water, to satisfy over 100 percent of the irrigation water after a three to four- year period. During the interim, water from the Floridan aquifer will supplement the surface water source, and that aquifer is capable of supplying the requested amounts. Water from the deep aquifer contains more dissolved minerals and is less desirable for drinking and household uses. For these reasons, the combined sources of water are capable of producing the requested amounts. With regard to water conservation measures, Hines has implemented: a re-use system which uses the lowest quality source of water (stormwater) for 100 percent of its demand after three to four years; irrigation demand restrictions (e.g., weather stations, rain sensor and soil moisture device); and restrictions on irrigation during daylight hours. Consequently, all available water conservation measures have been implemented. "Reclaimed water" (i.e., treated sewage effluent) is not available for use at the site. However, Hines has agreed to use reclaimed water for irrigation if it becomes available. GROUNDWATER RESOURCES The possibility that the proposed water use from the Floridan aquifer well will cause significant saline water intrusion was considered. Other wells in the area which have been constructed to the depth of the proposed well have pumped water for many years at similar rates for years without causing saline water intrusion in the aquifer. Hines conducted tests of an existing on-site well, and water quality samples from that test showed no changes in water quality. In addition, Hines is required to conduct an aquifer performance test during use to provide further assurance that no saline water intrusion is occurring. To determine whether the proposed use of water will interfere with any presently existing legal use of water, Hines conducted tests and computer simulations that anticipated drawdown effects within the Floridan aquifer. The computer simulations demonstrated the radius of effects to the hydraulic pressure (potentiometric level) in the aquifer resulting from the proposed pumping. The anticipated drawdowns in the closest well owned by other existing legal users ranged from 1.3 to 3.4 feet. The potentiometric level in the aquifer in the area of the site is at 20 feet above land surface, so even a drop of three or four feet will not impede the ability of existing users to withdraw water from their well. With regard to whether the proposed water use from the surficial aquifer wells will cause significant saline water intrusion, several factors indicate that no such intrusion will occur. First, water quality data indicate that the surficial aquifer in the area meets secondary drinking water standards. There is no underlying saline water in the surficial aquifer, and the wells are not located near a source of lateral saline water intrusion. Also the proposed pumping rates are so low, they would not cause hydraulic pressure changes which could induce saline water intrusion. The proposed use will not cause surface water levels or the water level to be lowered so that stages of vegetation will be adversely and significantly affected on off-site properties. This is because the low rate of pumping from the surficial aquifer wells will result in a maximum drawdown of about 0.01 feet. As an adjunct to the chemical plan, the water in these shallow wells should be periodically tested to ensure no chemicals leech into the surficial water table. Regarding the concerns expressed by the Petitioners over spraying chemicals in close proximity to the marshes and creeks, the requirement of maintaining a minimum 25-foot buffer zone will assist in preventing chemicals used on the golf course from migrating into the marsh or creeks. The District's Governing Board has not by rule reserved any water from use. CULTURAL RESOURCES (ARCHEOLOGICAL ASSESSMENT) Regarding archeological sites, Ann Stokes, Ph.D., testified concerning her survey of the DRI site. In her Phase I survey, Dr. Stokes looked at previously identified archeological sites and searched the DRI site for previously unidentified archeological sites. Hines conducted a Phase I cultural resource survey of the entire Marshall Creek DRI property. The Phase I study consisted of: gathering and analyzing existing environmental and cultural resource information (including an oral history provided by out-parcel residents); based upon that analysis, preparing a probability model of the location of historic and archaeological sites; and conducting shovel tests of the entire property at intervals determined based upon the results of the probability model. A total of over 1,000 test holes were dug on the property. Of those, about 100-120 holes contained artifacts. The survey was conducted in accordance with the guidelines of the Florida Division of Historical Resources. With regard to the entry road and golf course project area, Dr. Stokes identified sites 8SJ3472, 8SJ3473, 8SJ3474, 8SJ3475 and 8SJ3476 as sites not meeting the criteria to be placed on the national register. Site 8SJ3472 is located on both sides of Shannon Road at the approximate location of the green for golf hole No. 7 and the crossing of Marshall Creek by the loop road. Dr. Stokes believed that site 8SJ3472 was a Weedon Island and St. Johns site dating from between 500 BC and 1565 AD. Site 8SJ3474 is a multi-component site upon which Dr. Stokes found artifacts dating from 500 BC to 1200 AD and also historic ceramics dating from 1813 to the present. This site is located at the approximate location of the green for golf hole No. 17. Site 8SJ3473 is located at the approximate location of the Tee box for golf hole No. 16, and was determined by Dr. Stokes to contain artifacts from the period dating from 500 BC to 2000 AD. It was determined that these three sites did not warrant Phase II examination. Given the nature of the heavy construction necessary to build the road or the green for the golf holes, and the resultant irreparable damage to an archeological site, archeological staff should be present when excavating these areas to halt construction if the excavation reveals that the sites are more significant than initially determined. Archeological site 8SJ3475 is a scatter of flakes of stone. This was probably the result of the sharpening of an ancient stone tool. The site is of no archeological significance, but does indicate that a thorough search of the property was conducted. The remaining archeological sites, 8SJ3476, 8SJ3146, 8SJ3145, 8SJ3149, and 8SJ3471 are being enhanced or preserved. With regard to the 8SJ3476, Old Kings Road site, the site consists of a historic roadbed that is partially contained on the Marshall Creek DRI property. The roadbed was constructed between 1772 and 1775, during the British occupation of Florida. It was first constructed of compacted soil; in the early 1900's shell fill was added; and after World War I it was bricked. The site runs for miles (from St. Marys, Georgia to New Smyrna, Florida) and is better preserved in other parts of Florida. The entry road will cross the old roadbed site. In order to mitigate for the effects from construction of the entry road, Hines has agreed to: document the vertical stratigraphy of the roadbed through scaled drawings and photographs; and preserve a portion of the historic roadbed. This plan was approved by the Division of Historical Resources. The Division of Historical Resources advised the District that, based upon the mitigation offered for the impacts to Old Kings Road, the entry road and golf course project would not adversely affect any significant historic or archaeological resources. Additional sites are located on the Marshall Creek DRI Property, but outside of the entry road and golf course project area. These are: 8SJ3146, shell midden; 8SJ3145, shell midden; 8SJ3149, shell midden; and 8SJ3471, shell midden. The shell middens contain shell and faunal remains (animal bones) as well as artifacts (primarily pottery). Shell middens are common in St. Johns County. Site 8SJ3475 has been deemed to not be potentially significant. Hines will conduct Phase II archaeological studies to determine whether the four shell middens are significant sites. The Division of Historical Resources has approved the Phase II work plan. No adverse effects to historic archeological resources will be allowed in further phases because Hines will be required to either preserve sites or mitigate impacts as directed by the Division of Historical Resources. SHELLFISH HARVESTING AREAS This was an issue hotly contested because of the nature of the maps prepared by Florida Department of Environmental Protection, Division of Marine Resources (FDEP, DMR) which describe the shellfishing areas in the vicinity of the Project. The parties were asked to brief this issue. For the reasons stated in Hine's brief, it is concluded that no portion of the Project is located within areas designated as approved, restricted, conditionally approved or conditionally restricted for shellfish harvesting pursuant to the "Shellfish Harvesting Area Classification Maps" prepared by the FDEP, DMR. No portion of the Project is located in or over areas where shellfishing occurs, and the Project will not impact areas where shellfishing will occur. OTHER PUBLIC INTEREST CRITERIA The Project will not result in impediments to navigation. The Project will not adversely affect the flow of water or cause harmful shoaling. The Project will not adversely affect fishing or recreational values or marine productivity in the vicinity of the Project. The Project will not affect the temperature regime of waters. The total nutrient loadings for discharges from the site will be less post-development than under existing conditions. Any recreational values will be maintained. FUTURE PHASES The surface water management system which serves the golf course will provide treatment and attenuation for 505 acres. The remainder of the Marshall Creek DRI property will be developed in a variety of land uses, including residential, office, commercial, and retail uses as well as the village center, school, and park. No more than 35 areas of wetlands can be impacted throughout the entire 1,343-acre Marshall Creek DRI. The golf course and entry road project call for a total of 14.16 acres of fill impacts, of which, 2.59 acres of fill are located in wetlands of less than 0.5 acres and 11.57 acres of fill are in other wetlands. The golf course and entry road project also entail 1.05 acres of clearing impacts, of which, .71 acre for golf flyovers and .34 acre for golf cart crossings. Projected additional wetland impacts for the future phases are anticipated to be approximately 17.81 acres. These impacts are similar in type to the wetland impacts which have been addressed in this proceeding, and there is sufficient opportunity on the property to mitigate for these impacts. These potential wetland impacts are not proposed or authorized in this proceeding but are suggested as what may reasonably be expected to occur in the future. Further impacts will be reviewed with regard to a reduction and elimination analysis, and if warranted will need to be mitigated. With regard to water quality impacts from future phases of the Marshall Creek DRI, the future phases will be required to comply with the same discharge requirements as are applied in this proceeding. The surface water management system proposed for the golf course and entry road will retain the pollutants generated on-site; and will improve the quality of water discharge for some parameters. Proposed future phases are located in areas which have adequate property available to construct similar facilities, and there is nothing on the site which would restrict their implementation. Therefore, it is expected that the water quality standards can be met by proper design of future phases.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the St. Johns River Water Management District enter a final order approving the applications with the modifications described herein. DONE AND ENTERED this 30th day of December, 1999, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN 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 30th day of December, 1999.
The Issue Whether Respondent discriminated in its hiring and employment practices against Petitioner based upon his age.
Findings Of Fact Petitioner, Timothy Cahill, is a 1976 graduate of the University of Iowa with a degree in education. He spent ten years working as a manager for Hy-Vee Foods, Inc. (Hy-Vee), one of the larger privately held food and grocery chain stores in the country. Petitioner was also a skilled, competitive golfer. After working for Hy-Vee for ten years, Petitioner decided to change careers and pursue a career as a golf professional. In 1986, he began working as an assistant golf professional at a private golf club in Omaha, Nebraska. The following year, he was hired as an assistant golf pro at Tiger Point Golf and Country Club in Gulf Breeze, Florida, which was owned by Jerry Pate, a well-known playing professional and golf course architect. Petitioner worked at Tiger Point for two years completing the Professional Golf Association’s (PGA) Golf School Business School curriculum, the player’s ability test, oral comprehensives, and apprenticeship program. This certified him as a PGA “Class A” Professional (Class A Professional). Petitioner was employed as the Head Golf Professional at Musgrove Country Club an 18-hole facility in Jasper, Alabama, from 1989-1992. There was an average of 15,000 rounds of golf played at this club annually when he resigned to take a position at Oxmoor Valley. Petitioner was employed in 1992 as the property manager and director of golf at Oxmoor Valley, the first of the Robert Trent Jones Golf Trail courses in Alabama. In this position he coordinated and developed a $2.1 million budget for the facility in Birmingham, Alabama. This course was a 36-hole course that immediately drew 83,000 rounds of golf a year. In 1994, Petitioner was recruited to return to Tiger Point, which had been purchased by K.S.L. Fairways Group (KSL), as the “Director of Golf/Head Golf Professional.” He managed golf operations at Tiger Point. At this time, Petitioner was 39 years old. He reported directly to the property manager at Tiger Point, Lance Guidry. The property manager’s office was in the club’s clubhouse, and Guidry was primarily responsible for club operations including food and beverage, coordinating course maintenance, and golf operations. Petitioner was primarily involved with operations of the golf store, where his office was located, scheduling golfing events, and golfing operations. He eventually oversaw the golf operations at affiliated courses as head golf professional. This permitted young golf professionals to apprentice under him, and he was a resource person for managing their operations. During all times material to Petitioner’s complaint, KSL owned and operated Tiger Point and 27 other golf courses and clubs around the country. At the time Petitioner was hired, KSL owned two smaller, 18-hole courses in the panhandle of Florida: Scenic Hills in Pensacola and Shalimar Point in Shalimar/Ft. Walton Beach. Shortly after August 1995, KSL purchased a fourth 18-hole course named Hidden Creek in Navarre. KSL is subject to the Florida Civil Rights Act. Tiger Point was typical of KSL’s operation. It was a country club; however, it was open to public play. In this regard, it was a drawing card to visitors enjoying golfing junkets to the region. Tiger Point drew over twice as many package rounds as the other clubs owned by KSL in the region. It was the primary draw, and Petitioner, as mentioned above, functioned as the PGA golf professional for the other clubs. This meant that the golf professionals at the other facilities could apprentice under him as a Class A Professional, and earn credit towards becoming Class A Professionals. This was a drawing card for these professionals, who were mostly young, former college golfers attempting to make careers as touring or club professionals. Joey Garon was the District Manager for club operations in the panhandle. When Petitioner was hired, Garon was physically located at the Scenic Hills golf course where he was also the property manager. In January 1995, Garon moved to Tiger Point, transferred Guidry to Shalimar Point, and took over as the property manager at Tiger Point. On March 29, 1995, Garon performed an evaluation of Petitioner’s performance of his duties as Head Golf Pro. See Petitioner’s Exhibit 5. Garon rated him highly; the sales from his golf store were among the highest in KSL. He was well respected by members, young professionals who worked under him, and guests at the facility. Property managers averaged $45,000 per year, and the Tiger Point Property Manager made $50,000 a year. Garon had additional duties and made more. Petitioner was making $40,000 in the early fall of 1995. In the late summer of 1995, Hurricane Erin stuck the Florida panhandle and did serious damage to the area, including Tiger Point. Damage was done to the club, to the course, and to facilities in the area such as hotels and motels. Power was lost in many areas for two to three weeks. Traffic was restricted to Santa Rosa Island. Less than two months later, Hurricane Opal struck the same region causing greater damage. Because of the nature of Tiger Point’s business, these storms seriously impacted business. Various cost-cutting measures were instituted and some assets were sold to reduce losses. A review of all the positions in the panhandle was conducted. Personnel expense on hourly employees was reduced by sending non-essential personnel home early. Garon and the President of KSL, Eric Affeldt, decided to reduce Petitioner’s salary by 25 percent, from $40,000 to $30,000. Petitioner was told in November that his salary would be reduced in this manner, and if he did not like it, he could leave. At the same time, his assistant club professional, Sam Harrell, was discharged. Garon explained to Petitioner that Harrell was being fired because “new blood was needed,” “Harrell did not fit the image,” and “new faces” and “younger legs” were needed. Harrell was in his late 30’s. No evidence was received that other salaried employees at Tiger Point or the other clubs were discharged or had their salaries reduced although there were salaried employees at the other KSL facilities whose profits had been impacted adversely by the storms. Petitioner accepted the salary cut because the holidays were coming up; he had a family to feed; and there was no way he could quit so abruptly. Sam Harrell was permitted to stay on at the facility at give golf lessons, however, as an independent contractor. In December 1995, while on a golfing trip to a KSL course in South Florida, Garon advised Petitioner that Eric Affeldt had decided to restore his former salary. Petitioner was not offered his lost salary. Garon stated at hearing that the reason this was done was that it was the right thing to do; his testimony in this latter regard is not credible. Nothing was mentioned to Petitioner at this time or at any other time about plans to eliminate or consolidate positions within the company because of the bad earnings. Two weeks after Petitioner’s pay was cut, KSL transferred Patrick Barrett to Tiger Point as the property manager and increased his salary to $50,000 year. Garon stayed on as Regional Manager until June of 1996. His pay was charged to Tiger Point for 60 days after he departed and assumed duties at a new KSL facility. On the morning of March 26, 1996, there was a staff meeting at Tiger Point chaired by Barrett. Barrett mentioned that there might be personnel reductions; however, after the meeting, Petitioner specifically asked Barrett about him and his staff. Barrett stated that they had done well and had added to the facilities' bottom line. Petitioner had worked to increase dues-paying club memberships as a means to offset financial losses from the loss of tourists’ dollars. That afternoon, Garon announced to Petitioner that Petitioner was terminated immediately. KSL wrote a letter that indicates that Petitioner’s discharge was in no way performance related. Garon testified at hearing that Petitioner had indicated in early 1995, before the storms and before the financial problems, that he did not want a club management position based upon his experience with these positions in Alabama. This was Garon’s rationale for not offering the property manager’s position to Petitioner, and promoting Barrett. It is not credible that Garon held an honest belief that Petitioner would not accept the position of property manager at an increase of $10,000 a year in salary as an alternative to discharge. Petitioner stated that he did not want to be in management in two off-hand remarks to an abstract inquiry about his interest in a management position. Petitioner's comments were irrelevant to the post-storm situation facing Petitioner. It is not controverted that Barrett is younger than Petitioner. Garon testified that Barrett performed the duties of Director of Golf and Property Manager. This is not supported by the facts. The testimony of those who were in a position to observe golf operations before and after Petitioner’s discharge indicated that Barrett was seldom in the golf store and had nothing to do with the day-to-day duties of the Director of Golf. He did not run the store; he did not organize events; he did not supervise the employees directly. The budget for 1996 had been prepared by Petitioner before his discharge. The duties previously performed by Petitioner were performed by a succession of younger, less qualified employees all of whom were paid substantially less than Petitioner. From March 26 until June 3, 1996, John Fell performed the duties. Fell was 29 or 30 years old. He ran the golf shop, he conducted tournaments, and he supervised the other employees. When he resigned in June, John Ferrel was brought in. Ferrel was approximately the same age as Fell. Ferrel handled golfing play; and Gary James was retail coordinator, ordering and selling merchandize. These men did what Petitioner had done at Tiger Point. Leah Head transferred to Tiger Point in late 1996. She was in her late 20’s or early 30’s. She started at $25,000 as the head golf pro, but when she realized that she was to be responsible for all of the shop and golf, she demanded and got a salary of $30,000. Her performance evaluation indicates that she was performing the duties of Director of Golf to include improving sales and service, managing inventory, golf operations, tournaments, conducting employee/department meetings, setting goals for the department, and taking responsibility for poor staff performance. She was unaware that Barrett was calling himself “Director of Golf,” and considered him the general manager of the property. Head and others testified there was no essential difference between the titles Director of Golf and Head Golf Professional. The facts reveal that Petitioner’s duties were performed by younger persons, in some instances, transferred to Tiger Point for that purpose. Barrett did not really assume responsibility for the golf, and was Director of Golf in name only as reflected in Head’s designation of duties on her performance evaluation by Barrett. Tamara Bass testified regarding her experience at Tiger Point. Bass was in her 20’s. She had begun at Tiger Point a month before Petitioner’s discharge. His discharge adversely impacted her plans for obtaining her Class A Professional’s certification. She spoke with Barrett about this, and Barrett stated to her that he was interviewing to replace Petitioner with someone younger, cheaper and less experienced. Within several months, Head was hired. Following his discharge, Petitioner sought employment in the Panhandle area. He owned a house adjoining the Tiger Point course, his wife was employed at a local hospital, and his school age children were in local schools. It was not practical to uproot the family at this juncture. His job search was not helped by the fact that KSL owned several of the courses in the area; however, he did find employment, and eventually reached the salary he was making when discharged by KSL. However, he was without meaningful employment for several months; he was under-employed for several months, and it was several years before he reached the salary he was making when he was discharged, and, then, had to commute 86 miles to work. Petitioner received unemployment from April until October 12, 1996, in the amount of $11,141. He would have made $19,994 at Tiger Point during that period, his expenses were estimated (See Exhibit 16) and are disallowed. His economic loss was $8,853 for this period. From October 13, 1996 until December 1996, Petitioner made $7,296 at Ft. Walton Beach Golf Club. He worked 66 days, and commuted each working day 76 miles. At $.31/mile he had $1,555 in travel expenses. His meals were included in his compensation at Tiger Point, and he had to pay for his meals at Ft. Walton Beach Golf Club. His lunch was $3.00 each working day for a total of $198. He would have earned $9,228 at Tiger Point. Petitioner’s economic loss for this period was $3,685. From January until October 1997, Petitioner made $24,320 at Ft. Walton Beach Golf Club. He would have made $30,760 at Tiger Point. His economic loss for the period was $6,440. From November until December 1997, Petitioner made $7,668 at Ft. Walton Beach Golf Club. He would have made $9,228 at Tiger Point. His lost wages for November and December are $1,560. His expenses to commute to Ft. Walton Beach for the year were based upon a 50-week year, working six days a week, and commuting 76 miles each day at $.31/mile. This was a total of $7,068. His meals for 298 days at $3.00 a day were $894. His total economic loss for 1997 was $15,962. From January until April 25, 1998, Petitioner made $12,780 at Ft. Walton Beach Golf Club. He would have made $15,380 at Tiger Point. He commuted a total of 96 days, 76 miles each day at a cost of $.31/mile. This was a total of $2,261.61. His meals for 96 days at $3.00/ day were $288. His total economic loss for the period was $5,149.61. From May until December 1998, Petitioner made $29,536 at Glen Lakes Golf and Country Club. He would have made $24,608 at Tiger Point. He commuted a total of 192 days, 86 miles each day at a cost of $.31/mile. This is a total of $5,118.72. His total economic loss for the period was $190.72. For 1999, Petitioner made $48,000 at Glen Lakes Golf and Country Club. He would have made $40,000 at Tiger Point. He commuted a total of 275 days, 86 miles a day at $.31/mile. This was a total of $7,331.50. For the first time since his discharge, Petitioner exceeded his prior salary by $668.50.
Recommendation Based upon the foregoing findings of fact and conclusion of law, it is RECOMMENDED: That the Florida Commission on Human Relations enter its final order finding that Respondent engaged in age discrimination, directing Respondent to pay Petitioner the amount of Petitioner's economic losses and directing Respondent to cease and desist from discriminatory employment practices in its businesses. DONE AND ENTERED this 30th day of April, 2002, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN 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 30th day of April, 2002. COPIES FURNISHED: John C. Barrett, Esquire 5 Calle Traviesa Pensacola Beach, Florida 32561 David S. Shankman, Esquire Post Office Box 172907 Tampa, Florida 33672-0907 Denise Crawford, Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 240 Tallahassee, Florida 32303-4149 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 240 Tallahassee, Florida 32303-4149
