The Issue The issues presented for determination are whether Florida Housing Finance Corporation’s determination that the three applicant-parties were eligible for the allocation of low-income housing tax credits; and its intended decision to award such tax credits to Ocean Breeze East Apartments, LLC, are contrary to governing statutes, rules, or the solicitation specifications.1/
Findings Of Fact Parties and Process Florida Housing is a public corporation and, for the purposes of these proceedings, is an agency of the State of Florida. Pursuant to section 420.5099, Florida Statutes, Florida Housing is designated as the housing credit agency for Florida within the meaning of section 42(h)(7)(A) of the Internal Revenue Code and has the responsibility and authority to establish procedures for allocating and distributing low-income housing tax credits.3/ Florida Housing is authorized by law to allocate tax credits (and other funding) by means of requests for proposal or other forms of competitive solicitation. On October 6, 2017, Florida Housing published the RFA, starting the competitive application process being challenged in this proceeding. Completed applications were due December 28, 2017.4/ As explained below, all of the non-agency parties (HTG Heron, Channel Side, and Ocean Breeze) in this case applied for funding for a proposed development in Palm Beach County. According to the terms of the RFA, only one application for each county was to be funded. Moreover, the RFA’s stated goal was to fund one application wherein the applicant applied and qualified as a non-profit applicant. This non-profit goal did not apply within each of the six counties included in this RFA; one non-profit applicant in any of the six counties could satisfy the non-profit applicant goal for the entire RFA. No challenges were made to the terms or requirements of the RFA. HTG Heron is an applicant to the RFA, requesting an allocation of $1,541,751.00 in competitive tax credits. Its application, assigned number 2018-289C, was deemed eligible for consideration but was not selected for funding under the RFA. Channel Side is also an applicant to the RFA. It is requesting an allocation of $2,100,000.00 in competitive tax credits. Its application, assigned number 2018-278C, was deemed eligible for consideration but was not selected for funding under the RFA. Ocean Breeze is an applicant requesting an allocation of $2,070,000.00 in competitive tax credits. Its application, assigned number 2018-286C, was deemed eligible for consideration and was selected for funding under the RFA, subject to a credit underwriting review process. Florida Housing has adopted Florida Administrative Code Chapter 67-60 to govern the competitive solicitation process for several different programs, including the tax credit program. See § 420.507(48), Fla. Stat. The bid protest provisions of section 120.57(3) are adopted as part of the process for allocating tax credits, except that no bond is required. See Fla. Admin Code R. 67-60.009. A review committee was appointed to evaluate the applications and make recommendations to Florida Housing’s Board of Directors (the Board). Thirty-three applications for the RFA were received, processed, deemed eligible or ineligible, scored, and ranked, pursuant to the terms of the RFA; Florida Administrative Code Chapters 67-48 and 67-60; and applicable federal regulations. The review committee found 25 applications eligible and eight applications ineligible. Through the ranking and selection process outlined in the RFA, seven applications were recommended for funding, including Ocean Breeze. The review committee developed charts listing its eligibility and funding recommendations to be presented to the Board. On March 16, 2018, the Board met and considered the recommendations of the review committee for the RFA. The same day, the applicants to the RFA received notice of the Board’s determinations as to whether the applications were eligible or ineligible for consideration for funding, and which of the eligible applicants were selected for award of tax credits, subject to satisfactory completion of a credit underwriting process. Such notice was provided by the posting of two spreadsheets, one listing the “eligible” applications to the RFA and one identifying the applications which Florida Housing proposed to fund.5/ Relevant to this proceeding, Florida Housing announced its intention to award funding for Palm Beach County to Ocean Breeze, which received the maximum points available. Channel Side and HTG Heron were deemed eligible and scored the maximum number of points, but were not recommended for funding. Each applicant-party timely filed a Notice of Protest and Petition for Formal Administrative Proceedings. RFA The RFA contemplated a structure in which each applicant is scored on eligibility items and obtains points for other items. To determine if an application is eligible for funding, it must meet all of the requirements listed in section 5.A.1, of the RFA. The following eligibility terms and requirements are challenged in this proceeding: The evidence of control of the development site (site control) by Ocean Breeze and Channel Side; and The address of the development site provided by HTG Heron. For scoring the applications, the RFA allows up to a total of 20 points with the following point allocations: Submission of Principal Disclosure form stamped by Corporation as “Pre-Approved” (5 points); Development Experience Withdrawal Disincentive (5 points); and Local Government Contribution Points (5 points) or Local Government Area of Opportunity Points (10 points). As explained in pages 66-67 of the RFA, the first step in evaluating the applications is the sorting order. All eligible applications are ranked by first sorting all eligible applications from the highest score to the lowest score, with any scores that are tied separated in the following order: First, by the Application’s eligibility for the Proximity Funding Preference (which is outlined in Section Four A.5.e. of the RFA) with Applications that qualify for the preference listed above Applications that do not qualify for the preference; Next, by the Application’s eligibility for the Per Unit Construction Funding Preference which is outlined in Section Four A.11.e. of the RFA (with Applications that qualify for the preference listed above Applications that do not qualify for the preference); [sic] Next, by the Application’s eligibility for the Development Category Funding Preference which is outlined in Section Four A.4.b.(4) of the RFA (with Applications that qualify for the preference listed above Applications that do not qualify for the preference); [sic] Next, by the Application’s Leveraging Classification, applying the multipliers outlined in Item 3 of Exhibit C of the RFA (with Applications having the Classification of A listed above Applications having the Classification of B); [sic] Next, by the Application’s eligibility for the Florida Job Creation Funding Preference which is outlined in Item 4 of Exhibit C of the RFA (with Applications that qualify for the preference listed above Applications that do not qualify for the preference); and [sic] And finally, by lottery number, resulting in the lowest lottery number receiving preference. In other words, those competing for the RFA must first submit an application that meets all the eligibility criteria and does not have any significant omissions or errors before it is scored. After scoring, any tiebreakers are determined strictly by the luck of the draw. After applications are filed, but before they are scored, Florida Housing randomly assigned each a lottery number, and the highest scoring applicant with the lower number wins any ties, thus becoming the intended funding recipient. The notice of the intended award does not end the process, and the selection of an applicant for funding does not guarantee distribution of tax credits to that applicant. Florida Housing’s representative, Ms. Button, explained at the hearing: Q Okay. What happens once a preliminary agency action from Florida Housing becomes final agency action? A The awardees who are recommended or preliminarily approved for funding, once that becomes final, those applicants are then invited to credit underwriting by Florida Housing. * * * Q Can you provide some general information about credit underwriting? A Credit underwriting is essentially a de novo review of all the information that the applicant has provided in their application to proceed forward with the proposed development. Florida Housing retains their party underwriters who review that information and provide recommendations to Florida Housing. Similarly, the RFA provides that each selected awardee must complete a credit underwriting process before receiving funding or credits. The RFA states on page 68: Notwithstanding an award by the Board pursuant to his RFA, funding will be subject to a positive recommendation from the Credit Underwriter based on criteria outlined in the credit underwriting provisions in Rule Chapter 67-48, F.A.C. Rule 67-48.0072, in turn, provides in part: Credit underwriting is a de novo review of all information supplied, received or discovered during or after any competitive solicitation scoring and funding preference process, prior to the closing on funding, including the issuance of IRS Forms 8609 for Housing credits. The success of an Applicant in being selected for funding is not an indication that the Applicant will receive a positive recommendation from the Credit Underwriter or that the Development team’s experience, past performance or financial capacity is satisfactory. Thus, an application might fail in this de novo credit underwriting phase and never receive funding, even though it was “awarded” tax-credit funding as a result of a proceeding such as this one. In that event, page 67 of the RFA provides: 4. Returned Allocation Funding that becomes available after the Board takes action on the [Review] Committee’s recommendation(s), due to an Applicant withdrawing its Application, an Applicant declining its invitation to enter credit underwriting, or an Applicant’s inability to satisfy a requirement outlined in this RFA and/or Rule Chapter 67-48, F.A.C., will be distributed as approved by the Board. Therefore, if an intended applicant (such as Ocean Breeze), was nominally selected for funding at the end of the eligibility and scoring phase, but failed to garner a positive recommendation from the credit underwriting process, the next eligible applicants in the queue (such as HTG Heron and Channel Side) would be awarded the tax credits. As a result, in this consolidated proceeding, the objective of Petitioners is to displace any and all applicants in more favorable positions. Here, Petitioner Channel Side challenges the eligibility of both the Ocean Breeze and HTG Heron applications; and Petitioner HTG Heron challenges the eligibility of Ocean Breeze. Ocean Breeze, in turn, challenges both HTG Heron’s and Channel Side’s eligibility. The specific issues raised as to the three challenged applications will be discussed below. OCEAN BREEZE APPLICATION HTG Heron and Channel Side challenge Ocean Breeze’s eligibility based on the RFA requirements relating to site control. The parties have stipulated, and the undersigned finds, that site control must have been demonstrated as of the application deadline of December 28, 2017. The RFA provides three ways an applicant can demonstrate site control: (1) eligible contract, (2) deed or certificate of title, or (3) lease. Ocean Breeze utilized the first method to satisfy the site control requirement by submitting a document titled “Purchase and Development Agreement” (PDA) as Exhibit 8 to its Application. The PDA included two attachments: the “Legal Description” and a “Reverter Agreement.” Petitioners challenge the enforceability of the PDA on two apparent grounds: (1) it was not executed by the applicant6/; and (2) it was executed before the applicant was properly incorporated to do business within the State of Florida. The RFA, however, does not mention “enforceability” of a contract in its definition for “Eligible Contract.” The requirements for establishing site control though an eligible contract are found on page 30 through 31 of the RFA. Eligible Contract - For purposes of this RFA, an eligible contract is one that has a term that does not expire before June 30, 2018 or that contains extension options exercisable by the purchaser and conditioned solely upon payment of additional monies which, if exercised, would extend the term to a date that is not earlier than June 30, 2018; specifically states that the buyer’s remedy for default on the part of the seller includes or is specific performance; and the buyer MUST be the Applicant unless an assignment of the eligible contract which assigns all of the buyer’s rights, title and interests in the eligible contract to the Applicant, is provided. Any assignment must be signed by the assignor and the assignee. If the owner of the subject property is not a party to the eligible contract, all documents evidencing intermediate contracts, agreements, assignments, options, or conveyances of any kind between or among the owner, the Applicant, or other parties, must be provided, and, if a contract, must contain the following elements of an eligible contract: (a) have a term that does not expire before June 30, 2018 or contain extension options exercisable by the purchaser and conditioned solely upon payment of additional monies which, if exercised, would extend the term to a date that is not earlier than June 30, 2018, and (b) specifically state that the buyer’s remedy for default on the part of the seller includes or is specific performance. The initial paragraph of the PDA identifies the parties to the PDA as “Boyton Beach Community Redevelopment Agency,” as the “Seller,” and “Ocean Breeze East Apartments, LLC” as the “Purchaser.” Paragraph 14 of the PDA designates the following for purposes of notices: If to Purchaser: Ocean Breeze East Apartments, LLC Attn: Lewis Swezy 7735 NW 146 Street, Suite 306 Miami Lakes, FL 33016 Under the signature block, however, the PDA states it was executed on behalf of the “Purchaser” by “OCEAN BREEZE APARTMENTS LLC By Ocean Breeze East GP LLC” and signed by Lewis Swezy, “Title: Authorized Member” on December 8, 2017. “Ocean Breeze East, GP, LLC” does not exist and never has in Florida. The parties admit that this entity was not in existence on December 8, 2017, and was never subsequently formed. Ocean Breeze admits the identification of “Ocean Breeze East, GP, LLC” was in error. The PDA was executed on behalf of the “Seller” by BBCRA and signed by Steven B. Grant, “Title: Chair” on December 15, 2017. Paragraph 4 of the PDA indicates that its effective date is the date when the last party signed the PDA; in this case being the date the BBCRA executed the document--December 15, 2017. The Reverter Agreement is executed by the “Purchaser” “Ocean Breeze East Apartments, LLC” and signed by Lewis Swezy, “Title: Manager of Manager,” on December 12, 2017. The Reverter Agreement is executed by the “Seller,” BBCRA, and signed by Steven B. Grant, “Title: Chairman” on December 15, 2017. Mr. Swezy testified Ocean Breeze complied with all the terms of the PDA, including submitting an initial $25,000 deposit within two days of full execution of the PDA and a second deposit within 30 days. The Articles of Organization for Ocean Breeze East Apartments, LLC were filed on December 19, 2017, and effective December 14, 2017. Rachael Grice, Florida Housing Multifamily Programs Manager, scored the site control portion for this RFA based on the information in the application. Mrs. Grice found that Ocean Breeze met the RFA requirements for site control. It is unnecessary, and beyond the scope of the undersigned’s jurisdiction, to make a factual or legal determination as to the enforceability of the PDA. The RFA does not mention enforceability or validity as requirements for an “Eligible Contract” for site control purposes. There is no dispute that on its face, the PDA with the Reverter Agreement satisfied the RFA’s requirements for an “Eligible Contract” listed on page 30 and 31. In fact, as of the date of the application deadline the following was true: Ocean Breeze East Apartments, LLC, was listed as the applicant for the RFA. Ocean Breeze East Apartments, LLC, was listed as the “Purchaser” on the PDA. Mr. Swezy had signature authority to bind Ocean Breeze and was listed on the Ocean Breeze application as the “Authorized Representative.” Ocean Breeze East Apartments, LLC, and Mr. Swezy were identified in the notice provision in the PDA. The Reverter Agreement, which was signed after the PDA, correctly identified the applicant entity as Ocean Breeze East Apartments, LLC. Effective December 14, 2017, Ocean Breeze was incorporated. The PDA was fully executed on December 15, 2017. HTG Heron and Channel Side have not established that the PDA was fatally flawed or that Florida Housing erred in accepting the PDA as an “eligible contract” satisfying the RFA’s site control requirement. Even if the PDA contained errors by listing “Ocean Breeze East GP, LLC” in the signature block or was prematurely signed before Ocean Breeze was effectively incorporated, the evidence at the hearing established that it was a minor irregularity waivable by Florida Housing, and that Florida Housing would have waived any such errors. If the PDA is ultimately determined to be unenforceable and site control is not established at the credit underwriting stage, Petitioners would be next in line to be selected to receive the tax credits under the terms of the RFA. The preponderance of the evidence established that Ocean Breeze’s application is eligible for funding, it received the proper scoring, and should be the intended award for Palm Beach County. HTG HERON APPLICATION Channel Side and Ocean Breeze challenge the eligibility of the HTG Heron application because they claim it fails to satisfy the RFA eligibility requirement to provide a correct address of the proposed development site. Page 18 of the RFA requires in relevant part: Indicate (1) the address number, street name, and name of city, and/or (2) the street name, closest designated intersection, and either name of city or unincorporated area of county. Ms. Button testified the purpose of the address requirement in the RFA is to allow parties, including Florida Housing, to know where the proposed development will be built and to ensure the property has access to utility and other services. In that vein, the RFA does not require the street identified in an application to be a publicly maintained street. In its application, HTG Heron provided the address of the proposed development as “W 17th Ct., W 17th Ct. and North Congress Ave., Riviera Beach,” along with latitudinal and longitudinal coordinates of the development location. Ryan McKinless, Multifamily Programs Senior Analyst for Florida Housing, scored the development address section for this RFA. Mr. McKinless found that HTG Heron met the requirements in the RFA for providing an address of the proposed development. Here, Channel Side and Ocean Breeze argue Florida Housing erred in accepting the “W. 17th Ct.” address provided by HTG Heron because the address does not exist. They point to the site sketch submitted by HTG Heron in support of its application which references a “W. 17th Street” (not “W. 17th Ct.”) and has “W. 17th Street” intersecting with “Congress Avenue Extension,” (not “N. Congress Ave.”). In support of this position that “W. 17th Ct.” does not exist, Ocean Breeze and Channel Side also rely on a 1975 plat and a 1999 City of Rivera Beach Ordinance. The sketches attached to HTG Heron’s application each contain the disclaimer “NOT A SURVEY.” Although the sketches contain a reference to an abandonment relating to “W. 17th Ct.,” the 1999 Ordinance describing the abandonment relied on by Channel Side and Ocean Breeze was not submitted to Florida Housing. Regardless, this plat and ordinance information was not required by the RFA nor was it considered by Florida Housing in determining whether to accept the address submitted by HTG Heron for eligibility determination purposes. There was no evidence at the hearing that the “W. 17th Court” address misled Florida Housing (or anyone else) or caused confusion as to the location of HTG Heron’s proposed development. To the contrary, other information in the application supports accepting the provided address. The “Local Government Verification of Status of Site Plan Approval for Multifamily Developments” form executed by the City Manager of Riviera Beach affirms the “W. 17th Ct.” address. The “Local Government Verification that Development is Consistent with Zoning and Land Use Regulations” form executed by the City Manager of Riviera Beach affirms the “W. 17th Ct.” address. The “Verification of Availability of Infrastructure- Electricity” form executed by an Associate Engineer from Florida Power and Light affirms the “W. 17th Ct.” address. The “Verification of Availability of Infrastructure” form for water and sewer services executed by a Utilities Engineer from City of Riviera Beach affirms the “W. 17th Ct.” address. The “Verification of Availability of Infrastructure- Roads” form executed by a City Engineer from the City of Riviera Beach affirms the “W. 17th Ct.” address. The “Local Government Verification of Contribution- Grant” form executed by the Interim City Manager of Riviera Beach affirms the “W. 17th Ct.” address. The acting director of the City of Riviera Beach, Department of Community Development confirms by letter that the property at the “2003 W. 17th Court (adjacent to North Congress Avenue)” address is located with a “Qualified Census Tract for 2017 and 2018” and attaches a diagram of that tract. Documentation from the Palm Beach County Property Appraiser’s website lists the address location as “2003 W. 17th Ct.” Given that the purpose of providing an address was fulfilled and there was no ambiguity as to the actual location of the HTG Heron’s development site, Channel Side and Ocean Breeze failed to prove that Florida Housing erred in accepting HTG Heron’s address for the purposes of eligibility. At the hearing, HTG Heron also submitted a certified copy of a 2017 map from the Palm Beach County Property Appraiser’s Office for range 43, township 42, which includes the area of the proposed development in HTG Heron’s application, and indicates there is a “W. 17th Ct.” that intersects with “N. Congress Avenue.” There was a preponderance of evidence establishing HTG Heron’s designation in its application of “W 17th Ct., W 17th Ct. and North Congress Ave., Riviera Beach” was not an error, and that HTG Heron’s application is eligible for funding. CHANNEL SIDE APPLICATION7/ To satisfy the Site Control requirements Channel Side submitted a Purchase and Sale Agreement that lists among the sellers an entity named “MWCP, Inc., f/k/a Blueprint Properties, Inc., a Delaware corporation whose post office address is 248 Columbia Turnpike Florham Park, NJ (‘Blueprint’)” in the initial paragraph. MWCP, Inc. (MWCP) did not exist in Florida when the Purchase and Sale Agreement was executed. The parties stipulated that the reference in the Channel Side site control documents to MWCP was erroneous and that the owner of the property for the Channel Side’s proposed development as of the application deadline was a Delaware corporation known as Blueprint Properties, Inc., which has never operated as, or been corporately related to, MWCP. Rachel Grice, Florida Housing Multifamily Programs Manager, scored the Site control portion of this RFA based on the information in the Application. Mrs. Grice found that Channel Side met the RFA requirements for Site control. The RFA does not require the listing of related names of any corporations other than the applicant or developer. Thus, the error in the Purchase and Sale Agreement does not seem to affect Channel Side’s satisfaction of any requirement of the RFA. The error is insignificant and immaterial. There was no evidence presented at the hearing that Channel Side received a competitive advantage by identifying “MWCP, Inc. f/k/a Blueprint Properties, Inc.” instead of simply “Blueprint Properties” as the seller. The slight error conferred no competitive advantage on Channel Side; its application received no more points than it was entitled to by reason of the mistake. Ms. Button reasonably testified that had Florida Housing known about the mistaken listing of MWCP as the seller, it would have waived the error as a minor irregularity. The applicant-parties failed to prove that Channel Side’s application reflecting the “wrong corporate entity” as the seller was an error affecting eligibility of Channel Side’s application, or that Florida Housing erred in accepting the Purchase and Sale Agreement as proof of site control. The mistake was, at worst, a minor, inconsequential error that was waivable. Based on the preponderance of the evidence, Channel Side’s application is eligible for funding.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent, Florida Housing Finance Corporation, enter a final order consistent with its initial decisions: (1) finding the applications of Ocean Breeze, HTG Heron, and Channel Side eligible for funding; (2) awarding the RFA Palm Beach County funding for the Ocean Breeze proposed development; and (3) dismissing the formal written protests of HTG Heron and Channel Side. DONE AND ENTERED this 29th day of June, 2018, in Tallahassee, Leon County, Florida. S HETAL DESAI Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of June, 2018.
The Issue The Issue in this matter is whether ditching activities of the Palm Peach County Mosquito Control Authority were the sole cause of the introduction of mangroves onto the Petitioner's property. If they were, her property is excluded from the dredge and fill jurisdiction of the Department of Environmental Regulation under section 403.817(2), Florida Statutes (1985). The petition for formal proceedings not only disputed the Department's jurisdiction but also alleged the Petitioner was entitled to a dredge and fill permit because the application met statutory and rule requirements. The contention that the application meets the substantial requirements of the statutes and rules was withdrawn by the Petitioner during the final hearing.
Findings Of Fact On January 29, 1985, Petitioner applied for a dredge and fill permit to fill approximately 1.76 acres of property in the city of Ocean Ridge, Florida, immediately adjacent to the Intracoastal Waterway. On August 18, 1986, the Department of Environmental Regulation issued notice of its intent to deny the permit. Petitioner requested a formal hearing on the intention to deny the permit. The Petitioner, Lucinda MacKinley, owns several lots on a barrier island in southern Palm Beach County within the city of Ocean Ridge, lots 12, 13, 14, 15 and 16 in block 2 of the Boynton Beach Park subdivision as recorded in the public records of Palm Beach County, Florida. These 5 170' x 100' lots are bordered on the north by Coconut Lane, on the west by the Intracoastal Waterway, and on the south by residential lots fronting on Ocean Avenue and on the east by other lots. The 1.76 acres are presently vegetated with red and black mangroves. This vegetation would ordinarily subject the property to the dredge and permitting jurisdiction of the Department of Environmental Regulation. The Palm Beach County Mosquito Control Authority began digging ditches on the Petitioner's property in 1954 and has maintained the ditches since that time. Ditches were re-dug as they filled in with material and eroded over time or as the land changed. The ditches were dug by the Authority in low salt marshes and mangrove swamps along the Intracoastal Waterway. By connecting these to the Intracoastal Waterway low lying land can be drained, or tidal action and the introduction of fish and minnows into the area will control mosquitoes. There is now a mosquito control ditch on the southern end of the property which connects to the Intracoastal Waterway in an east-west direction. At high tide, however, water flows over the entire shoreline of the property, inundating the land. When Petitioner originally purchased the property with her husband in 1958, much of the property was dry and the vegetation included Australian pinetrees in the higher areas, especially along the Intracoastal Waterway. The most persuasive evidence of the historic vegetation on the site was the testimony of John G. Labie, which was based upon stereoscopic interpretation of aerial photographs of the property taken from the Florida Department of Transportation Topographic Office. In 1946, there was a bulkhead running along the Intracoastal Waterway which ended to the north of the MacKinley property. The north end of that bulkhead was not tied into the land, however, and there was a wet area between the bulkhead and the land which then provided a foothold for a small stand of young mangroves. There were mosquito control ditches north of the property running east to west. At that time there were Australian pine trees growing on the western border of the property on the Intracoastal Waterway. Seven years later in 1953, mangroves had encroached eastward along the mosquito control ditches north of the MacKinley property. At the northern terminus of the bulkhead, there was a much larger mangrove encroachment than there had been in 1946 and more water behind the bulkhead. The mangroves had also grown south along the bulkhead to the extent that the predominant vegetation on the MacKinley property was mangroves. The earliest ditching on the property shown by records of the Mosquito Control Authority occurred in 1954. There was photographic evidence of mosquito ditching completed some time before a 1956 aerial photograph, because there were ditches but no visible spoil piles from ditching in the photo. The mangroves on the property were 15-18 feet high in 1956. By 1964, the bulkhead along the Intracoastal Waterway had been removed and the shoreline of the Waterway had eroded. That shoreline had a white, sandy beach, indicating that vegetation had not had time to establish itself since the removal of the bulkhead. There was also indication of mosquito ditching having recently been done on the property, but the ditches were not dug in the same places as they had been dug in 1956. Mangroves were still the predominant vegetation. By 1968, the bulkhead which had been removed had not been replaced, and there was further erosion of the property bordering the Intracoastal Waterway. The beach was no longer white and sandy because the vegetation had taken hold. Mangroves on the property remained the predominant vegetation. The mosquito ditching, which began on the property in 1954, was not the sole cause for the introduction of mangroves onto the property. There were mangroves in 1946 in the area, just north of the MacKinley property, which reached the property by 1953. This photographic evidence is consistent with the more general testimony of Allen Steiner, the assistant director of the Palm Beach County Mosquito Control Authority, that while mosquito control ditches can cause the introduction of mangroves onto property by seeds coming up in the ditches, in most areas, the mangrove swamps were there before the Mosquito Control Authority began its ditching activities (Tr. 189). The property is covered with red and black mangroves today, and is subject to tidal inundation by the Intracoastal Waterway to the extent that there are only a few Australian pine trees left on the highest areas of the property.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the application of Ms. Lucinda MacKinley for exemption from the dredge and fill permitting requirements of the Department of Environmental Regulation on the grounds that her land has become subject to regulation by the Department solely due to insect control activities DENIED. DONE AND ORDERED this 20th day of July, 1987, in Tallahassee, Florida. WILLIAM R. DORSEY, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of July, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-3619 The following constitute my rulings on the p'oposed findings of the parties are required by Section 120.59(2), Florida Statutes (1985). Rulings on Proposed Findindgs of Fact Submitted by Petitioner Covered in Findings of Fact 1 and 3. Generally covered in Findings of Fact 4 and 12, insofar as they indicate there are mosquito control ditches on the property now. The remainder is rejected as unnecessary. Generally covered in Finding of Fact 4. Rejected as unecessary. The testimony that in 1958 the property was totally vegetated with Australian pinetrees is rejected due to the more persuasive photographic evidence. While there were some Australian pinetrees on the higher points of he property, it was already substantially invaded with mangroves. Rejected because the Palm Beach County Mosquito Control Authority's activities did not introduce mangroves onto the property. They were more likely introduced by the intrusion of mangroves behind the bulkhead to the north of the property. Rejected as unnecessary. Rejected as unnecessary. Rejected as unnecessary. Rejected because the testimony of Mr Labie concerning he vegetation on the property from 1946, forward, is the more persuasive. The indication that the property was within an area characterized as grasslands in 1927 on a government topographic map is rejected. Those, symbols are meant to characterize much larger areas than Petitioner's 1.7 acres and therefore has little persuasive value. Moreover, the photographic interpretations of Mr. Labie were more persuasive. Rejected as unnecessary. Rejected as unnecessary. Rejected as unnecessary. Rejected as unnecessary, because at high tide the property is inundated along the entire shoreline, not just because of the mosquito control ditch. Rejected because the testimony of Mr. Labie o vegetation was more persuasive. To the extent necessary, covered in Finding of Fact 4. Rejected as unnecessary. Rejected as unnecessary. Rejected because the testimony of Mr. Labie was more presuasive on the source of the mangoves. Rejected as unnecessary. Rejected as unnecessary. Rejected as unnecessary. Rejected as unnecessary. Testimony concerning the bulkhead is covered in Findings of Fact 7-10. Rejected as unnecessary. Covered in Findings of Fact 7-11. Covered in Findings of Fact 7 and 8. Rejected because the mangroves from the north did not arrive at the MacKinley property through mosquito control ditches but through the foothold established because the bulkhead was not tied back to the land, permitting the intrusion of mangroves behind the bulkhead from north to south to the MacKinley property. Rejected as unnecessary. Rejected as unnecessary. Rejected as unnecessary. Rejected as inconsistent with the view of the evioence expressed in the Findings of Fact. Rulings on Proposed Findinos of Fact submitted by Respondent Covered in Findings of Fact 1 and 3. Covered in Finding of Fact 1. Covered in Finding of Fact 4. To the extent necessary, covered in Finding of Fact 3. Rejected as unnecessary. First sentence, rejected as unnecessary. Second sentence, covered in Finding of Fact 4. Rejected as unnecessary. Rejected as unnecessary. Covered in Finding of Fact 3. Rejected as unnecessary. Rejected as unnecessary. Covered in Findings of Fact 1-9. Rejected as unnecessary because the more likely method of transport was encroachment from the north, although floating seeds from the Boynton Beach inlet construction could have been a source of mangroves. Covered in Findings of Fact 7 and 8. Covered in Findings of Fact 9 and 10. The purpose of mosquito ditching is covered in Finding of Fact 4. The remainder of the proposal is rejected as unnecessary. Covered in Finding of Fact 12. COPIES FURNISHED: Terrell K. Arline, Esquire 325 Clematis Street Suite B West Palm Beach, Florida 33401 Karen A. Brodeen, Esquire Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Dale Twachtmann, Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Daniel E. Thompson, General Counsel Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400
The Issue Whether the Respondent should issue a permit for the removal of the one mangrove tree growing on the submerged lands owned by Petitioner.
Findings Of Fact There being no transcript of the proceedings, the Department did not take any exceptions to findings of fact per se. In Exception No. 1, however, the Department takes exception to Finding of Fact No. 16 to the extent that it embodies an implied conclusion of law that Batell had certain riparian or other vested rights which would prevent the Department from requiring a dredge and fill permit for removal of the mangrove tree. 3/ The Department's regulations are based on the police power of the state. Odom v. Deltona Corp., 341 So.2d 977, 987 (Fla. 1977); Neumann v. Davis Water and Waste, Inc., 433 So.2d 559 (Fla. 2d DCA 1983), rev. den.,441 So.2d 632 (Fla. 1983). See also Sunshine Jr. Stores, Inc. v. Department of Environmental Regulation, 556 So.2d 1177 (Fla. 1st DCA 1990); State v. General Development Corp., 448 So.2d 1074 (Fla. 2d DCA 1984), aff'd., 469 So.2d 1381 (Fla. 1985); Town of Indialantic v. NcNulty, 400 So.2d 1227 (Fla. 5th DCA 1981); Department of Environmental Regulation v. Oyster Bay Estates, Inc., 384 So.2d 891, 894 (Fla. 1st DCA 1980). All property rights are subject to the reasonable exercise of the police power. Odom v. Deltona, supra; Brickell v. Trammell, 82 So. 221 (Fla. 1919). The state may reasonably exercise its police power to regulate the use of both private land and waters to protect the environment. Odom v. Deltona Corp.; Oyster Bay; supra. Therefore, Batell's rights in her submerged land are subject to the Department's regulations on dredge and fill and mangrove alterations. Accordingly, I accept the Department's Exception No. 1 and reject any implied conclusion of law that Batell had certain riparian or other vested rights which would prevent the Department from requiring a dredge and fill permit for removal of the mangrove tree. Also, Finding of Fact No. 11 embodies a conclusion of law that the function of mangrove seedling propagation in the area is a "false [i.e., irrelevant] concern because mangroves were purposely removed from the area when the development was created." This conclusion of law is erroneous for the same reason as stated above. The right of Batell in her submerged lands are subject to the reasonable exercise of the police powers of the state. Therefore, I reject the embodied conclusion of law, but otherwise accept Finding of Fact No. 11. Finding of Fact No. 13 states: There was no reliable, empirical evidence provided by the Department at hearing to justify its preliminary finding that the tree removal was contrary to the public interest pursuant to Section 403.918(2), Florida Statutes. note that this statement may construed as containing an implied conclusion of law that the Department has a burden of showing that the proposed dredge and fill activity is contrary to the public interest. In fact, the burden is on the applicant to show that the project is not contrary to the public interest. Section 403.918(2), Florida Statutes; Florida Dept. of Transportation v. J.W.C. Company, 396 So.2d 778 (Fla. 1st DCA 1981); Young v. Dept. of Community Affairs; 567 So.2d 2 (Fla. 3d DCA 1990). I reject any such implied conclusion of law, but otherwise accept Finding of Fact No. 13. 4/ In sum, I accept the findings of fact in the Recommended Order except to the extent they embody or imply conclusions of law as noted above. RULINGS ON EXCEPTIONS TO CONCLUSIONS OF LAW In Exception No. 2, the Department takes exception to the conclusion of law that the Department is estopped from denying the requested permit. The Hearing Officer concludes that under the rule of Odom v. Deltona Corp., 341 So.2d 977 (Fla. 1976), the Department is equitably estopped from denying the permit to remove the mangrove tree because (1) ownership in the submerged land was acquired by the original developer as part of an overall project plan for the community; (2) public officials acquiesced in the development which included the removal of the original mangrove fringe, and (3) private persons such as Batell purchased the land in reliance on the development plan. In Odom the Board of Trustees of the Internal Improvement Trust Fund ("Trustees") sought to require permits for dredging and filling in navigable waters in which the Trustee's and Odom made conflicting claims of ownership. The court found, among other things, that the Trustees had previously purported to have conveyed the submerged lands at issue and were now estopped from attacking the validity of the earlier conveyance in light of the fact that (1) the conveyances were more than 30 years old, (2) the Trustees had made no effort of record to reclaim the lands, (3) the Trustees had acquiesced in the development of the land, and (4) private parties had entered into contracts in reliance on the development. Odom, however, is not applicable to this case. There the Trustees attempted to invalidate their prior conveyance. Here, the Department is not attacking the validity of the prior development; rather, it is merely applying current regulations to the present existing situation. It is established law that, absent a basis for equitable estoppel, the state's acquiescence in the earlier lawful removal of the mangrove fringe does not preclude the Department from apply current regulations to the removal of existing mangrove trees. See Department of Environmental Regulation v. Oyster Bay Estates, 384 So.2d 891 (Fla. 1st DCA 1980) Nor is there any basis to equitably estop the Department from applying current regulations to the removal of existing mangrove trees. Equitable estopped will be found against a state agency only in rare instances and under the most exceptional circumstances. Reedy Creek Improvement District v. Department of Environmental Regulation, 486 So.2d 642 (Fla. 1st DCA 1986); Department of Environmental Regulation v. C.P. Developers, 512 So.2d 258 (Fla. 1st DCA 1987). Thus, a state agency will be equitably estopped only when (1) the state agency has made a representation of a material fact that is contrary to a later asserted position, (2) the party seeking to estop the agency has relied on the representation, and (3) the party has taken a detrimental change in position caused by the representation and reliance. Reedy Creek; C.P. Developers; supra; Dept. of Revenue v. Anderson, 403 So.2d 397, 400 (Fla. 1981). The Hearing Officer has not found such factors. There was no finding of a representation that the mangrove at issue could be removed without a permit, no finding of reliance on any such representation, and no finding of a detrimental change of position caused by such a representation and reliance. Since there was no finding of ultimate facts necessary to establish equitable estoppel, there is no basis for the conclusion of law that the Department is estopped. Therefore, I accept the Department's Exception No. 2 and reject the Hearing Officer's legal conclusion that the Department is equitably estopped from denying the permit. In Exception No. 3, the Department takes exception to the Hearing Officer's conclusion of law that the denial of the permit to remove a single mangrove tree is an unconstitutional taking of property which can only be lawfully achieved through eminent domain proceedings. Such a conclusion of law must be predicated on a finding that the regulation leaves no economically viable use of the land to the owner. "[A] taking will not be established merely because the agency denies a permit for the particular use that a property owner considers to be the most desirable, or because the agency totally denies use of some portion of the property," so long as some economically viable use of the entire property remains. Department of Environmental Regulation v. MacKay, 544 So.2d 1065 (Fla. 3d DCA 1989) (citing Fox v. Treasure Coast Regional Planning Council, 442 So.2d 221, 226 (Fla. 1st DCA 1983) (emphasis added) . See also, Graham v. Estuary Prop. Inc., 399 So.2d 1374 (Fla. 1981), cert. den., 454 U.S. 1083, 102 S.Ct. 640, 70 L.Ed.2d 618 (1981); Bensch v. Metropolitan Dade County, 541 So.2d 1329 (Fla. 3d DCA 1989), rev. den., 549 So.2d 1013 (Fla. 1989); Florida Audubon Society v. Ratner, 497 So.2d 672 (Fla. 3d DCA 1986), rev. den., 508 So.2d 15 (Fla. 1987). The Hearing Officer made no finding of fact that the Department's decision deprived Batell of all beneficial uses of her property such that there was no remaining substantial economically viable use. Therefore, there can be no determination that a taking occurred. MacKay (and cases cited therein); supra. Furthermore, in order to show a taking, the landowner must show that she was not able to obtain a variance from the Department. Absent a showing that a variance cannot be obtained, there can be no finding of a taking. Department of Environmental Regulation v. MacKay (and cases cited therein) supra. The Hearing Officer made no such finding of fact; therefore, there can be no determination that a taking has occurred. Finally, and most importantly, a DOAH hearing officer lacks jurisdiction to determine issues of inverse condemnation. Bowen v. Department of Environmental Regulation, 448 So.2d 566, 568 (Fla. 2d DCA 1984), aff'd., 472 So.2d 460 (Fla. 1985) ("inverse condemnation actions cannot be adjudicated by administrative boards or agencies") For all of the above reasons I accept the Department's Exception No. 3 and reject the conclusion of law that the denial of the permit constitutes an unconstitutional taking of property. PUBLIC INTEREST TEST Section 403.918(2) (a), Florida Statutes, requires the consideration and balancing of seven factors in determining whether the project is not contrary to the public interest. The Hearing Officer did not make express findings of fact on any of the seven factors, and did not expressly find or conclude whether the project is not contrary to the public interest. Absent express findings on each of the seven factors a remand to DOAH would normally be required. However, in this case inferences as to all but two of the seven factors may be gleaned from Findings of Fact Nos. 7, 10, 12, 14 and 15, and from the Hearing Officer's acceptance of Batell's proposed findings of fact. When these findings of fact are taken as a whole, it can be fairly inferred that the Hearing Officer considered and found that the project would have either a beneficial or at least no adverse impact for all of the factors except for the permanence of the project and the impacts on historical or archaeological resources, which were not at issue in this case. I note that I have serious misgivings and doubts about some of the Hearing Officer's findings of fact. I have particular misgivings regarding her findings that the removal of mangroves can actually have a beneficial effect on water quality, marine productivity, fishing or recreation values, conservation of fish or wildlife, or public health, safety and welfare. I believe such findings are contrary to the great weight of scientific knowledge, and contrary to the implicit findings of the Legislature when it enacted the Mangrove Protection Act, Sections 403.93-.938, Florida Statutes, which generally prohibits the cutting, removal, defoliation, or other destruction of mangroves without a permit. Nevertheless, I am bound by the findings of fact unless, after a full inspection of the record, I conclude that the findings of fact are not supported in the record by any competent substantial evidence. 5/ Section 120.68(10), Florida Statutes; Freeze v. Dept. of Business Regulation, 556 So.2d 1204 (Fla. 5th DCA 1990); Berry v. Dept. of Environmental Regulation, 530 So.2d 1019 (Fla. 4th DCA 1988); Heifetz v. Dept. of Business Regulation, 475 So.2d 1277 (Fla. 1st DCA 1985). In this case there is no transcript of the hearing, and I have no way of determining whether in fact these findings of fact by the Hearing Officer are supported by any competent substantial evidence. Therefore I am reluctantly bound by the findings of fact. Section 403.918(2), Florida Statutes, requires that the seven factors be balanced to determine whether the project is not contrary to the public interest. It might be inferred from Finding of Fact No. 13, and from the Hearing Officer's acceptance of Batell's proposed findings of fact, that the Hearing Officer balanced the factors and concluded that the applicant had met her original burden of showing that the project is not contrary to the public interest. However, the balancing of the various factors to determine whether the project is not contrary to the public interest is a conclusion of law over which I have final authority and responsibility to determine. 1800 Atlantic Development v. Department of Environmental Regulation, 552 So.2d 946 (Fla. 1st DCA 1989), rev. den., 562 So.2d 345 (Fla. 1990); J.T. McCormick v. City of Jacksonville, 12 FALR 960, 978-9 (DER Final Order, Jan. 22, 1990), rev. on other grounds sub nom., Perry, et al. v. City of Jacksonville, (Florida Land and Water Adjudicatory Comm'n Final Order No. 90-001, Feb. 14, 1991) I may reject a hearing officer's conclusion of law so long as my conclusion of law is consistent with the facts found by the hearing officer and accepted by me. Although I am inclined to reject the Hearing Officer's conclusion that the project is not contrary to the public interest, I am not at liberty to do so because my conclusion would be inconsistent with the Hearing Officer's finding of facts. Accordingly, I must reluctantly accept the conclusion that the project is not contrary to the public interest. MITIGATION In Exception No. 4, the Department takes exception to the fact that the recommendation of the Hearing Officer does not include any requirement for mitigation, even though mitigation was proposed by Batell at the hearing. In view of the fact that I have accepted the Hearing Officer's conclusion that the project is not contrary to the public interest, no mitigation is required. Therefore Exception No. 4 is rejected. Accordingly, it is therefore ORDERED that: Except as otherwise stated herein, the Hearing Officer's Recommended Order is adopted and incorporated by reference; and The Department shall forthwith issue a permit to Petitioner Geraldine V. Batell pursuant to Application No. MA521949293.
Recommendation Accordingly, it is RECOMMENDED: That Petitioner be granted the permit to remove the mangrove three which was preliminarily denied in File No. MA 521949293. DONE and ENTERED this 17th day of January, 1992, in Tallahassee, Florida. VERONICA E. DONNELLY Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of January, 1992. APPENDIX TO RECOMMENDED ORDER Petitioner's proposed findings of fact are addressed as follows: Accepted. Accepted. Accepted. Accepted. See HO #5, #6, #8 and #9. Accepted. See HO #2, #7, #12 and #15. Accepted. See HO #9, #10, #13 and #16. Accepted. Except for Mr. Steinke's affidavit. See Preliminary Statement. Accepted. See HO #17. Respondent's proposed findings of fact are addressed as follows: Rejected. Contrary to fact. There was only one mangrove. See HO #5, #6, #8 and #9. The rest is accepted. See HO #8. Accepted. See HO #1. Accepted, except there is only one mangrove tree. See HO #5, #6, #8 and #9. One mangrove tree. Otherwise accepted. See HO #2. Accepted. See HO #7. Accepted. Rejected. Contrary to fact. See HO #6. Accepted. Accepted. See HO #1. Accepted. See HO #1 and #2. Accepted. See HO #1 and #2. Accepted. See HO #2. Accepted. Rejected. Cumulative. Rejected. Contrary to fact. See HO #9 - #11. Accepted. See HO #4. (Only one mangrove). Rejected. Contrary to fact. Petitioner does not have a stand of mangroves on her privately owned submerged lands. See HO #4. Accepted. Accepted. One mangrove. Otherwise accepted. One mangrove. Otherwise accepted. Rejected. Contrary to fact. See HO #17. Rejected. Irrelevant. See HO #16. Contrary to fact. See HO #10. Rejected. Irrelevant. See HO #16. Contrary to fact. See HO #10. Rejected. Contrary to fact. See HO #10. Rejected. Contrary to fact. See HO #10. Accepted. (One mangrove) Accepted, generally but not on this site. See HO #10. Rejected. Contrary to fact. See HO #10, #13 and #16. COPIES FURNISHED: GERALDINE V BATELL 1184- 79TH STREET S ST PETERSBURG FL 33707 DOUGLAS BEASON ESQ ASST GENERAL COUNSEL DEPT OF ENVIRONMENTAL REGULATION 2600 BLAIRSTONE RD TALLAHASSEE FL 32399 2400 CAROL BROWNER, SECRETARY DEPT OF ENVIRONMENTAL REGULATION TWIN TOWERS OFFICE BLDG 2600 BLAIRSTONE RD TALLAHASSEE FL 32399 2400 DANIEL H THOMPSON ESQ GENERAL COUNSEL DEPT OF ENVIRONMENTAL REGULATION 2600 BLAIRSTONE RD TALLAHASSEE FL 32399 2400
The Issue As stated by the Administrative Law Judge in her Recommended Order, the issue presented is: "should certain outdoor advertising signs owned by Respondent, Universal Outdoor Atlantic Coast (Universal) be removed as a result of notices of violations brought by Petitioner, Department of Transportation (the Department) against Universal?"
Findings Of Fact After review of the record in its entirety, it is determined that the Administrative Law Judge's Findings of Fact contained in paragraphs 1-3, 5-17, and 19-20 of the Recommended Order are supported by the record and are accepted and incorporated as if fully set forth herein. Finding of Fact No. 4 is modified and references therein to the lack of competent evidence regarding Volusia County's land use regulations are rejected and deleted as such findings are not supported by the competent substantial evidence in the record and are not in accordance with applicable law. Finding of Fact No. 4 as herein modified is accepted and incorporated as if fully set forth herein. Finding of Fact No. 18 as corrected hereinabove is supported by the record and is accepted as corrected and incorporated as if fully set forth herein.
Conclusions This proceeding was initiated by Requests for Formal Administrative Hearing filed by Respondent, UNIVERSAL OUTDOOR ATLANTIC COAST (hereinafter UNIVERSAL), on January 14, 1999. The requests for an administrative hearing were filed in response to Notices of Violation issued by Petitioner, DEPARTMENT OF TRANSPORTATION (hereinafter DEPARTMENT), on January 7, 1999, for UNIVERSAL'S sign structures located adjacent to US 1 and Interstate 95, in Volusia County, Florida. The Notices were issued because UNIVERSAL unlawfully reerected its nonconforming outdoor advertising signs which were destroyed by fire. The matter was referred to the Division of Administrative Hearings (hereinafter "DOAH"), and DOAH issued its Initial Orders assigning the cases to Suzanne F. Hood, a duly appointed Administrative Law Judge, and setting forth the responsibilities of the parties. On March 4, 1999, the Administrative Law Judge issued an order consolidating the cases. The hearing was conducted in Daytona Beach, Florida, on August 19, 1999, before Suzanne F. Hood, Administrative Law Judge. Appearances on behalf of the parties were as follows: For Petitioner: Robert M. Burdick, Esquire Assistant General Counsel Department of Transportation 605 Suwannee Street, MS 58 Tallahassee, Florida 32399-0458 For Respondent: Aileen M. Reilly, Esquire Livingston & Reilly, P.A. Post Office Box 2151 Orlando, Florida 32802-2151 At the hearing, UNIVERSAL introduced and had accepted into evidence UNIVERSAL'S Exhibit 1, and presented the testimony of one witness. The Administrative Law Judge reserved ruling on the admissibility of UNIVERSAL'S Exhibit 2, which was later accepted in the Administrative Law Judge's Recommended Order. The DEPARTMENT introduced the DEPARTMENT'S Exhibits 1 through 4; Exhibits 1 through 3 were admitted into evidence and Exhibit 4 was denied as irrelevant and inadmissible hearsay. The DEPARTMENT also introduced the trial testimony and portions of the deposition testimony of Michael Kuypers presented in cases consolidated under DOAH Case No. 99-0486T, as the DEPARTMENT'S Exhibit 5. The testimony of two additional witnesses was presented by the DEPARTMENT. A transcript was prepared and filed subsequent to the hearing. On October 27, 1999, the Administrative Law Judge issued her Recommended Order. Exceptions to the Recommended Order were filed by UNIVERSAL on November 10, 1999, and the DEPARTMENT filed its response to UNIVERSAL'S exceptions on November 18, 1999. The DEPARTMENT filed exceptions to the Recommended Order on November 4, 1999, and UNIVERSAL filed its response to the DEPARTMENT'S exceptions on November 15, 1999.
Appeal For This Case THIS ORDER CONSTITUTES FINAL AGENCY ACTION AND MAY BE APPEALED BY ANY PARTY PURSUANT TO SECTION 120.68, FLORIDA STATUTES, AND RULES 9.110 AND 9.190, FLORIDA RULES OF APPELLATE PROCEDURE, BY FILING A NOTICE OF APPEAL CONFORMING TO THE REQUIREMENTS OF RULE 9.110(d), FLORIDA RULED OF APPELLATE PROCEDURE, BOTH WITH THE APPROPRIATE DISTRICT COURT OF APPEAL, ACCOMPANIED BY THE APPROPRIATE FILING FEE, AND WITH THE DEPARTMENT'S CLERK OF AGENCY PROCEEDINGS, HAYDON BURNS BUILDING, 605 SUWANNEE STREET, M.S. 58, TALLAHASSEE, FLORIDA 323990458, WITHIN THIRTY (30) DAYS OF RENDITION OF THIS ORDER. Copies furnished to: Robert M. Burdick, Esquire Assistant General Counsel Department of Transportation 605 Suwannee Street, MS 58 Tallahassee, Florida 32399-0458 Peter Wright District Five ODA Administrator 719 South Woodland Boulevard DeLand, Florida 32721-0057 Juanice Hagan Assistant State Right of Way Manager for Operations Department of Transportation Haydon Bums Building 605 Suwannee Street, MS 22 Tallahassee, Florida 32399-0450 Aileen M. Reilly, Esquire Livingston & Reilly, P.A. Post Office Box 2151 Orlando, Florida 32802-2151 Suzanne F. Hood Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060
The Issue The issues for determination in this case are whether Respondent is indebted to Petitioner for the purchase of agricultural products, and whether such indebtedness constitutes a breach of the conditions of the bond posted by the Surety for which payment should issue.
Findings Of Fact Petitioner, DONNIS A. BARBER and KATHLEEN BARBER, d/b/a PEACE RIVER GROWERS (PEACE RIVER GROWERS), is a producer of agricultural products, primarily nursery ornamental plants, located in Zolfo Springs, Florida. Donnis A. Barber is an owner of PEACE RIVER GROWERS. Respondent, TOULIA XIOTAS INCORPORATED, d/b/a GULF BREEZE LANDSCAPING (GULF BREEZE), is a licensed dealer in agriculture products, holding license number 10091, issued by the Department of Agriculture and Consumer Services. At all material times, David Joy was the manager of GULF BREEZE. Co-Respondent and Surety, FRONTIER INSURANCE COMPANY OF NEW YORK (FRONTIER), posted Bond Number 5004806 in the amount of $9,999.00 in support of Respondent's license as a dealer in agricultural products. The inception date of the bond was April 30, 1996, and the expiration date of the bond was April 30, 1997. Prior to 1997, Petitioner PEACE RIVER GROWERS had sold agriculture products to GULFBREEZE for several years. GULF BREEZE would, in the usual course of business, order products by telephone which would be delivered by PEACE RIVER GROWERS with payment in full due at the time of delivery. GULF BREEZE changed ownership in 1996. Under its new ownership and manager David Joy, GULF BREEZE continued to order and receive agricultural products from PEACE RIVER GROWERS in 1997. GULF BREEZE, for several transactions in 1997, paid in full for the delivered agricultural products. On four business transactions in 1997 GULF BREEZE failed to pay for the agricultural products received from PEACE RIVER GROWERS at the time of delivery. Specifically, on February 26, 1997, PEACE RIVER GROWERS delivered products to GULF BREEZE valued at $831.20; on March 7, 1997, PEACE RIVER GROWERS delivered products valued at $857.50; on March 11, 1997, PEACE RIVER GROWERS delivered products valued at $425.00; and on April 4, 1997, PEACE RIVER GROWERS delivered products valued at $945.00. The total value of the agricultural products delivered by PEACE RIVER GROWERS to GULF BREEZE on these four occasions is $3,058.70. At the time of each of these four deliveries, PEACE RIVER GROWERS was informed by an employee of GULF BREEZE that the manager, David Joy, was not present, but that payment by check would be mailed. Upon failing to receive payment the delivery of April 4, 1997, PEACE RIVER GROWERS ceased making deliveries of agricultural products to GULF BREEZE. After several demands for payment by PEACE RIVER GROWERS, GULF BREEZE on May 27, 1997, remitted $200.00 to PEACE RIVER GROWERS, which amount was applied to a January 17, 1997, delivery, and which is not at issue in these proceedings. GULF BREEZE failed to properly make payment for agricultural products delivered by PEACE RIVER GROWERS and is indebted to SARASOTA GROWERS in the amount of $3,058.70.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered directing Respondent TOULIA XIOTAS INCORPORATED, d/b/a GULF BREEZE LANDSCAPING, to pay Petitioner DONNIS A. BARBER, d/b/a PEACE RIVER GROWERS $3,058.70 for agricultural products sold to Respondent, and in the event Respondent fails to make such payment, within fifteen (15) days of that order, that the Surety be required to pay pursuant to the bond posted. DONE AND ENTERED this 14th day of November, 1997, in Tallahassee, Leon County, Florida. RICHARD HIXSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUMCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 14th day of November, 1997. COPIES FURNISHED: Brenda Hyatt, Chief Department of Agriculture and Consumer Services 508 Mayo Building Tallahassee, Florida 32399-0800 Sharon Moultry, Clerk Human Relations Commission Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149 Richard Tritschler, General Counsel Department of Agriculture and Consumer Services The Capitol, Plaza Level 10 Tallahassee, Florida 32399 Donnis A. Barber, Owner Peace River Growers Highway 66 East Post Office Box 780 Zolfo Springs, Florida 33890 Toulia Xioutas, Incorporated Gulf Breeze Landscaping 901 MacEwen Drive Osprey, Florida 34229 Frontier Insurance Company of New York 195 Lake Louise Marie Road Rock Hill, New York 12775-8000
Findings Of Fact The Petitioner, James M. Brown, d/b/a Ramrod Development Company, is seeking to develop as residential property, the subject land on Ramrod Key, Monroe County, Florida, adjacent to the Torch Ramrod Channel. The specific filling project which is the subject of this hearing involves Mariposa Road and Angelfish Road which lie within the property described above on Ramrod Key and which appear on a subdivision plat filed in the official records of Monroe County in 1960 and on revisions of that plat, one of which was filed in 1963 and the more recent of which was filed in 1969. Since February 9, 1960, Monroe County has been the owner of that roadway known as Mariposa Road located on Ramrod Key and which is depicted on the subject plat of Ramrod Shores, Marina Section. Since the county became the owner of that roadway in 1960, through the date of the hearing, it has never given authorization or approval for any person, firm or corporation to place fill material or any other matter upon that dedicated roadway (which includes a section of Angelfish Road as well as Mariposa Road). Monroe County, Florida, has given the Department of Environmental Regulation authorization to require removal of fill material placed on any dedicated county roadway in violation of any law or administrative rule of the Department. On January 27, 1977, the Department personnel visited the subject site and determined dredge and fill activities had indeed taken place on a tidal Red Mangrove fringe area on the shore line of Torch Ramrod Channel without an appropriate permit issued by the Department. The Petitioner, James M. Brown, in sworn testimony, in the earlier proceeding here involved (DOAH Case No. 78- 1234), admitted that since 1969 he has, on numerous occasions, placed fill material in the Mariposa and Angelfish Road areas, which are the subject matter of this proceeding. He also admitted doing so without a permit issued by the Department of Environmental Regulation (See testimony of Brown in DOAH Case No. 77-1409, Atwater vs. Department of Environmental Regulation). In the earlier proceeding involving the Petitioner, DOAH Case No. 78- 1234, Mr. Sayward Wing described the placing of fill on the northern end of Mariposa Road by Monroe County, but this area is not the area now in controversy, which is on the southern part of Mariposa Road from its intersection with Angelfish Road south to Old State Road 4A. Witness Wing in that proceeding did not observe the county or its agents or employees place any fill in the subject area of Mariposa or Angelfish Road. The fill placed on Mariposa Road, between Old State Road 4A and the intersection with Angelfish Road, by the Petitioner, contained approximately 96 cubic yards of fill as of January 27, 1977. The fill placed on Angelfish Road from the Mariposa Road intersection westerly approximately 50 feet, contained approximately 178 cubic yards of fill as of that same date. The area west of Mariposa Road where the dredge and fill work was performed is predominantly vegetated by red mangroves (rhizophora mangle). The red mangroves are then superseded by white mangroves (laguncularia racemosa), black mangroves (avicennia germinans), as well as transitional vegetation. The red mangroves are the dominant vegetative species in the area. These species are found in the vegetative index which defines the Department's jurisdiction in Section 17-4.02, Florida Administrative Code. Witnesses Meyer and Kurer observed large numbers of small fish, predominantly gambusia affinis, in the inundated mangrove area lying on the west side of Mariposa Road. A fringe of red mangroves 50 to 80 feet wide vegetates the area east of Mariposa Road, along the Torch Ramrod Channel shoreline. The sandy mud intertidal and shallow subtidal water bottoms in this area are vegetated by benthic algae and sea grasses. The red mangroves are also the dominant species in this area. Benthic algae (halimeda sp., penicillus sp., gracellaria sp.) and sea grasses (thallassia testudinum and halodule wrightii) are also found in the vegetative index contained in Section 17-4.02, Florida Administrative Code, which delineates the Department's jurisdiction over State waters. The sampling and observations conducted by witnesses Kurer and Meyer in this area yielded silver side anchovies, mosquito fish, killifish, lane snapper, toadfish, needlefish, blennies, barracuda, various juvenile fish species, stonecrabs, amphipods, blue crabs, pink shrimp, isopods, nemerteans, polychaetes, tunicates, gastropods, and bivalves. The mangroves described, as well as associated wetland vegetation found in the area, provide filtration of sediments and nutrients contained in stormwater run-off from adjacent upland areas, as well as from tidal flows. This filtering process is essential in maintaining water quality in the adjacent open bay estuarine or marine system. The nutrients in the tidal waters as well as run-off waters are stockpiled in the sediments retained by the mangrove roots and are transformed into vegetative leaf matter by the mangroves as they live and grow. The extensive root system of the mangroves and their associated vegetation also provides stabilization of estuarine shoreline sediments and attenuation of storm-generated tides. Mangrove wetlands provide unique and irreplaceable habitats for a wide variety of marine as well as upland wildlife species. The Petitioner's activities, conducted without the appropriate approval and permit, have resulted in the alteration of the chemical, physical and biological integrity of State waters in the area of Mariposa and Angelfish Roads by the destruction of wetlands which provide food and habitat for wildlife, and which provide a filtrative and assimilative capacity to remove nutrients and other pollutants from the adjacent bay waters. the discharge of fill on to the mangrove areas, in waters of the State, has resulted in harm and injury to the biological community that existed there before the activity was completed. Specifically, as the testimony of Mr. Helbling (a biologist and water quality expert) establishes, the mangrove community to the east of Mariposa Road was shown not to be in a stressed condition in 1977 or at the time of the hearing. Mr. Helbling's testimony also establishes, however, that the mangrove system to the west of Mariposa Road, in effect inland from the filled portion of the road, is now in a stressed condition as manifested by mangrove trees in this area which area dead, or in the process of dying. This stress is caused primarily by the fact that the waters in the mangrove system to the west of Mariposa Road are impounded by the fill and no longer experience tidal flow or exchange daily. Therefore, being impounded, they are becoming more and more saline through the process of evaporation, to the extent that the mangrove trees are being poisoned. The mangrove tree community was not in this stressed condition in 1977 when this witness first observed it, but is at the present time. The primary reason for the imminent loss of this mangrove community is thus due to Mariposa Road being filled to such a level that there is no longer any tidal exchange of water with Torch Ramrod Channel. Witness Kurer established that the proposed plan of restoration set forth in the Department's exhibit two in Case No. 78-1234 and which has been adopted and admitted into evidence herein, would constitute an acceptable resolution of the dispute at bar. Removal of the fill would allow tidal exchange across Mariposa and Angelfish Roads and allow the mangrove system to restore itself and contribute to the protection and enhancement of the productive and valuable marine resource system in the adjacent bay area. Thus, the discharge of fill on to the mangrove areas involved herein which is within waters of the State, has resulted in harm and injury to that biological community which existed there before the activity was commenced and completed. The quality of waters in the Florida Keys is directly related to the degree of shoreline development by activity such as that undertaken by the Petitioner. The greater the degree of shoreline alteration, then the greater the degree of deterioration in water quality and the greater damage to biological productivity. The mangroves, in addition to their valuable filtrative function, also contribute leaf or detrital matter to the surrounding State waters and estuarine system in the form of decayed leaf litter. This organic component forms the basis of the marine food chain and is used directly for food by a variety of marine organisms, including small fish. A variety of important commercial and sports fish species feed directly on the mangrove detritus or on those fish or other forms of marine life which themselves feed on the detrital matter. Consequently, the destruction of the mangroves contributes directly to the deterioration of water quality through the loss of their filtrative function, as well as to the deterioration of an economically and biologically important sports and commercial fishery. Consequently, the restoration plan proposed by the Department is more of a desirable alternative than leaving the fill in place, in that it would restore the mangrove vegetation which provides the filtrative, assimilative functions in removing nutrients and other pollutants, and also provides food and habitat for fish and wildlife. The Petitioner's activities continue to be a source of pollution which was created without an appropriate and valid permit issued by the Department.
Recommendation In consideration of the foregoing Findings of Fact and Conclusions of Law, the candor and demeanor of the witnesses and pleadings and arguments of counsel, it is RECOMMENDED: That the Department of Environmental Regulation enter a Final Order denying the application for an "after the fact" permit. That a Final Order be entered requiring the Petitioner to completely restore the unauthorized fill site to its original contours and elevations and to revegetate the affected area, pursuant to a restoration plan and compliance schedule approved by the Department, which restoration plan and compliance schedule should be supplied to the Department by the Petitioner within 20 days subsequent to the effective date of the Final Order herein; and that the Petitioner be required within 20 days following approval of the said restoration plan to commence the restoration work which shall be accomplished in such a fashion as to prevent further damage to the marine and estuarine environment involved. It is further required that Petitioner complete the said restoration plan and project within 60 days following the approval of the restoration plan by the Department. DONE AND ENTERED this 21st day of September, 1981, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 904/488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of September, 1981. COPIES FURNISHED: David Paul Horan, Esquire 513 Whitehead Street Key West, Florida 33040 H. Ray Allen, Esquire Assistant General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301
Findings Of Fact Petitioner applied for conditional use approval from Respondent for the package sale of beer, wine and liquor (4-COP) at 2779 Gulf-To-Bay Boulevard, Clearwater, Florida, on or after September 4, 1987. The subject property is zoned general commercial (CG), and conditional use approval is required for package sales on property zoned CG. Conditional use approval was previously granted for this property on June 30, 1987, to allow on-premises consumption of alcoholic beverages, but this prior approval is not under review in this proceeding. On October 13, 1987, the Planning and Zoning Board voted unanimously to deny Petitioner's application for the package sale of beer, wine and liquor. Petitioner has timely sought review of the Planning and Zoning Board decision. It is undisputed that the subject property is less than 500 feet from an adult congregate living facility (ACLF) which constitutes the residence of approximately 300 persons. Frank Pascoe, the President and representative of the ACLF, testified about the residents' concerns about security, and the adverse impact of this application on the general welfare of their neighborhood. Paula Harvey, Planning Director, testified about the adverse impacts of this application on neighborhood noise, traffic and parking. Ordinance 4470-87 applies to this application since said Ordinance, by its terms, governs applications filed subsequent to September 3, 1987. Petitioner offered no evidence in support of its application. Specifically, there is no evidence in the record favorable to the applicant concerning noise, parking and the compatibility of this application with the neighborhood.
The Issue The issue is whether Petitioner was subjected to a hostile work environment in violation of Subsection 760.10(1), Florida Statutes (2005).1
Findings Of Fact Petitioner is a female who was employed by Gulf Breeze as a sales representative from 2003 until her employment was terminated on February 9, 2006. Petitioner was 63 years old when she was hired to work as a sales representative with Gulf Breeze. Petitioner was an experienced and successful sales representative. In 2004, Petitioner received a "million dollar ring" in recognition of her outstanding sales record with Gulf Breeze. Petitioner is an "aggrieved person" within the meaning of Subsections 760.02(6) and (10), Florida Statutes. Gulf Breeze is a licensed real estate broker that is in the business of selling real estate interests in timeshare resorts. Gulf Breeze conducts this business at an off-site office located at 4300 Duhme Road, Madeira Beach, Florida. The Berkeley Group, Inc., is the parent company of Gulf Breeze and its headquarters is located in Ft. Lauderdale, Florida. Respondent is an "employer" within the meaning of Subsection 760.02(7), Florida Statutes. The Berkley Group purchased Bay and Beach Resort located in Indian Shores as the start-up property for its timeshare sales operation in 2003. That location was eventually replaced by the stand-alone sales center in the Madeira Beach location. In 2003, when Petitioner was initially employed by Gulf Breeze, she was hired by Dennis Bill, the project manager or director of sales for Gulf Breeze. Prior to being employed by Gulf Breeze, Petitioner had worked with Mr. Bill for 15 or 20 years in the timeshare sales business. At Gulf Breeze, the job of the project manager is: to oversee and supervise the sales operation and its staff; to ensure that the sales staff members are trained and are successfully performing their jobs; and (3) to motivate the sales force. From August or September 2005 through February 2006, Dale Wagner was project manager for Gulf Breeze. As project manager, Mr. Wagner supervised the eight to ten sales representatives in the Gulf Breeze office. Of that number, two-thirds were over 40 years old. During the time Mr. Wagner was project manager, there were noticeable changes in the work environment at the Gulf Breeze office. Those changes included: (1) the excessive use of profanity in the office; (2) the presence and/or consumption of alcoholic drinks in the office or during the workday; (3) the presence of marijuana in the office; and (4) the berating of employees by derogatory name-calling. While he was project manager, Mr. Wagner and a sales manager, Michael Wiseman, used profanity repeatedly and almost everyday in the Gulf Breeze office, including during sales or staff meetings. Mr. Wagner and Mr. Wiseman used the terms "goddamn" and "f**k," respectively, as part of their general vocabulary. Petitioner sometimes observed that during the workday, it appeared that Mr. Wagner, while project manager, had been consuming some type of alcoholic drink(s). Petitioner and another sales representative sometimes smelled alcohol on Mr. Wagner's breath when he came to the table to work with them on transactions. Mr. Wagner acknowledged that he occasionally had a drink or two at lunch, but denied that he ever consumed alcohol in the office. Petitioner had reason to believe that marijuana was being brought to the Gulf Breeze office by one or more employees and being given or sold to some other employees. Petitioner was very concerned and disturbed by the unprofessional environment at the Gulf Breeze office. Petitioner was especially concerned about Mr. Wagner and Mr. Wiseman using profanity in the office and about her perception that alcohol and/or drugs (marijuana) were being brought into the office by employees. Petitioner reported her concerns to Pam Montanez, the human resources representative at the Gulf Breeze office, at least four times, but did not submit any written complaints to the local or corporate office. Petitioner did not specify when she reported her complaints to Ms. Montanez. There is no evidence that Ms. Montanez took action to alleviate the conduct that Petitioner reported to her. Consequently, the behaviors and other activities continued to occur in the Gulf Breeze office. Three female sales representations at Gulf Breeze during the time Mr. Wagner was project manager, including Petitioner, viewed his conduct toward women as demeaning. According to Petitioner, when Mr. Wager became project manager, there was "hell to pay every time we went to work." While he was project manager, Mr. Wagner called Petitioner derogatory names and made inappropriate comments to her in the Gulf Breeze office. For example, Mr. Wagner told Petitioner, "Go take your [hormone] medicine and sit down."2 He also told Petitioner that she was too old to be working and needed to retire. Sometimes when Mr. Wagner walked by Petitioner, he called her an "old hag," "whore," and "slut." When Mr. Wagner made these comments to Petitioner and called her names, other employees were present and heard him. Once when Mr. Wagner and several other male employees were in an office with the door cracked, Michael Booth, a salesman for Gulf Breeze, overheard them discussing how they could get rid of that "old hag" or "old bitch" or "old woman." Mr. Booth believed that the men in the office were referring to Petitioner. When this conversation took place, Mr. Wagner was not the project manager and had no supervisory responsibility for Petitioner. Also, there is no indication that Petitioner heard this conversation. Prior to being employed by Gulf Breeze, Petitioner had previously worked with Mr. Wagner and had not experienced any problems with him. However, during the time he was project manager, Mr. Wagner's behavior toward Petitioner changed. Although Petitioner did not know the reason for that change, she testified that the negative changes in Mr. Wagner's behavior at work were caused by his alcohol consumption, not to her membership in a protected class. Mr. Wagner disputes Petitioner's statement that his conduct at work was affected by his consumption of alcohol. Inez Verhagen, a sales representative, described Mr. Wagner's management style as "management by intimidation." This description is based on the manner in which Mr. Wagner regularly communicated with Ms. Verhagen. While project manager, Mr. Wagner yelled at Ms. Verhagen everyday and, sometimes, did so in the presence of clients. On one occasion, Mr. Wagner once came to the table where Ms. Verhagen was meeting with two clients and began yelling and screaming at her and then walked away. Given the lapse in time, Ms. Verhagen could not recall the reason Mr. Wagner was yelling at her. After Mr. Wagner left the table, one of the clients at the table, Beverly, asked Ms. Verhagen, "Does he always treat you this way?" Ms. Verhagen answered, "Yes, ma'am, he does." The client then asked Ms. Verhagen, "How do you stand this?" "You need to get out of here before you have a bleeding ulcer." While employed at Gulf Breeze, Ms. Verhagen complained to Ms. Montanez about Mr. Wagner's repeated verbal abuse toward her. Ms. Montanez never followed up with Ms. Verhagen, and it appears that nothing was ever done to address the complaints. Moreover, throughout Ms. Verhagen's employment, Mr. Wagner's conduct did not change. During the time Mr. Wagner was project manager, Ms. Verhagen never heard him yell at any of the male sales representatives. Thus, she believed that male employees at Gulf Breeze were excluded from and not subjected to Mr. Wagner's intimidating management style. As a result of Mr. Wagner's behavior toward her, Ms. Verhagen voluntarily left her job at Gulf Breeze. Michelle Ferrara was a sales representative at Gulf Breeze in the Fall of 2005, when Mr. Wagner became project manager. According to Ms. Ferrara, after Mr. Wagner assumed that position, the work environment at Gulf Breeze was not "pleasant" and "a lot of constant degrading comments" were made in the workplace. Ms. Ferrara also believed that Mr. Wagner sometime treated her unfairly and did not implement policies consistently. At Gulf Breeze, new sales representatives sometimes worked with managers on sales presentations. When these presentations resulted in a sale, the practice at Gulf Breeze was for the commission to be shared between the manager and the new sales representative. Ms. Ferrara participated in such a presentation, but was told by Mr. Wagner, then project manager, that she would not receive any part of the commission because the male manager with whom she had worked believed that she [Ms. Ferrara] did not deserve it. While he was project manager, Mr. Wagner yelled at, embarrassed, and berated Ms. Ferrara many times. In one instance, Mr. Wagner called Ms. Ferrara into his office. At the time, there were two male employees sitting in Mr. Wagner's office. Ms. Ferrara did not testify as to the substance of Mr. Wagner's comments to her. Nonetheless, Ms. Ferrara recalled clearly that Mr. Wagner "just tore into [her]" and "embarrassed and berated" her in the presence of the two male employees. A new employee at Gulf Breeze approached Ms. Ferrara and asked if Gulf Breeze provided formal training. Ms. Ferrera believed that formal training involved structure and training in a classroom setting at designated and extended time frames (i.e., most of the day). Since no such training was provided at Gulf Breeze, Ms. Ferrara told the new employee that there was no formal training and that new employees simply learned on the job. Apparently, Mr. Wagner overheard and disagreed with Ms. Ferrara's response to the new employee. To express his disagreement with Ms. Ferrara's response, Mr. Wagner "grabbed" Ms. Ferrara and "just started screaming" at her. In another incident, Ms. Ferrara arrived at work about 8:13 a.m., but did not immediately go into the Gulf Breeze office. Instead, she stayed in her car "to do something." (Employees were required to be in the office by 8:15 a.m.). It is unknown how long Mr. Ferrara stayed in her car, but when she got out of her car and went into the Gulf Breeze office, a male employee entered the building just before she did. As the male employee signed in, Ms. Ferrara was a few feet behind him, waiting to sign in for work. Mr. Wagner approached Ms. Ferrara and asked her, "What [were] you doing?" Mr. Wagner then told Ms. Ferrara, "You shouldn't be in your car. You're supposed to be in here." Although Ms. Ferrara and the male employee came into the office about the same time, Mr. Wagner said nothing to the male employee. Ms. Ferrara believed it was inappropriate for Mr. Wagner to make the foregoing comments to her because there were customers in the immediate vicinity. She also believed that it was unfair to make any statements to her and not to the male employee since they both came into the office about the same time. Mr. Wagner, while project manager, would comment that "she [Ms. Ferrara] is in la-la land." Ms. Ferrara never reported any of the foregoing incidents to Ms. Montanez or to anyone in corporate headquarters. However, as a result of Mr. Wagner's conduct, Ms. Ferrara voluntarily left her job at Gulf Breeze. Mr. Wagner also made offensive comments to Mr. Booth, who was employed as a sales representative at Gulf Breeze from about March 2005 through January 2006. Initially, Mr. Bill was the project manager and Mr. Booth's supervisor. In August or September 2005 until January 2006, Mr. Wagner replaced Mr. Bill as project manager and was Mr. Booth's supervisor. Throughout Mr. Booth's employment at Gulf Breeze, including the period when Mr. Wagner was project manager, Mr. Wagner made inappropriate comments to Mr. Booth. For example, Mr. Wagner would make comments about Mr. Booth's sexuality and would refer to him (Booth) as a "fag" or "queer." Mr. Wagner would call Mr. Booth those names when he walked past him (Booth) in the office. Mr. Wagner also made comments such as "I'm not picking on you because you're a fag" and "I don't have anything against homos."3 Mr. Booth made several complaints to Ms. Montanez, some of which concerned Mr. Wagner's inappropriate conduct toward him (Mr. Booth) and toward Petitioner. In response to at least one of Mr. Booth's complaints about Mr. Wagner, Ms. Montanez told him that she would call someone in Ft. Lauderdale (the corporate office), that "we're going to handle it," and that she would then get back with him. Later, Mr. Montanez reported to Mr. Booth that she had contacted the corporate office and was told that the local office should handle the matter and "to keep the corporate office out of it." Mr. Wagner testified that the sale of timeshare interests is a difficult and stressful job. Sales representatives in the business must convince prospective customers to purchase a product that they do not need (i.e., luxury item). Gulf Breeze incurs an upfront expense before a prospective customer walks in the door. Thus, the pressure on the sales representatives is increased by the fact that only one out of eight to one out 12 sales presentations result in a sale. The project manager must ensure that sales representatives are trained, motivated, and performing their jobs. Mr. Wagner does not deny that, as project manager, he sometimes yelled at sales representatives. According to Mr. Wagner, he "raise[d] his voice" when talking to employees to get them motivated and to "try to get them in the right direction." According to Mr. Wagner, every sales representative at Gulf Breeze receives training in the proper methods for conducting sales. Gulf Breeze expects its sales representatives to be courteous to the customers and to refrain from twisting the customers' arms in order to make a sale. Florida law allows a purchaser of a timeshare interest ten days to rescind the purchase. Sales representatives at Gulf Breeze are told that they are not to "pitch rescission" when making a sales presentation. The term "pitch rescission" refers to a technique in which the sales representative induces the customer to purchase a timeshare interest by using the cancellation as a sales tool. The project manager is authorized to impose disciplinary action against a sales representative who violates the prohibition against "pitching rescission," or any other company procedure. Gulf Breeze has no disciplinary guidelines and the project manager has the discretion to impose whatever disciplinary action he believes is appropriate. On or about February 8, 2006, Mr. Wiseman told Mr. Wagner that he had observed Petitioner pitching rescission to a customer in order to induce a purchase. At the time, Petitioner's cancellation rate for purchases was 80 percent, while the average cancellation rate for other sales representatives was between 18 percent and 22 percent. In light of the foregoing, Mr. Wagner decided to meet with Petitioner. When Petitioner arrived at work on the morning of February 9, 2006, Mr. Wagner told her to come into his office to meet with him and two sales managers, Larry VonStein and Mr. Wiseman. Mr. Wagner did not tell Petitioner the reason he wanted to meet with her. Moreover, there is no evidence that Petitioner knew the reason Mr. Wagner wanted her to come into his office. Mr. Wagner wanted the two sales managers in the meeting with Petitioner so that they were "aware of what was happening" and to ensure that "everyone was on the same page." Petitioner told Mr. Wagner that she did not want to meet alone with three men. Mr. Wagner then ordered Petitioner to go downstairs and sit in her car until Ms. Montanez got to the office. He indicated that when Ms. Montanez arrived, they would go to her office and talk. It is unclear why Mr. Wagner required Petitioner to wait in her car, rather than in the Gulf Breeze office. Petitioner did not leave the building and go to her car as Mr. Wagner had ordered. Petitioner got a chair and sat in the back of the room where a regular sales meeting was being held and told Mr. Wagner that she was not leaving. At some point, Petitioner apparently became upset and/or agitated, and according to Mr. Wagner, "threw a fit" and was screaming and disrupting the sales meeting. This episode lasted for about ten minutes. After Petitioner refused to leave, the situation escalated when Mr. Wagner threatened to call the police, presumably to have Petitioner removed from the Gulf Breeze office. Petitioner responded by telling Mr. Wagner that he could call the police, but she was not leaving. Mr. Wagner contacted Ms. Montanez on her cell phone and asked her to come in early to help him deal with Petitioner. Before the call was completed, Petitioner also spoke with Ms. Montanez. After talking with Ms. Montanez, the situation apparently calmed down, and Petitioner went downstairs and waited for Ms. Montanez to arrive at the office. After Ms. Montanez arrived at the Gulf Breeze office, she and Petitioner went upstairs to Ms. Montanez' office, where they were later joined by Mr. Wagner. The issue that Mr. Wagner had initially planned to discuss with Petitioner, the charge that she had "pitched rescission during a presentation," was never addressed. Instead, during the meeting, Mr. Wagner terminated Petitioner's employment for insubordination.4 Mr. Wagner initially intended to talk to Petitioner about the charge that she had pitched rescission, but did not plan to terminate her for issues related to that charge. Gulf Breeze has an anti-discrimination policy which expressly prohibits discrimination based on race, color, religion, sex, age, handicap, national origin, marital status or veteran status. The anti-discrimination policy is included in the employee manual which is disseminated to employees who must acknowledge, in writing, receipt of the policy. Gulf Breeze also provides a separate statement to its employees notifying them, again, of the company's anti-discrimination policy and reporting procedures. Gulf Breeze's anti-discrimination policy provides that an employee should report any problems or allegations of discrimination and harassment to the employee's direct supervisor, the on-site human resource representative, or the corporate human resource director. The employee may also notify the company of alleged discrimination by anonymously completing a form provided in or on the back of the Employee Handbook. Petitioner received the Employee Handbook and the company's workplace harassment policy and signed a document acknowledging receipt of the Employee Handbook and Gulf Breeze's anti-discrimination policy. Vickie Dockery-Ruiz is the corporate human resource director, has held that position since 1999, and works out of the corporate office in Ft. Lauderdale, Florida. To facilitate employee communication and resolution of disputes, each resort has its own on-site human resources representative (human resources manager). At all times relevant to this proceeding, Ms. Montanez was the human resources manager for Gulf Breeze. Prior thereto, Ms. Montanez served in that same position at the Bay and Beach location. Petitioner was familiar with the Gulf Breeze anti-discrimination policy and knew how to file a charge of discrimination and/or harassment. In fact, Petitioner had filed a written complaint on or about September 19, 2005, against a co-worker, Joel Zackheim. Petitioner sent the complaint to Ms. Dockery-Ruiz at the corporate office and to Ms. Montanez at the Gulf Breeze office. The complaint arose out of an incident which occurred during a staff or sales meeting during which Mr. Zackheim intentionally pulled a chair from under Petitioner, resulting in her falling on the floor. In her written complaint, Petitioner recounted the incident and noted that Mr. Zackheim had pulled a chair over her leg and in a very loud voice, called her a "damn bitch." Petitioner reported that as a result of Mr. Zackheim's actions, she sustained an injury to her leg which was diagnosed as a contusion and required medical care.5 Petitioner's September 19, 2005, complaint was promptly investigated, and Ms. Montanez issued a written response on or about September 29, 2005. The response noted that Petitioner's diagnosis had been confirmed as had Mr. Zackheim's actions. As a result of his actions, Mr. Zackheim was put on unpaid leave from October 2, 2005, through October 9, 2003, and warned that another incident such as this could be grounds for termination. Mr. Zackheim was also advised to be respectful to fellow employees and to maintain a positive attitude in the working environment. Petitioner's September 19, 2005, complaint did not include any allegations of harassment or other wrong doing by Mr. Wagner. On or about February 9, 2006, after she was terminated, Petitioner called Ms. Dockery-Ruiz and reported actions which she believed to constitute sexual harassment that had occurred while she (Petitioner) was employed at Gulf Breeze. Ms. Dockery-Ruiz requested that Petitioner write a letter detailing her specific allegations. Petitioner complied with that request and made allegations of sexual harassment. Although Petitioner had been terminated, the president of the company investigated the allegations of sexual harassment at Gulf Breeze. The investigation concluded that there was no sexual harassment. Except for one incident that involved a Gulf Breeze employee, Mr. Zackheim, Ms. Dockery-Ruiz was never notified of any of the alleged activities Petitioner discussed after [Petitioner's] termination. Soon after Mr. Wagner terminated Petitioner's employment with Gulf Breeze, his employment with the company also ended.6 Mr. Wagner was re-employed by the parent company and is at working at a resort in Orlando, Florida.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be issued by the Florida Commission on Human Relations dismissing Petitioner's Petition for Relief. DONE AND ENTERED this 29th day of January, 2009, in Tallahassee, Leon County, Florida. S CAROLYN S. HOLIFIELD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of January, 2009.
Findings Of Fact The Department is the state agency charged with the responsibility of enforcing Chapter 253, Florida Statutes on behalf of the Board of Trustees of the Internal Improvement Trust Fund (Board). The Board holds title to submerged sovereign lands pursuant to Sections 253.03 and 253.12, Florida Statutes, and Article X, Section 11, Florida Constitution. Fraraccio, together with his wife, owns a parcel of real property located in section 13, township 38 south, range 41 east which is commonly known as 26 High Point Road and which is located in Martin County, Florida. The southern boundary of the Fraraccio's property (subject property) borders the St. Lucie and Indian Rivers. In June, 1987, Fraraccio filed an application for permission to alter mangroves which grow along the shoreline of the subject property. It was Fraraccio's intention to cut the tops of the trees in order to promote horizontal growth. This application was filed with and processed by the Department of Environmental Regulation (DER). On September 1, 1987, DER issued a permit for the mangrove alteration. Pertinent to this proceeding is the following specific condition of the Fraraccio permit: 4. "No person shall commence mangrove alteration or other activity involving the use of sovereign or other lands of the state, title to which is vested in the Board of Trustees of the Internal Improvement Trust Fund or the Department of Natural Resources under Chapter 253, until such person has received from the Board of Trustees of the Internal Improvement Trust Fund the required lease, license, easement, or other form of consent authorizing the proposed use. Pursuant to Florida Administrative Code Rule 16Q-14, if such work is done without consent, or if a person otherwise damages state land or products of state land, the Board of Trustees may levy administrative fines of up to $10,000 per offense. In October, 1987, the Department's Bureau of Survey and Mapping was asked to survey the west line of the Jensen Beach to Jupiter Inlet Aquatic Preserve (Preserve) at the confluence of the St. Lucie River. Terry Wilkinson, chief surveyor for the bureau, conducted the field survey on October 14-16, 1987. Mr. Wilkinson placed a metal rebar with a cap designating "D.N.R." at a point on the mean high water (MHW) line at the Fraraccio's property. Mr. Wilkinson also staked three points with lathe markers on a line northerly along the MHW line from the rebar monument. It was Mr. Wilkinson's opinion that the Preserve abutted the Fraraccio property from the point marked by the rebar monument northward along the coast. That portion of the Fraraccio property which was south and west of the rebar did not abut the Preserve. Fraraccio disputed the findings regarding the Preserve boundary reached by Wilkinson and did not concede that his property abuts the Preserve. On December 15, 1987, the issue of the Preserve boundary was taken before the Governor and Cabinet sitting as the Board at the request of the Department, Division of State Lands. Fraraccio was represented before the Board by counsel who argued against the staff recommendation. Mr. Wilkinson's interpretation of the boundary line for the Preserve was approved. That area waterward of the MHW line from the rebar monument northerly along the Fraraccio shoreline was, therefore, deemed to be part of the Preserve and sovereign submerged land. Prior to cutting any mangrove trees, Fraraccio telephoned Casey Fitzgerald, chief of the Department's Bureau of State Lands Management, to inquire as to whether Department permission was required to trim mangroves located above the MHW line. Fitzgerald's letter advised Fraraccio "that trimming mangroves located above the MHW line would not be within the purview of this department." Fitzgerald further recommended that Fraraccio "employ the services of a registered land surveyor to specifically identify the individual trees which are so located." Fraraccio did not obtain an independent survey. Instead, he relied upon the rebar monument and the lathe markers placed by Wilkinson, and contracted to have the mangroves landward of that line trimmed. One of difficulties encountered in determining the location of a mangrove in relation to the MHW line is the fact that one tree may have several trunks and prop roots which emanate from the center of the tree. Consequently, there is some uncertainty regarding how to locate the tree. One method used locates the centermost trunk and considers that point the tree location. Another method calculates the greatest percentage of tree mass and considers that point the center of the tree. This calculated center is then matched against the MHW line. Either method results in a judgment based upon visual inspection. This judgment may differ among reasonable men. In January, 1988, Fraraccio supervised the cutting of mangroves based upon the MHW line as established by the Wilkinson survey. Fraraccio did not intend to cut trees waterward of the MHW line. No trees were cut waterward of the Wilkinson line. A number of trees were trimmed landward of the Wilkinson line. There is no evidence that either the rebar monument or the lathe markers placed by Wilkinson were moved either prior to or after the mangrove alteration. Fraraccio was responsible for the direct supervision of the workmen who completed the mangrove trim. No work was done without Fraraccio's authorization. On March 22, 1988, Kalani Cairns, inspected the Fraraccio property. Cairns took field notes of the inspection. One of comments made at that time was that it was "difficult to determine if MHWL stakes have been moved." Based upon his review of the area, Cairns determined approximately 20 mangrove trees below the MHW line had been topped. Subsequently, the Department issued the Notice of Violation and Order for corrective action. Since Fraraccio did not believe he had cut waterward of the MHW line, no corrective measures were taken. Subsequent to the Notice, additional mangroves were not cut. Fraraccio timely sought review of the notice. In preparation for the formal hearing in this cause, the Department contracted with Greg Fleming to prepare a survey of a portion of the Fraraccio property. The purpose of this second survey was to locate the MHW line along the Fraraccio shoreline and to plot mangrove trees which had been trimmed and which were waterward of the line. Approximately 24 trimmed mangrove trees were located waterward of the MHW line as determined by the Fleming survey. The Fleming survey resulted in a MHW line which was upland of the line established by the Wilkinson survey. The trimmed trees in dispute are located between the two lines, as marked on the ground, by the lathes placed by the two surveyors. Mr. Wilkinson did not testify and no credible explanation was given for why the lines, as marked in the field, differ. At the time of the cutting, however Fraraccio believed the Wilkinson lathes marked the MHW line. This belief was based upon the representations that the Department had made regarding the rebar monument marked "D.N.R." and the fact that the placement of the lathe stakes had coincided with placement of the rebar.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Trustees of the Internal Improvement Trust Fund enter a final order dismissing the Notice of Violation against Charles A. Fraraccio. DONE and ENTERED this 23rd day of June, 1989, in Tallahassee, Florida. JOYOUS D. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of June, 1989. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 88-4309 Rulings on the proposed findings of fact submitted by Petitioner: Paragraphs 1 through 5 are accepted. With regard to paragraph 6, it is accepted Wilkinson put down three lathes and that there is no evidence that those lathes were moved. Otherwise, the paragraph is rejected. Mr. Wilkinson did not testify and, therefore, no evidence was presented on the issue of the lathes. It is clear Fraraccio believed the lathes to be the MHW line. Paragraph 7 is accepted. Paragraph 8 is rejected as contrary to the weight of the evidence. The MHW line was correctly depicted on the ground and on paper by the Fleming survey which was done after-the-fact. Pertinent to this case is the fact that Fraraccio and DNR treated the Wilkinson survey on the ground (as shown by-the rebar and the three lathes) as the MHW line prior to the cutting. Paragraph 9 is accepted. With regard to paragraph 10, the record shows Fleming was contacted to perform the second survey in December, 1988, and that it was dated February, 1989. With that modification and clarification, paragraph 10, in substance, is accepted. Paragraph 11 is accepted to the extent that the two surveys differed on the ground (as opposed to on paper). Paragraphs 12, 13, and 14 accepted but are irrelevant. With regard to paragraph 15, it is accepted that the workmen were instructed not to cut waterward of the MHW line. The remainder is irrelevant to this proceeding. Paragraphs 16 through 18 are accepted. With regard to paragraph 10, it is accepted Fraraccio cut or trimmed the trees based upon the Wilkinson survey as depicted by the rebar and 3 lathe markers. Otherwise, paragraph 19, is rejected as irrelevant. Paragraph 20 is accepted. Paragraph 21 is rejected as irrelevant to this proceeding. Rulings on the proposed findings of fact submitted by the Department. Paragraphs 1 through 16 are accepted. The first sentence of paragraph 17 is accepted since both surveys coincided at the point of the rebar marked "D.N.R.;" otherwise, the paragraph is rejected as contrary to the weight of evidence since the surveys differed as plotted on the ground. Paragraphs 18 and 19 are accepted. Paragraph 20 is rejected as irrelevant. Paragraph 21 is accepted. Paragraph 22 is rejected as contrary to the weight of the credible evidence. Paragraph 23 is rejected as irrelevant. The number of trees cut waterward of the MHW line as established by the Fleming survey was approximately The size of the trees is irrelevant. Paragraph 24 is rejected as irrelevant. Paragraphs 25 and 26 are accepted. Paragraph 27 is rejected as irrelevant to this proceeding. COPIES FURNISHED: William L. Contole McManus, Wiitala & Contole, P.A. O. Box 14125 North Palm Beach, Florida 33408 Ross S. Burnaman Department of Natural Resources 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Tom Gardner, Executive Director Department of Natural Resources 3900 Commonwealth Boulevard Tallahassee, FL 32399-3000
