The Issue Is it in the public interest to place Petitioners, Paradies Shops, Inc. and Paradies Midfield Corporation (Paradies Shops and Paradies Midfield) on the State of Florida Convicted Vendor List maintained by Respondent State of Florida Department of Management Services (the Department)? Section 287.133, Florida Statutes (1996 Supp.).
Findings Of Fact The corporate headquarters of Paradies Shops is located at 5950 Fulton Industrial Boulevard, Atlanta, GA 30336. Paradies Shops is conducting business with several Florida public entities in the form of airport retail concession contracts. Paradies Shops owns 65 percent of Paradies Midfield. Paradies Shops owns 75 percent of Paradies-Ft. Lauderdale. Paradies-Jacksonville, Paradies-Sarasota and Paradies-Daytona Beach are all Sub-Chapter S corporations, for tax purposes; therefore, Paradies Shops does not own any stock in these three corporations. The Paradies family and Richard Dickson own, on an individual basis, 75% to 85% of the Sub- Chapter S affiliates. The remaining stock is owned by the Disadvantaged Business Enterprise (DBE) partners of Paradies Shops in these ventures. Paradies Shops and Paradies Midfield do not operate through divisions. Paradies Midfield has one subsidiary, Paradies Country Stores, Inc. All of the corporate addresses for other Paradies Companies, in addition to Paradies Shops, are at 5950 Fulton Industrial Boulevard, Atlanta, GA 30336. The subsidiaries, affiliates, limited liability companies and Florida leases of Paradies are as follows: Subsidiaries Paradies-Chicago, Inc. Paradies-Fort Lauderdale, Inc. Paradies-Hartford, Inc. Paradies-Louisville, Inc. Paradies Midfield Corporation Paradies Pugh, Inc. PAS Group, Inc. Affiliates Mercaro Gifts-TPS, Inc. Paradies-Concessions II-Arch, Inc. Paradies-Dayton, Inc. Paradies-Huntsville, Inc. Paradies-Jacksonville, Inc. Paradies-Knoxville, Inc. Paradies-LaGuardia, Inc. Paradies-Metro Ventures, Inc. Paradies-Orange Co., Inc. Paradies-Sarasota, Inc. Paradies-South, Inc. Paradies-Toronto, Inc. Paradies-Daytona Beach, Inc. Paradies-Vancouver, Inc. PGA Tour Licensing Limited Liability Companies Paradies & Associates, L.L.C. Paradies-Colorado Springs, L.L.C. Paradies-Madison, L.L.C. Paradies-Desert House, L.L.C. Paradies-Phoenix, L.L.C. Current Florida Leases Company Name Paradies Southwest Florida Intl. Lee County Port Ft. Myers, Florida Authority Paradies Palm Beach Intl. Airport Palm Beach West Palm Beach, FL County Paradies Tallahassee Regional Airport City of Tallahassee, Florida Tallahassee Paradies Orlando Intl. Airport Greater Orlando Orlando, Florida Aviation Authority Paradies Ft. Lauderdale Intl. Airport Broward County Ft. Lauderdale, Florida Paradies Jacksonville Intl. Airport Jacksonville Port Authority Paradies Sarasota/Bradenton Intl. Sarasota-Manatee Sarasota, Florida Airport Authority Paradies Daytona Beach Intl. Airport County of Volusia Daytona Beach, Florida The following constitutes the Florida business registrations for Paradies, to include the company name and the Florida registration number: Company Florida Registration # Parent Paradies, Inc. 826058 Subsidiaries Paradies-Ft. Lauderdale, Inc. M11773 Sub-S Affiliates Paradies-Jacksonville, Inc. P30174 Paradies-Sarasota, Inc. P27093 Paradies-Daytona Beach, Inc. F92000000397 Pursuant to Section 287.133, Florida Statutes (1996 Supp.), the Department is responsible for investigating and prosecuting cases involved with persons or affiliates that it has reason to believe have been convicted of a public entity crime. This responsibility is as a means to maintain a list of the names and addresses of those persons or affiliates who have been disqualified from the public contracting and purchasing process engaged in with Florida public entities subject to that statute. Daniel M. Paradies, Paradies Shops and Paradies Midfield, were charged with public entity crimes as defined within subsection 287.133(1)(g), Florida Statutes (1996 Supp). That case was tried before a jury in January, 1994 (U.S. v. Ira Jackson, et al., Case No. 1:93:CR-310, U.S. District Court for the Northern District of Georgia, Atlanta Division.) On January 22, 1994 the jury returned a verdict of guilty. On April 15, 1994, the U.S. District Court for the Northern District of Georgia, Atlanta Division, entered judgments of conviction for 83 counts of mail fraud against Daniel M. Paradies, Paradies Shops and Paradies Midfield, for violations of Sections 1341 and 1346 of Title 18, United States Code. Daniel M. Paradies was also convicted of one count of conspiracy to commit bribery in violation of Section 371 of Title 18, United States Code. These judgments and convictions of Daniel M. Paradies, Paradies Shops and Paradies Midfield constituted convictions for public entity crimes as defined within Subsections 287.133(1)(g) and 287.133(3)(e), Florida Statutes (1996 Supp.). Further information concerning the judgments of conviction may be found in Exhibits M, N, O and P to the joint stipulation of facts by the parties. The nature and details of the public entity crimes for which judgments of conviction were entered against Daniel M. Paradies, Paradies Shops and Paradies Midfield may be found in Exhibit P to the stipulation by the parties. As well, that exhibit speaks to the culpability of the persons or affiliates proposed to be placed on the Convicted Vendor List. Section 287.133(3)(e)3b. and c., Florida Statutes (1996 Supp.). On September 23, 1996, the United States Court of Appeals for the Eleventh Circuit affirmed all convictions of Daniel M. Paradies, Paradies Shops and Paradies Midfield. The Eleventh Circuit denied rehearing on December 26, 1996, but stayed its mandate pending a Petition for Writ of Certiorari in an Order entered January 22, 1997. By seeking a stay of the Eleventh Circuit's mandate, the Paradies companies announced their intention to file a Petition for Writ of Certiorari in the United States Supreme Court within thirty (30) days after the mandate had been stayed. A copy of the Eleventh Circuit order granting the motion to stay pending a Petition for Writ of Certiorari is found as Exhibit A to the fact stipulation by the parties. The Petition for Writ of Certiorari has been filed. In consideration of the requirements of Section 287.133(e)3.d, Florida Statutes (1996 Supp.), requiring consideration of "prompt or voluntary payment of any damages or penalty as a result of the conviction" for a public entity crime, no restitution was required by the final judgment in that case. A fine and special assessment against Paradies Shops were payable over a five year period, once the judgment becomes final. Because the Eleventh Circuit order stayed issuance of the mandate pending United States Supreme Court's ruling for the Petition for Writ of Certiorari to be filed by Mr. Paradies, Paradies Shops and Paradies Midfield, the fine and special assessment are not due at this time. The Paradies Shops has established a reserve for payment of the fine and that reserve is reflected in its audited balance sheet. In the event the Supreme Court denies the Petition, Paradies Shops and Paradies Midfield intend to pay the full amount of the fine and the special assessment within thirty (30) days of a final judgment. A copy of "the Paradies Shops, Inc., its Subsidiaries and its Affiliates Consolidated and Combined Financial Statements June 30, 1996 and 1995," demonstrating the availability of the funds is attached to the fact stipulation by the parties as Exhibit D. In accordance with Section 287.133(3)(e)3.e, Florida Statutes (1996 Supp), Paradies Shops and Paradies Midfield cooperated with the state and federal investigations and federal prosecution of the public entity crime consistent with their good faith exercise of constitutional, statutory or other rights during the investigation or prosecution of the public entity crime, to the extent that: Paradies Shops and Paradies Midfield at all times cooperated with the federal government with its investigation. Paradies produced tens of thousands of pages of documents and made all of its employees available for appearance before the Federal Grand Jury. In addition, several Paradies Shops' employees were called by the government to testify at trial. Paradies Shops and Paradies Midfield, fully cooperated with the Department in connection with this investigation initiated pursuant to Section 287.133, Florida Statutes, and supplied the Department with all requested documents concerning the Atlanta proceeding. In association with Section 287.133(3)(e)3.f, Florida Statutes (1996 Supp.), the following acts of "disassociation from any person or affiliates convicted of the public entity crime" have transpired: Paradies Midfield and Paradies Country Store ceased all operations on March 31, 1995. In May, 1994, Dan Paradies resigned as President and Director for Paradies Shops and is no longer employed in any capacity with any company. Mr. Paradies has placed in a blind irrevocable trust all of the stocks he owns in Paradies Shops and its affiliates (including the companies operating in Florida). Mr. Paradies does not have any control over the stock in the blind irrevocable trust and cannot vote any of that stock. In regards to his capacity within the company, Mr. Paradies has no involvement nor any control over any of the Paradies companies. He is not employed in any capacity with any of the companies nor is he an officer or director of any of the companies. Paradies Shops and Paradies Midfield were held responsible based on the ownership and control of Mr. Dan Paradies. Charges were not brought against any other officer, director or employee of Paradies. The government did charge Mack Wilbourn, a director of Paradies Midfield, but he was acquitted. In association with Section 287.133(3)(e)3.g, Florida Statutes (1996 Supp.), "prior or future self-policing by the person or affiliate to prevent public entity crimes" has been shown to the extent that: Following the convictions Paradies Shops engaged the international accounting firm of Coopers & Lybrand to review and evaluate all DBE business relationships of Paradies Shops. These reviews were completed in May of 1994, and found no evidence of any improper activities. These reviews are found as Exhibit E to the fact stipulation by the parties. Paradies Shops has adopted a Code of Business Practices that is designed to provide officers and all management of the Company a guide to the basic principles to be applied in conducting the company's business. The failure on the part of a covered employee to abide by the provision of the Code is grounds for immediate dismissal. This code also directs employees to report any suspected violations of the law or other misconduct. The Code has been read and executed by all employees in the home office in Atlanta and all managers in all locations around the country. All future new employees at the home office and new management level employees are required to read and agree to follow the Code. The Company requires all covered employees to certify, on at least an annual basis, that they have reviewed the Code and that they will continue to abide by its terms. A copy of Paradies Code of business practices, which includes a blank certification form, is Exhibit F to the fact stipulation by the parties. In accordance with Section 287.133(3)(e)3.h, Florida Statutes (1996 Supp.), consideration is given any "reinstatement or clemency in any jurisdiction in relation to the public entity crime at issue in the proceeding." To that extent: No debarment proceedings have been initiated against Paradies by any state as a result of the Atlanta conviction. Paradies has not been debarred by any state as a result of the Atlanta conviction. The fact stipulation relates that: Since the convictions, Paradies has won thirteen (13) new contracts through competitive proposals and received the extensions of fourteen (14) existing contracts. Additionally, Paradies has been awarded five (5) off-airport contracts since the conviction to include a long-term contract with the World Golf Village, currently under development south of Jacksonville, Florida, and scheduled to open March of 1998. In addition, in 1996, the PGA TOUR has extended the Paradies exclusive license to operate the PGA TOUR Shops for an additional five (5) years. These representations in the fact stipulation are not found to relate to the factor to be considered by the undersigned which is Section 287.133(3)(e)3.h, Florida Statutes (1996 Supp.). Section 287.133(3)(e)3.i, Florida Statutes (1996 Supp.) makes it incumbent upon the person or affiliate who is convicted of a public entity crime applicable to that person or affiliate of that person to notify the Department within 30 days of the conviction of the public entity crime. Without necessity the parties stipulated that: On July 9, 1993, the same day the indictment was returned, Paradies Shops notified all airports at which Paradies Shops (or its subsidiaries or affiliates) operates, including all airports in Florida of the indictment that was returned by the Federal Grand Jury in Atlanta. Copies of the indictment were sent to all airports in Florida along with the notification. Copies of the notice of indictment sent to all Florida Airports at which Paradies Shops operated are attached and incorporated in the fact stipulation as Exhibit G. As contemplated by the statute and stipulated to by these parties: On January 24, 1994, the first business day after the conviction, Paradies Shops notified all such airports in Florida (and elsewhere) of the guilty verdicts returned by the jury in Atlanta. Copies of the Notices of Convictions sent to all Florida airports at which Paradies operated are attached and incorporated into this stipulation as Exhibit H. On April 15, 1994, the same day as the sentencing, Paradies Shops notified all such airports in Florida (and elsewhere) that the District Court had denied the Motion for Judgment of Acquittal or New Trial. Copies of the notices reporting Denial of the Motionfor Judgment of Acquittal or new trial sent to all Florida airports at which Paradies Shops operated are attached and incorporated into this stipulation as Exhibit I. Additionally, the parties stipulated that "the Department of Management Services has been informed of all subsequent developments and decisions." This refers to circumstances following the notification to the Florida airports that the District Court had denied the Motion for Judgment of Acquittal or New Trial. It is not clear from the fact stipulation upon what basis the Department was informed of the judgments of convictions within 30 days after the conviction of the public entity crime applicable to the subject persons or affiliates nor has it been shown that any public entity (Florida airports) which received the information that a person had been convicted of a public entity crime had transmitted that information to the Department in writing within 10 days after receipt of that information as contemplated by Section 287.133(3)(b), Florida Statutes (1996 Supp.). Nonetheless, the parties have stipulated that pursuant to Section 287.133(3)(b), Florida Statutes (1996 Supp.), Paradies Shops made timely notification to the Department of the conviction of public entity crimes applicable to persons or affiliates of that person and provided details of the convictions and that communication was direct. Section 287.133(3)(e)1., Florida Statutes (1996 Supp.), was complied with by the Department through its Notice of Intent to Paradies Shops and Paradies Midfield in writing indicating the intent to place those persons on the Convicted Vendor List. This notification occurred on April 29, 1997. A copy of the Notification is included with the parties fact stipulation as Exhibit B. On April 29, 1997, in accordance with Section 287.133(3)(e)2, Florida Statutes (1996 Supp.), Paradies Shops and Paradies Midfield timely filed a Petition for Administrative Hearing pursuant to Section 120.57(1), Florida Statutes (1996 Supp.) to determine whether it is in the public interest for Paradies Shops and Paradies Midfield to be placed on the State of Florida Convicted Vendor List. A copy of the petition for Formal Administrative Hearing is attached and incorporated in the parties fact stipulation as Exhibit C. Section 287.133(3)(e)3.j, Florida Statutes (1996 Supp.), calls for consideration of "the needs of public entities for additional competition in the procurement of goods and services in their respective markets." The parties have not stipulated concerning that criterion. Therefore, no factual basis exists for determining the needs of public entities for additional competition in the procurement of goods and services in the respective markets. Section 287.133(3)(e)3.k, Florida Statutes (1996 Supp.), addresses "mitigation based upon any demonstration of good citizenship by the person or affiliate." In responding to that factor the parties have stipulated to the following: Paradies Shops was rated the 'Best Airport Retail Concessionaire for 1995' by an expert group of Concessionaires, and Consultants and Airport Managers. Paradies Shops was also chosen as the 'concessionaire with highest regard for customer services'. These awards were reported in the December 20, 1995 edition of 'World Airport Retail News', a publication based in West Palm Beach, Florida. A copy of this report is attached and incorporated into the stipulation as Exhibit J. In addition, Paradies Shops has supplied letters from 26 airport authorities attesting to the good citizenship of Paradies Shops. Copies of such Supplied Letters are attached and incorporated into the stipulation as Exhibit K. Paradies Shops was rated the 'Best Airport retail concessionaire for 1996' by an expert group of concessionaires, and Consultants and Airport Managers. Paradies Shops has now won this award for the past two (2) consecutive years. In each year, Paradies Shops was honored with this Award by a separate panel of experts. Additionally, Paradies Shops was granted the following awards in 1996: 'Best Airport Retailer', 'Concessionaire with Highest Regard for Public Service', 'Best New Specialty Retail Concept', and 'Most Visually Attractive, Engaging Retail Store Front in an Airport'. Notice of these awards appeared in the February 20, 1997 edition of 'World Airport News', a copy of which is attached and incorporated into the stipulation as Exhibit L'. Having considered the fact stipulations and Exhibits J, K, and L, it is concluded that these facts and exhibits do not relate to demonstration of good citizenship as described in Section 287.133(3)(e)3.k, Florida Statutes (1996 Supp.).
The Issue The issue is whether the Beach Boys, Inc., is guilty of violation of the beverage laws by unlawfully selling beer in a manner not permitted at a city park (which has recently become a state park) in Miami Beach. The Beach Boys, Inc., has received license number 23-06533 from the Florida Division `of Alcoholic Beverages to sell beer from a location at 7929 Atlantic Way, Miami Beach, Florida. The structure from which the beer is sold is an addition to the beach patrol station at the North Shore Open Space Park which is located between 79th and 88th Streets on Collins Avenue and the Atlantic Ocean in Miami Beach. Before the Beach Boys had obtained their license, they had sought licensure in order to sell beer at the park from movable concessions, but this had been refused by the Bureau of Alcoholic Beverages because the Bureau requires that the beer be sold only from stationary sites. This disposition of the application resulted in the addition to the beach patrol station and the eventual licensure of that stand for the Beach Boys, Inc. The concession stand was operated under a concession agreement with the City of Miami Beach which began in March 1983, and was renewed in February 1986 through February 1988. Beginning in the summer of 1987, the City of Miami Beach began sponsoring beach concerts at the South Pointe Park, which is south of the North Shore Open Space Park where the Beach Boys, Inc., is licensed to sell beer. These events featured various forms of entertainment during the period from 8:00 p.m. to 11:00 p.m. on Friday nights, and were known as "Friday Night Live." In connection with these events, the City of Miami Beach formed non-profit corporations which applied for and received a series of 4 COP licenses from the Division of Alcoholic Beverages and Tobacco. These licenses permit non-profit, civic organizations to sell alcoholic beverages for consumption on their premises for periods not to exceed three days, and can be obtained by a corporation only three times per calendar year. See Section 561.422, Florida Statutes (1987). Mr. Blumenfeld, of the Beach Boys, Inc., became aware that beer was being sold during Friday Night Live events at the South Pointe Park through mobile concession trucks in 1987. Although he knew from his prior attempt to obtain a license for the Beach Boys, Inc., to sell beer at the North Shore Open Space Park from mobile concession stands that such sales had not been permitted under state law, Mr. Blumenfeld drew the logical conclusion that the state law must have changed in order for the beer to be sold at South Pointe Park. In fact, it had not changed. Mr. Blumenfeld was unaware of the method in which the City of Miami Beach was manipulating the permit requirement in Section 561.422, Florida Statutes, to obtain repeated permits for its events. On May 16, 1987, Beach Boys, Inc., sold beer from a mobile concession cart located at 84th Street and Collins Avenue in Miami Beach to Joseph Ogonowski, and again sold beer on that date from the concession cart located at 80th Street and Collins Avenue to Joseph Ogonowski. On May 28, 1987, Beach Boys, Inc., sold beer from a mobile concession cart located at 85th Street and Collins Avenue in Miami Beach to Joseph Ogonowski and Carol Houston. The Beach Boys, Inc., does not deny that the beer was sold as alleged in the notice to show cause but maintains that it had no intention to violate the law and had a reasonable, although erroneous basis for believing that what it had done was legal. Recently the North Shore Open Space Park has been transferred from the City of Miami Beach to the State of Florida, Department of Natural Resources. As a result, the concession stand located in the park is subject to state regulation, and although the Beach Boys has a permit to sell beer from the Division of Alcoholic Beverages and Tobacco, since October 1, 1987, when jurisdiction over the park was transferred to the state, no beer may be sold in the state park. The Beach Boys' license for its fixed location is, therefore, no longer of any value.
Recommendation It is therefore, RECOMMENDED that License 23-06533 Series 2 APS, issued to the Beach Boys, Inc., be suspended for the remainder of its term, but not revoked, and that no monetary penalty be imposed. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 30th day of March, 1988. WILLIAM R. DORSEY, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of March, 1988. COPIES FURNISHED: W. Douglas Moody, Jr., Esquire Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1000 Mr. Jeff Blumenfeld Beach Boys, Inc. 2010 Prairie Avenue, #4 Miami Beach, Florida 33139 Daniel Bosanko, Director Department of Business Regulation Division of Alcoholic Beverages and Tobacco The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1000 Van B. Poole, Secretary The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1000 Joseph A. Sole General Counsel The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1000
The Issue The issues are whether Respondent violated section 112.313(6), Florida Statutes (2018), by exhibiting inappropriate behavior toward city staff; and, if so, what is the appropriate penalty.
Findings Of Fact Respondent served as a city commissioner of Madeira Beach from 2007 through March 2013, and was reelected to the office in March 2017. Shane Crawford served as the city manager of Madeira Beach from January 2012 through July 2017. Cheryl McGrady Crawford served as a full-time employee of Madeira Beach in different capacities: intern for the planning and zoning coordinator; in the building department; and city clerk. In addition, she served as the executive assistant to then-City Manager Shane Crawford from September 2012 through February 2017, where her job responsibilities included acting as deputy clerk when the city clerk was unable to attend a function or meeting. David Marsicano has been serving as Madeira Beach’s public works and marina director for 17 years. Travis Palladeno served as the mayor of Madeira Beach from 2011 through 2017. Terry Lister served as a city commissioner of Madeira Beach from 2008 through 2018. Francine Jackson was a Madeira Beach employee for approximately 11 years. Her last position was as the assistant to Public Works Director Marsicano from 2012 through 2014. Thomas Verdensky is the president of the Old Salt Foundation, which is a volunteer organization. Joseph Campagnola is a retired 13-year New York City police officer who has volunteered as head of security (coordinates sheriff’s department and personal guards) for Old Salt Foundation events for the past nine years. Nicole Bredenberg was present at the November 3, 2012, Madeira Beach City Commission (“City Commission”) meeting. Respondent is subject to the requirements of chapter 112, part III, the Code of Ethics for Public Officers and Employees, for her acts and omissions during her tenure as a city commissioner of Madeira Beach. See § 112.313(6), Fla. Stat. and City Charter Section 2-31 Duties and Responsibilities. As a city commissioner of Madeira Beach, Respondent took an oath “to faithfully perform the duties of [her] office and the Constitution of [sic] the laws of the State of Florida and the United States of America.” As a city commissioner of Madeira Beach, Respondent was prohibited from interfering with administration as provided: “The Board of Commissioners nor any member thereof shall give orders to any subordinate or Officer of said City, either publicly or privately, directly or indirectly.” As a city commissioner, Respondent’s responsibilities included attending City Commission meetings, regular or special. At the City Commission meetings, the city clerk is responsible for taking the meeting minutes. If the city clerk is unavailable, a substitute is needed or the meeting cannot be held. Mr. Palladeno told the new Madeira Beach city manager, Shane Crawford, that he wanted an outdoor meeting since they are a beach community. In November 2012, an outdoor City Commission meeting was held in conjunction with the King of the Beach Tournament, a fishing tournament occurring biannually in Madeira Beach. The meeting was to recognize Bimini, Bahamas, as Madeira Beach’s sister city with a presentation of a key to the city and a proclamation. The King of the Beach Tournament is organized by the Old Salt Fishing Foundation. The event was held on a baseball field having field lights, which turned on as it started to get dark. Respondent was present at this event in her official capacity to participate in the meeting. She had consumed alcohol at the all-day fishing tournament. Then-city clerk, Aimee Servedio, could not attend this meeting, so a substitute was required or the meeting could not go forward. Ms. McGrady (prior to her becoming Ms. Crawford) had been assigned the role of deputy clerk and was prepared to take minutes. Respondent dislikes Ms. Crawford because she believed, without any proof produced at hearing and a firm denial at hearing by Ms. Crawford, that she and Shane Crawford were having an affair at the time of the meeting at issue, which was prior to their marriage. The City Commission could not start the meeting the evening after the tournament because Respondent refused to go on stage due to Ms. McGrady’s role as deputy clerk. There was a heated discussion between Shane Crawford, Ms. McGrady, and Respondent. Respondent actually refused to attend the meeting if Ms. McGrady was present, and demanded that she be removed from the area. Mr. Palladeno and an official Bimini representative were in the vicinity of the heated discussion. Referring to Ms. McGrady, and in her presence, Mr. Palladeno heard Respondent say, “You need to get that f[***]ing b[itch] out of here.” Mr. Palladeno rushed in to move the Bimini representative away from the situation. Lynn Rosetti, who at that time was the planning and zoning director, had to fill in because Respondent refused to attend the meeting if city employee, Ms. McGrady, was allowed to substitute for the city clerk. Respondent’s actions interfered with Ms. McGrady’s job duties. After the meeting was over, Respondent approached Shane Crawford with Ms. McGrady, David Marsicano and his then- wife Shelley, and Nicole Bredenberg also in the immediate area. Using her tongue, Respondent licked City Manager Shane Crawford up the side of his neck and face. This act was witnessed by Ms. McGrady, Mr. Marsicano, Mr. Bredenberg, and Mr. Verdensky. Respondent then groped City Manager Shane Crawford by grabbing his penis and buttocks. This act was witnessed by Ms. McGrady and Mr. Bredenberg. Respondent then threw a punch at Ms. McGrady after she told Respondent that her actions were inappropriate. Mr. Marsicano’s ex-wife intervened and confronted Respondent. Mr. Verdensky, who testified that he had been licked by Respondent on a different occasion, called for the head of security, Joseph Campagnola. Mr. Campagnola arrived between one to two minutes after the call. By the time he arrived, Respondent was walking away. However, he found Shane Crawford, Ms. McGrady, and Ms. Marsicano. He was told by Mr. Crawford that Respondent licked his face and grabbed him, which was corroborated by Mr. Marsicano and Ms. McGrady. Mr. Marsicano, who testified he had also been licked by Respondent on a different occasion, has a distinct memory of Respondent’s actions at the November 2012 City Commission meeting because of the “disruptions and shenanigans” that happened before, during, and after the meeting. He had to lead his wife away because she was so upset with Respondent. Mr. Marsicano also testified that he witnessed the face-licking of Mr. Crawford by Respondent. He subsequently spoke with Francine Jackson about what happened at that meeting. Ms. Jackson was not present for the November 2012 City Commission meeting. However, that following Monday or Tuesday, she discussed the weekend with Mr. Marsicano and was informed by him that Respondent licked Mr. Crawford’s face. Ms. McGrady was placed in a predicament when Respondent’s animosity towards her became overt and physical. Respondent created a hostile environment and employees were rightfully fearful of retaliation if they reported Respondent’s actions. Robin Vander Velde is a former city commissioner of Madeira Beach and has known Respondent since 2007. Ms. Vander Velde was outraged about an ethics complaint being filed against her very good friend of ten years. Present in her capacity as a city commissioner at the November 2012 meeting, her recollection of the events was foggy, at best. Ron Little is Respondent’s best friend of 20 years and Ms. Vander Velde’s boyfriend. He honestly acknowledged that it is a given that he would want to help Respondent. Mr. Little was unaware of Respondent’s Driving under the Influence (“DUI”) arrest, petit theft arrest, alleged participation in a United States Postal Service (“USPS”) mail hoax, and the reasons why she left her City of Clearwater employment. Elaine Poe is a former city commissioner of Madeira Beach. Ms. Poe was unaware of Respondent’s petit theft arrest, alleged participation in a USPS mail hoax, and why she left her City of Clearwater employment. While Ms. Poe was at the November 2012 meeting, she did not recall the meeting starting late. Jim Madden is a former city manager of Madeira Beach. He was also unaware of Respondent’s petit theft arrest and alleged participation in a USPS mail hoax. Doreen Moore was unaware of Respondent’s petit theft arrest and alleged participation in a USPS mail hoax. Linda Hein met Respondent in 2016. She was unaware of Respondent’s petit theft arrest. Originally, Ms. Hein did not remember attending the November 2012 meeting until her memory was refreshed; regardless, she could not provide eyewitness testimony concerning the alleged licking incident. Michael Maximo, is the former Madeira Beach community services director. He testified he had been licked by Respondent on a different occasion, during the soft opening of a Bubba Gump’s Restaurant in John’s Pass Village. He recalled the details of the specific incident and said Respondent was inebriated at the time, and she came over to him and licked his face and neck in the presence of her husband, who quickly escorted her from the building. Mr. Maximo refuted the testimony of Respondent’s witnesses as his knowledge of Respondent’s reputation in the community was as a “fall down drunk,” who should not be representing the community. This was a different picture from the one painted by Respondent’s friends who, while admitting she liked to have a drink or several with them and others, they could not imagine her licking someone in public.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Ethics enter a final order finding that Respondent, Nancy Oakley, violated section 112.313(6), Florida Statutes, and imposing a public censure and reprimand and a civil penalty of $5,000. DONE AND ENTERED this 7th day of December, 2018, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN 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 7th day of December, 2018. COPIES FURNISHED: Kennan George Dandar, Esquire Dandar & Dandar, P.A. Post Office Box 24597 Tampa, Florida 33623 (eServed) Melody A. Hadley, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 (eServed) Elizabeth A. Miller, Esquire Office of the Attorney General Plaza Level 01, The Capitol Tallahassee, Florida 32399 (eServed) Millie Fulford, Agency Clerk Florida Commission on Ethics Post Office Drawer 15709 Tallahassee, Florida 32317-5709 (eServed) C. Christopher Anderson, III, General Counsel Florida Commission on Ethics Post Office Drawer 15709 Tallahassee, Florida 32317-5709 (eServed) Virlindia Doss, Executive Director Florida Commission on Ethics Post Office Drawer 15709 Tallahassee, Florida 32317-5709 (eServed)
Findings Of Fact Petitioner Richard L. Hensch submitted to the Department of Transportation (DOT) an Airport Site Approval and License Application dated December 8, 1987, for a private seaplane base on Lake Fairview in Orange County. On the application, Mr. Hensch indicated that flight activities that would be conducted from the proposed site could be sight-seeing flights, seaplane rides and tours and occasional seaplane instruction. Mr. Hensch plans to offer these activities to the public and charge fees for them. Attached to the Application was a letter dated December 17, 1987, from Ms. Sharon Smith, the Orange County Zoning Director, in which she states: Please be advised that insofar as Orange County Zoning requirements are concerned, our department has no jurisdiction over the use of water bodies of lakes; rather such use falls under the jurisdiction of the State of Florida. This letter was written at the request of the Petitioner. While the above-referenced application was under consideration by DOT, Petitioner applied for and received from the County tentative approval for an occupational license for his proposed operation. F.A.A. airspace determination approval letter for the proposed site was dated June 1, 1989. A Notice of Intent about the "proposed Private Seaplane Base" was issued by the Department of Transportation on June 21, 1989. A public meeting in connection therewith was conducted on August 28, 1989. Bronson Monteith, working for the DOT in Orange County, conducted the public meeting and recommended site approval relying on the letter by Orange County, dated December 17, 1987, as to the zoning. The Orange County Commission at its meeting held on August 14, 1989, objected to the placement of a seaplane base at Lake Fairview based on a determination by the zoning director and the county attorney's office that the proposed seaplane base did not comply with the zoning ordinance. The Lake Fairview area property is zoned predominantly residential, R- 1A, R-1AA with some C-2, R-T and R-3 zoning within the lake. Included within the commercial-type operations along and on the lake are jet-ski, sailboat and other watercraft rentals. Airports can be located only by special exception in A1 and A-2, agricultural zoning districts, and are permitted outright in I-5, Industrial Airport Zoning District. None of the lake area or shoreline areas are zoned A-1, Z-2 or I-5. During August of 1989, the Assistant Zoning Director, Joanne McMurray, who as Acting Zoning Director, received a memorandum from Mr. Hartman, Acting Director of the County's Administrative Services Office, about the seaplane base proposal whereby she researched the zoning regulations as to airport facilities and zoning districts and permitted uses. She determined the proposed seaplane site would not comply with the Orange County zoning requirements. Ms. McMurray had received information from the county legal department that Zoning had jurisdiction to govern the use of lakes. Lacy Moore, DOT's Chief of Airport Inspection, indicated that licensing followed site approval and was subject to annual renewal. Licensing was subject to revocation or denial of renewal if zoning changes occurred that made the airport out of compliance with zoning. DOT sought clarification from the County as to whether the proposed site was in compliance with the Orange County zoning regulations. Phillip N. Brown, Orange County Administrator, sent a letter to Mr. Moore dated October 30, 1989, advising that the proposed seaplane site was not a permitted use in the County zoning district for Lake Fairview. As a result of Mr. Brown's letter, Petitioner's application was denied on November 1, 1989, based on failure to comply with local zoning requirements. An "airport" is defined by the Orange County Zoning Ordinance as "any area of land or water designated and set aside for the landing and taking off of aircraft and utilized or to be utilized in the interest of the public for such purpose." No amendments to the zoning ordinance or zoning district map have been enacted since the filing of Petitioner's Application of December 8, 1987. On or about November 11, 1988, Ms. Smith, Orange County Zoning Director, by letter, stated that there were no zoning regulations in force in connection with another unrelated application for site approval and licensure of a private seaplane base on Big Sand Lake in Orange County, Florida. Licensed private airports have been authorized by DOT to provide services to the public such as airplane rides and flight instruction and charge fees. At the formal hearing held on this matter, several residents of the Lake Fairview area expressed opposition to the proposed seaplane site and indicated their concerns as to noise and safety because of extensive activity on the lake. Some people spoke in favor of the seaplane base indicating operational safety. Members of the public, including lake residents and others who spoke at the hearing, were not under subpoena by either party.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is recommended that a Final Order be entered by the agency head denying site approval for a private seaplane base on Lake Fairview in Orange County, Florida, because it does not comply with applicable county zoning as required by law. DONE AND ENTERED this 14th day of June, 1990, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE 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 14th day of June, 1990. APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-6714 The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties. Petitioner's Proposed Findings of Fact: Accepted in substance: Paragraphs 1,2,3,4,5,6,7,9,10 (discussed in Preliminary Statement). Rejected as argument: 8,11. Respondent's Proposed Findings of Fact: Accepted in substance: 1,2,3,4,5 COPIES FURNISHED: Vernon L. Whittier, Jr., Esquire Department of Transportation Haydon Burns Building 605 Suwannee Street, MS 58 Tallahassee, Florida 32399-0458 Brian D. Stokes, Esquire Post Office Box 538065 Orlando, Florida 32853-8065 Ben G. Watts Secretary Department of Transportation 605 Suwannee Street Tallahassee, Florida 32399-0450 Attn: Eleanor F. Turner, MS 58 Thornton J. Williams General Counsel Department of Transportation 562 Haydon Burns Building Tallahassee, Florida 32399-0450
The Issue The issues for determination are: (1)whether Respondent violated Section 112.313(7)(a), Florida Statutes; (2) whether Respondent violated Article II, Section 8, Florida Constitution; and (3) if so, what penalty should be imposed.
Findings Of Fact At all times pertinent to this proceeding, and since November 1994, Kenneth Sattler (Respondent), served as a Commissioner on the St. Lucie County Board of Commissioners (Board of Commissioners). The Board of Commissioners also acts as the St. Lucie County Port and Airport Authority (St. Lucie Airport Authority). Accordingly, at all times relevant to this proceeding, Respondent was also a member of the St. Lucie Airport Authority. As a St. Lucie County Commissioner and a member of the St. Lucie Airport Authority, Respondent was subject to the requirements of Part III, Chapter 112, Florida Statutes, the Code of Ethics for Public Officers and Employees. Respondent first met Maurice Warren at an Elks Club function in early 1995. At this initial meeting, Mr. Warren mentioned to Respondent that he had a business proposition, but did not specify the nature of the business or any details related thereto. In or about June 1995, Mr. Warren met with Respondent and disclosed to him information about his proposed business venture. Mr. Warren told Respondent about Civil Aviation Academy, Inc. (CAA), a company that he had formed, and about his plans to establish a flight school. Moreover, Mr. Warren discussed the possibility of locating the school at the St. Lucie Airport. Later in the summer of 1995, Respondent met with Mr. Warren and Thomas B. Furse, a colleague of Mr. Warren, to discuss their plans to locate the proposed flight school at the St. Lucie County Airport. Respondent was particularly impressed with Mr. Furse's presentation of CAA's proposal for a flight school and believed that such a project would be good for the economy of St. Lucie County. In the summer of 1995, when the meetings between Respondent and Mr. Warren took place, CAA had developed a business plan. However, at that time, CAA was not a legal entity and appeared to have no substantial assets. CAA was incorporated by the Secretary of State on October 5, 1995. Prior to building and operating a flight school at the St. Lucie County Airport, CAA had to comply with the requirements of the St. Lucie Airport Authority. The conceptual lease was a preliminary requirement for obtaining a lease to operate at the St. Lucie County Airport. Recognizing this, in or about August 1995, CAA took steps to secure a conceptual lease by applying to the St. Lucie Airport Authority. On August 22, 1995, the Board of Commissioners granted approval for CAA to be given a conceptual lease. The conceptual lease, valid for a year, was set to expire on August 22, 1996. Respondent was not present at the August 22, 1995 meeting and did not participate in the vote. According to the conceptual lease, CAA was to "establish a full service fixed base operation on airport property." Moreover, under the terms and conditions of the conceptual lease, CAA was required to: (1) make a nonrefundable deposit of five percent of the monthly lease payment to the St. Lucie Airport Authority; (2) survey the property which was the subject of the conceptual lease; (3) develop a site plan for the property; and (4) submit the site plan to the St. Lucie County Planning and Zoning Board. Once these conditions were met, the St. Lucie Airport Authority was obligated to issue a lease to CAA. An integral part of CAA's plan to establish and operate a flight school at the St. Lucie County Airport involved purchasing an already existing flight school. At some point, CAA sought to purchase Pro-Flite, an accredited and established flight school, located in Vero Beach, Florida. Mr. Warren believed that by purchasing an accredited and established school, CAA could begin operating its flight school much sooner. At the time CAA was attempting to purchase Pro-Flite, CAA was aware that Pro-Flite had existing leases at the Vero Beach Airport, some of which extended to 2017. Moreover, CAA anticipated that the flight school initially would continue to operate from the Vero Beach location. However, if successful in its negotiations to purchase Pro-Flite, CAA fully expected that it would move Pro-Flite's operations to the St. Lucie County Airport as soon as was practical Respondent became involved with CAA on September 21, 1995, when he gave Mr. Warren $5,000 cash as seed money for CAA. Respondent believed that at least part of the funds would be used to cover the travel expenses of a person from whom CAA was seeking financial backing. Also, part of Respondent's $5,000 was used to pay all or part of the $3,267 deposit that CAA was required to pay the St. Lucie Airport Authority under the terms of the conceptual lease. In exchange for the $5,000 that Respondent gave to Mr. Warren, Mr. Warren gave Respondent a promissory note with a face amount of $5,000. The promissory note, given to Respondent by Mr. Warren on September 21 or 22, 1995, listed the borrower as CAA and was signed by Maurice Warren. Under the terms of the promissory note, Respondent would be repaid the $5,000, at an interest rate of nine percent, on September 22, 2000. Although the face amount of the promissory note was $5,000, the value of the note between September and December of 1995, is unknown. However, as of April 1996, it was determined that the promissory note had no value. In addition to the promissory note that Mr. Warren gave Respondent, Mr. Warren offered and wanted to give Respondent 500 shares of CAA stock. In response to the offer of stock in CAA, Respondent told Mr. Warren that he did not want shares of CAA stock and further indicated that this might create a conflict of interest. On September 25, 1995, Respondent obtained a power of attorney from Margaret Mansfield, the mother of his late first wife. The durable general power of attorney authorized Respondent to act for Ms. Mansfield and in her "name, place, and stead." On the date that the power of attorney was executed, Ms. Mansfield was eighty-three years old and resided in Respondent's home. Ms. Mansfield had lived with Respondent since 1977. At some point, Respondent asked Margaret Mansfield if she wanted shares of the CAA stock. According to Respondent, Ms. Mansfield told Respondent to "do what he wanted." Subsequently, Respondent asked Mr. Warren to issue the 500 shares of stock in his ex-mother-in-law's name. Mr. Warren complied with the Respondent's request. Pursuant to the aforementioned power of attorney, Respondent signed Ms. Mansfield's name on the November 16, 1995, CAA "Stockholders Agreement" and on the December 22, 1995, CAA "Stock Subscription Agreement." Ms. Mansfield was never personally involved in either of these transactions or any other business of CAA. On December 12, 1995, at the end of a meeting of the Board of Commissioners, Respondent announced that a gentleman by the name of Maurice Warren had been in attendance at the meeting, but had left after a couple of hours. Respondent mentioned that Mr. Warren was associated with the flight school being planned for the St. Lucie County Airport and then urged other commissioners to be supportive of the project. The particular issue being addressed at that time involved a request Mr. Warren recently had made to individual commissioners concerning the proposed flight school. Mr. Warren apparently had invited commissioners to come to the St. Lucie County Airport on December 18, 1995, for his public announcement regarding the flight school. At no time during the December 12, 1995, meeting of the Board of Commissioners did Respondent indicate that he was involved with Mr. Warren, CAA, and/or the proposed flight school. In or about March 1996, Respondent learned that CAA had been unable to obtain the financial support that it needed to establish its proposed flight school. At about this time, Mr. Warren contacted Respondent and asked him to assist CAA in purchasing Pro-Flite, a flight school located in Vero Beach, Florida. Respondent agreed to assist CAA in its effort to purchase Pro-Flite. In or about March 1996, when Respondent agreed to provide such assistance, he believed that CAA would be operating its proposed flight school in Vero Beach, Florida. Because Vero Beach is located in Indian River County, Respondent did not view his involvement with CAA as a "problem." On March 22, 1996, at a meeting of the CAA Board of Directors, Respondent was appointed to the CAA Board of Directors and also elected to serve as secretary of the CAA Board. Respondent was present at this meeting. When Respondent became a director and the secretary of CAA, CAA's conceptual lease remained in effect and the company was moving forward with its attempt to obtain a lease. Moreover, during the time Respondent was a director and the secretary of CAA, CAA was taking steps to purchase Pro-Flite and to eventually move the flight school to St. Lucie County Airport. After being elected to the CAA Board of Directors, Respondent followed through on his promise to assist CAA in its efforts to acquire Pro-Flite. In this regard, Respondent accompanied Mr. Warren on visits to the Pro-Flite facility in Vero Beach, Florida, and to financial institutions that might provide funds for the acquisition. On at least one occasion, Mr. Warren, Respondent and two other CAA investors went to Sun Bank to seek financing for the purchase of Pro-Flite. During this meeting, Respondent learned that only two people in attendance, Respondent and one of the other CAA investors, had sufficient assets to collateralize a loan in the amount necessary to purchase Pro-Flite. In or about April 1996, Respondent withdrew his support of CAA's proposed acquisition of Pro-Flite. The basis of Respondent's decision, as articulated in his April 19, 1996, letter to Mr. Warren, was because of Respondent's concerns about Mr. Warren's ability to provide leadership to CAA and his business practices. After withdrawing his support from CAA and its proposed acquisition of Pro-Flite, Respondent and another CAA investor formed another company. The newly formed company obtained a loan from a Vero Beach bank to keep Pro-Flite operating while the principals attempted to negotiate the purchase of the flight school. However, Respondent's new company never purchased Pro- Flite. After Mr. Warren received Respondent's April 19, 1996, letter and learned of Respondent's forming a new company and attempting to purchase Pro-Flite, the relationship between the two men became acrimonious. Although Respondent left CAA and withdrew his support of the Pro-Flite purchase, CAA's conceptual lease remained in effect. In or about May 1996, CAA apparently determined that it needed additional time in which to meet the conditions set out in the conceptual lease and, thus, requested that its conceptual lease be extended to December 1, 1996. At its May 14, 1996 meeting, the St. Lucie Airport Authority considered and approved CAA's request for an extension. Respondent abstained from voting on CAA's extension request, and stated that the reason for his abstaining was that he had previously been associated with CAA. On June 10, 1996, Respondent filed a Memorandum of Voting Conflict regarding the CAA extension request. While the conceptual lease was in effect, Curtis King, Director of the St. Lucie County Airport, went to Respondent and told him that CAA was "running behind" in complying with the conditions set forth in the conceptual lease and asked Respondent if CAA "could speed this up." After indicating that there was a possibility that CAA would be unable to meet the deadlines, Respondent asked Mr. King whether CAA might receive a refund of its "nonrefundable" deposit of $3,267 paid pursuant to the terms of the conceptual lease. Respondent then indicated to Mr. King that he had money invested in CAA.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that a Final Order and Public Report be entered finding that the Respondent, Kenneth Sattler, violated Section 112.313(7)(a), Florida Statutes; imposing a civil penalty of $4,100; and issuing a public censure and reprimand. DONE AND ENTERED this 27th day of July, 1998, in Tallahassee, Leon County, Florida. CAROLYN S. HOLIFIELD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 27th day of July, 1998. COPIES FURNISHED: Eric S. Scott Assistant Attorney General Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 Robert Watson, Esquire 3601 Southeast Ocean Boulevard Sewalls Point Stuart, Florida 34996 Bonnie Williams, Executive Director Commission on Ethics 2822 Remington Green Circle Suite 101 Post Office Drawer 15709 Tallahassee, Florida 32317-5709 Kerrie Stillman Commission on Ethics 2822 Remington Green Circle Suite 101 Post Office Drawer 15709 Tallahassee, Florida 32317-5709
Findings Of Fact At the time of final hearing the Respondent, Myron Lewis, was the holder of State Certified General Contractor's Licenses as follows: Myron Lewis d/b/a Interior Concepts of Palm Beach, Number CG C005282; Myron Lewis d/b/a Whitten Corporation South, Number CG CA05282; and Myron Lewis d/b/a Custom Pools of the Palm Beaches, Inc. Number CG CB05282. Respondent was engaged in the business of building swimming pools in the Palm Beach area. In connection with that business the Respondent entered into contracts for the construction of pools with several individuals, including the following: James Riley; Michael Belmonti; Walter Beasley; Jose Dorribo; Gerald Gottner; James Overton; and Ronald Malcolm. With regard to the first six names listed above, Respondent had failed to complete the pool and perform according to the contract and, apparently, abandoned the project after accepting a major portion of the contract price agreed upon. With regard to the seventh name listed above, Respondent accepted an initial deposit of $680.00 for construction of a swimming pool but never performed any work and did not return the deposit. Some efforts were made by the Respondent to settle each of the claims against him and to that end there was submitted into evidence general releases from Malcolm, Riley and Belmonti each reciting that the general release was a settlement and compromise of disputed claims and that the payments are not to be construed as admission of liability on the part of Custom Pools of the Palm Beaches, Inc. and/or Myron Lewis. (See Petitioner's Composite Exhibit 3) With regard to the projects set forth in Paragraph 2 above, Respondent apparently terminated because of financial difficulties he and his company were in, none of which was the fault or responsibility of the persons for whom Respondent had contracted to build pools. More than ninety days had elapsed from the time of termination of the project by Respondent and this final hearing. All of these projects occurred prior to 1978. The Palm Beach County Construction Industry Licensing Board, by action taken on January 23, 1978, suspended Respondent's license until further notice. That suspension was the result of the termination of the projects set forth above. The evidence presented indicates that an unspecified amount of money paid Respondent for the construction of specific pools was actually used for other obligations of Respondent and such funds were not used for the prosecution or completion of the project for which they were paid.
Findings Of Fact Selwin Coleman is the record holder of land located near Maytown Road three miles west of Oak Hill, Florida, at latitude 28o51'25" North, longitude 80o54'26" West in Sections F and G, Township 19 South, Range 34 East in Volusia County (the proposed site). He has authorized his son-in-law, Ron Biritz, to seek DOT site approval and a license for a private airport as the proposed site. Petitioners and intervenors own land in the general vicinity, and Robert L. Hart owns extensive mineral rights, including rights to any minerals underlying the proposed site. Other land owners, including Warren J. Brull, who owns part of the land over which the existing air strip runs, C.R. "Dick" Powell, and Vaughn L. Grasso, who owns a crop duster he stores in a building he characterizes as agricultural, also made Mr. Biritz their agent for purposes of the pending application. Known as "Blue Ridge Flightpark," a 4,000-foot grass air strip at the proposed site had been used by light planes for some time, until recently. The air strip has been significantly improved within the last two years; at one time watermelons were grown on the property. Originally, scrub hickory and gopher tortoise holes made its use as an air field impractical. When John Bronson Monteith, the aviation specialist for DOT's District Five, learned the grass strip at the proposed site was "operational," he contacted the owners and instructed them to close down operations until site approval was granted; and told them how to apply for site approval. As one result, they caused a large "X" to be placed on the strip, indicating the field was closed to operation. When Mr. Monteith visited the proposed site on November 21, 1991, he saw rust on a brake disc on Mr. Biritz's airplane, suggesting disuse. After DOT received the application, Mr. Monteith determined that it was complete and seemed to meet all rule and statutory criteria, so he prepared a notice to grant the application for Nancy Houston's signature. He caused copies of the notice of intent to be sent by certified mail to all airports and municipalities within 15 miles and to all landowners within 1,000 feet of the proposed site. The notice of intent was published in the News Journal, and a public hearing was held on July 18, 1991. There is some question regarding the true nature of several largish buildings along the air strip. Treated as "agricultural" for purposes of construction without building permits, the buildings look to some more like hangars than barns. But, as to the air strip itself, Volusia County zoning officials have recognized a nonconforming use antedating adoption of County zoning ordinances, a use which the ordinances allow to continue, as long as it does not entail construction of any new structures. Respondent's Exhibit Nos. 4 and 7. As experience has demonstrated, the proposed site is "feasible" and "adequate." Despite military air traffic in the general vicinity, the Federal Aviation Authority concluded that, if limited to private use, the "airport will not adversely affect the safe and efficient use of airspace by aircraft." Respondent's Exhibit No. 3. Only a windsock and markings, including threshold markings, are needed to meet licensing requirements.
Recommendation It is, accordingly, RECOMMENDED: That DOT grant site approval on the conditions stated in Order No. 91-34; and, after the requirements of Section 330.30(2), Florida Statutes (1991) have been satisfied, issue a private airport license to Ron Biritz. DONE and ENTERED this 28 day of May, 1992, in Tallahassee, Florida. own. ROBERT T. BENTON, II 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 28 day of May, 1992. APPENDIX Both intervenors adopted petitioner's proposed findings of fact as their Petitioner's proposed findings of fact Nos. 1, 2 and 4 have been adopted in substance, insofar as material. With respect to petitioner's proposed finding of fact No. 3, the legal status was not clear. With respect to petitioner's proposed finding of fact No. 5, a preponderance of the evidence established that flights had stopped recently. Respondent's proposed findings of fact Nos. 1 through 6 have been adopted, in substance, insofar as material. Respondent's proposed finding of fact No. 7 is properly a conclusion of law. COPIES FURNISHED: Ben G. Watts, Secretary Department of Transportation 605 Suwanee Street Tallahassee, FL 32399-0458 Thornton J. Williams, General Counsel Department of Transportation 562 Haydon Burns Building Tallahassee, FL 32399-0458 Dan R. Warren, Esquire 315 Silver Beach Avenue Daytona Beach, FL 32118 Bruce Best Post Office Box 2793 New Smyrna Beach, FL 32170 Cheryl M. Sanders Post Office Box 2793 New Smyrna Beach, FL 32170 James S. Morris, Esquire Storch, Hansen & Morris, P.A. 1620 South Clyde Morris Blvd., #300 Daytona Beach, FL 32219 Vernon L. Whittier, Esquire 605 Suwanee Street Tallahassee, FL 32399-0458
