The Issue Respondent's alleged violations of safety regulations, as set forth in Notice and Order to Show Cause, dated May 14, 1980. At the commencement of the hearing, the Hearing Officer granted Petitioner's Motion for Leave to Amend its complaint to substitute Baron Fun Frite's Castle, Inc. as Respondent in this proceeding, and to replace references to Charles Amara as an individual to Charles Amara as an officer of Baron Fun Frite's Castle, Inc.
Findings Of Fact Respondent Baron Fun Frite's Castle, Inc. is a Florida corporation which operates an amusement business at 1100 Main Street, Daytona Beach, Florida. The business is conducted in a two-story building owned by Amara Hotel, Inc. Charles R. Amara is the president of both corporations. The facility is operated as a "fun house" where customers pay an admission to walk through the premises in a period of ten to twenty minutes. There is approximately 1,000 square feet of space in the building with three exits, including an outside fire exit on the south side. The walls and ceilings of the interior of the building consist of sheetrock over which has been sprayed a polyurethane foam material manufactured by Chemetics Systems, Inc., with a tradename of CSI-9l52 Spray. The foam material is coated with an intumescent latex paint coating manufactured by United Paint Manufacturing, Inc. with a tradename of Thermogard. Although the building can accommodate between 50 to 55 persons in the period of one hour, it has never been occupied by more than 43 customers within that period in the past. (Testimony of Nelson, Amara, Stipulation, Respondent's Exhibit 1) On March 4, 1980, Petitioner's Regional State Fire Protection Specialist John R. Nelson inspected Respondent's premises pursuant to a request of the fire department of the City of Daytona Beach. Nelson determined that the building was a "place of assembly" which conferred jurisdiction under Petitioner's rules to enforce fire regulations, based on the building's occupant load of 150 persons as assigned by the City of Daytona Beach. A number of alleged deficiencies were discovered as to which Respondent was advised in a letter from Nelson dated March 10, 1980. The letter and accompanying inspection report required that corrective action be taken by April 7, 1980. Although the letter stated that the items noted were in violation of "Florida Statutes and/or the State Fire Marshal's Rules and Regulations," and that specific references would be provided upon request, neither the letter or the report specified statutes or rules alleged to have been violated. On May 5, 1980, Nelson conducted a re-inspection and found that three violations had not been corrected. Thereafter, on May 14, 1980, Petitioner filed its Notice and Order to Show Cause which constitutes the complaint in this proceeding. On June 11, 1980, Respondent requested a hearing under Chapter 120, Florida Statutes. (Testimony of Nelson, Case Pleadings, Petitioner's Exhibit 1) The rear fire stairs of Respondent's facility on the exterior of the building provide headroom at a landing of six feet two inches. Petitioner's inspector found that such clearance was insufficient under pertinent regulations and could block the exit during an emergency, thereby creating a possibility of crowd panic and consequent danger to public safety. The stairs presently extend out from the building over property owned by the City of Daytona Beach and therefore was the subject of a variance from the City Fire Code when constructed. Although there are two other exits from the building, the rear fire stairs are required in order that the maximum travel from any point inside the building to an exit will net exceed 150 feet. (Testimony of Nelson, Amara, Petitioner's Exhibit 1) The inspection also disclosed that the maintenance and air conditioning rooms of the building had openings in the walls and ceiling which would allow smoke, fire, and toxic gases to spread in the event of a fire. These consisted of openings in duct work and electrical outlets. Respondent testified at the hearing that the openings have been covered since the date of re-inspection. (Testimony of Nelson, Amara, Petitioner's Exhibit 1) The urethane foam product on the walls and ceilings of Respondent' s building is recommended for use by the manufacturer whenever maximum insulation and flammable standards are required. It is safe when used as a "sandwich" material between the interior and exterior materials such as gypsum board or fir wood material. However, if it is exposed on the surface, it is highly flammable and combustible, and subject to rapid vertical spread of fire. At certain temperatures, hydrogen cyanide and carbon monoxide gases would be released. Intumescent paint such as Thermogard will not provide a 15 minute thermal barrier because the foam material will expand and swell when afire and the flame will cause an expansion which in turn causes the paint covering to pop off. The foam material can be adequately protected by spraying with a cement plaster material which will form a hard surface to prevent the formation of gas. At the time the foam material was placed on the interior of the building, it was inspected and approved by the City of Daytona Beach as meeting its existing fire code. The existence of the polyurethane foam material was the subject of one of the violations of applicable law found by Petitioner during its inspection of the premises in March 1980. (Testimony of Nelson, Hogan, Folsom, Petitioner's Exhibit 1, Respondent's Exhibit 1, Respondent's Exhibit 2)
Recommendation That Petitioner issue an order to Respondent directing that it cease and desist within 30 days from continued violation of Section 6-2.1.3 of the National Fire Protection Association No. 101 Life Safety Code (1976) , pursuant to Rule 4A-27.13, Florida Administrative Code and Section 633.161, Florida Statutes. DONE and ENTERED this 18th day of September, 1980, in Tallahassee, Florida. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings 101 Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Daniel Y. Sumner, Esquire Office of Treasurer and Insurance Commissioner 428-A Larson Building Tallahassee, Florida 32301 Richard R. Cook, Esquire 213 Silver Beach Avenue Daytona Beach, Florida 32018
Findings Of Fact At all times material hereto, John L. Eifert (Respondent) was certified by the Criminal Justice Standards and Training Commission (Petitioner). Respondent was certified on July 17, 1981, being issued Certificate Number 74043. On or about June 14, 1984, Officer Goodwin of the Miami Beach Police Department (Miami Beach P.D.) was involved in an automobile accident. Officer Goodwin was off-duty at the time. The officers dispatched to the accident scene found, among other things, on the driver's side of Officer Goodwin's vehicle, evidence bags from the Miami Beach P.D. and a clear plastic bag. The evidence bags were clearly marked as Miami Beach P.D. evidence bags. The clear bag and one of the evidence bags contained a white substance that the officers suspected was cocaine. Officer Goodwin was arrested for driving under the influence of alcoholic beverages and/or narcotics. All the bags found in Officer Goodwin's vehicle at the accident scene were seized and placed into evidence. The white substance in the bags was subsequently tested. The tests revealed that the white substance was cocaine. The cocaine found in Officer Goodwin's vehicle was the same cocaine that he had seized in a narcotic's case. He had obtained the cocaine from the evidence room under false pretenses, indicating that he was going to testify in court and needed the cocaine for his testimony. There was no court hearing. Officer Goodwin obtained the cocaine for his own personal use; he intended to consume the cocaine himself. Officer Goodwin was Respondent's fellow officer with the Miami Beach P.D. and friend. They had gone through the police academy together in 1981, and they were motorcycle officers together. Prior to the accident, at approximately 9:30 a.m. on June 14, 1984, Officer Goodwin had visited Respondent at Respondent's off-duty job. Respondent was moonlighting as a security guard at a bank. Officer Goodwin had been ingesting cocaine prior to the visit, had not slept in approximately 24 hours, and was paranoid. Officer Goodwin wanted to use Respondent's residence to consume more cocaine. Because of his paranoid behavior and because he was a friend, Respondent agreed for Officer Goodwin to go to his residence and convinced Officer Goodwin to wait for him there. When Officer Goodwin arrived at Respondent's residence, he continued to ingest cocaine. Also, he placed some of the cocaine in individual plastic bags. Officer Goodwin hid the cocaine filled plastic bags in Respondent's residence. When Respondent came to his residence at approximately 4:45 p.m. that same day, he found Officer Goodwin more paranoid than before. Officer Goodwin refused to remain at Respondent's residence and left shortly before 5:00 p.m. Before leaving, Respondent agreed for Officer Goodwin to leave the cocaine filled plastic bags in his residence. Officer Goodwin informed Respondent where he had hid the bags. Respondent located the cocaine filled bags. Without getting any sleep, Respondent continued with his social activities planned for the remainder of the evening. At approximately 10:00 p.m., Respondent went to his second moonlighting job. On June 15, 1984, around 3:30 a.m., Officer Goodwin called Respondent at his second moonlighting job. Officer Goodwin informed Respondent that he had been arrested and requested that Respondent dispose of the cocaine and told him where to leave it. Unbeknownst to Respondent, Officer Goodwin was calling from police headquarters and was attempting to return the remaining cocaine to the Miami Beach P.D. Instead of following Officer Goodwin's instructions, Respondent went home around 3:50 a.m. and disposed of the cocaine by dumping it into the bay behind his residence. Respondent believed that he was helping Officer Goodwin, a friend. Subsequently, around 6:00 a.m., Respondent received another telephone call from Officer Goodwin. Respondent informed him what he had done with the cocaine. Officer Goodwin was upset about what Respondent had done. Goodwin admitted at hearing that, due to the quantity of cocaine that he had ingested, beginning June 13, 1984, and continuing into June 14, 1984, he had very little independent recollection of what happened that day. His information, as to what happened that day, is mostly from reading his statements that he had made regarding the incident, police reports, and transcripts of depositions. Further, Goodwin also admits that his recall prior to going to Respondent's residence is fair. Officer Goodwin entered into a plea agreement regarding the accident and the cocaine. The plea agreement provided, among other things, that he give testimony, regarding the incident, forever in whatever the forum may be and that he relinquish his certification from Petitioner. Presently, Goodwin is in charge of a drug treatment center for Metro- Dade County. He has been in this position for five years. In June 1984, Respondent resigned from the Miami Beach P.D. Consistent with the policy of the Miami Beach P.D. at that time, no investigation was instituted against Respondent by Internal Affairs of the Metro-Dade Police Department due to his resignation. Respondent does not deny that he permitted Goodwin to take the cocaine to his residence, that he permitted Goodwin to leave some of the cocaine at his residence, and that Goodwin left some of the cocaine at his residence. Furthermore, Respondent does not deny that the cocaine remained at his residence after Goodwin left and that he disposed of the cocaine by dumping it into the bay. At the time of his resignation, Respondent and the Miami Beach P.D. agreed that, whenever inquiries were made regarding Respondent, the Miami Beach P.D. would make neither negative nor positive comments about Respondent. The intent of this agreement was to allow Respondent to keep his record clean. However, the reverse occurred. He was effectively prevented from getting jobs in law enforcement. Subsequently, Respondent and the Miami Beach P.D. agreed to full disclosure regarding Respondent and the cocaine incident. In 1987, Respondent began to obtain employment in law enforcement. From September 1987 to January 1989, Respondent was employed as a police officer with the Indian Creek Village Police Department. From February 1989 to May 1989, he was employed as a police officer with the Florida City Police Department. Respondent resigned from both positions. In January 1990, Respondent was rehired by the Florida City Police Department (Florida City P.D.). At the time of hearing, he was still employed with the Florida City P.D. Respondent's personnel file reflects that, during his tenure as a police officer, Respondent has had one reprimand. The reprimand occurred after his resignation from the Miami Beach P.D. However, Respondent's personnel file also reflects that, during his tenure as a police officer, Respondent has had numerous commendations and letters commending his performance. He has been subjected to pressure and dangerous encounters and has performed in an exemplary manner. At hearing, several individuals, law enforcement and non-law enforcement, supported Respondent either through testimony or letters. Respondent's former pastor and the Mayor of the City of Florida City testified in support of him. Both regarded Respondent as having high moral character. Moreover, the Mayor's position was that the incident in June 1984 would have no effect on his opinion of Respondent. Additionally, the former Police Chief of the City of Miami Beach at the time of the incident in June 1984 did not find it odd or unusual for Respondent to still be in law enforcement. To him, Respondent had made a mistake, paid for the mistake, and had turned his life around. By letter, Respondent's immediate supervisor of five years with the Florida City P.D. supported him. Also, a special agent with the Florida East Coast Railway Police, who has known Respondent both personally and professionally for approximately nine years, supported Respondent. Petitioner filed the administrative complaint against Respondent on August 9, 1993. Respondent has no prior disciplinary action against him by Petitioner.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Criminal Justice Standards and Training Commission enter a final order Reprimanding Respondent; and Placing Respondent on probation for one (1) year under terms and conditions that the Commission deems appropriate. DONE AND ENTERED in this 2nd day of January, 1997 in Tallahassee, Leon County, Florida. ERROL H. POWELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of January, 1997. COPIES FURNISHED: Richard D. Courtemanche, Jr. Assistant General Counsel Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Michael Braverman, Esquire Braverman and Grossman, P.A. 2780 Douglas Road, Suite 300 Miami, Florida 33133-2749 A. Leon Lowry, II, Director Division of Criminal Justice Standards and Training Post Office Box 1489 Tallahassee, Florida 32302 Michael Ramage General Counsel Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
Findings Of Fact On November 9, 1972, the State of Florida, acting through Petitioner, certified Respondent as a law enforcement officer. Certificate number 6350 was duly issued to Respondent by Petitioner. On September 10, 1984, the following occurred in Delray Beach, Florida: At approximately 12:30 a.m., Respondent was found asleep in his automobile by two Delray Beach police officers, Sergeant Stephen Barborini and Detective Thomas Tustin. Respondent was alone in the automobile. Respondent's automobile was parked in a public parking lot in the 1100 block of North Federal Highway in Delray Beach with its engine running and its headlights on. Respondent was awakened by the police officers and questioned while in the parked automobile after the engine had been turned off by Officer Barborini. Respondent was very intoxicated. Upon being questioned, Respondent produced a police badge case, without a police badge, and identified himself as a Metro-Dade Police Officer. The Delray Beach police officers advised Respondent that he was in no condition to drive and offered to either give him a ride home or to arrange other transportation for him. Respondent then got out of the car. As a result of his intoxication, Respondent was unable to maintain his balance, his eyes were bloodshot, and his speech was slurred. At times Respondent was incoherent. Respondent began to behave in an erratic manner. He shouted and yelled obscenities at the officers, he cried, and he pleaded on his knees for the officers to leave him alone. Respondent became angry with Detective Tustin while Detective Tustin was trying to calm him down. Respondent placed his hands on the person of Detective Tustin and pushed him back a couple of steps. Respondent was arrested by Officer Barborini for disorderly intoxication and taken into custody. Upon arrival at the police station, Respondent again began to shout obscenities and pushed another officer, Officer Giovani. Respondent met with the officers about two months later and apologized for his actions. Officer Barborini asked the State Attorney's Office not to prosecute because Respondent was a police officer and because Officer Barborini had been told that Respondent was seeking help for his drinking problem. The State Attorney's Office granted Officer Barborini's request. Respondent was not charged with battery because Officer Barborini and Detective Tustin thought Respondent was too intoxicated to intentionally batter Detective Tustin. On August 28, 1985, Respondent was found guilty by the Dade County Court of the charge of battery on the person of Jose Lleo. The battery occurred on February 22, 1985, while Respondent was on duty. Although Respondent was not intoxicated at the time, he had consumed alcohol before reporting to work. Following his conviction, the Court withheld adjudication of guilt and also withheld sentence. On April 3, 1986, the following occurred in Deerfield Beach, Florida: At approximately 3:35 a.m., Respondent was found asleep in his automobile by Officer John Szpindor and Officer Dale Davis of the Deerfield Beach Police Department. Respondent was alone in the automobile. Respondent's automobile was parked on the grassy shoulder of the road in the 2700 block of Southwest 10th Street with its engine running and its headlights on. The officers were able to awaken Respondent after several minutes of shaking him and talking to him. Respondent, upon being awakened, was belligerent and uncooperative. He used profanity towards the officers, calling them names and telling the officers they had no right to bother him. Respondent got out of the automobile after being instructed to do so. Respondent was very intoxicated. As a result of his intoxication, Respondent was groggy and unable to maintain his balance. His eyes were bloodshot and his speech was slurred. Respondent's pants were wet in the crotch area. The officers identified Respondent by examining a wallet, with Respondent's permission, which was lying on the seat of the car. The wallet contained an empty badge case. From examining the wallet, the officers obtained sufficient information to enable the dispatcher to contact Shirley Daniels, who was married to Respondent at that time. Mrs. Daniels was asked to come to the scene. While waiting for Mrs. Daniels to arrive on the scene, Respondent became more belligerent. His shouting grew louder and more confrontational. Despite the officers' attempts to calm him down, Respondent took off his jacket, threw it on the ground, and assumed a defensive stance as if he wanted to fight the officers. The shouting disturbed the residents of a nearby residential area. Respondent confronted Officer Davis, who had Respondent's wallet, told Officer Davis that he had no business with the wallet, and he struck Officer Davis in the chest and chin areas. The blow to the chin was a glancing blow as opposed to being a hard blow. Officer Davis was not injured. Officer Davis and Officer Szpindor immediately thereafter physically overpowered Respondent, placed him under arrest for disorderly intoxication and battery, and took him into custody. When Shirley Daniels arrived on the scene, she told the officers that she would be unable to manage Respondent at home in his intoxicated condition. Respondent was then taken to jail by the officers. There was no evidence as to the disposition of the charges of disorderly intoxication and battery. Respondent is an alcoholic and was an alcoholic at the times of the incidents described above. Prior to those incidents, Respondent had sought treatment and thought that he had successfully completed the program. Between the incident in Delray Beach and the incident in Deerfield Beach, Respondent attended Alcoholics Anonymous. Respondent continued to drink, to the extent that he suffered blackouts, because he did not immerse himself in the Alcoholics Anonymous program. During the periods Respondent maintained control of his drinking, he exhibited the qualities required of a enforcement officer. Whenever the alcoholism gained control, as was the case in the 1984 incident in Delray Beach and the 1986 incident in Deerfield Beach, Respondent lost control of himself and of his actions. As of the date of the final hearing, Respondent had abstained from alcohol for two and one-half years. For the past two and one-half years Respondent has been seriously, and successfully, involved in Alcoholics Anonymous. Respondent is a recovering alcoholic who has good moral character as long as he has control of his alcoholism. Respondent currently operates his own business as a private investigator.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that Petitioner, Florida Department of Law Enforcement, Criminal Justice Standards Training Commission, enter a final order which finds that Respondent failed to maintained good moral character, which places Respondent's certification on a probationary status for a period of two years and which contains as a condition of probation that Respondent abstain from the use of alcohol. DONE AND ENTERED this 18th day of August, 1989, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 18th day of August, 1989. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 89-0714 The proposed findings of fact submitted on behalf of Petitioner are addressed as follows: 1. Addressed in paragraph 1. 2-3. Addressed in paragraph 2(a). Addressed in paragraph 2(c). Addressed in paragraph 2(d). Addressed in paragraph 2(e). Addressed in paragraph 2(g). Addressed in paragraph 2(h). 9-10. Addressed in paragraph 2(i). Addressed in paragraph 3. Addressed in paragraph 12. 13-14. Addressed in paragraph 6(a). 15-16. Addressed in paragraph 6(b). Rejected as being unnecessary to the results reached. Addressed in paragraph 6(c). Addressed in paragraph 6(e). 20-22. Addressed in paragraph 6(f). Addressed in paragraph 6(g). Addressed in paragraph 6(h). The proposed findings of fact submitted on behalf of Respondent are addressed as follows: 1. Addressed in paragraph 1. 2-5. Addressed in paragraphs 2(a), (b), and (c). Addressed in paragraphs 2(f) and (g). Addressed in paragraphs 2(h) and (i). Rejected as being recitation of testimony and as being subordinate to the findings reached. Addressed in paragraph 4. 10-12. Rejected as being recitation of testimony and as being subordinate to the findings reached. 13. Addressed in paragraph 3. 14-16. Addressed in paragraph 6(a). Addressed in paragraph 6(b). Addressed in paragraph 6(e). Rejected as being recitation of testimony and as being subordinate to the findings reached. Addressed in paragraphs 6(g) and (h). 21-24. Rejected as being recitation of testimony and as being subordinate to the findings reached. 25. Addressed in paragraph 5. 26-27. Rejected as being recitation of testimony, as being unnecessary to the result reached and, in part, as being subordinate to the findings reached in paragraphs 9 and 10. 28-31. Rejected as beings recitation of testimony as being unnecessary to the result reached, and, in part, as being subordinate to the findings reached in paragraphs 7, 9, and 10. 32-36. Rejected as being recitation of testimony as being unnecessary to the result reached, and, in part, as being subordinate to the findings reached in paragraphs 8, 9, and 10. 37-38. Rejected as being unnecessary to the results reached. 40-41. Rejected as being recitation of testimony , as being unnecessary to the result reached, and, in part, as being subordinate to the findings reached in paragraphs 8, 9, and 10. 42-45. Rejected as being recitation of testimony, as being unnecessary to the results reached, and, in part, as being subordinate to the findings reached in paragraph 8. 46-49. Rejected as being recitation of testimony, as being unnecessary to the results reached, and, in part, as being subordinate to the findings reached in paragraph 8. 50. Addressed in paragraphs 1 and paragraph 11. 51-54. Rejected as being unnecessary to the results reached Addressed in paragraph 7. Addressed in paragraph 5. Rejected as being irrelevant. The purported statement of Mr. Kastrenatis is rejected as being hearsay. Addressed in paragraph 9. Rejected as being unnecessary to the results reached. COPIES FURNISHED: Joseph S. White, Esquire Assistant General Counsel Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 James C. Casey, Esquire 10680 N.W. 25th Street Suite 100 Miami, Florida 33172 Jeffrey Long, Director Department of Law Enforcement Criminal Justice Standards Training Commission Post Office Box 1489 Tallahassee, Florida 32302 James T. Moore, Commissioner Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Rodney Gaddy, General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
Findings Of Fact A Backdrop to the Charges At all times relevant hereto, respondent, Tom F. Brewer, was a teacher at Crestwood Middle School (CMS) in Royal Palm Beach, Florida. He is employed by petitioner, The School Board of Palm Beach County (Board). Respondent, who is now fifty-four years old, is certified as a middle school teacher with a specialty in the area of mathematics. He has taught in the Palm Beach County school system since August, 1973 and has consistently received satisfactory evaluations. Most recently, he was assigned to CMS to teach mathematics to seventh and eighth graders. Since CMS is ten miles from his home, Brewer left for work each school day around 7:50 a.m. and returned around 4:20 p.m. In addition, until September, 1985 he spent two weekends a month at National Guard drills where he was the unit first sergeant. From November, 1982 until March, 1984 he worked on his other weekends as a security guard at a local country club. Forest Estates Drive in West Palm Beach, Florida is the focal point of this proceeding. In November, 1978 respondent moved into a home in the 300 block on Forest Estates Drive. Other residents on the street at that time were James H. Williams, Sandra Cownden and her daughter, Tina Luciano (Tina), Margaret Hill and her daughter and stepdaughter, Robin Mahoney (Robin) and Kim McKenna (Kim), and Hilda Barrett. Shortly after Brewer moved into the neighborhood, the Pecks moved in next door. Mr. Peck is a uniformed deputy sheriff with a marked patrol car. In 1982, Helen Happ moved with her family into a home on the same block. In 1985, Stephen Erickson moved into the home previously occupied by Hilda Barrett and which was directly across the street from Brewer. All of the above neighbors testified at final hearing or gave deposition testimony and are a part of this neighborhood drama. Some lived there only part of the time since 1978 while a few were neighbors for the entire nine year period. Respondent is divorced and lives by himself at his home on Forest Estates Drive. He has three grown children, a girl and two boys, living in the West Palm Beach area. The children, who are now 28, 26 and 25 years of age, regularly visited Brewer several times a week during the years in question. As might be expected, Brewer became reasonably acquainted with all of his neighbors since moving to Forest Estates Drive almost ten years ago. They became aware of the fact that he was a school teacher. The principal prosecution witness is Tina, who lived with her divorced mother two houses away from Brewer. Tina, who was born on March 16, 1969, was not bashful or shy, and at the age of nine, began going to Brewer's house when he first moved in the neighborhood. As she frequently did with other neighbors, Tina asked Brewer for money and favors. Brewer responded by giving Tina odd jobs to do around his house such as washing his car, mowing the yard or cleaning windows. Therefore, over the years it was not unusual to see Tina going to and from Brewer's house. As she grew older, Tina began using Brewer's telephone to call friends and to watch Brewer's widescreen television set which was wired for cable. It should be noted here that Tina has a reputation as being an untruthful person. Against this backdrop, respondent was arrested by the Palm Beach County Sheriff's Office in March, 1987 for contributing to the delinquency of a seventeen year old minor (Tina), a misdemeanor charge. He was subsequently acquitted after a three day jury trial in March, 1988. After learning that respondent had been arrested, the Board suspended Brewer without pay on November 17, 1987. This action was formalized by a petition for dismissal issued on December 3, 1987. Respondent has remained suspended without pay pending the outcome of this proceeding. As amended, the petition for dismissal alleges that on January 1, 1987 respondent "allowed two females, then 16 and 17 years old, to visit him at his home," that he "supplied and/or permitted the females to consume liquor in his home," and that he "requested and received back rubs from both females and requested sex from the 16 year old." In addition, the amended petition charges that respondent allowed "other males and females in the neighborhood" to visit his home "on a regular basis for the past nine (9) years" and "to drink alcohol in his presence," and that he "regularly loaned money to the neighborhood children and gave them rides to various locations in the vicinity," all without the knowledge or consent of the parents. Finally, it is alleged that in June, 1987 respondent "used profanity in the presence of a minor . . . and engaged in other inappropriate conversation." These allegations will be examined separately hereinafter in the order in which they are raised in the petition. The Criminal Arrest and Attendant Notoriety In March, 1987 respondent was arrested and charged with contributing to the delinquency of a minor, a misdemeanor. The charges stemmed from an incident that allegedly occurred on January 1, 1987 at Brewer's home and involved Tina, then seventeen years old, and her sixteen year old friend, Angie. After school resumed in January, 1987 Brewer reported to his principal that he was involved in a "run in with the law" on New Year's Day. This information was conveyed to the deputy Superintendent who advised that no action should be taken until "something official happened." For some reason, the school either failed to learn of Brewer's arrest in March or did nothing at that time. In any event, the arrest was eventually reported in articles published in a local newspaper on November 8 and 19, 1987. Brewer's three day trial in March, 1988 received even more widespread newspaper and television coverage. After the articles appeared in the local newspaper in November, 1987, the superintendent of schools was contacted by one parent whose child was a student in respondent's classroom. Other than this one contact, the Superintendent had no other personal knowledge of any parent concern over respondent's arrest. However, based upon his review of the matter, and having assumed the charges herein to be true, the superintendent concluded that the resulting notoriety attendant to respondent's arrest impaired his effectiveness as a teacher. He further opined that respondent is now vulnerable to accusations of similar improper behavior in the future, and he believes that parents would object if respondent was reassigned to the classroom. Also believing the charges to be true, several neighbors reported that they were concerned with respondent's behavior, and they did not wish their children to be around him. Finally, after the arrest became public, one witness in this proceeding was contacted by several CMS students inquiring about the charges. The January 1, 1987 Incident Angela (Angie) is a girlfriend of Tina who had just turned sixteen on December 18, 1986. At that time she was enrolled as a student at a local high school but was not attending classes. She was also on probation for burglary and grand theft and has a reputation of being an untruthful person. She stayed overnight with Tina on December 31, 1986 to celebrate the holiday, and the two spent New Year's Eve partying with friends until dawn. During the course of the evening Angela consumed a great deal of whiskey and got very drunk. The whiskey was bought for Angie by an undisclosed third party. On January 1, 1987 Tina and Angie spent most of the day at Tina's house with Tina's mother and grandparents. Around 5:00 or 5:30 p.m., the two went to Brewer's house so that Tina could use his telephone to call her boyfriend, Matt. Angie, who was recuperating from a substantial hangover, just wanted to stretch out on Brewer's couch. They found Brewer watching the football bowl games on television. Tina made several calls, including one to Matt, and another to Tommy, who had just broken up with Angie. After the calls were completed, Tina returned to her house to eat dinner. Angie remained on Brewer's couch, still nursing her hangover. After finishing her meal, Tina returned to Brewer's house. Angie then departed to Tina's house to shower and change clothes. Tina also returned to her home a short while later to see what was taking Angie so long. The two eventually returned to Brewer's house around 7:00 or 7:30 p.m. Tina then asked Brewer for a ride to pick up Matt and bring him back to her house. Brewer agreed and the two left leaving Angie watching television. When Tina, Brewer and Matt returned to Brewer's house around 8:00 p.m., they found Angie gone. According to Tina's mother, Angie returned to Tina's house while Tina and Brewer were gone and had left with two male friends. Not knowing this, Tina and Matt left Brewer's house to find Angie but returned about twenty minutes later, by now Brewer's twenty-six year old son, Chuck, had arrived to watch the Orange Bowl football game with his father. A while later, two male friends of Matt showed up at the doorstep and were invited in to watch television. Tina, Matt and his two friends stayed for about 45 minutes watching the football game and then left. Around 10:30 p.m. that evening, a disturbance occurred in the street in front of Tina's house. Brewer's next door neighbor, George Peck, III, who happens to be a uniformed deputy sheriff, observed a girl "screaming and crying" in the middle of the street. The girl (Angie) was with a young man. When the two would not tell him what was the matter, the deputy told the two to leave the neighborhood. In contrast to the testimony of both Tina and Angie that Angie was intoxicated that evening, the deputy did not detect any odor of alcohol on Angie's breath and she did not appear to be intoxicated. Further, the deputy's testimony that the above event occurred around 10:30 p.m. is accepted as being more credible than Angie's testimony that Peck spoke with her some two and one- half hours earlier. Another disturbance occurred in front of Tina's house around midnight involving Tina, Angie and several male teenagers. The police were called and an investigation was begun. As a result of accusations by Tina and Angie, Brewer was later arrested and charged with contributing to Tina's delinquency. At no time during the day or evening of January 1, 1987 did Brewer offer or furnish alcoholic beverages to Tina and Angela nor did the two girls consume alcoholic beverages at his home. He did not ask the girls to give him a back rub, engage in a sexual activity or make any improper overtures towards the girls. Testimony by Tina and Angela to the contrary is rejected as not being credible. Neighborhood Saint or Sinner? The amended complaint alleges that Tina, "along with other males and females in the neighborhood, under the age of 18, have visited Respondent at his home on a regular basis for the past nine (9) years," and that such minors were unchaperoned and consumed alcoholic beverages in his home. As to this allegation, the Board has stipulated that none of the minors were students from Crestwood Middle School. There were numerous confirmed visits by Tina to Brewer's house over the years. She was accompanied on several visits by Robin, who once lived on the street and later lived with Tina for a short time in 1984, and by Angie. In addition, Tina would sometimes bring a boyfriend or another girlfriend, including Theresa, Diane or Kim, who either lived for brief periods of time with Tina or who happened to be in the neighborhood to visit her. Neighbors on the street observed Tina and other similarly aged females visiting Brewer's house from time to time. Except for Robin, the neighbors could not identify the girls and were nonspecific as to the dates and frequency of such visits. None of the neighbors knew the purpose of the visits or what occurred once the visitors entered his home. Most did not know if the guest might be Brewer's daughter, a teenager during part of this period, and who visited him several times a week. While they suspected sinister motives on the part of Brewer, none had any proof of this. There is no competent, credible evidence that Brewer ever furnished alcoholic beverages to minors or allowed them to consume the same at his house. At hearing both Angie and Tina claimed that Brewer often either purchased beer for or gave it to their friend, Rob. However, this assertion was denied by Rob, and his testimony is deemed to be the most credible. Angie claimed that during the last few months of 1986 Brewer would frequently furnish her and Tina with wine coolers or beer. However, she later testified that, except for the January 1, 1987 incident, she never drank an alcoholic beverage at Brewer's home. Her testimony is not deemed to be credible. There was further testimony by neighbor Erickson that he saw a girl (who he did not know) leaving Brewer's house one day during the summer of 1986 carrying what he thought was a can of beer. He thought the girl carrying the can was accompanied by Tina. Erickson also occasionally saw persons of Tina's age leaving Brewer's house carrying brown paper bags. He did not know what the bags contained. Neighbor Barrett reported that in 1978, when she was thirteen, she frequently saw Tina and Robin, then nine years old or so, with sacks of beer and cigarettes after leaving Brewer's house. This testimony is rejected as being incredible. Neighbor Happ reported seeing Tina and a friend leaving Brewer's house around 7:30 a.m. one day and assumed they had spent the night. However, other testimony revealed that the two had actually spent the night at Tina's home before going to Brewer's house that morning. All other testimony in favor of the allegation has either been rejected as not being credible or has been disregarded since it is based solely on hearsay and rumor. Robin is one year older than Tina and once lived in Forest Estates Drive. She also lived with Tina for a few months in 1984. To avoid honoring a subpoena compelling her attendance at this hearing, Robin temporarily left the State of Florida. However, over objection of respondent, her deposition was received in evidence as petitioner's exhibit 5. According to Robin's deposition, she and Tina visited Brewer's home when Robin was around fourteen or fifteen years of age and would drink beer given to them by Brewer. Claiming a lack of recollection, she was unable to give any other details concerning these incidents. Other allegations made by Robin were even more vague and distant. Tina's mother stated that around midnight one evening in 1985 she drove her car to Brewer's house (two doors away) to pick up Robin. Robin's statement as to why she needed a ride is either irrelevant to the charges or discredited. Robin's testimony was contradicted by Brewer who acknowledged that Robin and Tina came over a number of times in 1984 when Robin lived with Tina but only to watch cable TV. This testimony is accepted as being the most credible. It is accordingly found that at no time did Brewer ever offer or furnish alcoholic beverages to Robin or allow her to bring them into his home for consumption. Tina's many visits to Brewer's home are confirmed in the record. Indeed, she regularly visited Brewer's house from the time he moved into the neighborhood in 1978 through 1986. While Tina's mother permitted Tina and her friends to drink in her own home, testimony by Tina that she occasionally drank a beer or wine cooler at Brewer's home is rejected as not being credible. Giving Money and Rides to Neighborhood Children It is alleged that Brewer "regularly loaned money to the neighborhood children and gave them rides to various locations in the vicinity." Much of the testimony relating to this allegation comes from Tina who had a reputation for approaching any and all neighbors for "loans" or "rides." Indeed, practically every neighbor was aware of Tina's habits, and each had been approached by her for favors at one time or another. The other "neighborhood children" are not identified in the petition, but Brewer acknowledged that he occasionally transported not only Tina but also some of her friends. Except for Brewer's voluntary admission that he gave approximately $20 to Kim, a friend of Tina, during the last year, there is no evidence of any other "neighborhood children" receiving loans from Brewer. As to Kim, she is not a resident of the neighborhood, and her age and address are unknown. Brewer readily acknowledged that during recent years, he occasionally gave Tina a few dollars and bought her meals since he felt sorry for her, and she always appeared to be hungry and broke. Prior to that, he had also given her money for odd jobs around his house. He readily acknowledged that he gave her rides to or from various places since she had no transportation. This was because her mother refused to provide transportation once she dropped out of school. There were no sinister motives in providing this assistance since he thought of her as a daughter who had a very troubled childhood. Finally, while the mothers of both Tina and Robin disapproved of Brewer and instructed their daughters not to see him, they knew what Brewer was doing but never personally told Brewer to stop allowing their daughters into his home or, in the case of Tina, to stop giving her rides or occasional financial assistance. Using Profanity in the Presence of a Minor The amended complaint alleges that Brewer used profanity in the presence of a minor and engaged in "other inappropriate conversation." This charge stems from a visit by Tina to Brewer's home in June, 1987. Tina admitted that Brewer never used profanity in her presence prior to that visit. However, by June 25, 1987 Brewer had been charged with a misdemeanor and was extremely upset at Tina, who was responsible in part for police filing charges against him after the January 1, 1987 On incident. June 25 Tina briefly visited Brewer's home where the two discussed the criminal charges. Tina was told by Brewer that their conversation was being taped. A transcription of the conversation has been received in evidence as petitioner's exhibit 4. Brewer proceeded to question Tina about the January 1 incident. During the course of the conversation Brewer used the words "bullshit," "dammit," "damn," and "shit." However, Tina was then an adult (eighteen years of age) and was not a student since, according to her mother, she had not "officially" attended school since she was thirteen. Miscellaneous Despite Tina's continued truancy from school, Brewer attempted to persuade Tina to stay in school and to obtain an education. However, if he spoke with her for any length of time on this subject, she would simply leave the room. She ignored all of his advice. Tina was observed driving Brewer's car around the block on one occasion when she was fifteen years old which was prior to her receiving a driver's license. However, it was done without Brewer's knowledge and consent.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the amended petition for dismissal filed against respondent be dismissed, with prejudice, and that respondent be reinstated retroactive to November 17, 1987 with all attendant back pay. DONE AND ORDERED this 5th day of July, 1988, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER 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 5th day of July, 1988.
The Issue Did Respondent, Robert Skidmore, III, violate section 112.313(6), Florida Statutes (2011),1/ by using his position as county commissioner to ask a county staff member to approve a zoning application for Beach Road Boutique? Did Mr. Skidmore violate section 112.313(6) by asking a county employee to look for and selectively enforce code violations against J.J.'s Restaurant?
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following Findings of Fact are made: At all times relevant to this proceeding, Mr. Skidmore was a Charlotte County commissioner. Beach Road Boutique Zoning Scott and Jill Hemmes, constituents of Mr. Skidmore, owned a business known as Beach Road Boutique in Charlotte County. They sought to obtain a state alcoholic beverage sales license. In order to obtain a license, the applicant must demonstrate local zoning approval. Charlotte County Commission employees enforce and apply zoning regulations in the county. Erin Mullen-Travis is the licensing manager for Charlotte County Planning and Development. During 2011, she was the code compliance and licensing manager. Ms. Mullen-Travis has worked for Charlotte County over 26 years. One of Ms. Mullen-Travis's duties as code compliance and licensing manager was the review and approval of the zoning requirements on applications of establishments wanting alcoholic beverage licenses. Ms. Mullen-Travis first denied the zoning application of Beach Road Boutique on February 17, 2011. Mr. and Ms. Hemmes sought Mr. Skidmore's assistance getting approval for their zoning application. Mr. Skidmore called Ms. Mullen-Travis about the application. Mr. Skidmore told Ms. Mullen-Travis that he had some nice people in his office and that he needed help getting zoning approval for them. In her 26 years of employment with Charlotte County, Mr. Skidmore was the only county commissioner who had ever directly sought her assistance with constituent matters. Other commissioners had always gone through the chain-of-command. He identified the applicant, and Ms. Mullen-Travis explained why the zoning had not been approved. Ms. Mullen-Travis felt intimidated by Mr. Skidmore. Mr. Skidmore, however, did not threaten Ms. Mullen-Travis or explicitly offer any reward available to him because of his position as county commissioner. He did, however, implicitly offer a reward, if she helped the Hemmes. It is common knowledge in Charlotte County that Ms. Mullen-Travis is a NASCAR fan. Among other things, she drives a car with Dale Earnhardt and NASCAR badges and decals. During the call, Mr. Skidmore asked Ms. Mullen-Travis about her affinity for NASCAR. He also offered to get her an autographed photo of Rusty Wallace (a NASCAR driver) and tickets to a race. He told her that he had gone to school with Rusty Wallace's son. This is true. And Ms. Mullen-Travis could not have known it without Mr. Skidmore telling her. Given the context, Ms. Mullen-Travis accurately considered that the tickets and photo were offered in exchange for her approval of the application to the benefit of the Hemmes. Also, the call was made in Mr. Skidmore's official capacity. Charlotte County has a Home Rule Charter (Charter). Section 2.3(A)(1) of the Charter makes the county administrator responsible for all administrative matters and operations. Section 2.3(C)(1) states: "Except for purposes of inquiry and information, the members of the board of county commissioners shall not interfere with the performance of the duties of any employee of the county who is under the direct or indirect supervision of the county administration." Also, the long-established practice was for commissioners to only contact agency directors. Mr. Skidmore's call to Ms. Mullen-Travis was contrary to the Charlotte County Charter and the practice under it. Therefore, it was not an authorized act pursuant to his duties or authorities as a county commissioner. Mr. Skidmore and Ms. Mullen-Travis were the only participants in the call. He denies the conversation. Ms. Mullen-Travis's account is more credible. This is based upon her contemporaneous communications about the call, the common recollection of all witnesses of a NASCAR component to the conversation, the fact that she could not otherwise have known Mr. Skidmore went to school with Rusty Wallace's son, the relative personal interests of the witnesses in the outcome of the proceeding, and the demeanor of the witnesses, particularly of Mr. Skidmore's. Shonna Jenkins worked as a contractor licensing investigator for Charlotte County for a little over seven years. She held that position in 2011 and reported to Ms. Mullen-Travis. Mr. Skidmore had obtained Ms. Jenkins cell phone number. He had a practice of calling her directly to check on contractor licensing matters. He also contacted Ms. Jenkins to ask her to approve the Beach Road Boutique zoning application. J.J.'s Restaurant After a meeting held on March 3, 2011, Mr. Skidmore flagged Ms. Jenkins down in the parking lot. He asked her to "do him a favor," and "go shut them [J.J.'s Restaurant] down. I want them out of this f**ing town." Mr. Skidmore wanted Ms. Jenkins to find code violations for J.J.'s Restaurant. Mr. Skidmore said that he would make sure that Ms. Jenkins got a pay raise or a pay grade increase for this. Either the ex-boyfriend or ex-husband of Mr. Skidmore's wife and father of her child had an interest in J.J.'s Restaurant. There was conflict between the two families. Mr. Skidmore had also requested the Charlotte County director of Growth Management, Jeff Ruggieri, to take code enforcement actions against J.J.'s Restaurant. Ms. Jenkins was intimidated and feared her job with the county was in jeopardy if she did not do as Mr. Skidmore asked. Ms. Jenkins reported the conversation to Ms. Mullen-Travis and Joanna Colburn, a licensing investigator, immediately afterwards. Ms. Jenkins was visibly upset and shocked. She also contemporaneously documented the incident. Ms. Jenkins is and has been frank about her dislike for Mr. Skidmore. This hostility, as well as the mental and emotional difficulties Ms. Jenkins suffered as a result of her employment and dealings with Mr. Skidmore, does not undermine her testimony. In light of the witnesses' demeanor and corroborating evidence, her testimony is credible. In addition, although evidence established Ms. Jenkins was taking several medications, the record does not indicate that the medications in any way affect a person's memory or veracity. Mr. Skidmore's requests to Ms. Jenkins and Mr. Ruggieri to act against J.J.'s Restaurant were in violation of the Charlotte County Charter and, therefore, not authorized acts pursuant to his duties or responsibilities as a county commissioner.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order and public report be entered finding that Respondent, Robert Skidmore, III, twice violated section 112.313(6) and that he be fined $5,000 for each violation for a total of $10,000, together with public censure and reprimand. DONE AND ENTERED this 27th day of February, 2015, in Tallahassee, Leon County, Florida. S JOHN D. C. NEWTON, II Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of February, 2015.
The Issue The issues for consideration in this case concern separate notices to show cause placed against the named Respondents alleging violations of Chapter 509, Florida Statutes (1990 Supp.), and Chapter 7C, Florida Administrative Code. These notices date from January 25, 1991. The notices to show cause seek to impose fines against the corporation and the Nelsons.
Findings Of Fact On May 14, 1990 Windy Shores Trading Post Inc. conveyed property at 30 South Grandview Avenue, Daytona Beach, Volusia County, Florida, to Windy Shores Aero Research, Inc. That latter corporation is the Respondent in DOAH Case No. 91-0681. Again for ease of reference Windy Shores Aero Research, Inc. shall be referred to as "the corporation." The Respondent corporation is a Florida corporation. No one identified as having appropriate authority to request a hearing for the corporation either on an expedited basis or pursuant to the normal notice time prescribed by Section 120.57(1)(b)2, Florida Statutes, has asked that the corporation be heard in defending accusations made in the notice to show cause pertaining to DOAH Case No. 91-0681. The hearing request described in the preliminary statement made by Eric Nelson does not constitute a legitimate request for hearing by the corporation. This determination is made based upon the record established at hearing both in testimony and documentary evidence. All that has been established concerning the corporation's position is that, according to Petitioner's Exhibit No. 16 in DOAH Case No. 91-0681, the corporation through certified mail return receipt requested was served with the emergency order and associated notice to show cause. At all times relevant to the inquiry, a building a 30 South Grandview Avenue, Daytona Beach, Volusia County, Florida, was operated as a seven unit, transient rental, public lodging establishment. The last license of record for that property had been issued in the name of Roy E. Midkiff, d/b/a Layton Apartments under license no. 74-01494H-1. This license was issued under the authority of Chapter 509, Florida Statutes. Neither the corporation nor the Nelsons have ever sought or been issued a license pursuant to Chapter 509, Florida Statutes, which would allow those Respondents to operate the public lodging establishment at 30 South Grandview Avenue. It can be inferred that the property in question passed from Midkiff eventually ending up with the Respondent Corporation after the conveyance from Windy Shores Trading Post, Inc. on May 14, 1990. By history, the City of Daytona Beach became aware of the subject property and its problems back in March, 1990. In particular, the City of Daytona Beach through its Code Enforcement Division was concerned about the addition of a living unit at the premises without appropriate permission. Concerns about this were addressed to Carol E. Nelson at 2036 South Ocean Shores Boulevard in Flagler Beach, Florida by certified mail return receipt requested dated March 26, 1990. A copy of this notice of violation may be found as Petitioner's Exhibit No. 1. This was followed up by an affidavit of violation and notices of hearing addressed to Carol E. Nelson, who in this affidavit of violation and notices of hearing was referred to as President, as she had been in the March 26, 1990 correspondence. This description of the violation of adding a living unit and other matters related to that from the point of view of the Code Enforcement Board of the City of Daytona Beach may be found in Petitioner's Composite Exhibit No. 2. These documents under Petitioner's Composite Exhibit No. 2 run from April, 1990 to January 29, 1991. In would appear that the presidency which was being attributed to Carol Nelson was that affiliation with Windy Shores Trading Post, Inc., the former corporate owner of the subject property. The violation concerning the addition of an unauthorized living unit at the subject facility remains pending before the City of Daytona Beach. When the tax records were prepared for 1990 the City of Daytona Beach became aware of the change in the ownership of the subject property as described in Petitioner's Exhibit No. 3 listing the corporation as the owner and the corporate headquarters as 2036 South Ocean Shore Boulevard, Flagler Beach, Florida. Fred Holmes of the Daytona Beach Code Administration Division and Inspector/Supervisor for that Division, in his testimony, addressed the history of the property from the point of view of the City of Daytona Beach. When he was on the property on January 29, 1991, the persons who were on the property other than tenants were the Nelsons. Holmes is also aware that on January 30, 1991, an application for an occupational license to operate the subject property was made with the City of Daytona Beach and was signed by Carol Nelson in the interest of the corporation. A copy of this occupational license application can be found as Petitioner's Exhibit No. 5. It points out that the property is owned by Winifred L. Nelson of 2038 South Ocean Shore Boulevard, which has been shown to mean 2038 South Ocean Shore Boulevard in Flagler Beach, Florida. The record on balance supports the fact that Winifred L. Nelson, who is Eric Nelson's mother, owns the corporation. The application and Petitioner's Exhibit No. 5 admitted into evidence refers to a transfer of ownership of the subject property from Windy Shores Trading Post to the corporation. On January 29, 1991, the City of Daytona Beach communicated with Petitioner in the person of Barbara Palmer, Director, notifying the Petitioner that effective January 25, 1991, the City had placed the property in question off limits by notice that it was unsafe and its use or occupancy prohibited. A reinspection on January 29, 1991, pointed out that the violations about which the City, as well as the Petitioner, were concerned related to safety and occupant welfare had not been corrected. The correspondence of January 29, 1991, from the City to the Petitioner found as Petitioner's Exhibit No. 4 speaks of those matters. A list of deficiencies found by the City corresponds in many respects to allegations in the notices to show cause. According to Fred Holmes an inspection was made on February 1, 1991 to speak to the application for occupational license and the results of that inspection were not known at the point of hearing. Petitioner's Exhibit No. 6 admitted into evidence related to the City of Daytona Beach and its inspection dated January 11, 1991, points out deficiencies that are common to the concerns in the notices to show cause. Notice of these deficiencies was provided to Carol and Eric Nelson at the time of this January 11, 1991 inspection. Inspector Holmes was of the opinion that the apartment building would not have met local code requirements of the City of Daytona Beach. The City was continuing to express concerns about the unauthorized occupancy of the one apartment added without permission. The City at that point expected corrections to be made and the removal of that improvement, i.e. the additional apartment. Inspector Holmes is unaware of any changes over time in persons who are responsible for the conduct of the business at the property in that he has no documentation in his records concerning such changes. In particular, he is not aware of any permission from Winifred Nelson to Eric Nelson allowing him to act in her behalf. At the hearing Holmes was unaware that Winifred Nelson was the authorized agent for the corporation. Charles Casper, Environmental Health Specialist for the Petitioner, made an inspection at the premises on June 8, 1990, and found certain deficiencies which are set out in the Composite Exhibit No. 7. Among the highlights of this inspection was the identification of the fact that the property was being rented without being properly licensed and that an additional unit had been installed under the building without city approval or permits as described before in the remarks attributable to Inspector Holmes. Petitioner's Exhibit No. 7 is a composite exhibit and it also contains a complaint by J. Young made on June 29, 1990, concerning a security deposit about which she had requested reimbursement on moving out of the apartment at the subject premises effective May 5, 1990. Within that exhibit is found a copy of a memorandum dated May 2, 1990, from Carol E. Nelson signed as d/b/a Windy Shores Trading Post, Inc. releasing Ms. Young from lease obligations as a tenant. The contents of the Young lease may be found in Petitioner's Exhibit No. 8 admitted into evidence. It includes the agreement under the terms of the lease related to the security deposit. Back in June, Casper was attempting to get Carol Nelson to seek a license from the Petitioner to operate the premises. He made Ms. Nelson aware of the problems that he had identified at the premises to include the lack of a license. If Carol Nelson should arrange for the purchase of a license for the benefit of the corporate operator the obtaining of that license, according to Casper, would take care of the complaint about a lack of license. He reminded Carol Nelson that if the corporation as opposed to Windy Shores Trading Post, Inc. operated the premises, it would need a license and that if during certain relevant times the two corporations operated the premises separately that the proprietors would be paying for licenses twice within a license period. During this conversation Carol Nelson told Casper that when problems were experienced they were responded to by changing to a new corporation. Carol Nelson told Casper that Carol Nelson and Eric Nelson operated the property in question. When Casper made his June inspection he understood the name of the premises to be Layton Apartments. This was based upon the records of the Petitioner associated with the earlier licensed operator Mr. Midkiff. J. M. Young had entered into the lease that has been described through Volusia Realty Associates, Inc. as agent for Midkiff. Four or five months later Windy Shores Trading Post, Inc. bought the property from Midkiff, to Young's understanding. This is confirmed in Petitioner's Exhibit No. 9, correspondence from a representative of Volusia Realty to Petitioner in which Windy Shores Trading Post, Inc. in this May 17, 1990 correspondence is identified as the new owner. Ms. Young had been made aware of that change on January 24, 1990 in correspondence from Volusia Realty to J. Miller setting out that Windy Shores Trading Post, Inc. was now the owner of the property in question. Carol Nelson and her husband are the owners of Windy Shores Trading Post, Inc. Petitioner's Exhibit No. 7, which contains the January 24, 1990 correspondence sets out the fact that Ms. Young's security deposit had been transferred to the new owners, the Nelsons. After the change in ownership from Midkiff to Windy Shores Trading Post, Inc., Young would pay Carol and Eric Nelson her rent and would get a receipt from Windy Shores Trading Post, Inc. Following certain problems, which brought about Young's departure, she got the release from the requirements of her lease from Carol Nelson as has been described. Eric Nelson told Ms. Young that she would get her security deposit back as did Carol Nelson. The security deposit has not been returned. This has not been arranged even though Ms. Young has continued to contact Eric Nelson to get the deposit money. No notice has been given to Ms. Young concerning a claim against the security deposit made by Eric Nelson. Ms. Young was never made aware of a transfer of the ownership of the subject property to the corporation. Dennis Steinke is a Sanitation and Safety Specialist with Petitioner. On December 20, 1990, he performed an inspection at the premises in question. This inspection together with an inspection of January 22, 1991, forms the basis of the charges in the notices to show cause. The findings in the Steinke inspection are part of Petitioner's Composite Exhibit No. 10 in DOAH Case No. 91-0682. A legal notice was given of the findings of that inspection. That led to a notice to show cause dating from January 15, 1991, directed to Eric and Carol Nelson trading as Layton Apartments. This notice to show cause predates the notices to show cause which are under consideration in the present cases. The prior notice to show cause of January 15, 1991 is part of Petitioner's Composite Exhibit No. 10 in DOAH Case No. 91-0682. It carries with it the same nine violations which are spoken to in the subject notices to show cause. Again, the Nelsons do not contest the findings set out in the legal notice which followed the inspection by Steinke and as identified in the present notice to show cause in DOAH Case No. 91-0682 attached as an appendix and as restated from the January 15, 1991 notice to show cause. The January 15, 1991 notice to show cause was served on the Nelsons. No one availed themselves of the opportunity for an informal conference on January 24, 1991 that the January 15, 1991 notice to show cause made available. At the time Steinke made his December 20, 1990 inspection and made the findings reported in Petitioner's Exhibit No. 10 he was unaware that the corporation owned the premises. Steinke's findings of December 20, 1990 were based upon the inspection of three or four units within the licensed premises. Another Inspector with the Petitioner who had a knowledge of the premises is Arthur Begyn. He took certain photographs of the premises on January 25 and 29, 1991, found as Petitioner's Composite Exhibit No. 11 showing the state of disarray at the licensed premises and further confirming observations that had been made by Inspector Steinke in his December 20, 1990 inspection. Begyn had been to the property in mid-November based upon a complaint about operations there. His purpose was to inspect the property but no one was available for such inspection. He tried to find out who the owner of the property was by calling a number that was located on the building. That telephone number is found in one of the photographs in Petitioner's Exhibit No. 11 admitted into evidence. He made contact through that telephone number and presented himself as a possible future tenant. The person who spoke to him on the phone was a lady. She stated that someone would come and make contact with him at the property. As a result of this telephone conversation he met with Carol Nelson who said she was representing Windy Shores Trading Post, Inc. which was the name in a recorded message eminating from the telephone number that had been found on the building. In other words, the telephone answering device said that the caller had made contact with Windy Shores Trading Post, Inc. When the contact was made with Carol Nelson at the property, Begyn made the remark that "you must be the owner of the building", to which Carol Nelson replied "yes, I am". That comported with what certain tenants had told Begyn, that is to say that Carol Nelson and her husband owned the building. Carol Nelson in the course of the conversation with Begyn told him that he should pay her or her husband Eric Nelson the rent money. It was not clear whether the payment would end up with an individual or a corporation. Among the highlights of the photographs of Petitioner's Exhibit No. 11 are those which show that the basement apartment has a door shorter than that of Mr. Begyn how is 6' 1 1/2" tall. There is one photograph that shows a smoke detector ripped from a wall and his inspection of the seven units demonstrated that the individual units did not have smoke detectors. There was a smoke detector in the hall which worked. A rear entrance door on the first level appears to be rotting and in that same area the wood had been disturbed and there were rodent droppings in evidence. There was a leak in an apartment bathroom. There was tile that had been ripped up and not repaired. There was loose electrical wiring hanging down in a certain area. One door which normally has a window was missing a window. A junction box showed where a wire had touched the metal and had a charred appearance with exposed wiring. There was a large hole in the ceiling leading up into an attic. These items were of the nature found by Steinke in his December 20, 1990 inspection. On January 25, 1991, when Begyn was at the property around 6:25 p.m. the Nelsons arrived and removed certain notices that had been placed by the Petitioner in Daytona Beach which prohibited the occupancy of that building. At one point Eric Nelson yelled out to Begyn to, "stay the f off by mf property." Begyn served and read the order and notice related in DOAH Case No. 91-0682 to Carol Nelson on January 25, 1991. This pertains to the emergency order and notice to show cause. These items are seen in Petitioner's Exhibit No. 14 admitted into evidence. Chester Cole who is the District Director for Petitioner in the Orlando, Florida area, in his testimony, identified the fact that the Petitioner became aware that the property in question was operating without the appropriate license contemplated by Chapter 509, Florida Statutes. The records of the Petitioner indicated that Midkiff was the last license holder. Someone contacted the Petitioner and said that he was taking over the property, that person claimed to be Eric Nelson. Eric Nelson indicated that he was the owner of the property and made no mention of a corporation. Nelson was sent an application in which he could point out the change in ownership and get a new license. That application was never returned by Eric Nelson. Mr. Cole was not made aware through any notice from the Nelsons or anyone else who the owner was beyond the Midkiff ownership. As of January 14, 1991, Cole was of the opinion that the Nelsons owned the premises in question. Cole became aware of the tax roll information found in Petitioner's Exhibit No. 3 which showed that the corporation owned the property in question. Cole was also aware through information from the Secretary of State, carried forward on a computer printout of the Petitioner that the corporation had a corporate address of 2036 South Ocean Shore Boulevard, Flagler Beach, Florida, and the registered agent was Winifred Nelson whose address is 2038 South Ocean Shore Boulevard, Flagler Beach, Florida. This is found in Petitioner's Exhibit No. 12 admitted into evidence which carries a date of January 25, 1991 and another date referred to as a "filed date" of May 2, 1990. As alluded to before, Carol Nelson was served with the emergency order and notice to show cause in DOAH Case No. 91-0682. Her husband was also served on January 25, 1991. Both parties were served at 2036 South Ocean Shore Boulevard, Flagler Beach, Florida. Corroboration of service on the corporation by certified mail in DOAH Case No. 91-0681 was made in remarks from Eric Nelson to Mr. Cole in which Nelson identified that the service was perfected by certified mail and the return receipt dispatched. The corporation's address and that of the Nelsons at 2036 South Ocean Shore Boulevard, Flagler Beach, Florida is the same. Based upon the remarks by Eric Nelson in his testimony, the property in question was never owned in his proper person or by his wife. He did acknowledge that at one time Windy Shores Trading Post, Inc. owned the property in question and that ownership in the Windy Shores Trading Post, Inc. was held with his wife. Nelson points out that he and his wife never did business as Layton Apartments. From Eric Nelson's testimony and other matters presented it appears that Windy Shores Trading Post, Inc. took ownership from Mr. Midkiff. In turn the transaction of May 14, 1990, took place in which Windy Shores Trading Post, Inc. sold out to the Respondent corporation. Eric Nelson in his testimony said that he and Carol Nelson his wife do not work for the corporation or have any "statutory" tie to the corporation. He says in his testimony that he and his wife divested association with the corporation through the change of ownership of May 14, 1991. He describes himself as an independent subcontractor for the corporation as it relates to the building in question. Eric Nelson states that he has not collected rent at the property. He reiterates that his wife is not an employee of the property. He makes the comment that his mother had asked his wife to collect rent for the mother until the mother had returned from her trip to Canada. He indicates that some other "agent" collects rent for the mother on the property in question. He identified the fact that on January 25, 1991, that his mother was in Florida the latter the part of the afternoon and was at 2036 South Ocean Shore Boulevard between 10 a.m. and noon briefly and as he describes it "in and out." Eric Nelson identified that he sleeps at 2036 South Ocean Shore Boulevard at times and that the corporation gets mail there. Contrary to Eric Nelson's protestations, he and his wife during the relevant times associated with the December 20, 1990 and January 22, 1991 inspections referred to in the notice to show cause in DOAH Case No. 91-0682 were serving as managers, and appointed agents of the corporation, as defined at Section 509.013, Florida Statutes (1990 Supp.). Eric Nelson in his behalf and that of his wife conceded to the factual observations of the January 22, 1991 inspection performed by Joseph Pitrowski and found within Petitioner's Exhibit No. 15 admitted into evidence. They coincide with the earlier inspection of December 20, 1990 by Mr. Steinke. Testimony of Mr. Pitrowski was given as it relates to accusations made against the corporation at a time where counsel for Petitioner had announced that the Pitrowski testimony would relate to the corporation and not to the Nelsons. Under the circumstances, Mr. Nelson as representative for himself and his wife departed the hearing room before Pitrowski testified. Therefore, with the exception of the written report rendered by Mr. Pitrowski found within Petitioner's Exhibit No. 15 admitted into evidence and related to an inspection of January 22, 1991, it would be inappropriate to find facts against the Nelsons based upon the Pitrowski testimony. Likewise, that testimony by Mr. Pitrowski related to the corporation has no utility in that the corporation has never requested a formal hearing to contest the accusations placed against it when examining the present record.
Recommendation Based upon the consideration of the facts found and the conclusions of law, it is recommended that a Final Order be entered which absolves the Nelsons of the allegations under Item no. 1 in the appendix; fines the Nelsons in the amount of $1,000 for the violation established in Item no. 2; fines the Nelsons in the amount of $250 for the violation established in Item no. 3; fines the Nelsons in the amount of $1,000 for the violation established in Item no. 4; fines the Nelsons in the amount of $250 for the violation established in Item no. 5; absolves the Nelsons of the violation alleged in Item no. 6; fines the Nelsons in the amount of $500 for the violation established in Item no. 7; absolves the Nelsons of the violation Item no. 8 and fines the Nelsons in the amount of $250 for the violation established in Item no. 9. No disposition is suggested concerning the corporation, it having been concluded that the corporation has not requested a formal hearing. In that respect the case is returned to the referring agency for disposition in DOAH Case No. 91-0681 without commenting on the merits of the allegations made against the corporation. RECOMMENDED this 4th day of March, 1991, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of March, 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-0681 The following discussion is made of the Petitioner's proposed fact-finding. Paragraphs 1 and 2 with the exception of the last sentence of Paragraph 2 are subordinate to facts found. The last sentence of Paragraph 2 is not necessary to the resolution of the dispute. Paragraphs 3 through 10 are subordinate to facts found. Paragraph 11 is subordinate to facts found with the exception of the discussion of the violations as they pertain to the corporation which alleged violations have not been challenged by the corporation. Concerning Paragraph 12, remarks attributable to Inspector Pitrowski are rejected because they were made outside of the presence of the Nelsons at a time when counsel for Petitioner had announced that the case related to the Nelsons had been concluded. Paragraph 13 is subordinate to facts found. COPIES FURNISHED: Barbara Palmer, Director Division of Hotels and Restaurants Department of Business Regulation 725 South Bronough Street Tallahassee, FL 32399-1007 Emily Moore, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, FL 32399-1007 Janet E. Ferris, Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, FL 32399-1007 Eric Nelson 2036 South Ocean Shore Boulevard Flagler Beach, FL 32136 Windy Shores Aero Research, Inc. Attn: Winifred Nelson 2036 South Ocean Shore Boulevard Flagler Beach, FL 32136 Windy Shores Aero Research, Inc. Attn: Winifred Nelson 2038 South Ocean Shore Boulevard Flagler Beach, FL 32136
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: On March 26, 1991 Venice applied to the Department for a CCCL permit to construct a 475 foot wooden retaining wall seaward of the coastal construction control line and to place a shell road immediately adjacent to, and landward of, the retaining wall from approximately 100 feet south of Granada Avenue to approximately 50 feet south of Ocala Street on Venice's right-of-way of The Esplanade in Venice, Florida. The Petitioners Roy B. and Patricia B. Olsen are residents of Venice, Florida and reside at 304 Ocala Street. They own Lot 1, The Esplanade, which is immediately east and south of the southern terminus of the proposed retaining wall. Petitioner, Nina Howard is a resident of Venice, Florida and resides at 721 Ocala Street. Ms. Howard's residence is located to the south and across Ocala Street from the site of the proposed retaining wall. Intervenors, Roger and Irene Fraley are residents of Venice, Florida and reside at 221 The Esplanade South, which is immediately landward (east) of the site of the proposed retaining wall. Intervenors, Howard and Evelyn Barbig are residents of Milton, Florida but are owners of lot 4, The Esplanade South, located north of the Fraleys' property and immediately landward (east) of the site of the proposed retaining wall. The Petitioners oppose the granting of the CCCL permit. The Petitioners have expressed their opposition to the granting of the CCCL permit based upon their belief that the construction of the proposed retaining wall will have adverse impacts to the beach dune areas and to the adjacent properties. Specifically, it is their belief that the construction of the proposed retaining wall will accelerate the erosion of the beach dune areas and the adjacent properties. The Petitioners disagree with the conclusion reached by the Department in the final order that, "the activities indicated in the project description are of such a nature that they will result in no significant adverse impacts to the beach dune areas or to the adjacent properties." Intervenors, Fraley and Barbig are in favor of the issuance of the CCCL permit because it will prevent seasonal erosion which results in exposure of, and damage to, the sewer line along The Esplanade, and will provide public access over the shell road within the right-of-way of The Esplanade for those properties between Granada Avenue and Ocala Street that do not have public access from time to time due to the seasonal erosion. On April 17, 1991 the Department advised Venice that the CCCL permit application was determined to be incomplete, and advised Venice of those things needed to make the application complete. Subsequent to this letter, the Department determined that, although the application was not an emergency, it did deserve "fast tracking", and assisted Venice in bringing the application to a "complete" status. On April 25, 1991 the Department issued a Final Order administratively approving CCCL permit number ST-820 for the construction of a wooden retaining wall and shell access road as described in Venice's application. On April 26, 1991 the Department issued a Notice to Proceed Withheld to Venice, which advised Venice not commence construction of the project authorized by the permit until certain permit conditions had been met. This notice also gave notice to those whose substantial interests would be affected by the proposed project of their right to a formal hearing. An engineering assessment was made for this project, and although not a formal written engineering assessment, the engineering assessment did consider all conditions of adverse impacts. In making this assessment, the Department considered and reviewed available aerial photographs, photographs taken of the area of the proposed project site and erosion tables concerning the area. A formal written engineering assessment is not required by statute, rule or Department policy. This assessment also indicated that there are severe impacts due to winter storm events which contribute to the seasonal profile changes. The seasonal beach profile is depicted by the build up of the beach (sand) during the summer months and the removal (erosion) of beach (sand) during the winter months. However, due to an inlet, a major rock-out cropping and the rock grain structures located in the vicinity of the proposed site, there is a limitation on the natural movement of sand along the coast which prevents natural renourishment and results in severe erosion in the area of the proposed site during the winter months. This erosion during the winter months causes the sewer pipes along The Esplanade to be exposed and sometimes broken, and prevents access over the right-of-way of The Esplanade to certain properties located along The Esplanade between Granada Avenue and Ocala Street. The wooden retaining wall is designed to retain sand just landward of the wall and allow a shell access road to be placed on the right-of-way of The Esplanade. The wooden retaining wall will be constructed as follows: (a) 8" x 20' wooden piling will be placed on 6' center and driven to an approximate depth of -14.00 (NGVD); (b) 2" x 8" planking will be attached to the landward side of the piling from the top of the piling (+7.0 NGVD) to a depth of appropriate 7 feet (0.00 NGVD); (c) with a filter "x" cloth covering the planking on the landward side. At the time of the application, the existing beach was +5.0 (NGVD) which would leave approximately 2 feet of the retaining wall exposed on the seaward side. The purpose of the retaining wall is to protect the shoreline in the immediate vicinity of The Esplanade and thereby protect the sewer line and access road which are landward of the seaward (west) right-of-way line of The Esplanade. The proposed wooden retaining wall is to be located as far landward as possible, and will be the minimum size and configuration to protect the sewer line and the shell access road along The Esplanade right-of-way. The retaining wall is designed to be temporary in nature in that its design will not allow it to survive under a major storm event. In that regard, the retaining wall comes within the definition of a minor structure as defined by rule and does not require a formal written review. The access road will enable Venice to establish a public road on public right-of-way for ordinary and emergency utilization by the residents and Venice. Previous attempts by Venice to protect the sewer line by "shoring up" the area with sand bags have proven unsuccessful. A wooden retaining such as the one proposed would be the next logical step to prevent the exposure and damage to the sewer line and still be consistent with the coastal armoring policy adopted by the Governor and Cabinet in December 1990. Dr. Al Deveraux, Bureau Chief, Control Engineering, personally viewed the site prior to approval of the project and waived compliances with certain provisions of the application. There is sufficient competent substantial evidence to establish that: erosion is occurring in the area of the proposed site without the presence of the proposed retaining wall; without the proposed retaining wall, Venice will be unable to prevent that erosion, particularly during the winter storm events, which will result in exposure and damage to the sewer line and lack of public access to certain properties located along The Esplanade between Granada Avenue and Ocala Street; and upon construction of the retaining wall, the beach dune area and the adjacent properties to the south of the proposed project will experience some increase in erosion above that presently occurring, but it will be minimal and will not have a significant impact on the area. The application submitted by Venice was processed and approved in accordance with statutes, rules and Department policy. There is sufficient competent substantial evidence to establish that granting CCCL permit number ST-820 and constructing the retaining wall and access road as set forth in Venice's application would be in the best public interest. The Petitioners' expert witness on coastal engineering concluded that there would be substantial erosion of the beach dune area and adjacent properties south of the proposed retaining wall as a result of constructing the retaining wall. However, this conclusion was not supported by competent substantial evidence. Special permit condition 1 requires Venice to provide the Department with a Sea Turtle Protection Plan approved by the Florida Marine Research Institute in St. Petersburg, Florida. This special condition takes into account the Department's policy for the protection of sea turtles as described in Rule 16B-33.005(9), Florida Administrative Code. The project is consistent with the thirty-year erosion projection and is not located seaward of that line.
Recommendation Having considered the foregoing findings of fact and conclusions of law, it is, accordingly recommended that the Department enter a Final Order issuing CCCL permit number ST-820 to the City of Venice, Florida subject to all the special conditions contained therein, and adding one other special condition requiring the City of Venice, Florida to monitor the beach dune system and adjacent properties south of the project site on a semi-annual basis for a period deemed necessary by the Department, and report any accelerated erosion that might occur in that area to the Department for review and action. RECOMMENDED this 27th day of December, 1991, in Tallahassee, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of December, 1991.
The Issue The issue for determination at the final hearing was whether the license of Respondent Willie J. Whittington should be revoked, suspended or otherwise disciplined for the acts alleged in the Administrative Complaint filed May 19, 1982. At the final hearing, Cathi Cox and Dr. Carol E. McWilliams testified for the Petitioner. Petitioner's Exhibits 1-8 were offered and admitted into evidence. The Respondent testified on his own behalf and Respondent's Exhibit No. 1 was admitted into evidence. Following the final hearing, the Respondent furnished the Hearing Officer with written estimates of the cost of the added work performed at the construction site. These estimates have been marked and are admitted as Respondent's Exhibits 2-7. Additionally, official recognition was taken of Palm Beach County Construction Industry Licensing Board Specialty Contractor Standards. Proposed Recommended Orders have been submitted by the parties. To the extent that the proposed findings submitted by the parties are not reflected in this order, they are rejected as being either not supported by the weight of credible evidence or as being irrelevant to the issues determined here.
Findings Of Fact At the final hearing, the parties orally stipulated to the following facts contained in paragraphs 1-6: The Respondent Willie J. Whittington is a certified general contractor having been issued license number CC 006966. The last known address of the Respondent is Whittington & Sons Builders, Inc., 7660 North State Road 7, Pompano Beach, Florida 33067. The Respondent Whittington is the qualifying agent for Whittington & Sons Builders, Inc. On July 28, 1980, Whittington & Sons Builders, Inc., entered into a contract with Carol E. McWilliams to remodel a veterinary office located at 2775 South State Road 7, West Palm Beach, Florida, for the sum of $30,000. Two separate contracts were executed by the parties for the job; the first one in the amount of $30,000 while the second was for $35,000. The $35,000 contract was a falsification and was executed in order to aid Dr. McWilliams in obtaining a larger loan from her bank. To date, the Respondent Whittington has received approximately $30,668.70 from Dr. McWilliams. Although the Respondent did not provide a $2,000 well and septic tank as specified in the contract, he substituted a drain field and pump with a combined value of $1,589.00. Additionally, the Respondent provided extras on the job totaling approximately $2,500, including stucco, plumbing fixtures, tile, locks, a rear door and extra window. Dr. McWilliams was required to expend $536.92 for lighting fixtures when the existing fixtures were stolen from the job site. The Respondent was to have reinstalled the existing fixtures in the remodeled building. The fixtures were stored on Dr. McWilliams' property behind a locked chain link fence. Pursuant to the construction contract, however, the Respondent was not responsible for furnishing electrical or plumbing fixtures. During the course of this project, numerous changes were made in the original agreement. It is uncertain from the testimony how the changes came about; it is undisputed however, that numerous items not contemplated by the agreement were furnished by the Respondent and accepted by Dr. McWilliams. The Respondent obtained a permit to install an air conditioning unit from the county. The unit was installed by the Respondent and his son-in-law, neither of whom are licensed as air conditioning contractors. The Respondent replaced an existing unit which had been stolen and did not perform any duct work in connection with such installation.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Respondent Willie J. Whittington be found guilty of violating Section 489.129(1)(j), Florida Statutes, and be issued a reprimand. DONE and ENTERED this 17th day of January, 1983, in Tallahassee, Florida. SHARYN L. SMITH, 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 17th day of January, 1983. COPIES FURNISHED: John O. Williams, Esquire 547 North Monroe Street Suite 204 Tallahassee, Florida 32301 Willie J Whittington 7660 North State Road 7 Pompano Beach, Florida 33067 Fred Roche, Secretary Department of Professional Regulation Old Courthouse Square 130 North Monroe Street Tallahassee, Florida 32301 James Linnan, Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32202
