The Issue Did Respondent, Florida Fish and Wildlife Conservation Commission (Commission) correctly deny the application of Petitioner, James Hammonds, to renew his Game Farm License (Case No. 19-6307)? Did the Commission correctly deny Mr. Hammonds' application to renew his License to Possess Class III Wildlife for Exhibition or Public Sale (Case No. 19-6326)?
Findings Of Fact The Parties Article IV, Section 9 of the Florida Constitution creates the Commission. It charges the Commission to "exercise the regulatory and executive powers of the state with respect to wild animal life and fresh water aquatic life, and … exercise regulatory and executive powers of the state with respect to marine life, … ." Chapter 379, Florida Statutes (2019), implements the constitutional provision and did so in 2017. Mr. Hammonds owns and operates The Monkey Whisperer in Parrish, Florida. He breeds and sells exotic animals. Mr. Hammonds holds five separate licenses authorizing him to own, breed, sell, and transport wild life. They are a Class III license5 (with a Capuchin Monkey and Spider Monkey endorsement) that authorizes him to exhibit and sell wildlife, a game farm license, a deer herd management license, a United States Department of Agriculture (USDA) transport license, and a USDA license to trade in wildlife animals. The renewal of his Game Farm License and License for Exhibition and Public Sale of Wildlife are the subject of this matter. The Commission refused to renew both. Mr. Hammonds has held these two licenses since 2012. Since obtaining his licenses, Mr. Hammonds has passed all Commission inspections. In addition, the Commission has issued him a game farm license. The 2012 Conviction In 2012 Mr. Hammonds pleaded no contest to a charge of unlawfully selling wildlife to an unpermitted entity. The offense was sale of a marmoset at a flea market to an unlicensed purchaser. The record does not provide a citation to the statute violated. Mr. Hammonds was new to the exotic animal trade. He relied upon statements by the purchaser and a Commission representative that the Commission had issued the purchaser a license and that it was en route. The court adjudicated Mr. Hammonds guilty and ordered him to pay a fine and costs totaling $450.00. It also required Mr. Hammonds to pay an additional $50.00 for costs of prosecution. Mr. Hammonds paid the fine and 5 Section 379.3762(2), Florida Statutes (2019), creates three classifications of wildlife types. Class I is wildlife that because of its nature, habit, or status may not be possessed as a pet. Class II is wildlife presenting a real or potential threat to human safety. Class III is all wildlife not included in Classes I and II. costs. Aware of this conviction, the Commission nonetheless routinely approved Mr. Hammonds' license renewal applications and approved his application for a game farm license over the next six years. There is no evidence of or charge of any other violations by Mr. Hammonds until the charges involved in these cases. The Capuchin Monkey In October 2017, Mr. Hammonds sold a Capuchin monkey to Christina Brown. He verified her identity and Nevada residency by looking at her Nevada driver's license. Nevada does not require a license to own exotic animals, including Capuchin monkeys. The Commission did not prove that Ms. Brown did not hold a Florida permit to own wildlife.6 Mr. Hammonds had a few conversations with Ms. Brown and her assistant Manny Ortiz about the sale. On October 12, 2017, Mr. Hammonds completed the required USDA form, "Record of Acquisition, Disposition or Transport of Animals," for the Capuchin sale.7 Mr. Hammonds was advised that Jennifer and Michael Brister would pick up the monkey to transport it to Nevada. The Bristers are located in 6 Lack of proof is the hallmark of this case. The Commission relied solely upon the testimony of one witness. The testimony was almost entirely hearsay or descriptions of document contents. This is despite the Commission, according to its witness, having recordings, sworn statements, telephone records, and financial records to support its allegations. The Commission did not offer these into evidence. Hearsay alone cannot be the basis for a finding of fact unless it would be admissible over objection in a circuit court trial. § 120.57(1)(c), Fla. Stat. (2019). Document descriptions are subject to memory failings, incompleteness, inaccuracies, and other factors that make them less than persuasive. See § 90.952, Fla. Stat.; See Williams v. State, 386 So. 2d 538, 540 (Fla. 1980). 7 The form does not have a field calling for the buyer's telephone number, or any telephone number for that matter. This is noted because the Commission's witness and Notices emphasize, as proof of guilt, an unsupported claim that Mr. Hammonds put his telephone number on the form where the buyer's telephone number went. The unsupported testimony and insistence on its significance is one of the reasons that the witness' testimony is given little credence or weight. Also Mr. O'Horo testified that the form showed a Virginia address for Ms. Brown. It shows a Nevada address. Tennessee. The Bristers held a USDA Class T Carrier permit issued under the federal Animal Welfare Act. Mr. Hammonds obtained proof that the Bristers held this federal permit required for interstate transport of the monkey. He went so far as to obtain a copy of their USDA certification to provide this service. Mr. Hammonds was also aware that the Bristers frequently did business in Florida. Other breeders recommended them highly. The Commission did not prove that the Bristers did not hold a Florida permit to own wildlife. The Bristers picked up the monkey, on behalf of Ms. Brown, from Mr. Hammonds in Florida. Other than to receive a telephone call reporting that the monkey had been delivered, Mr. Hammonds had no further contact with or communications about the monkey or Ms. Brown until the Commission's investigator contacted him. There is no admissible, credible, persuasive evidence about what happened to the monkey from this point forward. The Commission offered only uncorroborated hearsay testimony from Mr. O'Horo on this subject. The Rhesus Macaque Monkey Mr. Hammonds also assists people in rescues of exotic animals whose owners have realized they cannot care for them. In 2017, Mr. Hammonds facilitated the transfer of a Rhesus Macaque monkey from one individual to another. A Macaque monkey is a Class II animal. The monkey owner came to Mr. Hammonds' business seeking assistance because he could not handle the monkey. The monkey was in a pet carrier. Mr. Hammonds recalled a woman in Orlando who had contacted him in the past seeking a Macaque. He put the two individuals in touch with each other. The two individuals agreed to the exchange of the monkey. The woman came the same day, met the Macaque owner, and accepted the monkey from him. The owner kept the monkey with him in the carrier until he gave it to the woman. Mr. Hammonds was paid for his services in facilitating the exchange. There is no competent, persuasive evidence that Mr. Hammonds ever had ownership, physical possession, control, or custody of the Macaque monkey in any form.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent, Florida Fish and Wildlife Conservation Commission, issue a final order renewing the Game Farm License and the License to Possess Class III Wildlife for Exhibition or Public Sale of Petitioner, James Hammonds. DONE AND ENTERED this 23rd day of June, 2020, 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 23rd day of June, 2020. COPIES FURNISHED: Rhonda E. Parnell, Esquire Florida Fish and Wildlife Conservation Commission 620 South Meridian Street Tallahassee, Florida 32399 (eServed) David A. Fernandez, Esquire Florida Trial Counsel 4705 26th Street West, Suite A Bradenton, Florida 34207 (eServed) Sean P. Flynn, Esquire Flynn Law, P.A. 2200 Manatee Avenue West Bradenton, Florida 34025 (eServed) Eric Sutton, Executive Director Florida Fish and Wildlife Conservation Commission Farris Bryant Building 620 South Meridian Street Tallahassee, Florida 32399-1600 (eServed) Emily Norton, General Counsel Florida Fish and Wildlife Conservation Commission Farris Bryant Building 620 South Meridian Street Tallahassee, Florida 32399-1600 (eServed)
The Issue Whether Respondent's proposed award of a contract to Intervenor is contrary to statutes, rules, policies, or the bid specifications, pursuant to Section 120.57(3)(f), Florida Statutes.
Findings Of Fact On January 14, 2003, Respondent advertised for bids by way of an invitation to bid (ITB) for Contract Number E3C42, Maintenance Financial Project Number 40952917201. This would be a "Push Button" contract for the replacement of damaged guardrails along various roadways in Okaloosa and Walton Counties. Pursuant to this Contract, the successful bidder would respond upon notice, and repair or replace guardrails, or take other measures to ensure safety of the traveling public. The bid solicitation and contract were issued pursuant to Section 337.11, Florida Statutes. All bidders had to certify compliance with Florida Statutes and other applicable law, and all contractors were held to strict compliance with all legal requirements. There were no protests to the terms and conditions of the bid solicitation. The instant challenge does not allege non-compliance with the statutes or terms of the ITB generally. The challenge is whether award of the bid to Intervenor, as a non-profit corporation, is "contrary to competition." This maintenance contract does not require that the contractor be pre-qualified pursuant to Section 334.14, Florida Statutes, and Rule Chapter 14-22, Florida Administrative Code. Four bidders responded to the solicitation, with the apparent low bidder being Intervenor, and the apparent second low bidder being Petitioner. Respondent posted its intended award of the contract to Intervenor, and Petitioner timely filed a protest that initiated this proceeding. Intervenor is a not-for-profit corporation created under the provisions of Chapter 617, Florida Statutes. As such, pursuant to Sections 617.0301 and 617.2001, Florida Statutes, Intervenor can engage in any lawful purpose not for pecuniary profit. As a not-for-profit corporation, Intervenor may receive certain tax breaks and other economic advantages not enjoyed by a for-profit corporation. Petitioner is a for-profit corporation. No evidence exists that Intervenor is not capable and responsible to perform the work. Intervenor is qualified to contract with Respondent for the performance of work related to the construction and maintenance of transportation-related facilities by youths enrolled in youth work experience programs, pursuant to Section 334.351, Florida Statutes. Respondent spends appropriations under this section, and Intervenor is the recipient of such contracts. However, the instant contract will not be let under Section 334.351, Florida Statutes, but pursuant to Section 337.11, Florida Statutes.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED: That the protest filed by Petitioner be dismissed and Respondent shall award the subject contract to Intervenor. DONE AND ENTERED this 24th day of July, 2003, in Tallahassee, Leon County, Florida. S STEPHEN F. DEAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of July, 2003. COPIES FURNISHED: John C. Bottcher, Esquire Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0458 Brant Hargrove, Esquire Law Office of Brant Hargrove 2984 Wellington Circle, West Tallahassee, Florida 32308 Timothy Patrick Driscoll, Esquire Timothy Patrick Driscoll, P.A. 101 First Avenue South, Suite 340 St. Petersburg, Florida 33701 James C. Myers, Clerk of Agency Proceedings Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0450
The Issue The issue in this proceeding concerns whether Leonard Mattox, the Petitioner, or his business, Sasquatch Park, is qualified under the provisions of Rule 39-6.0022(5)(c)1, Florida Administrative Code, to engage in the husbandry of a cougar (felis concolor), in terms of the experience requirement of that rule.
Findings Of Fact The Petitioner, Leonard M. Mattox, doing business as Sasquatch Park, operates a captive wildlife facility, open to the public, in Okaloosa County, Florida, near the City of Crestview. The facility is open to the public between the hours of 9:30 a.m. and 4:00 p.m., and the Petitioner holds a Class II permit authorizing possession of macaques, a primate. Class II wildlife species are animals which have the potential of posing some degree of danger to human beings. The permits for possession of such animals are issued by the Commission. The Petitioner's Class II permit authorizing the possession of a macaque was issued on August 19, 1988. On April 19, 1989, the Petitioner applied to the Commission to upgrade that permit to include cougars (felis concolor), also an animal on the Class II wildlife species list, delineated in Rule 39-6.002, Florida Administrative Code. Rule 39-6.0011, Florida Administrative Code, then required that an applicant for a Class II permit must possess three-years minimum experience in the husbandry of the species for which the permit was sought. Subsequent to that application, the Commission changed the experience requirement by enacting Rule 39- 6.0022(5)(c)1 on July 1, 1990. That provision defines experience requirement as being no less than one year of substantial, practical experience and consisting of not less than 1,000 hours in the care, feeding, and handling of the species for which the permit is sought. Petitioner concedes that he does not possess the required 12 months or 1,000 hours of experience. In fact, he testified that although he has extensive experience in the care and husbandry of numerous exotic wildlife species, including macaques, a Class II species, he has no formal experience in the husbandry of cougars. Rather, the Petitioner is relying on the experience of Mr. Bobby Spencer and Ms. Pauline Redding, both of whom have owned and possessed and cared for cougars for approximately five years. The cougar that the Petitioner seeks to own and exhibit in his zoo is "Micah", presently owned by Mr. Spencer. Mr. Spencer wishes to donate Micah to the Petitioner's zoo in order to give the cougar a safe, comfortable, appropriate home because he can longer keep the cougar. His grandson is allergic to the cougar's fur and exhibits a violent reaction to being in the proximity of the cougar. The Petitioner seeks to establish that his facility is appropriately qualified to maintain and care for the cougar within the requirements of the above rule by retaining both Mr. Spencer and Ms. Redding as "curators". It is undisputed that both of those individuals have more than the required experience in the husbandry of cougars. The Petitioner has proposed, with the agreement of both Mr. Spencer and Ms. Redding, that they will make routine, frequent and unannounced visits to the cougar's enclosure to ensure that the cougar is being appropriately cared for and that the public viewing the cougar will not be at risk. Both Mr. Spencer and Ms. Redding will be available on an "on-call" basis at any hour of the day or night, in addition to making routine unannounced visits to the enclosure. Both Mr. Spencer and Ms. Redding possess Class II permits from the Commission to possess cougars as personal pets. They keep their animals at Commission- approved facilities at their residences, although they do not exhibit them to the general public. Mr. Spencer resides approximately 27 miles from the Petitioner's facility, and Ms. Redding resides approximately five miles away and can be at the Petitioner's facility within approximately five minutes. Both are employed full-time, however. Mr. Spencer is a real estate salesman, and Ms. Redding is a full-time receptionist and veterinarian's assistant employed with a veterinarian in Ft. Walton Beach, some 27 miles from the Petitioner's facility, during normal working hours. In addition to being experienced in the husbandry of a cougar, Ms. Redding is experienced in the care of many types of animals in her duties as a veterinarian's assistant, which include functioning as an anesthesiologist. The testimony of Captain Jerry Thomas of the Game and Fresh Water Fish Commission established that the Commission's two primary concerns are the safety of the public and the humane treatment of the animal in situations where a permit is sought for the possession and exhibition of a Class II wildlife species, such as a cougar. There is no dispute that the Sasquatch Facility exceeds the Commission's requirements for housing, possessing and exhibiting the cougar. In fact, the enclosure built specifically for this cougar exceeds the more stringent provisions in the Commission's rules for housing African lions. The facility was designed to comport with the rule requirements for housing a breeding pair of African lions. There is a personnel "stand off fence" to protect the public so that no member of the public can approach the cage. The cougar's enclosure itself is an eight-foot high, nine-gauge, chain-link wire enclosure with nine-gauge chain-link wire covering the top of it to prevent the cougar from scaling his enclosure. There are also drop gates installed in the facility to manage a cougar and isolate him, as needed, from one side or other of his enclosure and to prevent involuntary release. In the extremely unlikely event of involuntary release of the cougar, there is an eight-foot perimeter fence around the zoo's facility. This particular cougar, who is substantially overweight, would likely be unable to scale it. If for some reason he was able to scale that enclosure, the rural, wooded character of the area of the Sasquatch facility, which is sparsely populated, would minimize the likelihood of any risk to humans before the zoo personnel could tranquilize the cougar, apprehend him, and return him to the facility. The Petitioner is equipped with the proper equipment and trained personnel, who are capable of tranquilizing the cougar and returning him to the facility. Tranquilizer guns with the appropriate chemical dosage, as prescribed by a veterinarian for an animal such as a cougar, are maintained in readiness at the facility at all times. Thus, the Commission's interest in the safety of the public is well-served by the facility and the personnel it maintains to possess, exhibit and care for animals such as cougars. Concerning the issue of the humane treatment of the animal, the facility is equipped with an automatic watering device and a staff veterinarian, Dr. Hill, whose office and residence is in nearby Crestview, is on call on a 24-hour basis. In addition to Mr. Mattox and his wife, who live on the premises and are present every day, the Sasquatch facility has two other full-time employees during each regular working day. Additionally, there are volunteers assisting almost daily. Mr. Mattox himself has a Class I wildlife possession license and previously has been approved for a Class II permit authorizing the possession and exhibition of macaques at the facility. Although the individual care requirements for the two animals are different, macaques are also Class II wildlife species considered to pose a potential threat to humans. There is no question that with the experienced personnel maintained by the Sasquatch facility, the advice and oversight of Mr. Spencer and Ms. Redding, both of whom have years of experience in the husbandry of cougars, the required feeding, medical attention, watering, and general care of the cougar will be well-accomplished. In carrying out the intent of the rule, as it perceives it, to insure the safety of the public and the humane treatment of the animal involved, the Commission has interpreted the experience provision of the subject rule to mean that where the applicant for the permit represents an entity or business, as is involved herein, which will house the animal in question, the applicant himself or herself need not possess the required experience, so long as personnel employed by the entity housing the animal will have the requisite experience provided for in the rule. Since Mr. Mattox himself does not have the requisite experience, it must be determined whether personnel he proposes to have care for the cougar will have adequate experience in cougar husbandry to ensure that the Commission's two concerns, public safety and humane treatment of the cougar, are appropriately served. In this connection, the Commission in its testimony at hearing through its agency representative, espoused the policy view or interpretation of the experience rule to the effect that persons with requisite experience should be on duty at the subject facility on a "full-time basis" or at least four hours per day. The language of the rule, however, does not provide that such personnel should be on duty on a full-time basis nor does it define what "full-time" means in any event. It does not provide a time-period standard delineating when experienced personnel should be on hand. Thus, starting from the premise that, as the Commission concedes, the applicant himself need not have the requisite experience, so long as personnel are available to a facility who do have the requisite experience, an examination must be made of the evidence and findings accordingly made concerning how much care on a typical day is required for a cougar kept in such a facility as Sasquatch Park, in order to satisfy the Commission's espoused concern regarding the animal's welfare. That examination will, in turn, demonstrate whether the Commission's espoused policy interpretation of the above rule experience requirement, in terms of a minimum of four hours per day presence by experienced personnel on the premises, is a reasonable interpretation and application of that rule, since the plain language of the rule itself does not require full-time presence of experienced personnel nor any other such time standard. The applicant has established an employment relationship with Mr. Spencer, the present owner of the cougar, whereby he will be the curator for the cougar when it is moved to Sasquatch Park. Mr. Spencer is licensed by the Commission to possess and own the cougar as a pet. He has been the owner and curator of this particular cougar for approximately five years. Mr. Spencer has agreed to provide his services on a 24-hour, on- call basis. For the first month or two, he would be present at the facility on almost a daily basis in order to make sure that the cougar becomes accustomed to his new owner and surroundings and does not become distressed at the absence of Mr. Spencer, to whom he has become emotionally attached. Mr. Spencer established, through his unrefuted testimony, that the actual time needed to be spent with the cougar is a maximum of 30 minutes per day, with an average of 15 minutes per day being appropriate. Any more time spent with the cougar, in direct contact, does not benefit the cougar; and it, indeed, might be detrimental to his emotional health. Mr. Spencer has agreed to be present at the facility on an almost daily basis in order to minister to the needs of the cougar for food, water, companionship, and to insure that Mr. Mattox becomes skilled at caring for the cougar. Mr. Spencer cares very much for the cougar and is keenly concerned in seeing that the cougar has a new home which is most beneficial to his welfare. He has investigated several possibilities and determined that Sasquatch Park is the best place for his cougar. As curator for the cougar, he wants the cougar close enough to his residence so that he can help care for him; and he has testified that he will continue to do so until he feels comfortable in gradually turning over the cougar's care to Mr. Mattox. There is no dispute that Mr. Spencer has more than ample experience to comply with the mandate of the above-referenced rule. Pauline Redding is also licensed to engage in the husbandry of a cougar as a personal pet. She is the owner and curator of the brother of the cougar in question. She houses her cougar in an enclosure in the yard of her home. She typically leaves home during the day to go to her job, and the cougar is left unattended for that entire period of time every working day. That arrangement comports with the requirements of the rule under which Ms. Redding is licensed to maintain the cougar as a personal pet. There is not a licensed person on the premises with her cougar "full-time" nor any other required time period. Ms. Redding, too, is well qualified and experienced in terms of the requirements of the rule, and in a practical sense, to adequately care for the cougar. She only lives five minutes away from the Sasquatch facility and is able and committed to assist Sasquatch at all times in insuring proper care for the cougar. Her employment experience also provides additional qualifications for her to engage in the husbandry of a cougar. She is employed as a veterinarian's assistant, technician and anesthesiologist. There is no dispute that both these persons are well qualified in terms of experience in directly caring for cougars to render them "qualified curators" of the cougar in question if he is placed at the Sasquatch Park facility. The testimony of Mr. Spencer, as well as that of Ms. Redding and to some extent that of Captain Thomas, establishes that cougars do not require the full-time presence of personnel experienced in their care or even four hours per day. In fact, the unrefuted testimony indicates that 15 to 30 minutes per day is adequate and that cougars only feed once or, at most, twice a day and get along very well if fed once per day, such as in the evening. Predators, such as cougars, typically feed, by nature, in the early morning or in the late afternoon and are lethargic during the warmer parts of the day. It is critical that an adequate supply of water be maintained at all times, and Sasquatch Park has an automatic watering device available for the cougar. Although its present personnel do not have direct experience in caring for cougars, they are well able to recognize when an animal is in need of medical attention and a veterinarian, Dr. Hill, is on 24-hour call, as the staff veterinarian for the facility. In summary, the unrefuted evidence establishes that cougars, such as Micah, do not need experienced personnel on the premises in their presence for even four hours per day or substantially less than that. It has been established that in order to meet the Commission's concern regarding the animal's welfare, experienced personnel need only be readily available on an on-call basis to insure that the cougar is properly cared for and that during the initial few days or weeks of the cougar's tenure at the Sasquatch Park facility, experienced personnel, such as Ms. Redding or Mr. Spencer, have daily contact with the cougar to insure that he is adequately cared for and that the facility, its owner and employees are being adequately trained in the care of the animal. In fact, it has been demonstrated that any additional contact with the cougar is not necessary to its welfare and, indeed, might be detrimental to it. Both Mr. Spencer and Ms. Redding have agreed to this arrangement, and it is practically capable of being fulfilled, especially with regard to Ms. Redding, because she only lives five minutes away from the facility and can visit the cougar and oversee its welfare on almost a daily basis. It has been demonstrated that, with the curatorship arrangements made by the applicant with Ms. Redding and Mr. Spencer, coupled with the applicant's own experience in maintaining and possessing many types of exotic and potentially dangerous animals, the Commission's interest in insuring the health and welfare of the cougar in question will be served by placing it at Sasquatch Park and that these arrangements most closely correlate with the evidence of record which establishes the manner and type of care a cougar needs on a daily basis when confined in such a facility. In this regard, somewhat parenthetically, it is noteworthy that the Commission's representative, in testifying in support of a four-hour-per-day standard for having experienced cougar husbandry personnel on the premises, also testified that that four hours per day for one year really equated to what was required, in his view, to train Mr. Mattox and establish him as the possessor of 1,000 hours minimum experience in cougar husbandry at the end of a year. Thus, that espoused "standard" actually is not really functionally related to the cougar's welfare or the interest of public safety. Finally, in assessing the Commission's stated concerns, it should be considered whether the cougar's present situation is preferable to that offered by Sasquatch Park. In Mr. Spencer's home, the cougar lives in a residence in the middle of a city, with many other people residing around it. Sasquatch, on the other hand, offers a rural, wooded setting which is sparsely populated, which equates to greater public safety in the unlikely event the cougar should escape. In Mr. Spencer's home, no one has been present for at least 9-1/2 hours per day, during the years he has kept the cougar. At Sasquatch, Mr. and Ms. Mattox live on the premises and are present with their employees everyday. Although Mr. Spencer and Ms. Redding were licensed under a different rule which concerns the keeping of Class II animals as personal pets, in assessing the level of care supposed to be provided the cougar, it is noteworthy that they obtained their licenses with absolutely no experience or training in the care of cougars. Mr. Mattox, on the other hand, has a Class I license; and the Commission has previously approved him for a Class II permit to keep a macaque, also an animal posing a potential threat to humans. Mr. Mattox has had years of experience in the husbandry of many exotic species. His practical qualifications, versus those of Mr. Spencer and Ms. Redding, are certainly substantial. Further, Sasquatch Park is a modern facility; and all cages and animal areas meet or exceed Commission requirements in terms of the animals' welfare and the safety of the viewing public. There is a staff veterinarian, who is on call on a 24- hour-a-day basis. With the arrangement with Ms. Redding, there will also be a curator available for the cougar, who has training in the veterinary care of animals, in addition to Dr. Hill. It has clearly been demonstrated that the Commission's interest in terms of public safety and the welfare of the animal in question will be well-served by placing the cougar at Sasquatch Park. It is, thus, found that the Commission's interpretation of the rule and the manner it seeks to apply that interpretation to the instant factual situation, established by the unrefuted evidence, is not reasonably related to the public safety or to the type, level and manner of care which is required for the cougar's well being, which two considerations are, as shown by the Commission's own witness, the primary intent of the subject experience rule. That being the case, the espoused interpretation by the Commission's witness of what is meant by the experience requirement in the rule is not reasonably related to the proven intent and purpose of the rule.
Recommendation Having considered the foregoing findings of fact, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties it is therefore RECOMMENDED: That a Final Order be entered by the Respondent granting the application of the Petitioner, Leonard M. Mattox, for a Class II wildlife permit authorizing the possession and display of cougars at his Sasquatch Park facility. DONE and ENTERED this 13th day of November, 1990, in Tallahassee, Florida. P. MICHAEL RUFF 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 14th day of November, 1990. APPENDIX Petitioner's Proposed Findings of Fact The Petitioner filed no separately stated findings of fact but rather, filed a memorandum containing factual and legal argument inseparably intertwined. Thus, no separately stated discreet findings of fact are available to be specifically ruled upon, although the subject matter raised in each of the paragraphs of the Petitioner's memorandum have been dealt with and addressed in this recommended order. Respondent's Proposed Findings of Fact Accepted Accepted Rejected as subordinate to the Hearing Officer's findings of fact on this subject matter and as immaterial, inasmuch as the subject rule was amended during the pendency of this proceeding. See Turro v. DHRS, et al., 458 So.2d 345 (Fla. 1st DA 1984). Accepted, but subordinate to the Hearing Officer's findings of fact on the subject matter and in fact immaterial in light of the Commission's own interpretation of the meaning of the experience requirement of the subject rule. Accepted, but the first sentence is immaterial. Accepted. Accepted, but subordinate to the Hearing Officer's findings of fact on this subject matter. Accepted. Accepted. Accepted, but the first sentence is immaterial and the proposed finding of fact is subordinate to the Hearing Officer's findings of fact on the subject matter. Accepted only insofar as it demonstrates what the agency's interpretation of the subject experience requirement in the rule consists of, but otherwise subordinate to the Hearing Officer's findings of fact on the subject matter. COPIES FURNISHED: Colonel Robert H. Brantly Executive Director Game and Fresh Water Fish Commission Bryant Building 620 South Meridian Street Tallahassee, FL 32399-1600 James Antista, Esq. General Counsel Game and Fresh Water Fish Commission Bryant Building 620 South Meridian Street Tallahassee, FL 32399-1600 John C. Harrison, Esquire 12 Old Ferry Road Shalimar, FL 32579 James T. Knight, III, Esquire Assistant General Counsel Florida Game and Fresh Water Fish Commission 620 S. Meridian Street Tallahassee, FL 32399-1600
The Issue Whether Respondents discriminated and retaliated against Petitioner because of her disability, in violation of the Florida Fair Housing Act; and, if so, the relief to which Petitioner is entitled. More specifically, the issues raised in this case are (1) whether Petitioner’s dog was a “service animal” pursuant to section 413.08, Florida Statutes (2018)1/; (2) whether Respondents took adverse action against Petitioner because of her disability; and (3) whether Respondents retaliated against Petitioner by not renewing her lease after she filed a housing discrimination complaint.
Findings Of Fact The parties stipulated at the final hearing that Petitioner suffers from anxiety and neck issues; and she qualifies as a person who is disabled for the purposes of the Florida FHA. Parties and Property Respondent Pelican Bay is a residential community owned and operated by Sun Homes. Respondent Cheryl Merrifield is the manager of Pelican Bay and an employee of Sun Homes. On June 24, 2016, Petitioner entered into a Manufactured Home Option to Purchase Agreement with Sun Homes (Agreement). The Agreement gave Petitioner a two-year period to lease the manufactured home located on Lot 56 of the Pelican Bay residential community. The Agreement allows the purchase of the home, but not the Lot in Pelican Bay. The Agreement contained a “rent to own” component which also allowed Petitioner to be credited 50% of her first year’s lease payments, and 25% of her second year’s lease payments towards the purchase of the manufactured home. Under the terms of the Agreement, after the first two years, the Petitioner would not accrue any credits toward the purchase of the home. The Agreement clearly anticipated that if Petitioner was to exercise the option to purchase, she would do so within two years. The Agreement refers to separate “Home Lease” and “Site Lease” agreements, but neither was admitted into evidence. Petitioner moved into the property in July 2016 with her five-pound Chihuahua, Buttons. At the time she moved into Pelican Bay, Petitioner informed Respondents she suffered from anxiety and needed Buttons for psychological and emotional support. As a result Pelican Bay waived the pet deposit and fees for Button. Petitioner claims she was discriminated against because she had a service dog and cites the following incidents: (1) in July 2016, she was prohibited from bringing Buttons into the Pelican Bay Clubhouse (Clubhouse) during a Fourth of July neighborhood party; (2) in November 2016, she was told that Buttons could not be in the kitchen or on the furniture in the Clubhouse and must be on a leash and controlled at all times during a Thanksgiving event; and (3) she was harassed by her neighbors and Pelican Bay staff for having the dog in the pool area. Petitioner also alleges she was retaliated against for filing a housing discrimination complaint when Pelican Bay did not renew her lease in July 2018. Respondents dispute Petitioner’s version of the facts and deny that their actions were discriminatory. Buttons As an initial matter, there is a factual dispute as to whether Buttons is a “service animal” for the purposes of the Florida FHA. Although it is unclear when Buttons became her service animal, Petitioner had Buttons as a pet prior to being prescribed a service animal for her anxiety by her psychologist, Dr. Donna Marks. Dr. Marks is certified in addiction therapy, psychoanalysis, and Gestalt psychology. She has no training in orthopedics or treating back and neck injuries. Dr. Marks has been treating Petitioner for anxiety intermittently since 2009. In 2014, Petitioner began regular twice a week therapy sessions with Dr. Marks. Thereafter, Dr. Marks prescribed a “psychological service animal” for Petitioner’s anxiety disorder. In a letter dated January 21, 2016, to allow Buttons to ride on an airplane, Dr. Marks wrote: Ms. Taylor has been seen by me and I am familiar with her history and with function limitations and needs imposed by an anxiety order. In order to help alleviate these difficulties and to enhance her ability to function independently, I have prescribed Ms. Taylor to obtain a psychological service animal. The presence of this animal is necessary for her emotional health because it will mitigate the symptoms she experiences and a preferable alterative to medication. (emphasis added). Later, after Petitioner moved into Pelican Bay, Dr. Marks changed her prescription for Petitioner from a “psychological service animal” to a “service animal.” Although no written prescription of this change was admitted into evidence, Dr. Marks claimed she made this change due to Petitioner’s neck and back surgeries. On cross-examination, however, Dr. Marks admitted she altered the prescription for Petitioner’s convenience. Petitioner had reported to her that she was having difficulty at Pelican Bay and was not allowed to take Buttons to neighborhood events. Dr. Marks felt a “service animal” would have more access than an “emotional support animal.” When asked what service Buttons provides or tasks Buttons performs for Petitioner, both Petitioner and Dr. Marks testified Buttons calms Petitioner and keeps her from becoming anxious. In addition, Petitioner testified she has difficulty turning her neck and needs Buttons to warn Petitioner when people are approaching and warn people not to come to close to her. Buttons does this by barking. Buttons did not go through any professional training to learn to keep Petitioner calm or how to bark. Dr. Marks was not involved in training Buttons, made no recommendations on how Buttons should be trained, and did not know of a training protocol for teaching animals anxiety-reducing techniques or conduct. Petitioner claimed she trained Buttons by giving it treats when it behaved the way she wanted, but admits she did not follow any specialized training program. Buttons is registered with the United States Animal Registry (USAR) as an “Emotional Support Dog” and a “Service Dog.” Based on her USAR identification and letters from Dr. Marks, Buttons has been allowed to accompany Petitioner at restaurants, the hospital, and on airplanes. Petitioner, however, provided no evidence of the requirements for registering Buttons with the USAR registry. For example, there was no evidence of an USAR application or questionnaire; nor was there evidence Buttons had been evaluated or tested by USAR as part of the registration process.3/ As explained below, the undersigned finds Buttons is not a “service dog” for purposes of the Florida FHA. Fourth of July In early July 2016, a Fourth of July potluck celebration was held in the Clubhouse. When Petitioner arrived at the Clubhouse with her potluck contribution she was told by Reni Thompson that she could not bring Buttons into the area where the food was being served. Upon hearing this, Petitioner immediately left the Clubhouse and did not participate in the event. The uncontroverted evidence established the celebration was not sponsored by Pelican Bay, nor was staff in attendance. Instead it was arranged by the Pelican Bay Home Owner’s Association (HOA). Although Petitioner testified Ms. Thompson told her she was an HOA board member, Ms. Merrifield testified Ms. Thompson was not on the HOA board, nor was Ms. Thompson a Pelican Bay employee. Other than Petitioner’s hearsay there is no evidence that Ms. Thompson was a board member. Moreover, the HOA was not affiliated with or managed by Pelican Bay, nor were its board members employees of Pelican Bay. As such, any conduct by Ms. Thompson cannot be imputed onto Pelican Bay. Regardless, when Ms. Merrifield received Petitioner’s complaint about what had occurred at the Fourth of July incident, she immediately arranged a meeting with Petitioner. Ms. Merrifield also met separately with Ms. Thompson to inform Ms. Thompson that Petitioner should be allowed in the Clubhouse with Buttons. The undersigned finds Respondents are not liable for Ms. Thompson’s conduct, and took corrective measures once it learned of the incident. Thanksgiving Restrictions on Buttons On November 1, 2017, Ms. Merrifield sent an email titled “Thanksgiving Dinner Nov. 23” to the residents of Pelican Bay. That email stated as follows: Attached to this email is what Sandy Weidner is posting in the Clubhouse today. If anyone is interested please go and sign up. She also has a list of what will be needed if anyone wants to help with the side dishes. The email then listed the side dishes that were needed and contact information for Sandy Weidner for any questions. The evidence established the event was not sponsored by Pelican Bay (although it was contributing the turkey) and Ms. Weidner was not a Pelican Bay employee. Instead of contacting Ms. Weidner, Petitioner emailed Ms. Merrifield and asked, Cheryl, Is this an Event that Buttons, “My Service Dog” and I will be welcomed to without anyone rejecting us or harassment?” Ms. Merrifield replied, In response to your request we understand your dog is an emotional support animal. It may be with you in the clubhouse. It may not go in the kitchen, it may not be put on furniture. It must be on a leash and controlled at all times. It is unclear whether this response deterred Petitioner from attending the Thanksgiving event. Nonetheless, the undersigned finds Ms. Merrifield’s actions did not constitute a violation of the Florida FHA. Pool Incidents In July 2017, Pelican Bay staff received a complaint from residents that Buttons was in the community pool, in violation of the community pool rules. Later, Ms. Merrifield spoke to Petitioner who admitted she had taken Buttons in the pool. Ms. Merrifield told Petitioner Buttons was not allowed inside the pool and should not be left in the pool area unrestrained. Petitioner later researched the issue and agreed she would not take Buttons in the pool in the future. In August 2017, Josephine Hillier, a Sun Homes employee, received another complaint from residents that Buttons was in the pool. When Ms. Hillier investigated the complaint she did not see the dog in the pool, but did find Petitioner with Buttons in the pool area. At the time, Petitioner denied Buttons was in the pool and claimed Ms. Hillier’s questioning was harassment in violation of housing discrimination laws. At the hearing, Petitioner testified that after researching and learning Buttons could not be in the pool, she continued to sit in the pool with Buttons on her shoulder. Petitioner did not consider this to be a violation of the pool rules as long as Buttons was not in the water. She also allowed Buttons to sit on the pool furniture unrestrained while she was in the pool, because her veterinarian told her Buttons was too small for a leash. Regardless, Pelican Bay took no further action against Petitioner regarding Buttons being in the pool. Petitioner complains Respondents repeatedly questioned her about Buttons being in the pool. Ms. Merrifield testified she was aware of two complaints of Petitioner letting Buttons in the pool; Ms. Hillier testified she was aware of two complaints about Buttons being in the pool, one of which she investigated. The undersigned finds that although Petitioner may have been approached by residents with complaints about Buttons, Respondents only spoke with her about Buttons being in the pool twice. The undersigned finds Pelican Bay’s conduct in questioning Petitioner about Buttons being in the pool, and warning her Buttons must be restrained did not constitute harassment. As explained below, this was justified under the circumstances. Non-Renewal of Purchase Agreement On March 20, 2018, Sun Homes sent an unsigned form letter to Petitioner stating her lease would not be renewed and that she would be required to vacate the property on or before June 30, 2018. Petitioner believes she received this letter because she filed a complaint of housing discrimination. The Agreement allowing the option to purchase the home anticipates a lease period of two years, although a longer period is not prohibited. Respondents asked Petitioner after the first year if she was planning to exercise her option to buy the home. At that time, June 2017, she declined because she felt it was too expensive and did not make financial sense. Petitioner did not take any steps toward exercising her option to purchase the home at the end of the second year because she was recovering from neck and back surgeries, her son was living with her, and she was not financially able to purchase it. Ms. Merrifield testified that it was common business practice to not allow renters to remain in Pelican Bay for more than two years. Sun Homes’ business model was to sell the manufactured homes; it was not interested in long-term rental relationships. The evidence established Petitioner was not the only resident that received the form non-renewal letter. The renters in the homes on Lot 48 and Lot 30 also received similar letters. Ms. Merrifield was unaware of whether these other residents had disabilities, but neither had made any kind of housing complaints. Based on the evidence and testimony presented at the final hearing, Petitioner did not demonstrate, by a preponderance of the evidence, that Respondents discriminated against her based on her disability or retaliated in violation of the FHA.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order finding that Respondents, Pelican Bay Communities, LLC, and Cheryl Merrifield, did not commit a discriminatory housing practice against Petitioner, Paula C. Taylor, and dismiss her Petition for Relief. DONE AND ENTERED this 14th day of November, 2018, in Tallahassee, Leon County, Florida. S HETAL DESAI Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of November, 2018.
The Issue The issue is whether the Respondents’ decision to award a landscaping maintenance contract to Cornerstone Tree Farm, Inc., is arbitrary or capricious.
Findings Of Fact The Districts are local units of special-purpose government authorized by Chapter 190, Florida Statutes (2008).1 Fishhawk Community Development District was established by Hillsborough County Ordinance No. 96-24, dated September 12, 2006. Fishhawk Community Development District II was established by Hillsborough County Ordinance No. 02-23, dated December 10, 2002. The Districts issued the RFP for landscape maintenance for the common area within the Districts. Addendum No. 1 was issued on June 23, 2008, and included a revised Section IV, which contained the scope of services and “general maintenance conditions/specifications.” Section I of the RFP provides: The purpose of this bid proposal is to arrive at a total lump sum bid amount and to determine the monthly maintenance of the landscaped areas as described in the Scope of Services. All responses must itemize the cost of each of the items described in the Scope of Services in Section IV (break out all costs such as the # of mowing by month and $ value by month etc.). Only those items specifically indicated in the Landscape Services Agreement and Scope of Services documents, shall be included in the bid amount. * * * The scope of work for this bid shall include mulching, planting of annuals, mowing of all grassy areas, trimming of all trees and shrubs, fertilizing and pruning of all landscaping, pest control and disease, weed control, edging, and inspection as outlined in the Landscape Services Agreement and the Scope of Services and the response must include all items described in the scope of work attached and described in Section IV. Section I of the initial RFP provides: Basis of Award/Right to Reject: The owner reserves the right to reject any and all bids, make modifications to the work, and waive any minor informalities or irregularities in Bids as it deems appropriate. The evaluation criteria (Exhibit B) will be used to evaluate the proposals. * * * The Bids will be evaluated based on the evaluation criteria in Exhibit B. The bids will be evaluated by the Fishhawk CDD & Fishhawk CDD II Board Members. The District shall select the lowest responsive and responsible bidder in accordance with this Invitation to Bid and the Fishhawk CDD & Fishhawk CDD II Rules of Procedure. Subsection 4.3(2)(f) of the Districts’ Rules of Procedure provide the following concerning contracts for maintenance services: In determining the lowest responsive and responsible bidder, the District Representative may consider, in addition to the factors described in the Invitation or request, the following: The ability and adequacy of the professional personnel employed by each bidder or proposer. The past performance of each bidder or proposer for the District and in other professional employment settings. The willingness of each bidder or proposer to meet time and budget requirements. The geographic location of each bidder or proposer’s headquarters or office in relation to the project. The recent, current, and project workloads of the bidder or proposer. The volume of work previously awarded to each bidder or proposer. Whether the cost components of each bid or proposal are appropriately balanced. Whether the bidder or proposer is a certified minority business enterprise. The Lowest Responsive and Responsible Bid/Proposal shall be accepted; however, the Board shall have the right to reject all bids, either because they are too high or because the Board determines it is in the best interests of the District. Addendum I, included the original advertisement of the RFP, provides the following: The District reserves the right to reject any and all bids with or without cause, award bids in total or in part, to waive technical errors or information, and to select the proposal determined by the District, in its sole discretion to be the proposal most advantageous to the District. It is unclear why the advertisement was issued as an addendum to the RFP. It is clear, however, that based on the Districts’ rules and the provisions of the RFP, the contract was to be awarded to the lowest responsive and responsible bidder. Subsection 1.0(2) of the Districts’ Rules of Procedure provides that “[d]efinitions located within any section of the Rules shall be applicable within all other sections, unless specifically stated to the contrary.” The definitions contained in Sections 4.1(2)(c) and (d) define “responsive bid/proposal” and “lowest responsible bid/proposal” as follows: “Responsive bid/proposal” means a bid or proposal which conforms in all material respects to the specifications and conditions in the invitation to bid or request for proposal and these Rules, and the cost components of which are appropriately balanced. A bid/proposal is not responsive if the person or firm submitting the bid fails to meet any requirement relating to the qualifications, financial stability, or licensing of the bidder. “Lowest Responsible bid/proposal” means, in the sole discretion of the Board, the bid or proposal (i) is submitted by person or firm capable and qualified in all respects to perform fully the contract requirements and with the integrity and reliability to assure good faith performance, (ii) is responsive to the invitation to bid or request for proposal as determined by the Board, and (iii) is the lowest cost to the District. Minor variations in the bid may be waived by the Board. Mistakes in arithmetic extension of pricing may be corrected by the Board. Bids may not be modified after the opening. Section 4.5 of the Districts’ Rules of Procedure deals with the procedures for purchasing contractual services and provides that "[a]ll purchases for contractual services (except for maintenance services) may, but are not required to, be made by competitive Invitation to Bid.” Subsections 4.5(2)(d) and (e) of the Districts’ Rules of Procedure define “responsive bid or proposal” and “lowest responsible bid or proposal” as follows: “Responsive bid or proposal” means a bid or proposal which conforms in all material respects to an Invitation to Bid or Request for Proposal and these Rules, and whose cost components are appropriately balanced. A bid or proposal is not responsive if the person or firm submitting the bid or proposal fails to meet any requirement relating to qualifications, financial stability, or licensing of the bidder or proposer. “Lowest responsible bid or proposal” means, as determined in the sole discretion of the Board, the bid (i) is submitted by a person or firm capable and qualified in all respects to perform fully the contract requirements who has the integrity and reliability to assure good faith performance, (ii) is responsive to the Invitation to Bid or Request for Proposal as determined by the Board, and (iii) which is for a cost to the District deemed reasonable by the Board. Minor variations in the proposal may be waived by the Board. Mistakes in arithmetic extension of pricing may be corrected by the Board. Bids may not be modified after opening. According to Debby Bayne, who was managing the bid solicitation of the Districts, the definitions of “responsive bid/proposal” and “lowest responsible bid/proposal” contained in Section 4.1 of the Districts’ Rules of Procedure applied to the procurement of maintenance contracts such as the one at issue. The bids were to be evaluated in five areas: personnel, experience, the bidder’s understanding of the scope of work, financial capacity, and price, and each area was assigned points. The RFP provided the following evaluation criteria: Personnel (E.g., skill set and experience of key management and assigned personnel, particularly the project manager; present ability to manage the project; proposed staffing levels, etc. Skill set includes certification, technical training, and experience with similar projects.) 20 Points Experience (E.g., past record and experience of the respondent in similar projects, volume of work previously awarded to the firm; past performance in any other contracts; character; integrity, reputation, references of respondent, skilled labor force assigned, inventory of all equipment and year of equipment, etc.) 25 Points Understanding of Scope of Work Does the proposal demonstrate an understanding of the District’s needs for the services requested? Does it demonstrate clearly the ability to perform these services? Were any suggestions for “best practices” performances included? Do you have additional skilled manpower to provide this service? 20 Points Financial Capacity Demonstration of financial resources and stability as a business entity necessary to implement and execute the services required. If all financial information is not provided, Proposer will earn no more than five (5) points. 5 Points. Price 30 Points Section I of the RFP provides the following for the awarding of points for price: Price--Will be awarded to the Proposer submitting the lowest bid for completing the work for the initial term of the contract. All other proposals will receive a percentage of this amount based upon the difference between that Proposer’s bid and the low bid. Although the RFP provided for the award of points to the bidders based on the evaluation criteria, nowhere in the RFP does it state that the contract will be awarded to the bidder who receives the highest number of points. The RFP did not provide that a bidder had to garner a certain number of points to be considered responsive and responsible. The RFP provided that the contract award would be made to the lowest responsive and responsible bid/proposal. The bidders who were responding to the RFP were required to submit a lump sum price for the work to be performed pursuant to the contract. The lump sum amount was to be set forth on the bid form contained in Section II of the RFP. The bid form also required that the bidders “include an itemized schedule of each monthly service by cost.” Section IV of the RFP provides the following specifications for the planting of annual flowers and the mulching of planting beds and tree rings: Variety and Rotation Schedule: The annual bed plantings of flowers at Fishhawk Ranch shall be maintained with year round color. Seasonal rotations of four (4) different “crops" are required by the Landscape Contractor each year (Approximately 15,000 plants). Plants shall be in 4” pots and planted at 10” on center (tip to tip) in staggered rows throughout the bed area. The owner’s representative and the Contractor shall determine the flower varieties. The annuals are to be contract grown with an approved grower. * * * Mulching: All shrub planting beds and tree rings shall be maintained with a minimum 3” thick layer of medium sized pine bark nuggets as the mulch product. In some areas pine straw is currently used and is allowed; however, pine bark mulch throughout Fishhawk Ranch shall be re-mulched once per year to remove decaying, matted material and allow for fertilizer to penetrate to the shrubs root zone. The new mulch is to be installed in December and January. The specifications for the mulch did not include a specific amount that was to be applied. The contractor was to apply however much mulch it took to maintain a three-inch layer of mulch at all times and to replace the mulch entirely once a year. The RFP did not call for a unit price to be bid for mulch, nor did the RFP require the bidders to state a certain amount of mulch that would be applied. The specifications for the planting of annuals provided the amount of annuals as an estimate. The contractor was to provide sufficient annuals so that four-inch pots of annuals could be planted in the beds on ten-inch centers in staggered rows four times per year. The RFP did not call for a unit price for the annuals. Eight responsive bids were received by the Districts in response to the RFP. Greenbriar and Cornerstone were among the responsive bidders. Both Greenbriar and Cornerstone were determined to be responsible bidders. The lump sum bid by Greenbriar was $664,389.00. In the price itemization required by Section I and the bid form of the RFP, Greenbriar listed the monthly cost of mulch at $2,987.75 for an annual cost for mulching of $35,853.00, representing 918 cubic yards of mulch. Under the itemization for the bedding plants, Greenbriar listed 15,000 annuals per rotation of bedding plants for an annual total cost of $84,140.00. The lump sum bid by Cornerstone was $691,428.27. Cornerstone itemized the annual cost of mulch as $103,125.00, which represented 2,750 cubic yards of mulch. Cornerstone listed the cubic yard price of the mulch as $37.50. Cornerstone listed the annual cost of the bedding plants as $91,000, which represented four rotations of 13,000 annuals at a price of $1.75 per annual. The itemized price for mulch for the other bidders ranged from $46,200.00 to $66,300.00 with the average price of $57,250.00 for the other bidders. Greenbriar's pricing for mulch was more in line with the amount of the other bidders than the pricing of Cornerstone. The proposals were provided to the members of the Board of Supervisors for the Districts. The board members reviewed the proposals and in some cases investigated the experience and references of the bidders. On July 11, 2008, the Districts’ board members met to consider the proposals received in response to the RFP. Some board members were concerned about the wide discrepancy of the price of mulch for Cornerstone and for Greenbriar. A suggestion was made to delete the cost of the mulch in order to compare the eight proposals. The board members were told to evaluate the proposals without considering the cost of the mulch. The only evaluation category that would have been affected by deleting the mulch was price. The board members evaluated the bids without including the cost of mulch, except for at least one board member who did include the cost of mulch in his evaluation. Based on the evaluations, Cornerstone received the highest ranking, and Greenbriar was next in line. The board members voted to award the contract to Cornerstone and authorized the negotiation with Cornerstone for the amount of the mulch. The unit price for mulch listed in Cornerstone’s bid would be included in the contract as well as the unit price included for annuals. Thus, the final amount of the landscape maintenance including mulch would not be known until negotiations were completed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered sustaining the protest of Greenbriar. DONE AND ENTERED this 11th day of September, 2008, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 11th day of September, 2008.
The Issue The issue is whether Respondent violated the Florida Civil Rights Act of 1992, as amended, by committing unlawful employment practices against Petitioner.
Findings Of Fact Petitioner is an African-American male who was born on April 25, 1943. He received a Bachelor of Science degree in biology in 1965 from Florida A&M University, a Master of Science degree in wildlife and fisheries science in 1978 from Texas A&M University, and a Doctorate in wildlife and fisheries science in 1991 from Texas A&M University. According to his job applications, Petitioner worked for the U.S. Department of Commerce, National Marine Fisheries Service, from June 1965 until April 1994. He worked in various positions, including "survey statistician," "operations research analyst," "fishery research biologist as chief of turtle headstart," "fishery technician/biologist," and "Equal Employment Opportunity Counselor." From July 28, 1995, until July 6, 1998, Petitioner was employed as a child support enforcement case analyst with the Florida Department of Revenue. Petitioner is currently employed at Daytona Beach Community College in an unknown position. Petitioner filed his Charge of Discrimination with FCHR on September 2, 1997, indicating that the most recent or continuing act of alleged race, age, or sex discrimination occurred on August 11, 1997. Alleged acts of discrimination that occurred more than 365 days prior to the filing of the Charge of Discrimination cannot be considered here. See Section 760.11(1), Florida Statutes. Petitioner received letters from Respondent prior to September 2, 1996, informing him that he would not be hired for the following positions: (a) position No. 543 (Job Opportunity Announcement (JOA) #005-6) position filled by Laura Richards with hire date effective March 1, 1996, Petitioner's rejection letter dated April 5, 1996; (b) position Nos. 213 and 956, positions filled by Robert Guerra and Jacklyn Gilmore, respectively, both with effective hire dates of March 29, 1996, Petitioner's rejection letter dated April 3, 1996; and (c) position No. 1099, position filled by Lorraine Heisler with hire date effective May 10, 1996, Petitioner's rejection letter dated April 8, 1996. Therefore, employment decisions regarding these positions are not at issue here. Petitioner applied for and was rejected for the following position numbers after he filed his Charge of Discrimination with FCHR: (a) position Nos. 1161 and 1162, positions filled, Petitioner's rejection letter dated February 16, 1999; (b) position No. 1160, position filled, Petitioner's rejection letter dated March 15, 1999; (c) position No. 918, position filled, Petitioner's rejection letter dated June 4, 1998; (d) position No. 966, position filled, Petitioner's rejection letter dated August 27, 1998; and (e) position No. 859, Petitioner's application faxed to Respondent on June 29, 1998, Petitioner's rejection letter not in record. There is no evidence that FCHR's investigation of Petitioner's Charge of Discrimination and the resulting Determination of No Cause included the employment decisions associated with these positions. Therefore, they are not at issue here. There is no evidence that Petitioner ever applied for position No. 671. Accordingly, that position number is not at issue here. The employment positions at issue here are as follows: (a) position No. 543 (JOA #047-7, Issue Date July 16, 1997), no evidence regarding employment decision, no rejection letter in record; (b) position No. 1071, position filled by Dwight Myers with effective hire date of July 11, 1997, Petitioner's rejection letter dated June 30, 1997; (c) position No. 869, position filled by Forrest Marchinton with effective hire date of March 3, 1997, Petitioner's rejection letter dated February 13, 1997; (d) position No. 2503, position filled by Gil McRae with hire date of March 24, 1997, Petitioner's rejection letter not dated; and (e) position No. 878, Petitioner submitted a resume but no application for this position; Petitioner's alleged rejection letter dated August 11, 1997, is not in record. When Respondent desires to fill a vacant position, it requests the Department of Management Services (DMS) to publish a Vacancy Announcement, which provides a short summary of information regarding that position. The Vacancy Announcement contains the "bare essentials" about a job and includes a brief description of the job duties, the minimum qualifications necessary for the position, and Respondent's contact person. When Respondent desires to fill a vacant position, it publishes a JOA, listing, among other things, the minimum qualifications and a description of job duties for the position. The JOA instructs applicants to submit a separate application for each position sought and to include the appropriate class title and position number. The JOA directs applicants to submit a completed State of Florida Application form to a named contact person. The State of Florida Employment Application directs applicants to "[l]ist the knowledge, skills, and abilities that [the applicant] will bring to the job." The application advises applicants to refer to the JOA or listed contact person to determine those specific requirements. For each established career service position, DMS and the applicable state agency create a Career Service Position Description (CSPD), which lists in great detail the job's duties and responsibilities. DMS and the agency maintain copies of the CSPD. When Respondent intends to fill a vacant position, it develops a Selection Criteria Form. This form sets forth the essential and preferred selection criteria based on the required knowledge, abilities, and skills for the position. Respondent uses the Selection Criteria Form to screen job applications, rank the applicants, and determine which applicants Respondent will interview. At hearing, Respondent's staff testified that it is required to interview the selected applicant. This testimony does not mean that Respondent may select an applicant before interviewing him or her. Likewise, this testimony does not mean that Respondent must select an interviewed applicant. Respondent may interview one or more applicants. After Respondent completes the interview process, it may select one of the interviewed applicants to fill the vacant position. Pursuant to DMS rules, Respondent cannot select an applicant that has not been interviewed. After Respondent selects the applicant most qualified for the vacant position, it prepares a Recruitment Report. This report identifies demographic information regarding all persons who filed an application, the name of the successful candidate, and the Respondent's reasons for determining that non-selected candidates are less qualified in comparison to the selection criteria. Position No. 543 Respondent initially advertised position No. 543, Biological Administrator I, in JOA #005-6. Petitioner applied for the position, but Laura Richards, a former FMRI employee, was better qualified for the job. Ms. Richards' effective hire date was March 1, 1996. Petitioner subsequently received Respondent's April 5, 1996, letter advising him that he was not selected for the position. All of this occurred more than 365 days prior to the date that Petitioner filed his Charge of Discrimination and is not at issue here. Ms. Richards vacated position No. 543 sometime after Respondent offered her the position. In the meantime, Petitioner had a conversation with Toby Harris, Respondent's Chief of Personnel in 1997. The conversation focused on the selection process for Respondent's established positions. In the conversation, Petitioner expressed his concern regarding his failure to be interviewed for positions when he had a Doctorate in a biological science area and selected candidates only had a Master of Science (M.S.) degree. Mr. Harris did not tell Petitioner that Respondent was targeting candidates with M.S. degrees. Instead, Mr. Harris indicated that he would ask Respondent's Division of Wildlife to interview Petitioner to determine whether he had relevant background qualifications not reflected on an application. Mr. Harris also agreed to add Petitioner's name to the mailing list for JOAs. In a letter dated August 8, 1997, James R. Schuette, one of Respondent's regional wildlife biologists, sent Petitioner two JOAs. One of the JOAs was for position No. 671, for which Petitioner never applied. The other JOA (#047-7, issued July 16, 1997) was for position No. 543. Petitioner applied for position No. 543 (JOA #047-7). Respondent offered to interview Petitioner and set up a date and time for the interview. However, Petitioner was unable to attend the interview because of transportation problems. Petitioner eventually advised Respondent that he was withdrawing his application for position No. 543. Consequently, there is no letter advising Petitioner that he was not selected for position No. 543. Moreover, the record contains no evidence as to whether Respondent ever filled position No. 543 or continued to seek applicants for that position. There is insufficient evidence on which to base a finding that Respondent discriminated against Petitioner in making an employment decision relative to position No. 543. Position No. 1071 Petitioner applied for position No. 1071, Biological Scientist III. The JOA for this position states that the minimum qualifications include the following: A bachelor's degree with a major in one of the biological sciences and two years of professional biological experience in a field or laboratory program; or a master's degree in one of the biological sciences and one year of professional biological experience as described above; or a doctorate in one of the biological sciences. Degree(s) in wildlife management or ecology are preferred. The duties for position No. 1071 are set forth as follows in the JOA: Develops and implements management plans for Lake Placid Wildlife Environmental Area. Prepares annual work plans, budget proposals and performance reports. Monitors and documents population levels (trend) of various wildlife species. Coordinates hunting and other recreational activities. Applies various wildlife habitat practices. Petitioner possessed the minimum qualifications for position No. 1071. However, he did not possess the preferred degrees in wildlife management or ecology. He did not possess experience in wildlife management that was required for this position. Wildlife is defined as land-based mammals and birds. Petitioner's education and experience is almost entirely with marine species such as marine turtles, shrimp, or fishes. When hiring for the position of Biological Scientist III, Respondent focuses on an applicant's knowledge, skills, and abilities in performing wildlife population surveys and inventories, working hunter check stations, collecting biological samples from wildlife and upland mammals and game birds, and interacting with the public in exchanging information pertinent to wildlife. Respondent looks for an applicant with wildlife management experience and at least a bachelor's degree or higher in wildlife management and science. The CSPD for position No. 1071, states as follows in relevant part: Area Responsibilities: Duties and responsibilities include the direct involvement in the development and implementation of management programs for the KICCO Wildlife Management Area. . . . Management Planning: Duties and responsibilities include coordination of the development and periodic revision of long-range, comprehensive management plans for the KICCO Wildlife Management Area. . . . Program Development: Duties include supervision, coordination and direct involvement in projects to accomplish management of wildlife, timber, range and water resources. The job includes the following responsibilities: Collection of biological data to evaluate wildlife population numbers and fluctuation and land responses to habitat management. Accomplishment of work in Commission-planned activities such as controlled burning, roller chopping, wildlife food-plot planting, public hunt management, etc. . . . Providing wildlife related recreational opportunities including consumptive and nonconsumptive [sic] uses where appropriate. . . . Supervision of one Biological Scientist II and occasional assistance with program development on the Arbuckle and IMC Wildlife Management Areas. * * * Technical Assistance: Duties and responsibilities include providing technical guidance to private citizens or other governmental agencies in wildlife or associated land management programs. Information - Education: Duties and responsibilities include developing programs to disseminate information on wildlife management, environmental awareness, and related subjects. . . . Endanger [sic] and Exotic Species: Duties and responsibilities include identification and protection of endangered species and habitats. Documents and recommends eradication programs for exotic plant species that endanger native habitat. Petitioner was not interviewed for position No. 1071. His application did not indicate that he had the required training and experience in wildlife management. There were 41 applicants for position No. 1071, including 26 males and 15 females. Seven of the applicants were known to be minorities, including two black males. Respondent interviewed four males and one female. One of the interviewed males was known to be of Asian or Pacific Island descent. The individual that Respondent selected for position No. 1071 was Dwight Myers, a white male, age unknown. Mr. Myers' effective hire date was July 11, 1997. Mr. Myers' education and experience exceeded the minimum qualifications for the job. Mr. Myers was more qualified for the position than Petitioner because of his training and experience in wildlife management. Petitioner received a non-selection letter dated June 30, 1997, for position No. 1071. Petitioner was not hired because he lacked the preferred experience and education in wildlife management. Respondent did not discriminate against Petitioner based on his race, sex, or age in making an employment decision relative to position No. 1071. Position No. 869 Petitioner applied for position No. 869, Biological Scientist III. The JOA for this position states that the minimum qualifications include the following: A bachelor's degree with a major in one of the biological sciences and two years of professional biological experience in a field or laboratory program; or a master's degree in one of the biological sciences and one year of professional biological experience as described above; or a doctorate in one of the biological sciences. Degree(s) in wildlife management or ecology are preferred. The duties for position No. 869 are set forth as follows in the JOA: Develops and implements management plans for the Osceola Wildlife Environmental Area. Prepares annual work plans, budget proposals and performance reports. Monitors and documents population levels (trend) of various wildlife species. Coordinates hunting and other recreational activities. Applies various wildlife habitat practices. Petitioner possessed the minimum qualifications for position No. 869. However, he did not possess the preferred degrees in wildlife management or ecology. He did not possess experience in wildlife management that was required for this position. As stated above, Petitioner's education and experience is almost entirely with marine species such as marine turtles, shrimp, or fishes, and not with land-based mammals and birds. When hiring for position No. 869, Petitioner focused on the same knowledge, skills, and abilities as when hiring for position No. 1071. Respondent was looking for an applicant with wildlife management experience and at least a bachelor's degree or higher in wildlife management and science. The CSPD for position No. 869 states as follows in relevant part: WILDLIFE MANAGEMENT AREA RESPONSIBILITIES PUBLIC HUNTING AND RECREATION Plan, implements and directs activities required for managing all public hunts on the Osceola, Bienville-PC Phosphate, Lake Butler an Cypress Creek WMAs. Hires, trains and supervises eight to ten seasonal employees; moves check stations to operational locations; collects biological data at check stations; disseminates information about wildlife to the public . . POPULATION MONITORING, MANAGEMENT AND BIOLOGICAL SAMPLING Database Management - Maintains detailed databases and up-to-date summary tables of all species monitored and all wildlife management activities on areas. Conducts sophisticated data analyses and develops Annual Management Reports. Wildlife Population Monitoring - Develops, administers and conducts surveys for monitoring and documenting population levels and status of selected game, migratory, threatened and endangered, and selected nongame [sic] species. Conducts annual population surveys for white-tailed deer, bobwhite quail and bobcats. Wildlife Population Management - Uses results of the population monitoring and analyses to develop options and recommendations to manage the population of species monitored. Actions could take the form of either regulatory or habitat management. Biological Sampling - Plans, directs and participates in the collection of biological samples for both live and hunter-harvested animals. Analyses those samples and provides reports summarizing the findings and conclusions. Specialized knowledge of collection procedures is required. Research - Coordinates wildlife research projects that may be conducted on the areas. This includes the live capture of wild animals and collection and maintenance of accurate records. . . . Analyzes large data bases to determine correlations and relationships with environmental factors and management actions. FACILITIES Maintenance and Habitat Management * * * Technical Assistance - Provides technical assistance to the US Forest Service regarding wildlife management including written comments on actions that will affect the quality of the habitat. Habitat Manipulation and Enhancement - Assists the US Forest Service with their habitat manipulation projects on Osceola WMA when time permits. Petitioner was not interviewed for position No. 869. His application did not indicate that he had any wildlife training or experience. There were 99 applicants for position No. 869, including 77 males and 22 females. Fourteen of the applicants were known to be minorities, including three black males and one black female. Respondent interviewed one white male and one male of Indian descent. The individual that Respondent selected for position No. 869 was Forrest Marchinton, a white male, age unknown. Mr. Marchinton's effective hire date was March 3, 1997. There is no specific evidence regarding Mr. Marchinton's education and experience for the job. However, there is evidence that all persons selected for wildlife biologist positions had education and experience in wildlife/environmental science. Petitioner received a non-selection letter dated February 13, 1997, for position No. 869. Petitioner lacked the preferred experience and education in wildlife management or ecology for the job. Respondent did not discriminate against Petitioner based on his race, sex, or age in making an employment decision relative to position No. 869. Position No. 878 Petitioner did not file a completed application for position No. 878, Biological Scientist IV. He only filed a resume. The application deadline for JOA #029-7 was July 7, 1997. Petitioner testified that he received a non-selection letter from Respondent on August 11, 1997. That letter is not in evidence. The JOA for position No. 878 states that the minimum qualifications include the following: A bachelor's degree with a major in one of the biological sciences and three years of professional biological experience in a field or laboratory program; or a master's degree in one of the biological sciences and two year's of professional biological experience as described above; or a doctorate in one of the biological sciences. Prefer: Experience in geographic information systems, especially ARC/INFO, ARC VIEW, ERDAS IMAGE, and UNIX. The duties for position No. 878 are set forth as follows in the JOA: Obtains information, such as known occurrences of rare species of fish and wildlife, and ancillary data such as political boundaries, public land boundaries, soils, land cover, roads, hydrology, land use, etc., from outside sources and import/convert the data for use in the GFC geographic information system (GIS). Reviews scientific literature to obtain information on species requirements. Serves as the systems administrator for the GIS networked computer system. Provides technical assistance to Commission biologists, other agencies, and the public in the form of digital data and/or hard copy maps of GIS data layers. The CSPD for position No. 878 states as follows: This is a professional position responsible for investigating and analyzing fish and wildlife population dynamics and ecology as they relate to existing and proposed restoration and management activities in the Lake Okeechobee-Everglades-Florida Bay system. Serves on interagency committees, as assigned, to ensure that fish and wildlife issues are adequately addressed during restoration and management efforts. Independently seeks out background information and makes contacts with experts in various related fields in order to address these issues competently. Conducts field inspections, as necessary, to document habitat condition and existing fish and wildlife resources. Drafts agency comments and policy for supervisory review. Keeps supervisor up to date on progress of projects and committees. Analyzes effects of past, current, and proposed restoration and management programs on the population dynamics and ecology of freshwater fish and wildlife species. Conducts field inspections to document habitat conditions and existing fish and wildlife resources of affected communities. Designs and conducts limited scientific monitoring and research projects on aspects of Everglades habitat restoration and management alternatives, and the response of fish and wildlife communities to habitat management actions. Prepares project reports and manuscripts for scientific publication and public presentation. Reviews development proposals that would affect the restoration of the Everglades system. This includes conducting field inspections to document habitat conditions and existing fish and wildlife resources of affected communities, and drafting agency comments and policy for supervisory review. Petitioner possessed the minimum qualifications for position No. 878, as set forth in the JOA. However, there is no persuasive evidence that Petitioner had the required experience in geographic information systems to perform the job. Likewise, Petitioner clearly did not have the training and experience to fulfill the specific responsibilities and duties of the job as set forth in the CSPD as they relate to freshwater fish and wildlife. Petitioner presented no evidence as whether Respondent ever filled position No. 878 or continued to seek applications for the job after sending Petitioner a rejection letter. Even if Respondent made such a selection, Petitioner presented no evidence as the race, age, or gender of the selected individual. There is no evidence that Respondent discriminated against Petitioner in making an employment decision in regards to position No. 878. Position No. 2503 Position No. 2503, Research Scientist, was advertised by DEP for FMRI in JOA #97-102 on January 6, 1997 with an application deadline of January 30, 1997. The JOA states as follows in relevant part: MINIMUM QUALIFICATIONS: A bachelor's degree from an accredited college or university with major course of study in one of the physical or natural sciences or mathematics and five years of professional experience in one of the physical or natural sciences or mathematics; or a master's degree from an accredited college or university with major course of study in one of the physical or natural sciences or mathematics and four years of professional experience as described above; or a doctorate from an accredited college or university with a major course of study in one of the physical or natural sciences or natural sciences or mathematics and two years of professional experience as described above. SPECIAL REQUIREMENTS: Prefer working knowledge of age-structured fisheries models, familiarity with SAS, dexterity with PCs, and knowledge of life history and ecology of marine fish species. * * * BRIEF DESCRIPTION OF JOB DUTIES: Develop single and multi-species assessments of Florida's East Coast fisheries integrating research on life history, fishery monitoring, ecological and habit surveys and human behavior. Develop mathematical techniques to accomplish the above duties. Prepares reports and manuscripts for resource managers. Participates in preparation of management plans. REQUIRED ENTRY-LEVEL KNOWLEDGE, SKILL(S), & ABILITIES: Knowledge of: population assessment techniques; simulation modeling; and statistics. Ability to: process and analyze data; produce technical reports and manuscripts; develop presentations from scientific data; plan and coordinate research; design and test sampling methods; and to communicate effectively verbally and in writing. Skill in the use of a programming language, modeling software, word processing and spreadsheet software. The CSPD for position No. 2503 states as follows: Independently integrate data from directed research studies on the life history or population dynamics of marine fishes, fishery monitoring programs, ecological and habitat surveys and human behavior into single and multi-species assessments of Florida's East Coast fisheries issues. Monitor the status of selected marine fisheries and analyze how well Florida's management goals are being met. Independently design and test new mathematical techniques to accomplish the above duties. Keep current on relevant literature. Attend courses and workshops pertaining to mathematical analyses of fisheries data. Assist with the coordination and implementation of all fisheries research and monitoring programs. Assist with the design and testing of sampling techniques for fisheries programs. Prepare reports and peer-reviewed manuscripts on findings from the above analyses. Prepare stock assessments and special reports for Florida's marine resource managers. Review and evaluate reports, in the preparation of management plans for federal fisheries contiguous to Florida. Advise and assist other departmental, governmental, institutional, or private agencies in matters related to the above research. Participate in the public outreach efforts as appropriate. Assist in other Institute activities as requested. Knowledge, Skill(s), and Ability(ies): List any entry level knowledge, skill(s) or ability(ies) relating to this position including utilization of equipment. KSAs identified in this section are considered essential function(s). Knowledge of: population assessment techniques; simulation modeling; and statistics. Ability to process and analyze data; produce technical reports and manuscripts; and develop presentations from scientific data; plan and coordinate research; design and test sampling methods; and to communicate effectively verbally and in writing. Skill in the use of a programming language, modeling software, word processing and spreadsheet software. DEP's Selection Criteria Form for position No. 2503 lists the following as essential knowledge, abilities, and skills: Knowledge of: population assessment techniques; simulation modeling; and statistics: Ability to: communicate effectively in writing and verbally; process, analyze, produce technical reports and manuscripts; develop presentation from scientific data; plan and coordinate research; and design and test sampling methods. Skill in the use of: a programming language; modeling software; and word processing and spreadsheet software. DEP's Selection Criteria Form for position No. 2503 lists the following as preferred essential knowledge and skills: Knowledge of: age-structured fisheries models Skill in the use of: personal computers DEP had 51 applicants for this position. The agency interviewed six of the applicants. Five of the interviewed candidates were white. One candidate was of Asian descent. Five of the interviewed candidates were male. One was female. Two of the interviewed candidates were over the age of 40. Four of the candidates were DEP employees. Petitioner applied for this position but did not receive an invitation for an interview. DEP sent him an undated non-selection letter, which states that the position had been offered to an applicant whose overall background most closely fit the knowledge, skills, and abilities required for the position. Petitioner met the minimum qualifications set forth in the JOA for position No. 2503. Persuasive evidence indicates that he did not have the necessary training and experience to perform the specific assessment modeling techniques in order to perform the job. A white male and a white female, who were already employed by FMRI, were not interviewed for the same reason. DEP selected Gil McRae, an FMRI employee, for position No. 2503 with an effective hire date of March 24, 1997. Mr. McRae was a white male under the age of 40. He had a M.S. in Fisheries Statistics and more than enough professional experience to meet the minimum qualifications for the job. He had been an Associate Research Scientist with DEP for fifteen months. Of all the applicants, Mr. McRae had the most knowledge and the best skills and abilities to perform the duties and responsibilities of the position. There is no persuasive evidence that DEP discriminated against Petitioner in making an employment decision relative to position No. 2503. Finally, there is no persuasive evidence that Respondent's staff ever told Petitioner that he would not be considered for a job because he had a doctorate. He was never advised that an interview with Respondent equated to a job offer. Moreover, there is no persuasive evidence that Respondent or DEP changed job classifications or varied conditions of employment to discriminate against Petitioner based on his race, gender, or age.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Florida Commission on Human Relations enter a final order dismissing the Petition for Relief, with prejudice. DONE AND ENTERED this 15th day of September, 2000, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of September, 2000. COPIES FURNISHED: Ausbon Brown, Jr. Post Office Box 10946 Daytona Beach, Florida 32120-0946 Preston T. Robertson, Esquire Sharman H. Green, Esquire Florida Fish and Wildlife Conservation Commission Bryant Building 620 South Meridian Street Tallahassee, Florida 32399-1600 Sharon Moultry, Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Dana A. Baird, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149
Findings Of Fact This cause came on for consideration based upon the Petitioner's (Mrs. R. C. Horton) amended petition filed by her son, Charles H. Horton, which petition opposes the proposed permit/certification that the State of Florida, Department of Environmental Regulation, intends to issue to the Consolidated City of Jacksonville. Particularly, this concerns the Permit/ Certification No. 16-31-0756-2E, Duval County, Florida. The placard number is 01496. The Petitioner in this cause, Mrs. R. C. Horton, resides at 7357 Goodnow Road in Jacksonville, Duval County, Florida, on property which is adjacent to the project site in issue. The Respondent, State of Florida, Department of Environmental Regulation, is an agency of the State of Florida which has, among other duties, the consideration of permits which involve maintenance dredging. The authority for this activity on the part of Respondent, State of Florida, Department of Environmental Regulation, is found in Chapter 253 and/or Chapter 403, Florida Statutes. The second Respondent in this cause is the Consolidated City of Jacksonville Mosquito Control Branch. The Consolidated City of Jacksonville is a municipality in Duval County, Florida. The proposal in dispute is that request to excavate approximately 9700 cubic yards of material at the site by realignment of 600 feet of canal; widening 250 feet and cleaning and shaping 100 feet of drainage way in the location of Section 56, Township 3 South, Range 27 East, on Eagle Branch, a channelized drainage way in Duval County, Florida. The stated purpose of this work is to prevent an encroachment of the branch onto private property in the area of the 600-foot realignment. An additional purpose is to promote better drainage. The Petitioner's challenge to the Respondent, Department of Environmental Regulations intent to grant the permit was premised primarily on the testimony of Charles Horton and certain photographic slides which he presented in the course of that Hearing. It is Mr. Horton's position that if the work as applied for were completed, there would be erosion to the property of Mrs. R. C. Horton and a problem with siltation at the mouth of the Eagle Branch where it flows into Pottsburg Creek. In the mind of Charles Horton, this theory is supported by the opinion that clearing out and widening will increase the velocity of the water flowing out of the Eagle Branch, thereby promoting advanced erosion, and by the past when the Eagle Branch channelized in the early fifties and there was a problem with siltation and erosion, to the extent that maintenance dredging was necessary in the 1960's. (Moreover, Charles Horton was concerned about the cost considerations involved in the project; however, he was advised by the undersigned that the purpose of the hearing sub judice was not to question the cost, but to consider the effect of the project on water quality and biological resources as contemplated by Chapters 253 and 403, Florida Statutes, and Rule 17, Florida Administrative Code.) The petitioner did not offer engineering studies or other forms of data which would support the opinion of Mr. Horton. In defense of the project, the Respondent, Consolidated City of Jacksonville Mosquito Control Branch, offered testimony from George R. Knecht, a civil engineer. Mr. Knecht has had experience in this type project over a period of the last 7-1/2 years. He stated in testimony that the aims of the project were to take the creek bed away from private property on the north side of the city maintenance yard by process of realignment, and to clean out the Eagle Branch, thereby decreasing the velocity of the water flowing through that branch in the area of the maintenance yard. (The maintenance yard may be seen on the Respondent, Consolidated City of Jacksonville's Exhibit No. 1 admitted into Evidence.) It was to these ends that the City of Jacksonville submitted its proposals for permit, which may be found as Petitioner's Exhibit No. 1 admitted into evidence. Respondent, State of Florida, Department of Environmental Regulation, received the application and made an application appraisal, which may be found as Respondent, Department of Environmental Regulation's Exhibit No. 1 admitted into evidence. In the process of conducting the appraisal, a biological study was done and other steps were taken to discern the effect of the project on water quality in the area which includes a flood plain at the mouth of the Eagle Branch, which flows into Pottsburg Creek. Among the things that were required as conditions to the granting of the permit were the placing of turbidity curtains at the mouth of the branch during the course of the entire construction; monitoring the turbidity daily on the downstream side of the turbidity curtain during the dredging operation; containing the dredging through the swamp flood plain in the existing channel to avoid destruction of trees of the flood plain, and placing the spoil from the flood plain on the existing berm or removing it to uplands. (These conditions, and a statement of intent to grant the permit, may be found in Petitioner's Exhibit No. 2 admitted into evidence.) The Respondent, State of Florida, Department of Environmental Regulation, also received comments from the Florida Game and Fresh Water Fish Commission and those comments may be found in the Respondent, Department of Environmental Regulation's Exhibit No. 2 admitted into evidence. The intent to grant the permit incorporates the protections suggested by the Florida Game and Fresh Water Fish Commission. The testimony on the approach of the State of Florida, Department of Environmental Regulation to the request for permit was offered by Jeremy Tyler and Dave Scott, employees of the Respondent, State of Florida, Department of Environmental Regulation. Upon consideration of the testimony offered, it is concluded that water quality and biological resources will not be unreasonably affected, and that it would be in keeping with requirements of Chapters 253 and 403, Florida Statutes, and Rule 17, Florida Administrative Code, to allow the granting of Permit/Certification No. 16-31-0756-2E, Duval County, Florida.
Recommendation It is recommended that the State of Florida, Department of Environmental Regulation, issue Permit/Certification No. 16-31-0756-2E, Duval County, Florida, for the benefit of Consolidated City of Jacksonville Mosquito Control Branch. DONE and ENTERED this 1st day of September, 1978, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Charles H. Horton, Esquire 757 Goodnow Road Jacksonville, Florida 32216 Carole Joy Barice, Esquire Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301 Robert G. Brown, Esquire Assistant Counsel 1300 City Hall Jacksonville, Florida 32202
Conclusions An Administrative Law Judge of the Division of Administrative Hearings has entered an Order Relinquishing Jurisdiction and Closing File in this proceeding. A copy of the Order is attached to this Final Order as Exhibit A.
Other Judicial Opinions REVIEW OF THIS FINAL ORDER PURSUANT TO SECTION 120.68, FLORIDA STATUTES, AND FLORIDA RULES OF APPELLATE PROCEDURE 9.030(b)(1)(C) AND 9.110. TO INITIATE AN APPEAL OF THIS ORDER, A NOTICE OF APPEAL MUST BE FILED WITH THE DEPARTMENT’S AGENCY CLERK, 2555 SHUMARD OAK BOULEVARD, TALLAHASSEE, FLORIDA 32399-2100, WITHIN 30 DAYS OF THE DAY THIS ORDER IS FILED WITH THE AGENCY CLERK. THE NOTICE OF APPEAL MUST BE SUBSTANTIALLY IN THE FORM PRESCRIBED BY FLORIDA RULE OF APPELLATE PROCEDURE 9.900(a). A COPY OF THE NOTICE OF APPEAL MUST BE FILED WITH THE APPROPRIATE DISTRICT COURT OF APPEAL AND MUST BE ACCOMPANIED BY THE FILING FEE SPECIFIED IN SECTION 35.22(3), FLORIDA STATUTES. YOU WAIVE YOUR RIGHT TO JUDICIAL REVIEW IF THE NOTICE OF APPEAL IS NOT TIMELY FILED WITH THE AGENCY CLERK AND THE APPROPRIATE DISTRICT COURT OF APPEAL. MEDIATION UNDER SECTION 120.573, FLA. STAT., IS NOT AVAILABLE WITH RESPECT TO THE ISSUES RESOLVED BY THIS ORDER. FINAL ORDER NO. DCA 11-GM-145 CERTIFICATE OF FILING AND SERVICE I HEREBY CERTIFY that the original of the foregoing has been filed with the undersigned Agency Clerk of the Department of Community Affairs, and that true and correct copies have been furnished by U.S. Mail to each of the persons listed below on this day of » 2011. By U.S. Mail The Honorable Bram D. E. Canter Administrative Law Judge Division of Administrative Hearings The Desoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 By Electronic Mail Catherine D. Reischmann, Esq. Debra S. Babb-Nutcher, Esq. Gregg A. Johnson, Esq. Brown, Garganese, Weiss & D’agresta, P.A. 111 N. Orange Ave., Ste. 2000 Orlando, Florida 32802 creischmann@orlandolaw.net dbabb@orlandolaw.net gjohnson@orlandolaw.net Reginald L. Bouthillier, Jr., Esquire Greenberg Traurig, P.A. 101 East College Avenue Tallahassee, Florida 32301-7742 bouthillierr@gtlaw.com \ Paula Ford tga Agency Clerk Department of Community Affairs 2555 Shumard Oak Blvd Tallahassee Florida 32399-2100 Thomas W. Reese, Esquire 2951 61st Avenue South St. Petersburg, Florida 33712-4539 twreeseesq@aol.com Marcia Parker Tjoflat, Esq. Pappas, Metcalf, Jenks & Miller, P.A. 245 Riverside Ave., Ste. 400 Jacksonville, Florida 32202 mpt@papmet.com M. Lynn Pappas, Esq. Pappas, Metcalf, Jenks & Miller, P.A. 245 Riverside Ave., Ste. 400 Jacksonville, Florida 32202 Ipappas@papmet.com Linda Loomis Shelley, Esq. Fowler White Boggs & Banker, PA. P.O. Box 11240 Tallahassee, Florida 32302 Ishelley@fowlerwhite.com Lynette Nort, Esq. Assistant General Counsel Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100 Lynette.Norr@dca.state.fl.us FINAL ORDER NO. DCA 11-GM-145
