Findings Of Fact At the time of the formal hearing in this proceeding, Petitioners were inmates incarcerated at Union Correctional Institution. Union Correctional Institution Policy Memorandum No. 65, issued June 7, 1976 and revised and effective since October 23, 1980, provides in pertinent part that: Inmates are prohibited from using typewriters for personal correspondence or for matters other than "official state business." Violation of that Policy Memorandum may constitute a basis for disciplinary action. Petitioners have had mail returned to them because it was typewritten. (Petitioners' Exhibits 3, 4, and 5) Based on the returned mail to Petitioners, all of them have been substantially affected by the operation of the subject Policy Memorandum. As example, Petitioner Adams had several cards returned as being prohibited and was advised that if he questioned the return of those cards, he would be confined as a disciplinary action for questioning the operation of the rule as it relates to the returned cards. Additionally, Petitioner Adams lost a Clerk's job in the Law Library because he typed letters. Adams' dismissal resulted in lost "gain time" since he was dismissed for typing letters violation of Policy Memorandum No. 65. Petitioner Holland filed an application for a grant to a community college which was returned because it was typed in violation of Policy Memorandum No. 65. Finally, Petitioner Cribbs was unable to attend a favorite aunt's funeral because his request was typewritten and it was returned as being in violation of Policy Memorandum No. 65. The employees at Union Correctional Institution adhere to Policy Memorandum No. 65 strictly and employees who are derelict in their responsibilities covered in implementing that policy are subject to disciplinary action. UCIPM 65.5. (Petitioners' Exhibit 1) UCIPM 65 is a department policy, never promulgated as a rule, uniformly applied throughout Union Correctional Institution. It is, by its own terms, virtually self-executing and intended to require compliance. It therefore has the consistent effect of law.
The Issue The issue is whether Respondent is guilty of introducing or possessing contraband on the grounds of a state correctional institution, and if so, what penalty should be imposed.
Findings Of Fact Petitioner certified Respondent as a correctional officer on October 24, 1995. Respondent holds correctional certificate number 159550. At all times material to this proceeding, Respondent was employed as a correctional officer at the Bay Correctional Facility, a state correctional institution. During her employment, Respondent had contact with Zachary Richards, an inmate at Bay Correctional Facility. On August 23, 1996, Captain Ronnie Holland spoke to Inmate Richards regarding a complaint that Inmate Richards had made disrespectful remarks about an official. In order to avoid a disciplinary report for disrespecting the official, Inmate Richards gave Captain Holland a brown paper bag on which a personal letter had been written. Inmate Richards indicated that Respondent wrote the personal letter and gave it to him. Captain Holland gave the brown paper bag to Inspector Chris Hubbard along with his report. Inspector Hubbard interviewed Inmate Richards who claimed that he and Respondent had been writing letters to each other for some time. Inmate Richards signed a sworn affidavit in support of his claim that he received the letter written on the brown paper bag from Respondent. Inspector Hubbard interviewed Respondent who denied any knowledge concerning the letter on the brown paper bag. Inspector Hubbard obtained Respondent's known handwriting samples from the portion of the master control log which she maintained during her employment. He submitted these samples along with the brown paper bag to the Florida Department of Law Enforcement laboratory for comparison. Donald G. Pribbenow is a forensic document examiner employed by the Florida Department of Law Enforcement at the Pensacola Regional Crime Laboratory. He is an expert with 17 and 1/2 years of experience in comparing handwriting samples to determine their authorship. Mr. Pribbenow examined the writing on the brown paper bag and compared it to Respondent's known handwriting samples. Mr. Pribbenow determined that the person who wrote the submitted known writings was the same person who wrote the questioned writing on the brown paper bag. The result of Mr. Pribbenow's examination is persuasive evidence that Respondent wrote the letter to Inmate Richards on the brown paper bag. On September 16, 1996, Respondent was terminated from Bay Correctional Facility for being involved in an improper relationship.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that Petitioner enter a Final Order suspending Respondent's certification as a correctional officer for a period not to exceed two years. RECOMMENDED this 31st day of December, 1997, 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 Filed with the Clerk of the Division of Administrative Hearings this 31st day of December, 1997. COPIES FURNISHED: A. Leon Lowry, II, Director Division of Criminal Justice Standards and Training Post Office Box 1489 Tallahassee, Florida 32302 Michael Ramage, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Karen D. Simmons, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Lori DeFisher 4123 West 21st Street Panama City, Florida 32405
Findings Of Fact Petitioners are inmates presently incarcerated at Polk Correctional Institution, Polk City, Florida. Polk Correctional Institution is a prison facility maintained by the Florida Department of Corrections. The superintendent of Polk Correctional Institution issued a directive, which is dated February 18, 1982, and entitled "Interoffice Memorandum". The memorandum is directed to all inmates and relates to visiting procedures. It provides: Effective Saturday, March 6, 1982, inmates will no longer be permitted to receive visitors on both Saturday and Sunday of the same week. Visiting policy in the past has permitted inmates to receive visits on both Saturday and Sunday of the same week, but not from the same visitor. This change means that you must receive all your visitors on either Saturday or Sunday. If your (sic) receive a visit on Saturday, you will not be permitted to receive another visit on Sunday. This change in visiting procedure will help alleviate the overcrowded situation in the visitor's park and allow you and your family to visit together more comfortably. The memorandum applies only within Polk Correctional Institution. It was issued by the superintendent without any effort being made to promulgate it as a rule. No effort was made to publish notice, to give affected persons an opportunity to be heard, nor to conduct hearings and allow input from members of the public. The superintendent did not construe the memorandum as being a rule. He considered it authorized under the provisions of Section 945.21, Florida Statutes; Department of Corrections Rule 33-5.01, Florida Administrative Code; and Department of Corrections "Policy and Procedure Directive" Number 3.04.12, which was issued April 8, 1981. Rule 33-5.01 provides: The Secretary shall authorize each Superintendent to adopt policies stating the conditions and circumstances under which visits may be conducted including: the regular visiting hours of the insti- tution; the items which visitors may take in or out of an institution, and what items are contraband; what persons or groups may visit, and in what numbers; and the specific standards of conduct which shall prevail during such visits. All visiting policies promulgated by the Superintendents shall be subject to approval by the Secretary. Department of Corrections Policy and Procedure Directive 3.04.12 provides at Paragraph V.A. 1: Visiting days shall normally be designated as Saturday and Sunday between the hours of 9:00 a.m. and 3:00 p.m. Where unusual circum- stances occur, additional days may be designated for visiting. Institutions are authorized to restrict visiting to one of these days; or when facilities permit, visiting may be permitted more than one day. The directive provides at Paragraph V.B.: There is no limit on the number of individuals that may visit an inmate on any particular visiting day other than those restrictions imposed regarding limited space at each institution. Each institution is authorized to place a limitation when physical facilities are restrictive. However, reasonableness should be exercised when possible in regard to the number of visitors that would be permitted. Those institutions restricting visits to either Saturday or Sunday, but not both, may permit special exception in the case of those individuals that have traveled a significant dis- tance, especially when such visits are on an infrequent basis. This policy directive has not been promulgated as a rule. It is not published in the Florida Administrative Code, does not bear a numerical designation that accords with rules of the Department of State, and appears to have been adopted on authority of Department of Corrections Rules 33-4.02(), 33-3.06, and 33-5, Florida Administrative Code. None of these rules sets out visiting conditions with the specificity found in the policy and procedure directive. Prior to the March 6, 1982 effective date of the Superintendent's memorandum, which is the basis for this proceeding, inmates at Polk Correctional Institution were allowed to receive visitors on both Saturday and Sunday. This prior policy was based upon memoranda that had been issued by the superintendent in the same manner as the February 18, 1982 memorandum.
Findings Of Fact The Petitioner, James R. Endress, is an inmate at the New River Correctional Institution. The Respondent is the Department of Corrections, an agency of the State of Florida. The Petitioner has challenged an alleged non-rule policy pursuant to which he was allegedly denied continued visitation with Deborah L. Crews, a former employee of the Respondent. The Petitioner has alleged that the challenged non-rule policy was issued by the Superintendent of the New River Correctional Institution. New River Correctional Institution is not an "agency" of the State of Florida. The Petitioner has not alleged that the Respondent has established and applied the alleged non-rule policy on a general basis.
The Issue Whether Respondent, a police officer, violated section 951.22(1), Florida Statutes, by conspiring to introduce, take, or attempt to take contraband into the Hamilton County Jail for an inmate of the jail, so as to result in a finding that Respondent has not maintained good moral character; and, if so, the appropriate penalty.
Findings Of Fact Petitioner is the entity within the Florida Department of Law Enforcement responsible for the execution, administration, implementation, and evaluation of the powers, duties, and functions established under sections 943.085 through 943.255, Florida Statutes, and is charged with certifying and revoking the certification of law enforcement officers in Florida. § 943.12, Fla. Stat. Pursuant to section 943.1395, Petitioner is authorized to investigate incidents in which certified law enforcement officers are alleged to have failed to maintain compliance with the minimum qualifications for certification, and to take disciplinary action against law enforcement officers found to have failed to maintain those qualifications. At all times relevant to this proceeding, Respondent was certified by Petitioner as a law enforcement officer, and holds Law Enforcement Certification Number 313297. She was initially certified on January 8, 2014. On March 11, 2019, Respondent served responses to Petitioner’s First Set of Requests for Admission. Respondent acknowledged at the hearing that her responses were accurate. As discussed at the final hearing, and as reflected in the preliminary statement, Requests for Admissions 1 through 17 were accepted. Respondent has not previously been the subject of any disciplinary action. On February 28, 2017, Respondent was employed as an officer with the City of Jasper Police Department. On that date, Respondent was in a romantic relationship with Derrick Harris. On the morning of February 28, 2017, Mr. Harris turned himself in on an active warrant for what was apparently a misdemeanor offense in Duval County, and held in the Hamilton County Jail in Jasper, Florida. On February 28, 2017, from roughly 10:00 a.m. to roughly 4:35 p.m., Respondent and Mr. Harris spoke by telephone on nine separate occasions, for a total of roughly one hour and 50 minutes.2/ In addition, Respondent visited Mr. Harris in the jail visitation area, separated by glass and using a telephone handset, from 10:23 a.m. until 10:53 a.m. Thus, during the day, Respondent and Mr. Harris spoke for about two hours and 20 minutes. Much of the discussion between Respondent and Mr. Harris centered on how he would be able to come up with a $3,500 cash bond to get him released, and getting money put on the phone so he could make calls from the jail. During telephone call 713077714, which started at 2:17:32 p.m. on February 28, 2017, Respondent was upset that Mr. Harris’s mug shot had appeared on an unofficial website. She was also upset that a rumor was going around that she was responsible for Mr. Harris’s arrest. The tone of her voice ranged from angry to upset to tearful. During the call, Mr. Harris complained of being hungry. It was not the first time he made that complaint. He also stated, “I wish I had a cell phone -- if I had a cell phone I’d talk to you all night.” After a brief discussion, initiated by Mr. Harris, of how Respondent could slip a sack of Arby’s and a phone in her police vest, the idea was quickly shot down, with Mr. Harris stating that “I don’t want you to do nothing to jeopardize your job.” The entirety of the discussion lasted scarcely more than 90 seconds, and quickly reverted to a continuation of the discussion of how to raise bond money. Neither Arby’s nor a cell phone was brought up again. Respondent testified convincingly that “I didn’t -- I really didn’t plan on actually taking [anything in] -- I was just explaining over the phone because I was upset.” Her testimony is accepted. Idle chatter does not manifest intent to commit a crime, nor does it evince an agreement to do so. The evidence in this case establishes clearly, and it is found that Respondent had no actual intent to bring Arby’s or a cell phone, to Mr. Harris at the jail, that Respondent and Mr. Harris made no agreement to do so, and that she did not attempt to do so. Captain Bennett established that the Hamilton County Jail has: standing policy as per the Sheriff. When we come -- when an inmate comes into the jail facility, and they are indigent and don't have any money on them at the time, or they come in before commissary has arrived, he allows for a one-time initial issue, if there is someone that can bring underwear, socks, T-shirts, boxers, soap, deodorant, and basically hygiene items as for someone to, you know, be able to survive in the jail setting for -- you know, until they can get money there. Because everything else after that is usually purchased off of commissary, sir. Mr. Harris was new to the jail. He stated on several occasions during his conversations with Respondent that he did not have any “canteen.” Thus, despite the fact that “clothing” is listed as an item of contraband in section 951.22(1), and that Petitioner pled Respondent’s conspiracy to introduce clothing as an element of the second Amended Administrative Complaint, the evidence firmly establishes that Respondent’s delivery of underwear, t-shirts, socks, and hygiene items to the jail for the benefit of Mr. Harris was done through regular channels as duly authorized by the Sheriff or officer in charge. During the course of telephone call 71307815, which started at 3:15:45 p.m. on February 28, 2017, Mr. Harris can be clearly heard, on more than one occasion, asking jail staff what could be brought to him. The replies of jail staff were indistinct. However, Mr. Harris told Respondent that he could have socks, a t-shirt, deodorant, and the like. It was reasonable, based on Mr. Harris’s recitation, for Respondent to (correctly) understand that clothing, including socks and a t- shirt, were authorized by the correctional officer in charge. Mr. Harris stated that the correctional officer “didn’t say nothing about food.” He suggested that Respondent bring a couple of packs of ramen noodles and “see if they’ll let you give them to me.” Later during that call, Mr. Harris stated that Respondent would have “to ask them could I get the noodles.” It is clear that Mr. Harris wanted some ramen noodles, and that Respondent was willing to bring them. It is equally clear from the evidence as a whole that neither Respondent nor Mr. Harris intended to introduce the ramen noodles, or any other item, into the jail without permission from the correctional officer in charge. In order to avoid bringing anything improper into the jail, Respondent decided, “I’m going to message Captain Bennett over the Facebook because I was friend with him on Facebook. And I asked him what was allowed to be brought in.” At 4:07 p.m. on the afternoon of February 28, 2017, Respondent sent a direct message to Captain Bennett asking (verbatim): Would i be able to bring him some soap and deodorant and something to eat in there If they gonna pick him up for transport will i be able to see him before he go? Captain Bennett responded that “You can take him some soap and deodorant. I’m sure they will if the bond isn’t posted. Will have to see what’s going on about a visit.” The first and third sentences of the response are fairly straightforward, and directed towards Respondent’s first request (soap and deodorant), and her last request (a visit). The second sentence is ambivalent if not confusing, and could reasonably be understood to her second request, and to mean that jail staff would allow Respondent to bring Mr. Harris some food “if the bond isn’t posted.” In the context of the questions asked by Respondent, that is the most logical meaning, since soap and deodorant and a possible visit were already specifically addressed. Respondent gathered some items, including boxers, t-shirts, socks, body wash, deodorant, and the like, and placed them in a plastic bag with several packages of ramen noodles. There was no evidence that Respondent attempted to conceal the noodles. Respondent took the plastic bag to the jail. She drove her personal vehicle and was not in uniform. She tapped on the glass behind, which the correctional officer on-duty sat, and asked the correctional officer if the items could be taken to Mr. Harris. Respondent did not ask to take the bag to Mr. Harris herself. A correctional officer came from within the secured area, “and took out of the bag what was allowed in there.” There was no testimony as to which of the items, including the ramen noodles, made their way to Mr. Harris, and which, if any, were returned to Respondent. Nonetheless, Respondent was not trying to, and did not attempt to introduce contraband into the jail outside of regular channels and without the actual knowledge and authorization of the correctional officer in charge.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED that a final order be entered dismissing the second Amended Administrative Complaint. DONE AND ENTERED this 24th day of June, 2019, in Tallahassee, Leon County, Florida. S E. GARY EARLY 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 24th day of June, 2019.
The Issue The issue is whether a Consent Order executed by Respondents on March 25, 2010, and by the Department of Environmental Protection (Department) and the Board of Trustees of the Internal Improvement Trust Fund (Board) on April 1, 2010, is a reasonable exercise of the Department's enforcement authority.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: History of the Proceeding A lengthy history precedes the execution of the Consent Order and can be summarized as follows. Shannon Sue, LLC (Shannon Sue) is a Florida limited liability company and the current owner of property located at 18261 Southeast Federal Highway, Tequesta, Florida, just north of the Martin County-Palm Beach County line. The property consists of 0.482 acres, is on the western bank of the Indian River Lagoon, and is adjacent to the Jensen Beach - Jupiter Inlet Aquatic Preserve, an Outstanding Florida Water. A commercial marina has been located on the upland property since at least the mid or late-1980s. The Department has the power and duty to administer and enforce Chapters 373, 376, and 403, Florida Statutes (2009),2 and the rules promulgated thereunder, including Chapter 62-780. The marina lies within the District Office's regulatory jurisdiction. MABE is a Florida limited liability corporation with its principal place of business in Martin County. It owns a small parcel of property located at 18245 Southeast Federal Highway, Tequesta, which is adjacent to, and immediately north of, the marina. Edmund Brennen is an officer and director of MABE and has resided at that site for twenty years. Besides his residence, Mr. Brennan has two boat slips for rent and two floors of commercial office space on the property, which is zoned commercial/residential. Over the last twenty years, MABE has had tenants who have historically used the dock and the aquatic preserve for fishing, boating, and other recreational activities. Although currently vacant, MABE plans to continue to lease its property to residential or commercial tenants. Shannon Sue currently leases the marina property to Jupiter Hills Lighthouse Marina, Inc. (JHLM), a Florida corporation with its principal place of business in Martin County. JHLM has operated the marina since at least the 1990s. The property was owned by John and Barbara Canonico (husband and wife), as Trustees of the Barbara Canonico Revocable Trust, from 1988 until November 21, 2002, when title was transferred to Shannon Sue. John Canonico is an officer, director, and registered agent of JHLM and Barbara Canonico is a manager and registered agent of Shannon Sue. The record reflects that a dock and slips were located on the property for a number of years. On July 29, 1992, JHLM applied for a wetland resource permit to expand the existing dock to provide for additional mooring and to substantially reconfigure the existing dock. On December 13, 1994, the Department issued an Intent to Issue Permit No. 432170499 (Permit) to JHLM allowing the expansion of the existing dock from 6 to 18 slips. See Petitioner's Exhibit 1.3 The Permit was eventually issued on July 1, 1996. See Petitioner's Exhibit 2. The Permit included a number of general and specific conditions, including Specific Conditions 8 and 12, which required the installation of a stormwater exfiltration system to provide treatment for the first inch of runoff, and prohibited any boat maintenance or repair activities except those that were "minor" or necessitated by "emergency conditions." There is no record of any objection to the issuance of the permit being filed by any person. Although authorized to do so, for unknown reasons, JHLM did not make the changes authorized by the Permit. In March 1998, it submitted a new application for a Standard General Environmental Resource Permit (ERP) seeking to expand the number of wet slips from six to twelve and to reconfigure the existing dock. See Petitioner's Exhibit 3. One-half of the slips would be used by powerboats while the other six would be for sailboat mooring only. Under the new permit, the applicant would be allowed to remove the existing docks and construct a new access dock and terminal platform and add six new finger piers. On August 16, 1999, the Department approved the application and issued Standard General ERP No. 43-0114838-001. See Petitioner's Exhibit 4. Like Specific Condition 8 in the 1996 permit, Specific Condition 14 was included in the new permit for the purpose of improving water quality and required the applicant to "install a stormwater exfiltration system" to "provide treatment for [the first inch of runoff from] all paved surfaces on the property." The system was to be constructed and certified as complete by a registered professional engineer before the permit became effective; it was to be cleaned monthly or after major rainfall events and inspected annually by a professional engineer; and annual reports were to be filed each year by that engineer. Also, Specific Condition 24 prohibited any boat repair work other than minor or emergency repairs. Acting on behalf of the Board, which has the responsibility for overseeing state owned lands, the Department also entered into a five-year lease with the Canonico Trustees (Trustees) to use sovereign submerged lands. See Petitioner's Exhibit 5. Among others, Condition 1 of the lease specifically prohibited the mooring of commercial vessels at the facility. Id. Again, the Permit was not opposed by any third party. In 2001, Chris Baker, identified as a "purchaser of the site" but more than likely a prospective purchaser, authorized a firm known as Environmental Matters to conduct a "Phase I and Limited Phase II Environmental Site Assessment" of the property. The consultant's Environmental Assessment Report (Report), dated June 2001, indicated, among other things, that there were concentrations of metals and petroleum hydrocarbons on the site; that some of the concentrations exceeded Department standards; that the soils were "contaminated throughout the Site"; an abandoned water well and septic tank system were on the site; and that a 1,000-gallon aboveground unleaded gasoline storage tank had been installed in 2001 without the required secondary containment, but no leaks were observed. See Petitioner's Exhibit 38. The report noted that during the assessment, Mr. Canonico acknowledged that all types of boat maintenance took place on the site, including scraping boat hulls, and that the waste was discharged (or allowed to run off) into the basin. On March 14, 2003, former counsel for MABE sent a three-page letter to the District Office advising that since JHLM received a permit in 1994, the marina had been operated in a manner that constituted violations of the permit conditions and lease. The letter described in detail what the author perceived to be violations of the law. In addition, a copy of the 2001 Report was enclosed with the letter. The letter asked that the Department initiate an enforcement action against the marina and that the unlawful practices be halted. A Department memorandum dated March 28, 2003, indicates that the letter and Report were reviewed by a District employee, who considered the Report to be incomplete in certain respects, and that "without appropriate measurement tools and additional information, it is not possible to state that the site is contaminated based upon the sludge analysis." See Petitioner's Exhibit 37. The memorandum conceded, however, that further investigation was needed and that the report "provides an indication of a petroleum related discharge." Id. The memorandum recommended that JHLM be given a copy of the Report and the District Office memorandum, that JHLM submit a Discharge Reporting Form pursuant to Rule 62-761.900(1), that the marina's stormwater drain be cleaned, and that JHLM contact the District Office to discuss the voluntary implementation of Best Management Practices for on-site operations. Id. Because the Report "[had] no laboratory reports and no method detection limits," the District Office decided not to conduct any follow- up inspections of the marina property at that time. In response to the Department's memorandum and Report, on June 3, 2003, Mr. Canonico filed a Discharge Report Form indicating that there was "no known discharge" on the property. He also enclosed a copy of a letter he signed on December 7, 1994, presumably in conjunction with his application for Permit No. 432170499, in which he described the maintenance schedule for the facility's stormwater exfiltration system and agreed to conform to that schedule, as generally required by Specific Condition 7 of the original permit. Also, on August 5, 2003, the facility's contractor advised the District Office by letter that "[t]he work authorized in Permit #43-0114834-001 has [been] commenced and completed in full, with the exception of the demolition of the finger pier, which we seek to remain." See Petitioner's Exhibit 6. This was probably in reference to the facility's intent to file an application to modify its 1999 ERP. There is no indication that any further action was taken by the Department in response to the MABE complaint. In November 2003, JHLM filed an application with the District Office seeking to modify its 1999 ERP by allowing an existing 4-foot by 24-foot finger pier to remain in place (the 1999 ERP required that it be removed), and to install a retractable wheelchair ramp to allow vessel access for wheel- chair bound individuals. The application was unopposed. On January 22, 2004, the Department approved the application. See Petitioner's Exhibit 7. Except for the addition of three specific conditions (32, 33, and 34), all other terms and conditions remained the same. Id. The finger pier was intended to be used for passenger loading of rental vessels stored on the uplands. Even though ownership of the property had been transferred to Shannon Sue in 2002, on August 26, 2004, the Department, on behalf of the Board, renewed submerged land lease 43003006 with the Trustees for another ten years, or until August 16, 2014. See Petitioner's Exhibit 8. The renewed lease contains the same terms and conditions as the 1999 lease, including the condition that the facility be restricted to mooring recreational vessels. On July 3, 2008, MABE, through its former counsel, sent the Department a verified complaint against the marina under Section 403.412, Florida Statutes (2008). See Petitioner's Exhibit 25. The complaint sought to compel the Department to take action to address alleged violations of the ERP conditions and the submerged land lease. Under the statute, an agency has 30 days after receipt of a complaint in which "to take appropriate action" against the alleged violator, or the complaining party may then institute judicial proceedings. Following receipt of the complaint, on July 10, 2008, representatives of the District Office conducted an inspection of the marina property. The case manager was Donald H. Keirn, Jr., an Environmental Specialist III, who is responsible for, among other things, compliance enforcement in a large, heavily- populated multi-county area. Another inspection was conducted on July 22, 2008. During those visits, Mr. Keirn noted significant evidence of major boat repairs on the premises, freshly spilled oil, and hull scraping. In fact, Mr. Canonico admitted to Mr. Keirn that the facility had been performing major boat repairs since the original permit had been issued. Based on these inspections, on July 29, 2008, the District Office initiated an enforcement action by sending a Warning Letter to the Canonicos advising them that Specific Conditions 11, 14, 15, and 24 of the ERP had been violated, and that the lease of submerged lands must be transferred to the current owner. See Petitioner's Exhibit 9. Condition 11 required the placement of channel markers; Conditions 14 and 15 required an exfiltration system to be constructed, certified by a professional engineer as complete as indicated on the permit drawings, maintained for the life of the system, cleaned monthly, and inspected by a professional engineer annually with follow-up annual reports; and Condition 24 prohibited repairs to vessels other than minor or emergency repairs, so as to prevent the discharge of hazardous materials into the aquatic preserve. The record does not show what action, if any, Respondents took after receiving the Warning Letter. Frustrated by Respondents' inaction, and their repeated disregard of Permit and Lease conditions over the years, in the fall of 2008 MABE hired an outside consulting firm (E Sciences, Inc.) to collect and analyze samples of soil and water from both the MABE property as well as Shannon Sue's property. (Authorization to enter Shannon Sue's property was pursuant to a court order.) The report was completed on October 16, 2008, and concluded that since the 2001 assessment was performed, the concentrations of petroleum and metals had increased. It further concluded that the marina activities during those years had adversely impacted the soil and sediment at both the marina and MABE's adjacent property. See Petitioner's Exhibit 37. A copy of the report was provided to both the District Office and Shannon Sue. After receiving the report, on November 14, 2008, the District Office staff conducted another inspection to "identify any potential hazardous waste material discharge(s) or source(s) of contamination at the property." The staff found evidence of leaking containers, an engine "bone yard" along the fence line with the MABE property, unlabeled containers, and stains under the fuel tank. The inspection essentially confirmed the findings of E Science, Inc.; accordingly, the District Office concluded that a Site Assessment Report (SAR) under Chapter 62- 780 was necessary in order to determine the extent of contaminants on the property. A SAR assesses and describes the extent of contamination and makes recommendations as to how to address it. On February 24, 2009, the District Office sent a letter to the Canonicos, as registered agents for Shannon Sue and JHLM, advising them that "contaminants may have been released or discharged into the environment." The letter required Shannon Sue and JHLM to initiate a site assessment within 60 days, and to file a SAR that complied with the requirements of Chapter 62-780 no later than July 13, 2009. See Petitioner's Exhibit 26. The District Office subsequently extended the due date for the SAR to October 1, 2009. By letter dated April 24, 2009, the Department also advised the Canonicos that an "ongoing investigation," preliminary to agency action, revealed the possible mooring of commercial vessels at the dock on two occasions, which was prohibited under the submerged land lease. (Based upon visual sightings confirmed by photographs, MABE had earlier advised the District Office that this occurred on a frequent basis, but subsequent inspections by the District Office resulted in only two observations of commercial vessels at the dock.) The letter further reminded the Canonicos that, pursuant to Specific Condition 24, boat repairs with the potential to discharge pollutants or hazardous substances into the adjacent waters were prohibited under the ERP. See Petitioner's Exhibit 21. As noted above, during the July 2008 inspections, Mr. Canonico admitted to Mr. Keirn that there were "multiple violations" of that condition, including multiple discharges of oil and grease associated with engine repairs. Assuming that the matter could be resolved by consent order, on November 18, 2009, Mr. Keirn submitted for review by his supervisor a "Civil Penalty Authorization Southeast Florida District," which outlined the nature of the violations observed and proposed penalties for those violations. See Petitioner's Exhibit 12. By now, additional violations had been observed through more inspections, including, as noted above, the mooring of commercial vessels at the marina; a failure by JHLM to construct an "exfiltration trench" as required by the original 1996 permit, file annual reports for that system, and regularly maintain the system; a failure to notify staff of the commencement of construction; and a failure to maintain used oil storage containers within secondary containment structures and to legibly label them. The Department has issued an Administrative Directive entitled Settlement Guidelines for Civil and Administrative Penalties (Settlement Guidelines), effective July 17, 2007, which contains guidelines that "are intended to provide a rational, fair and consistent method for determining the appropriate amount of civil and administrative penalties the Department should seek from responsible parties in settling enforcement actions." See Department Exhibit 3. They are intended only "for internal staff guidance," and the District Office is authorized "to deviate from these guidelines . . . when doing so will result in better compliance and better capability for carrying out the mission of the agency." Id. at Relying in part upon that document, Mr. Keirn recommended a $27,500.00 civil penalty for violations of permit conditions, $2,500.00 for the lease violation, and $500.00 for investigative costs, or a total civil penalty of $30,500.00. The Penalty Rationale is found on page 3 of that exhibit. This recommendation was approved by the District Office Director on December 11, 2009, and was incorporated into a proposed consent order. As pointed out by Mr. Keirn, the purpose of the proposed settlement was not to collect fines, but to restore and protect the environment. By email dated January 11, 2010, Mr. Keirn provided the Canonicos with a copy of the draft consent order. See Petitioner's Exhibit 13. He asked that they review it and be prepared to discuss the violations and penalties the following week. A series of emails between the parties ensued over the next month or so for the purpose of discussing the cited violations and related penalties. Mr. Keirn's email also advised them to "get [the SAR] in ASAP" by mail, hand-delivery, or email. The next day, January 12, 2010, the Canonicos submitted a SAR to the Department. On January 26 and February 1, 2010, the Canonicos sent emails to Mr. Keirn providing their explanation for each violation "in the hope of reducing the penalties outlined in the Consent Order." See Petitioner's Exhibits 14 and 15. One explanation for violating the prohibition against major repairs (Specific Condition 24) was a statement that the Canonicos believed that engine repairs, scraping of boat hulls, and the like were "minor" repair work. Mr. Keirn noted in an email to his supervisor that the Canonicos' proposed "amounts are seriously too low[,]" that "the statements are skewed to their position," and that "[the explanations] are not a logical reason for reduction." See Petitioner's Exhibit 15. By letter dated March 29, 2010, the Department advised the Canonicos that the SAR submitted on January 12, 2009, contained a number of deficiencies, that additional work must be undertaken, and that an Addendum to the SAR must be submitted within sixty days, or by the end of May 2010. See Petitioner's Exhibit 28. Around the same time that the Department requested an Addendum to the SAR, on March 25 and April 1, 2010, Respondents executed a Consent Order to resolve all outstanding violations. John and Barbara Canonico signed the Consent Order on behalf of the non-agency Respondents. In general terms, the Consent Order noted that Respondents collectively had failed to comply with the ERP conditions in the following respects: they failed to construct the stormwater system in accordance with the permit; they failed to maintain the stormwater system, have it inspected by an engineer on an annual basis, or have an engineer file annual reports; they repeatedly conducted non-minor repairs, maintenance, and painting of vessels resulting in unauthorized discharges of contaminants; they failed to install channel markers; they failed to notify the Department of the ownership transfer to Shannon Sue; they failed to submit written notice to the Department at least 48 hours prior to the commencement of construction of the project; they failed to limit the use of the marina to the mooring of recreational vessels; and they failed to properly contain or maintain the used oil disposal storage containers within a secondary storage structure. See Department Exhibit 2 at 3. In addition, the Consent Order noted that based upon the E Science, Inc. report, there were concentrations of total recoverable hydrocarbons in soils that would reasonably leach into groundwater; that a polluting condition had occurred; and that Respondents had failed to submit a SAR by the October 1, 2009 deadline. Id. at 4. Finally, the Consent Order noted that Shannon Sue had failed to obtain the required lease since acquiring ownership of the property in 2002. Id. Rather than imposing the $30,500.00 penalty originally recommended by Mr. Keirn, as a result of negotiations between the parties, the Department agreed to reduce the penalties in the Consent Order to $17,750.00 as settlement of the matter, including $500.00 in costs and expenses for investigating the matter. The penalties were to be paid in installments, with the first installment of $5,000.00 due immediately. This installment has been paid. The Consent Order required additional corrective action, the filing of a SAR, and the obtaining of a lease by Shannon Sue within certain timeframes. Because the Department's primary goals when resolving enforcement actions are remediation and avoiding protracted litigation rather than collecting fines, it is not unusual for a final consent order to have a lower civil penalty than that originally proposed. As explained by a Department witness, in this case its goals were (a) to avoid protracted litigation that would delay the implementation of corrective actions; (b) to require Respondents to quickly assess and begin the cleanup of contamination; (c) to restore and protect the environment as quickly as possible; and (d) to require Respondents to remove and contain all activities on the property that are prohibited by the Permit and Lease. All of these considerations were taken into account in arriving at the terms and conditions of the final Consent Order. Immediately after the Consent Order was executed, MABE timely filed its Petition challenging it on numerous grounds including a failure by the Department to address all violations in the Consent Order; a failure to recognize continuing violations; a failure to impose an adequate penalty; a failure to incorporate language into the Consent Order to ensure that all conditions will be met; and a failure to consider all relevant information at the time the Consent Order was executed. By letter dated June 29, 2010, the Department advised the Canonicos that no response to its March 29, 2010, letter had been received, and that the SAR Addendum had not yet been filed. The letter noted that even though the Consent Order had been challenged, which "placed the timeframes contained therein in a 'proposed' status," the SAR Addendum was overdue and that it must be submitted "immediately." See Petitioner's Exhibit 29. The Canonicos did not respond to this letter. At hearing, a Department employee interpreted the language in the June 29 letter to mean that until this proceeding has been concluded, the fine and corrective action are temporarily stayed. Apparently, the Canonicos have assumed the same thing and have not performed any remedial action or paid any further penalties while this action is pending. Rationale for the Consent Order The Consent Order addressed the violations described in Finding of Fact 26, supra, and required Respondents to pay a civil penalty of $2,000.00 for their failure to construct the stormwater system in accordance with the Permit. There was no negotiated reduction or increase in the $2,000.00 amount. This amount was based on a provision in the Environmental Litigation Reform Act (ELRA) codified in Section 403.121, Florida Statutes. That statute prescribes the penalties that must be imposed when the Department pursues administrative remedies for violations of Chapter 403. A Notice of Violation (NOV) must be issued to trigger the ELRA process. In this case, the ELRA process was not required since a NOV was never issued, but the Department elected to impose that penalty. The Consent Order requires Respondents to repair the stormwater system and submit to the Department an as-built certification form signed and sealed by a professional engineer that the system meets or exceeds the requirements of the permitted activity. In essence, Respondents are required to re-build the system and certify that it is built consistent with the Permit. No water quality data was introduced indicating any degradation of water quality at the marina from the exfiltration system not being built according to the Permit. To address Respondents' failure to maintain the stormwater system, inspect it, and submit reports to the Department, enforceable conditions were added to the Consent Order, including the filing of reports that the Permit did not previously contain, and a stipulated penalty of $100.00 per day for each day they fail to submit the required reports. The Consent Order requires Respondents to pay a civil penalty of $3,500.00 for their failure to maintain the stormwater system, inspect it, and submit reports to the Department. This amount was reduced in negotiations from an initial amount of $7,000.00. Exercising its discretion, the Department did not consider economic gain by Respondents in assessing the penalty. As noted earlier, the Department's primary goal in negotiating the Consent Order was to avoid a long and uncertain litigation process that would delay an enforceable order requiring Respondents to immediately implement a Chapter 62-780 waste assessment and cleanup. In order to address the finding that Respondents were conducting repairs and maintenance of vessels at the upland portion of the marina in violation of the Permit, the Department included language in the Consent Order that specifically defined a "major repair," which was not included in the existing Permit. This will make enforcement easier by clarifying any ambiguity regarding what activities are prohibited. It also required that any such activity must be conducted off-site, an additional requirement that was not included in the existing Permit. The Consent Order assessed a penalty of $5,000.00 for the finding that Respondents were conducting repairs and maintenance of vessels at the upland portion of the marina. This amount was obtained using the Settlement Guidelines. Under the Penalty Matrix in that document, which classifies violations at three levels of potential for harm (major, moderate, and minor), the violation was identified as major, resulting in an amount of $10,000.00. This amount was later reduced to $5,000.00 during negotiations. However, the Department achieved its goal of binding Respondents to an enforceable agreement that would require them to immediately implement a Chapter 62-780 assessment and cleanup. In order to address the violation that Respondents failed to install channel markers, the Consent Order contained a provision that required them to apply for the required permits and install the markers within 30 days of receipt of the permits. The Consent Order also contained a stipulated penalty paragraph where Respondents would pay $100.00 per day for each day of failing to comply with the marker requirements. The Department is not precluded by the stipulated penalties from pursuing any statutory remedies or other penalty options available to it. The Consent Order assessed a $750.00 penalty for Respondents' failure to install the channel markers, which was less than the original proposed fine of $2,000.00 based on ELRA guidelines. To avoid uncertain and costly litigation, however, and to get Respondents under an enforceable agreement to implement a Chapter 62-780 assessment and cleanup, the Department reduced the penalty. In order to address the finding that Respondents failed to notify the Department of its ownership transfer to Shannon Sue, the Consent Order required payment of $250.00. Although ELRA guidelines specified a $1,000.00 penalty, this amount was lowered during negotiations to avoid protracted litigation and to get Respondents under an enforceable agreement to implement Chapter 62-780. The Consent Order also requires submission of a $555.00 processing fee along with supporting documents for assignment of the lease to the proper party. In addition, a penalty of $500.00 was assessed for failure to obtain the required lease after ownership transfer, along with stipulated penalties of $100.00 per day for failure to do so. For Respondents' failure to notify the Department within 48 hours prior to commencing construction at the marina, there is no corrective action required. However, the Department assessed a $250.00 penalty, which was lowered during negotiations from the ELRA penalty of $1,000.00 for the reasons expressed above. For Respondents' unauthorized mooring of commercial vessels, the Consent Order requires a penalty of $2,500.00, which was based on a second violation under Rule 18-14.002(4). Although MABE submitted an affidavit, dated photographs, and testimony to establish multiple violations of the rule, the Department opted to rely only upon the two violations that its inspector observed. For Respondents' used oil violation, the Consent Order requires removal of all containers, material, or equipment at the marina that handle or contain petroleum or hazardous substances greater than one quart in quantity, unless they are maintained in their original container or an independent and secondary containment system which is designed to contain discharges to the environment and is secure from the weather. The assessed penalty of $2,000.00 was lowered from the ELRA penalty of $4,000.00 during negotiations for the reasons expressed above. To address the finding that a polluting condition had occurred at the marina and a SAR was not timely submitted, the Department negotiated an enforceable agreement that requires Respondents to commence and complete all tasks required under Chapter 62-780 within certain timelines. A penalty was not assessed because the Department desired to get Respondents under an enforceable agreement to immediately implement the assessment and cleanup corrective actions. In addition, by not imposing a fine, the violator has more resources to assess and remediate any contamination, which is often a very expensive undertaking. Under Rule 18-14.002, a person is subject to a fine of up to $10,000.00 for each offense constituting a knowing refusal to comply or a willful violation of the provisions of Chapter 253, Florida Statutes. The Department may impose fines not to exceed $2,500.00 for the first offense; otherwise, approval of the Board is required. Subsequent offenses carry a fine of $1,000.00 to $10,000.00. In this case, the Consent Order imposed a $2,500.00 fine for violation of the Lease and a $500.00 fine for violating Section 253.77, Florida Statutes. Neither fine was shown to be unreasonable under the circumstances. The penalty amounts, plus $500.00 for Department costs, were mistakenly summed as $17,750.00 in paragraph 25 of the Consent Order. The correct amount is $17,250.00. In summary, the Consent Order was issued to settle existing outstanding violations of law and requires Respondents to pay penalties, reimburse Department costs, and take corrective measures. It also establishes a framework for compliance. Taking into consideration all of the circumstances, the terms are a reasonable exercise of the Department's enforcement discretion. Having incurred substantial expenditures in legal fees and site assessment costs in attempting to bring its neighbor into compliance (which probably total much more than the civil penalties assessed against Respondents), and waiting years for the Department to take action, MABE is understandably dissatisfied with many of the terms and conditions of the Consent Order. One of MABE's concerns is that given Respondents' history of failing to comply with ERP and lease conditions for more than a decade, they will not comply with the assessment and remediation requirements of Chapter 62-780. However, the Consent Order is an enforceable agreement that compels immediate compliance with those rules. The Consent Order spells out in clear terms the ability of the Department to seek the judicial imposition of damages or civil penalties, or other appropriate relief, for any violations of the Consent Order. Because of Respondents' prior conduct, which amounted to a clear disregard of permit terms and conditions, it is presumed that the Department will respond quickly to reported violations, if any occur, and take appropriate action. MABE also questions the adequacy (and accuracy) of the penalties. As explained in the Conclusions of Law, this issue is a matter solely within the discretion of the agency. In the same vein, MABE contends that the District Office did not take into account all of the violations that have occurred over the years, made mistakes in calculating the penalties, and failed to consider the fact that Respondents have continued to violate certain Permit and Lease conditions since the enforcement action began. Although some violations were not addressed, some errors in calculating penalties were made, and in some instances multiple violations were counted as a single violation for purposes of calculating a penalty, the Consent Order requires that the violator undertake corrective actions that are designed to remediate all prior violations, strictly comply with new terms and conditions, and subject it to stern penalties should future violations occur.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection enter a final order ratifying and approving Consent Order OGC No. 08-1823 as final agency action of the Department. DONE AND ENTERED this 4th day of November, 2010, in Tallahassee, Leon County, Florida. S D. R. ALEXANDER 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 4th day of November, 2010.
Findings Of Fact Prior to his termination, Petitioner had been employed as a Correctional Officer by the Respondent, Department of Corrections, at Glades Correctional Institute for approximately two years. On April 3, 1987, Petitioner signed a written statement acknowledging that he was immediately responsible for reading the rules of the Respondent. Petitioner's immediate supervisor was Mr. Edward Minor, Correctional Officer Supervisor at Glades Correctional Institute. Mr. Chester Lambdin is the Superintendent of Glades Correctional Institute. Although he felt ill, Petitioner reported to work on January 25, 1989 before his scheduled eight hour work shift was to begin at midnight and continue through January 26, 1989. Petitioner left work due to his illness before the end of his January 26, 1989 shift. Petitioner did not report to work after he left on January 26, 1989. On January 26, 1989, Petitioner contacted his supervisor, Mr. Minor, and informed him that he was ill; that he would not report to work for about two days and that he had a doctor's excuse for his absence. Mr. Minor excused Petitioner for two days, January 27, 1989 and January 28, 1989. Petitioner's doctor's excuse covered the period of January 27, 1989 through January 30, 1989. Petitioner gave the excuse to a fellow worker and requested the associate to deliver the excuse to Mr. Minor. Before February 2, 1989, Mr. Minor did not see the excuse. Petitioner did not contact Mr. Minor until the afternoon or evening of February 2, 1989. Petitioner was not scheduled to work on January 30 or January 31, 1989. Petitioner stated that he knew he should contact his supervisor before each work shift if he were ill and would not report to work, but he stated that most of his fellow workers did not follow the procedure and were not penalized for failure to make the required report. Notice before an absence is the standard policy of the Respondent. Petitioner was on unauthorized leave on January 29, 1989, February 1, 1989 and February 2, 1989. On February 3, 1989, Mr. Lambdin drafted a letter to Petitioner, which was posted by certified mail, informing Petitioner that he had been deemed to have abandoned his position as a Correctional Officer I at Glades Correctional Institution and to have resigned from the career service system.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Administration issue a final order that the Petitioner abandoned his position and resigned from the Career Service System as contemplated by Rule 22A-7.010(2)(a), Florida Administrative Code. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 15th day of May 1989. JANE C. HAYMAN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of May 1989. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 89-1189 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties in this case. The Respondent was the sole party who submitted Proposed Findings of Fact. Specific Rulings on Proposed Findings of Fact Adopted in Finding of Fact 1. Adopted in part in Finding of Fact 2; rejected in part as not supported by competent and substantial evidence. Rejected as conclusion of law. Rejected as irrelevant. Adopted in Finding of Fact 3. Adopted in Findings of Fact 6 and 7. Adopted in Findings of Fact 5 and 11. Adopted in Findings of Fact 5 and 11. As to first sentence, rejected as irrelevant. As to the remainder, adopted in Findings of Fact 15 and 12. Adopted in Finding of Fact 16. Adopted in Finding of Fact 14. COPIES FURNISHED: Larry D. Scott, Esquire Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Lynne Winston, Esquire Department of Corrections 1311 Winewood Boulevard Tallahassee, Florida 32399-1550 Mr. Lewis C. Stewart 692 Waddel Way Pahokee, Florida 33476 Adis Vila, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Augustus D. Aikens, Jr., Esquire General Counsel Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Richard L. Dugger, Secretary Department of Corrections 1311 Winewood Boulevard Tallahassee, Florida 32399-2500 Louis A. Varga, Esquire Department of Corrections 1311 Winewood Boulevard Tallahassee, Florida 32399-2500
