The Issue Whether respondent's registered building contractor's license should be revoked, suspended or otherwise disciplined based on allegations he violated (1) Section 489.129(1)(c), Florida Statutes, in that he violated a provision of Chapter 455, Florida Statutes; (2) Section 489.129(1)(g), Florida Statutes, in that he acted in the capacity of a contractor under a name other than on his registration; and (3) Section 489.129(1)(j), Florida Statutes, in that he failed, in two material respects, to comply with the provisions of Chapter 489, Florida Statutes.
Findings Of Fact At all times material hereto, respondent was licensed by the Construction Industry Licensing Board as a registered building contractor, having been issued a license number RR 0007671. He was not, however, licensed as a roofing contractor. Neither did he, at any time, qualify Gus Schmidt Home Improvements, Inc., with the Construction Industry Licensing Board. (See Petitioner's Exhibit 1). In 1968, respondent was issued a limited general contractor's license by Palm Beach County, Florida, under which he was authorized to install roofs only on structures which he constructed; he was not authorized to re-roof existing roofs. He has continuously renewed this local license, from 1968 to the present. On November 26, 1979, he qualified Gus Schmidt Home Improvements, Inc., with the Palm Beach County Construction Industry Licensing Board, which qualifications he has maintained to the present time. (See Petitioner's Exhibits 5). At all times material hereto, he held no other certificates of competency issued by Palm Beach County, Florida. At all times material hereto, he was the only qualifier for Gus Schmidt Home Improvements, Inc. ( See Petitioner's Exhibit 5). On or about May 5, 1980, he signed and submitted a notarized letter of authorization to the Palm Beach County Building Department. By this letter, he authorized Linda DeVito, his daughter, to obtain local building permits in the name of Gus Schmidt Home Improvements, Inc., and accepted liability for all acts performed under the permits. (See Petitioner's Exhibit 6). On or about May 29, 1980, Gus Schmidt Home Improvements, Inc., contracted with Mr. and Mrs. Garrett McLaughlin to remove and replace the existing roof over the carport and entry-way of the McLaughlin's home, and waterproof the entire roof. The house is located at 2041 Upland Road, West Palm Beach, Florida. The contract was signed by an employee of the respondent, and contained a five-year warranty on the work performed by Gus Schmidt Home Improvements, Inc. The contract price was $2,532.00. (See Petitioner's Exhibit 8). On or about June 16, 1980, Linda DeVito, as the authorized agent for Gus Schmidt Home Improvements, Inc., applied for a county building permit to perform the roofing work on the McLaughlins' home. Based on her application, a county building permit, number 80-14711, was issued to Gus Schmidt Home Improvements, Inc. (See Petitioner's Composite Exhibit 7). This permit was issued based on respondent's letter of authorization, dated March 5, 1980, which was on file with the Palm Beach County Building Department. (See Petitioner's Exhibits 6 and 7). In or about August 1980, Gus Schmidt Home Improvements, Inc., completed the re-roofing work on the McLaughlins' home, without subcontracting it. Between May 29, 1980, and July 29, 1980, Mrs. McLaughlin paid Gus Schmidt Home Improvements, Inc., $2,532.00--the full contract price. (See Petitioner's Exhibit 10). A few weeks after the roofing work was completed, Mrs. McLaughlin checked the roof and discovered that the coating had not completely covered it. There were openings where stones were showing. She became concerned and called Gust Schmidt Home Improvements, Inc. She was told not to worry because the work was covered by a five-year warranty. During 1981, weeds began to grow on the McLaughlins' roof. In May or June of 1982, Mrs. McLaughlin called respondent to complain about the roof's condition. He told her that he had gotten out of the business before the work on the McLaughlins' home was completed, and that a company on Lake Avenue in West Palm Beach, Florida, had done the work on her home. He told her that he would call her back with further information, but never did. When respondent did not call back with further information, Mrs. McLaughlin checked the phone book and decided that respondent must have been referring to a company called Florida Exteriors. She called that company and was told that they would honor her warranty. But the roof on Mrs. McLaughlin's home was never repaired, even though the roof leaked where boards had been replaced.
Recommendation Based on the foregoing, it is RECOMMENDED that respondent's contractor's license be suspended for six months, and that he be administratively fined $1000. DONE AND ENTERED this 12th day of April 1984 in Tallahassee, Florida. R. L. CALEEN, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of April 1984. COPIES FURNISHED: Stephanie A. Daniel, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Gus Schmidt 602 North "A" Street Lake Worth, Florida 33460 James Linnan, Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32202 Fred M. Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
Conclusions An Administrative Law Judge of the Division of Administrative Hearings has entered an Order Closing File in this proceeding. A copy of the Order is attached to this Final Order as Exhibit A. Filed January 21, 2011 10:24 AM Division of Administrative Hearings DCA Order No. DCA11-GM-007
Other Judicial Opinions 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. 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 haye been furnished by U.S. Mail or Electronic May to each of the persons listed below on this day of January, 2011. / a Paula Ford Agency Clerk 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 Amy Taylor Petrick, Esquire Assistant County Attorney Palm Beach County 300 North Dixie Highway, Suite 359 West Palm Beach, Florida 33401 Gary K. Hunter, Esquire Vinette D. Godelia, Esquire Hopping Green & Sams 123 South Calhoun Street Post Office Box 6526 Tallahassee, Florida 33301 Richard Grosso, Esquire Robert N. Hartsell, Esquire Everglades Law Center, Inc. Shepard Broad Law Center 3305 College Avenue Fort Lauderdale, Florida 33314 DCA Order No. DCA11-GM-007
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-144 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 2) ple, of ty 2011. By U.S. Mail The Honorable David M. Maloney 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 “ Paula Ford Agency Clerk Department of Community Affairs 2555 Shumard Oak Blvd Tallahassee Florida 32399-2100 Reginald L. Bouthillier, Jr., Esquire Greenberg Traurig, P.A. 101 East College Avenue Tallahassee, Florida 32301-7742 bouthillierr@gtlaw.com Thomas W. Reese, Esquire 2951 61st Avenue South St. Petersburg, Florida 33712-4539 twreeseesq@aol.com Lynette Norr, Esquire 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-144
Conclusions An Administrative Law Judge of the Division of Administrative Hearings has entered an Order 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. DCA10-GM-115 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 as indicated to each of the persons listed below on this DW say of , 2010. aula Ford Agency Clerk By U.S. Mail Amy Taylor Petrick, Assistant County Attorney Palm Beach County 300 North Dixie Highway, Suite 359 West Palm Beach, FL 33401 Tel.: (561) 355-2529 Fax.: (561) 255-4324 Email: apetrick@co.palm-beach.fl.us William L. Hyde, Esquire Gunster, Yoakley & Stewart, P.A. 215 S. Monroe Street, Suite 618 Tallahassee, FL 32301 Phone: (850) 521-1980 Facsimile: (850) 576-0902 Email: whyde@gunster.com James M. Crowley, Esquire Gunster, Yoakley & Stewart, P.A. 450 E. Las Olas Blvd., Suite 1400 Fort Lauderdale, FL 33301 Phone: (954) 713-6416 Facsimile: (954) 523-1722 Email: jcrowley@gunster.com FINAL ORDER NO. DCA10-GM-115 Claudia McKenna, City Attorney City of West Palm Beach 401 Clematis Street West Palm Beach, FL 33401 Phone: (561) 882-1350 Facsimile: (561) 822-1373 Email: cmckenna@wpb.org Keith W. Davis, Esquire Trela White, Esquire Attorney for Village of Royal Palm Beach Corbett & White, P.A. 1111 Hypoluxo Road, Suite 207 Lantana, FL 33462 Phone: (561) 586-7116 Facsimile: (561) 586-9611 Email: keith@corbettandwhite.com; trela@corbettandwhite.com By Hand Delivery Richard E. Shine Assistant General Counsel Department of Community Affairs By Interoffice Mail The Honorable Donald R. Alexander Administrative Law Judge Division of Administrative Hearings The Desoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675
The Issue The issue in this case is whether Respondent, Thomas C. Robbins, committed the acts alleged in an Administrative Complaint dated December 6, 2005, and, if so, what penalty should be imposed upon him.
Findings Of Fact The Criminal Justice Standards and Training Commission (hereinafter referred to as the "Commission"), is created within the Florida Department of Law Enforcement by Section 943.11, Florida Statutes. The Commission is charged with the responsibility for, among other things, the certification and discipline of certified law enforcement officers, instructors, and criminal justice training schools in Florida. Respondent, Thomas C. Robbins, has been certified as a law enforcement officer in Florida since April 12, 1991, having been issued Law Enforcement Certificate Number 78355. B. April 13, 2005. Kimberly Anspach is a cousin of Mr. Robbins' wife, Tamara E. Robbins. Ms. Anspach, who resides in Boyton Beach, Florida, at the times relevant to this matter was employed as a dancer at Cheetah's Lounge. On April 13, 2005, Ms. Anspach and another dancer employed at Cheetah's Lounge identified only as Michelle (identified as "Michael" in the Transcript of the final hearing), agreed to dance privately for a man by the name of Moises Ventura and three other men. Ms. Anspach and the other dancer were told by Mr. Ventura that they would both be paid $1,000.00 for their services. Ms. Anspach and Michelle accompanied Mr. Ventura and the other men to a private residence where the women danced. The women consumed alcohol and the men, in addition to using alcohol, used drugs. Ms. Anspach and Michelle also engaged in mutual sexual relations with the men. The Early Morning of April 14, 2005. Ms. Anspach and Michelle left the residence at around 4:30 a.m., on April 14, 2005. Mr. Ventura and the other men refused to pay the $2,000.00 owed to the women. Upset at not being paid for her services, Ms. Anspach telephoned her cousin, Tamara Robbins. Ms. Anspach explained to Mrs. Robbins about the events of the previous night and told her that Mr. Ventura had refused to pay for her services. Ms. Anspach was told by Mrs. Robbins that she would help get her the money she was owed by Mr. Ventura. Mrs. Robbins told Ms. Anspach to get some rest and that she would call her back later that day. The Attempted Extortion of Mr. Ventura. After speaking with Ms. Anspach, Mrs. Robbins telephoned Mr. Ventura. Later that day, Mrs. Robbins called Ms. Anspach and told her that she had telephoned Mr. Ventura and told him that if he did not pay Ms. Anspach and Michelle the money they were owed that Ms. Anspach would claim that he had raped her. On the same day that Ms. Anspach spoke with Mrs. Robbins about the incident, Mr. Ventura went to the Royal Palm Beach Police Department. He spoke with Officer Cherly Griffin, telling her that he had received a telephone call from an individual that told him Ms. Anspach would claim he raped her if he did not pay her $2,000.00. A "controlled phone call" was made from the Police Department to a number provided to Mr. Ventura by the women who had threatened him. A woman answered and identified herself as "Donna." The controlled phone call took place on April 14, 2005. Detectives Kazer and Durso listened to the controlled phone call. Officer Griffin also listened to the telephone conversation. That call was recorded and admitted in evidence as Petitioner's Exhibit 1. The controlled phone call made on April 14, 2005, was made to a cellular phone utilized by Mrs. Robbins. The woman who identified herself as "Donna" was Mrs. Robbins. This finding is based upon the testimony of Ms. Anspach that she recognized Mrs. Robbins’ voice on the tape and the phone records of Mrs. Robbins' cell phone. During the controlled phone call, Mr. Ventura was directed by Mrs. Robbins to bring the money owed to Ms. Anspach to Wellington Mall (hereinafter referred to as the "Mall"), and meet Ms. Anspach at the Chic-Fil-A. Wellington Mall. Later during the afternoon of April 14, 2005, Mrs. Robbins telephoned Ms. Anspach and told her that she was to go to the Chic-Fil-A at the Mall, where she would meet Mr. Ventura and collect the money owed her. Mrs. Robbins also told her that Mr. Robbins would come to her apartment, pick her up, and take her to Mall. Mr. Robbins picked up Ms. Anspach at her apartment and drove her to the Mall. During the ride to the Mall, Mr. Robbins told Ms. Anspach that what was going on could be considered blackmail and "that if anything were to happen when we were to pick up the money that he had no involvement." When they arrived at the Mall, Mr. Robbins dropped Ms. Anspach off while he parked his vehicle. He told Ms. Anspach that he would be waiting for her around the corner from the CHIC-FIL-A and would be watching her to see if anything were to happen. He reassured her that, if anything were to go wrong, he would be right around the corner. Approximately 30 minutes after arriving at the Mall, Mr. Robbins received a telephone call from Mrs. Robbins, who told him that the meeting location had been changed from the Mall to a Hess Gas Station located in Wellington. The Hess Gas Station. Upon arriving at the Hess Gas Station, which was close to the Mall, Mr. Robbins parked his vehicle. Mr. Ventura then walked up to the parked vehicle and said, "oh, this is your muscle" evidently referring to Mr. Robbins. While Ms. Anspach said "yes," Mr. Robbins said nothing. Immediately after Ms. Anspach responded to Mr. Ventura's statement, Royal Palm Beach Police officers took Ms. Anspach and Mr. Robbins out of the vehicle at gun point. Both were placed on the ground and handcuffed. Ms. Anspach was arrested and taken to the Royal Palm Beach Police station. Mr. Robbins was released at the Hess Gas Station. Initially, Ms. Anspach told the police that she had been raped by Mr. Ventura. When the recording of the controlled phone call was played for her, she admitted that she had been told by Mrs. Robbins that Mr. Ventura had been told to pay her the money she was owed or that she would report that he had raped her. Mr. Robbins' Explanation. Mr. Robbins testified unconvincingly at the final hearing that the only thing he knew about the events of April 13 and 14, 2005, was that his wife had requested that he give Ms. Anspach, who had no automobile at the time, a ride to the Mall to collect money owed to her from a friend.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Commission finding that Thomas C. Robbins violated Section 943.1395(7); dismissing the allegation that he violated Section 943.1395(6); and suspending his certification for a period of three years. DONE AND ENTERED this 7th day of September, 2006, in Tallahassee, Leon County, Florida. S LARRY J. SARTIN 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 7th day of September, 2006. COPIES FURNISHED: Linton B. Eason, Esquire Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Michael Doddo, Esquire 600 South Andrews Avenue, Suite 600 Fort Lauderdale, Florida 33301 Michael Ramage, General Counsel Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Michael Crews, Program Director Division of Criminal Justice Professionalism Services Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
The Issue The issues in this case are whether the Respondent committed violations alleged in an Administrative Complaint and, if so, what disciplinary action should be taken.
Findings Of Fact At all times material to this case, Respondent was employed by Petitioner as a school psychologist. At all times material to this case, Respondent was a member of the Classroom Teachers Association (CTA) Bargaining Unit. At all times material to this case, Respondent was receiving benefits under a valid claim for Workers' Compensation benefits arising from an accident on January 7, 2000. In conjunction with investigations as to Respondent's eligibility for Workers' Compensation benefits, video surveillance of Respondent's activities was conducted on several occasions. At the beginning of the 1999-2000 school year, Dr. Laakso worked for Petitioner as a school psychologist in Area 3, and was assigned to Palm Beach Lakes High School, Forest Hill High School, and Conniston Middle School. His immediate supervisor was Mary Kate Boyle, the Area 3 Exceptional Student Education (ESE) Team Leader. On January 7, 2000, Dr. Laakso was working in his car while parked in the Palm Beach Lakes High School parking lot, and when exiting the car, hit his head on the door jamb causing a compression of his spine. He then received a second injury to his back while pulling psychological testing kits out of his car. Dr. Laakso submitted this injury to Petitioner as a workers' compensation injury, and it was covered as such. Christopher Brown, M.D., an orthopedic surgeon and one of Dr. Laakso's workers' compensation physicians, treated Dr. Laakso. On February 8, 2000, Dr. Brown placed Dr. Laakso on a "no-work" status. Dr. Laakso suffers from cervical spinal stenosis, which is a narrowing of the spinal canal. Because Dr. Laakso had underlying spinal stenosis secondary to arthritis, combined with disc herniations, his orthopedic surgeon, Dr. Brown, diagnosed Dr. Laakso's stenosis as severe. Also on February 8, 2000, Ms. Boyle held an investigative meeting with Respondent and his then-attorney, Stephen Fried, to discuss Respondent's continued absences since January 7, 2000 (the date of Respondent's workers' compensation injury) and his work status. In a letter to Dr. Laakso dated February 9, 2000, Ms. Boyle explained what her expectations were with regard to Respondent's absence and work status. On February 9, 2000, Dr. Laakso requested unpaid sick leave for January 11, 2000 to May 31, 2000, which the School Board granted. In March of 2000, Dr. Laakso was released back to light duty work, with restrictions. Some of the physical restrictions placed on Dr. Laakso's activities included no overhead use of the right upper extremity and no heavy use of the right upper extremity greater than 5 pounds. In addition, Dr. Laakso was told to be careful and to try not to hurt himself. Dr. Brown also imposed a 10 mile driving restriction on Dr. Laakso because Dr. Brown believed Dr. Laakso's spinal stenosis placed him at increased risk if he hit his head or was in a car accident. Dr. Laakso argued against the driving restriction because he was capable of driving and believed that the restriction would "mess things up" if he was unable to use his car. Dr. Laakso neither asked for the driving restriction nor represented that he needed the restriction.4 Dr. Laakso conveyed the driving restrictions to both Ms. Boyle and Linda Meyers in Risk Management. On March 21, 2000, Dr. Laakso was given a light duty placement in which he was assigned to Atlantic High School watching the school's security cameras. This assignment was for Dr. Laakso's regularly scheduled 7.5 hours a day, and was within the physical and driving restrictions imposed by Dr. Brown. While on light duty assignment at Atlantic High School, Dr. Laakso reported to Assistant Principal, Marshall Bellin. Dr. Laakso also submitted his time sheets to Mr. Bellin for Mr. Bellin's verification and signature. After Mr. Bellin signed the light duty time sheets, Dr. Laakso faxed them to Ms. Boyle for payroll purposes. Around this time period, in approximately April of 2000, the third party administrator, FARA, who handles the School Board's Workers' Compensation claims, hired private investigator Richard Mains to conduct surveillance of Dr. Laakso. Mains observed Dr. Laakso at various times from April 3, 2000 through October 2, 2000. Mains documented Respondent's driving to and from his Matlacha home and the activities in which he engaged while there. Mains did not know whether Dr. Laakso was taking pain or anti-inflammatory medication, or whether Dr. Laakso was under the influence of these types of medications at the times Mains observed him. On May 17, 2000, Ms. Boyle held another investigative meeting regarding Respondent's absences while on light duty. The minutes from that meeting indicate that Ms. Boyle expressed her concern to Dr. Laakso regarding his absences, discussed his light duty assignment at Atlantic High School, and directed him to call her beeper if he was going to be absent. He was also directed to provide a doctor's note if he was absent. Dr. Laakso remained in the light duty assignment at Atlantic High School for the remainder of the 1999-2000 school year. On Wednesday, August 9, 2000, the first day of the 2000-2001 school year, Dr. Laakso again reported to Atlantic High School to resume his light duty placement. On August 15, 2000, Marshall Bellin signed Respondent's light duty sign-in sheet, which covered Dr. Laakso's work attendance for August 9, 10, 11, and 14, 2000. Around August 14 or 15, 2000, Dr. Laakso received verbal notification that because his driving restriction had been lifted, he was being taken off light duty assignment and was to report to Area 3. Prior to this verbal notification, Dr. Laakso had not been advised by his physicians that his driving restriction had been lifted. However, he subsequently learned through someone at the Risk Management Department that, in fact, the driving restriction had been lifted. Upon hearing the news, Dr. Laakso contacted Dr. Brown. When he went to see Dr. Brown, Dr. Brown explained to Respondent that the Board had sent him a questionnaire asking whether he believed that Dr. Laakso could drive a car as opposed to whether he should drive a car. Dr. Brown further explained that he responded that Dr. Laakso could drive a car, but felt he had made a mistake as he felt it was still dangerous for Dr. Laakso to drive. Accordingly, on August 17, 2000, Dr. Brown reinstated Dr. Laakso's driving restriction of no more than 10 minutes. On August 17, 2000, Dr. Laakso sent a memo to Ms. Boyle indicating that his driving restriction had been reinstated. A copy of the note from Dr. Brown was attached to this memo. Because of her continuing concern regarding Respondent's absences, on October 2, 2000, Ms. Boyle held another "investigative meeting" regarding Dr. Laakso's absences. This meeting resulted in Boyle's issuing Dr. Laakso a written reprimand for unacceptable and unexcused absences, failure to call in intended absences as required, and insubordination. The written reprimand specifically addressed Dr. Laakso's absences on August 9, 10, 11, 22, and September 20, 27, 28, and 29. Ms. Boyle believed her issuance of the written reprimand dated October 2, 2000, was consistent with the progressive discipline policy. At the time that Ms. Boyle wrote the reprimand, she also notified the District's Professional Standards Department and requested a formal investigation of Respondent's absences. Ms. Boyle then contacted Ray Miller in Professional Standards to be sure that she was following appropriate procedure. In October of 2000, Ray Miller received Respondent's case for investigation, and the investigation was assigned case number 101. Specifically, Miller investigated allegations involving Respondent's misuse of leave, unauthorized absence, failure to call in and report absences as required, and insubordination for the time period of January 2000 through December 2000. At the time of his interview with Respondent, Miller had a surveillance video and a report of Respondent's activities for April of 2000. Respondent neither denied that he was the subject of the video nor that he failed to report and call in his absences. Shortly before December 4, 2000, Miller signed off on the investigative report for case number 101, and on December 4, 2000, Paul Lachance issued a letter to Dr. Laakso indicating that the investigation was complete, and that a determination of probable cause had been made. The investigative report was then reviewed by the Case Management Review Committee to determine whether there was just cause to recommend discipline and, if so, provide a discipline recommendation. The Committee found just cause and recommended Dr. Laakso's termination. A number of meetings were held in December 2000 with representatives of Petitioner, Dr. Laakso, and his then- attorney, Mr. Fried. As a result of these meetings, an informal settlement was reached; Dr. Laakso's employment was not terminated, but rather he was transferred to the Area 1 ESE office. By a letter to the file dated January 8, 2001, Paul Lachance, Director of Professional Standards, administratively closed case number 01-101 against Dr. Laakso with "no action." While assigned to Area 1, Dr. Laakso was under the supervision of Area 1 ESE Team Leader, Paul Sayrs. As supervisor, Mr. Sayrs was responsible for keeping track of Respondent's attendance. Accordingly, Sayrs directed Respondent to call and notify secretary Judy Fabris if he was going to be absent, who in turn would notify Mr. Sayrs. While assigned to Area 1, Dr. Laakso missed work for several days in January and February 2001, and was also out for most of March and April 2001. On April 4, 2001, Mr. Sayrs sent Dr. Laakso a letter listing the dates of his absences and directing him to submit a doctor's note for the dates listed, as well as for any future absences. The next day, April 5, 2001, Mr. Sayrs sent another letter to Dr. Laakso advising him he was currently absent without approved leave. Mr. Sayrs advised Respondent further that due to an absence of correspondence from Respondent, Mr. Sayrs would assume Respondent had decided to discontinue working for Petitioner and Respondent's name would be submitted to the School Board for acceptance of Respondent's resignation. Dr. Laakso immediately contacted Dr. Sachs regarding Mr. Sayrs' request for medical documentation, but was unable to get an appointment with Dr. Sachs until April 20th. However, prior to his April 20th appointment, Dr. Laakso forwarded to Dr. Sachs a copy of the District's letter, which indicated he would be terminated if he did not provide the requested documentation prior to his appointment on April 20th. In response, Dr. Sachs accounted for Dr. Laakso's absences, noting they were due to his symptoms and cervical condition. Additionally, Dr. Laakso followed through by faxing his Request for Leave of Absence without Pay form with his signature, dated April 18, 2001, directly to Dr. Sachs for his signature. The leave was ultimately granted retroactive to March 8, 2001, prior to Dr. Laakso's being terminated by the District. On April 18, 2001, Dr. Laakso sent a handwritten note to Dan McGrath explaining his absences. Dr. Laakso attached to his note to Mr. McGrath two documents from Dr. Sachs, one dated April 15, 2001, and the other dated April 6, 2000. On May 18, 2001, Paul Sayrs evaluated Dr. Laakso's performance. The evaluation sheet indicated that Dr. Laakso was "presently on a medical leave of absence." Dr. Laakso has a second home in Matlacha, located on the other side of Cape Coral. Matlacha is located in the Fort Myers area and is approximately 150 miles from the West Palm Beach area, roughly a three-hour trip using country roads. Because he had not been feeling well, Dr. Laakso had not been taking care of his property in Matlacha. As a result, he received notices from the county telling him he needed to clear up the property or face a potential daily fine of $225. Specifically, the county informed Dr. Laakso that he needed to mow the grass, move a boat, register a pickup truck, and park the truck somewhere where it was not in open view. He asked for an extension in which to do these things, which was granted. However, the county advised Dr. Laakso that if he did not get the work done by the date established, the daily fine would be imposed. Although while at his Matlacha home Dr. Laakso did work outside of the restrictions imposed on him by his physician, he could work for 20 or 30 minutes and then go inside and rest, unlike when he was at work for the School Board, which required he work a full eight-hour day. While he was on his Matlacha property, he continued his daily swimming as part of his physical therapy, which he had discussed with, and received approval for, from Dr. Brown. At no time did Dr. Laakso attempt to hide the fact that he drove to the Matlacha property or that he worked in his yard while there. In fact, he disclosed this information when deposed in his workers' compensation case, and he discussed it with his doctor. While the doctor did not give Dr. Laakso permission for this type of conduct, Dr. Laakso did discuss it with him.5 Following the closing of the first investigation numbered 101, the office of Professional Standards received a memo from Diane Howard, Director of Risk Management, dated January 9, 2001. Ms. Howard was requesting a reinvestigation of Dr. Laakso's absences. In response to this memo, Miller did not interview Respondent, but instead viewed surveillance videotapes from August 11 through October 1 or 2, 2000. In addition to the videos, Miller reviewed memos from Nancy Patrick, Mary Kate Boyle, and Paul Sayrs. Miller testified that the difference between this investigation and the previous one was that it involved a different period of time, both for the videos and regarding issues of Respondent's attendance in January, February, and March of 2001. The allegations against Respondent for this investigation were that he was obtaining leave due to sickness or illness and that he was performing actions that were inconsistent with his alleged illness or sickness. This second investigation followed the same pattern as the first and was sent to the Committee for review. The Committee again recommended Dr. Laakso's termination. Dr. Laakso timely requested an administrative hearing, and these proceedings followed. The collective bargaining agreement describes procedures for discipline of employees, including this: Without the consent of the employee and the Association, disciplinary action may not be taken against an employee except for just cause, and this must be substantiated by clear and convincing evidence which supports the recommended disciplinary action. The collective bargaining agreement also requires progressive discipline (reprimand through dismissal) . . . [e]xcept in cases which clearly constitute a real and immediate danger to the district or the actions/inactions of the employee constitute such clearly flagrant and purposeful violations of reasonable school rules and regulations.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered in this case dismissing all charges in the Administrative Compliant, reinstating Respondent to his position of employment with the School Board, and providing Respondent with such back pay and attendant benefits as are authorized by law. DONE AND ENTERED this 21st day of November, 2003, in Tallahassee, Leon County, Florida. S MICHAEL M. PARRISH 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 21st day of November, 2003.
The Issue The issue in these cases is whether the Santa Rosa County comprehensive plan, as adopted on September 27, 1990, and the remedial amendments adopted on April 22, 1993, are in compliance.
Findings Of Fact Exception #2. The Hearing Officer, in an October 15, 1993 order, determined that the issues in the consolidated cases would be those 13 issues stated in the petition filed on July 15, 1993, in Case No. 93-4980, which ruling was observed by the parties at the final hearing (RO page 3). Petitioners/Intervenors take issue, thus, "At no time during these proceedings did the Petitioners abandon the issues raised in their Petitions to Intervene filed in the original noncompliance proceeding." The Respondent County and the Petitioner/Respondent Department take the position that the original, noncompliance proceeding was extinguished when the Department issued its cumulative notice of intent pursuant to section 163.3184(16), Florida statutes. The County and the Department further disagree with the Hearing Officer's conclusion of law determining that the issues of public access and Navarre Beach dune system should be determined pursuant to the preponderance of the evidence standard in section 163.3184(10), Florida statutes. The County and the Department urge the Agency to enter its order addressing all issues accordingly. Subsection (9) of section 163.3184, Florida statutes, governs proceedings if the local plan or amendment is in compliance. In the words of the statute, "In this proceeding, the local plan or plan amendment shall be determined to be in compliance if the local government's determination of compliance is fairly debatable." Subsection (10) of section 163.3184, Florida statutes, governs proceedings if the plan or amendment is determined to be not in compliance. The statute specifies, in this subsection: In the proceeding, the local government's determination that the comprehensive plan or plan amendment is in compliance is presumed to be correct. The local government's determination shall be sustained unless it is shown by a preponderance of the evidence that the comprehensive plan or plan amendment is not in compliance. Subsection (16) of section 163.3184, Florida statutes, authorizes the Department of Community Affairs to enter into voluntary compliance agreements to resolve issues raised in proceedings initiated pursuant either to subsection (9) -- in compliance determinations -- or subsection (10) -- not in compliance determinations. It is under this subsection that the cumulative notice in this case was issued. Paragraph (f) of subsection (16) provides, in part, as follows: If the local government adopts a comprehensive plan amendment pursuant to a compliance agreement and a notice of intent to find the plan amendment in compliance is issued, the state land planning agency shall forward the notice of intent to the Division of Administrative Hearings and the pending s. 120.57 proceeding concerning the plan or plan amendment shall be dismissed by the hearing officer as to the department. Any affected person may challenge the plan or plan amendment which is the subject of the cumulative notice of intent by filing a petition with the agency as provided in subsection (9). The language of the statute is somewhat problematic. It is unclear how a proceeding can be dismissed as to one of the parties, in this case, the state land planning agency issuing the notice of intent. See Department of Community Affairs, et al. v. DeSoto County, Final Order No. AC-94-009 (Fla. Admin. Comm. January 31, 1994), approving, Recommended Order of Dismissal, DOAH Case No. 91- 6039GM (DOAH January 13, 1994)(approving interpretation of statute). Further, this statutory language as to dismissal of the proceeding as to the department arguably is at odds with the next sentence, which states that affected persons may challenge the plan or amendment which is the subject of the cumulative notice by filing a petition with the agency as subsection (9) provides. The statutory language does not say, "Any other affected person" may challenge; it says "Any affected person" may challenge, which ending s. 120.57 proceeding. Paragraph (f) also deals with the issue of a cumulative notice that the plan amendment is not in compliance, as follows: If the local government adopts a comprehensive plan amendment pursuant to a compliance agreement and a notice of intent to find the plan amendment not in compliance is issued, the state land planning agency shall forward the notice of intent to the Division of Administrative Hearings, which shall consolidate the proceeding with the pending proceeding and immediately set a date for hearing in the pending s. 120.57 proceeding. It is clear from that statutory language that the cumulative notice proceeding is consolidated with the pending original proceeding if the Department of Community Affairs finds the amendment not in compliance, in contrast to the language used if the Department's cumulative notice is an "in compliance" determination. Finally, paragraph (f) deals with persons who are not parties to the pending original proceeding, as follows: Affected persons who are not a party to the underlying s. 120.57 proceeding may challenge the plan amendment adopted pursuant to the compliance agreement by filing a petition pursuant to subsection (9) or subsection (10). This language seems to do more than provide for persons who are not parties to the underlying proceeding to file subsection (9) or subsection (10) petitions depending upon whether the cumulative notice is an "in compliance" one or a "not in compliance" one, as the case may be. The language also aids in interpreting the previous sentence of the paragraph, "Any affected person may challenge the plan or plan amendment which is the subject of the cumulative notice of intent by filing a petition with the agency as provided in subsection (9)." If that sentence were only intended to apply to affected persons who were not parties to the underlying proceeding, there would be no need for the sentence above-quoted, "Affected persons who are not a party to the underlying s. 120.57 proceeding may challenge the plan amendment adopted pursuant to the compliance agreement by filing a petition pursuant to subsection (9) or subsection (10)." As the state land planning agency and the Agency of final jurisdiction in an "in compliance" proceeding, it is the responsibility of the Department of Community Affairs to interpret the operable statute. Public Employees Relations Commission v. Dade County Police Benevolent Association, 467 So.2d 987 (Fla. 1985.) The Department of Community Affairs interprets the subject provisions of section 163.3184(16), Florida statutes, to mean that, if the Department issues a cumulative notice of "in compliance," the previously existing, original proceeding is extinguished. Thereafter, all affected parties must file petitions challenging the cumulative notice, and the proceeding is governed exclusively by the "fairly debatable" standard and the procedures set out in subsection (9) of section 163.3184, Florida statutes. The particular standard of proof to be applied is based upon the issuance of a notice of intent to find the plan or amendment in compliance or not in compliance. Sheridan v. Lee County, DOAH Case No. 90-7791GM, Final Order No. DCA93-158- FOF-CP (Department of Community Affairs, June 28, 1993). In Department of Community Affairs, et al. v. City of Jacksonville, DOAH Case No. 90-7496GM (January 24, 1994), Final Order No. DCA94-258-FOF-CP (Department of Community Affairs, February 24, 1994), the Department of Community Affairs expressly adopted the interpretation of Hearing Officer J. Lawrence Johnston as set forth in the Recommended Order of Dismissal and Final Order Closing File in the case of Department of Community Affairs v. DeSoto County, DOAH Case No. 91-6039GM (January 19, 1993), approved, Final Order No. AC-94-990 (Fla. Admin. Comm. January 31, 1994), a copy of which is attached hereto as Exhibit B and incorporated by reference. That recommended order at footnote 3 -- recognized that there is contrary dicta in the Recommended Order in Department of Community Affairs, et al. v. Hillsborough County, DOAH Case No. 89-5157GM (December 8, 1992). In the instant case, the Hearing Officer erred in treating the proceeding as one in which both subsections (9) and (10) of section 163.3184, Florida statutes, continued to apply. The burdens of proof -- whether the fairly debatable standard, or the preponderance of the evidence standard -- could be alternatively assigned to a given issue, depending upon whether the issue remained from the original proceeding, or arose as a result of the proceeding brought in response to the cumulative notice. But the statute does not appear to allow the proceeding to be resolved as it was in the instant case, i.e., under both subsections (9) and subsections (10). If that were the case, it would be unclear in a given case as to which entity appropriately should enter the final order, the Administration Commission, or the Department of Community Affairs. Clearly, that does not comport with the objective of the Legislature in specifying the entities with final order authority separately in subsections (9) and (10). Petitioners/Intervenors suggest, in Exception #34, which is dealt with below, that both the Administration Commission and the Department of Community Affairs enter a final order in this. This would result in untenable situations, such as the potential for inconsistent rulings, separate appeals, etc. The Hearing Officer should have treated the proceeding exclusively as one arising as a result of a cumulative notice of "in compliance" governed under the auspices of subsection (9) of section 163.3184, Florida statutes. In that case, the issues should have been those directed to the cumulative notice; thus, Petitioners/Intervenors' complaint in this exception -- that the Hearing Officer should not have limited the issues to those set forth in the July 15, 1993 petition, which was filed as a result of the cumulative notice -- is not well- taken. Further, the standard of proof in a proceeding brought following a cumulative notice of "in compliance" must be the "fairly debatable" standard of section 163.3184(9), Florida Statutes. In this case, however, the Hearing Officer made his various determinations and weighed the evidence with respect either to the fairly debatable standard, or to the preponderance of evidence standard, depending upon the issue. It would be implausible at best, impossible at worst, for the Agency now to attempt to reweigh the selected issues -- those that have been determined using the preponderance of the evidence standard -- under the fairly debatable standard. The Department of Community Affairs, as the Agency entering the Final Order in this cause, is not free to reweigh evidence; that is the prerogative of the Hearing Officer when there are factual issues of ordinary proof. Heifetz v. Department of Business Regulation, 475 So.2d 1277 (Fla. 1st DCA 1985). Moreover, such a reweighing of the issues, even if authorized, would not change the outcome. The issues that were decided under the preponderance of the evidence standard were decided against the Petitioners/Intervenors in this case. The outcome would not change if the fairly debatable standard were applied to those issues. The Agency therefore declines the invitation to apply the fairly debatable standard throughout the proceeding, as it should have been done by the Hearing Officer. Nonetheless, the Agency also must deny Petitioners/Intervenors' Exception #2. PETITIONERS/INTERVENORS EXCEPTION #2 is DENIED. Exception #3. This exception is directed to the Hearing Officer's exclusion of testimony regarding Petitioners/Intervenors' allegations of "urban sprawl." Petitioners/Intervenors assert that a cursory review of the subject petition reveals that "urban sprawl" was properly raised as an issue, even though that precise term was not used. The Hearing Officer heard argument directed to the issue of the "urban sprawl" question (TR Vol. I, pp. 12-18) and determined that it was not within the scope of the petition filed on July 15, 1993 (see Exception #2, above). The Agency has reviewed the subject petition and the portions of the record dealing with argument directed to this issue, and the Agency does not find a sufficient basis for granting the exception. PETITIONERS/INTERVENORS EXCEPTION #3 IS DENIED. Exceptions #4, #5 and #6. The basis for these exceptions is the Hearing Officer's finding of fact, in paragraph 13 of the Recommended Order, that publicly-owned lands in the Garcon Point Project would not be injured by the development of privately- owned lands north of the project. According to the Petitioners/Intervenors, "The evidence introduced at the administrative hearing clearly refutes this finding." Petitioners/Intervenors allude to witness testimony that contradicts the conclusion of the expert who was tendered in general ecology and natural systems, Dr. Joe A. Edmisten [TR Vol. III, pages 78-87] on this point at hearing; it is upon Dr. Edmisten's testimony that the paragraph is supported. The contradictions notwithstanding, however, the paragraph to which these exceptions are directed is supported by competent, substantial evidence in the record, and thus the exceptions must be denied. [Edmisten (TR Vol. III), pages 95-96.] PETITIONERS/INTERVENORS' EXCEPTIONS #4, #5, AND 6 are DENIED. Exception #7. This exception is directed to paragraph 14 of the Recommended Order, in which the Hearing Officer found, "More than 95 percent of Garcon peninsula is jurisdictional wetland for the U.S. Army Corps of Engineers . . . ." According to the Petitioners/Intervenors, no evidence was introduced to support this finding. There is competent, substantial evidence in the record sufficient to support the finding. [Edmisten (TR Vol. III), page 89.] PETITIONERS/INTERVENORS' EXCEPTION #7 is DENIED. Exception #8. In Exception #8, Petitioners/Intervenors take exception to the following finding of fact in paragraph 15 of the Recommended Order, "Little development will occur on the Garcon peninsula . . ." The Petitioners/Intervenors assert that the evidence at the hearing "clearly refutes this finding" and, in support thereof, refer to Future Land Use Map indications of densities of up to four dwelling units per acre and commercial development for Garcon peninsula. The finding is supported by competent, substantial evidence in the record. [Edmisten (TR Vol. III), pages 90-91.] PETITIONERS/INTERVENORS EXCEPTION #8 is DENIED. Exception #9. Petitioners/Intervenors take exception to the findings of fact of paragraph 20 of the Recommended Order, which relates to the condition of the Navarre Beach dune system and the testimony of the expert in coastal geomorphology. The apparent basis for the exception is stated by Petitioners/Intervenors thus, "The fact that the Navarre Beach dune system is still a valuable resource is a compelling reason for implementing a dune protection program which will ensure the system's long-term viability." A finding of fact cannot be overturned on the basis of the argument stated by the Petitioners/Intervenors. Moreover, the findings of fact in paragraph 20 are supported by competent, substantial evidence. [Stone (TR Vol. II), page 155.] PETITIONERS/INTERVENORS' EXCEPTION #9 is DENIED. Exception #10. The Petitioners/Intervenors take exception to paragraph 26 of the Recommended Order wherein the Hearing Officer finds, "The County maintains control over those beach access points shown on the Navarre Beach Future Land Use Map by maintaining them in an unleashed status." The Petitioners/Intervenors state that the evidence clearly refutes the finding, and that the Navarre Beach Future Land Use Map does not identify beach access points. The finding is based upon sufficient competent, substantial evidence of record, and must be sustained. (Miller [TR Vol. I), pages 166-167; Joint Exhibit 1, Plan Objective 11.A.9, and policies 11.A.9.1-9.S, pages 11-6 through 11-7.] PETITIONERS/INTERVENORS' EXCEPTION #10 is DENIED. Exception #11. Petitioners/Intervenors take exception to paragraph 30 wherein the Hearing Officer states that the expert of the Petitioners/Intervenors "did not critique the plan, but said it was laudable." The Petitioners/Intervenors assert in this exception that the evidence clearly refutes this finding in that the expert in question, Dr. Sneed B. Collard, criticized the Santa Rosa County Comprehensive Plan for failing to contain policies and objectives to implement the plan's goal to protect the Pensacola Bay system. The context in which the Hearing Officer made the statement to which exception is taken is important to an understanding of the finding. paragraph 30 of the Recommended Order, in its entirety, reads as follows: Petitioners' expert also admitted that the plan was laudable in terms of the manner in which it seeks to protect the Bay system. While he criticized the plan for not containing clear implementation of its noteworthy goals, he later admitted that if all points of implementation were covered in detail, the plan would become a lengthy and cumbersome document of a more scientific nature. He further admitted to being unaware of the appropriate level of detail for a comprehensive plan and later stated that he did not critique the plan, but said it was laudable. [FF 30; RO page 14.] That having been clarified, the specific statement to which Petitioners/Intervenors take this exception is supported by competent, substantial evidence of record, to wit, the testimony of Dr. Collard, "I didn't critique the Santa Rosa Plan. I said it was laudable." [Collard (TR Vol. I), page 140]. PETITIONERS/INTERVENORS' EXCEPTION #11 is DENIED. Exception #12. The Petitioners/Intervenors take exception to the finding in paragraph 31 of the Recommended Order that finds "that all challenges to the issuance of environmental permits for the bridge have been voluntarily dismissed by the challengers." The Petitioners/Intervenors take this exception based on relevancy. The context of the statement is not clear from the exception. The entirety of paragraph 31 reads as follows: Although petitioners raised the bridge as an issue in these cases, very little evidence was presented concerning the potential impacts of the proposed bridge. It is noted, however, that all challenges to the issuance of environmental permits for the bridge have been voluntarily dismissed by the challengers. It is clear from the context that the information was "noted" and not accorded great weight in the findings. Moreover, the Hearing Officer's inclusion of the information was not erroneous. Thus, there is an insufficient basis to grant the exception. PETITIONERS/INTERVENORS' EXCEPTION #12 is DENIED. Exception #13. Petitioners/Intervenors take exception to the findings of fact contained in paragraphs 37-54 of the Recommended Order, as follows: The Hearing Officer failed to consider or give any ruling with respect to the proposed findings of fact set forth at paragraphs 9-28 and the conclusions of law set forth at paragraphs 96-106 and 111 of Petitioners/Intervenors' proposed Recommended Order. indeed, the Hearing Officer utterly failed to even mention the Wet Prairies and their associated endangered and threatened species. As to the proposed findings of fact included in paragraphs 9-28 of Petitioners/Intervenors' proposed recommended order, the Hearing Officer did so rule, "[paragraphs] 7-34. Partially accepted in findings of fact 10-15 and 37- 54." [RO page 38.] As to paragraphs 96-106 and 111 of Petitioners/Intervenors' proposed recommended order, the Hearing Officer did not make explicit rulings. The subject paragraphs were conclusions of law, which the Hearing Officer is not required to address. In pertinent part, section 120.59(2), Florida Statutes, provides, "If . . a party submitted proposed findings of fact . . . in connection with the proceeding, the order must include a ruling upon each proposed finding . ." It was thus within the sound discretion of the hearing officer to rule only upon the Petitioners/Intervenors' findings of fact. PETITIONERS/INTERVENORS' EXCEPTION #13 is DENIED. Exception #14. Petitioners/Intervenors take exception to the Hearing Officer's finding in paragraph 40 of the Recommended Order that states, "The plan contains extensive provisions designed to implement the Wetlands FLUM (Future Land Use Map) and provide significant protection of wetlands and the natural resource functions of wetlands." The Petitioners/Intervenors assert that no evidence was introduced to support this finding. The finding is based upon competent, substantial evidence, and therefore the exception cannot be granted. [Joint Exhibits 3 and 4, Plan Policies 11.A.4.5 (fig. 7-30); 11.B.3.3; 11.A.1.8.a.b.; 11.A.1.8.c.; 11.A.1.7; 11.A.4.3; 11.B.3.3; 11.A.2.1; 11.B.3.1.; 11.B.3.6; 11.A.1.4; and 11.A.1.8.] PETITIONERS/INTERVENORS' EXCEPTION #14 is DENIED. Exception #15. The basis for this exception is the finding of fact in paragraph 49 of the Recommended Order wherein it is found that the Santa Rosa County Comprehensive Plan "grants only very limited development rights in the Garcon Peninsula region, while also providing significant protections for natural resources in that area." Petitioners/Intervenors assert that the evidence refutes this finding. The finding is based on competent, substantial evidence in the record. [Joint Exhibits 3 and 4.] PETITIONERS/INTERVENORS' EXCEPTION #15 is DENIED. Exception #16 and #17. In Exceptions #16 and #17, Petitioners/Intervenors take exception to paragraph 50 of the Recommended Order. In that paragraph, the Hearing Officer finds that, short of public acquisition, "no other reasonable method by which this area can be comprehensively protected and preserved as an intact ecological unit was presented." The Hearing officer further finds, "Requiring the County to reduce densities to the point where a moratorium on development in the area is created would create inverse condemnation . . Petitioners/Intervenors state that the evidence clearly refutes these findings, that evidence was presented that one dwelling unit per 40 acres was appropriate for the Garcon peninsula, and that designations of up to four units per acre and commercial development would completely destroy the unique ecology of Garcon peninsula. Further, the Petitioners/Intervenors assert that the issue of inverse condemnation was not supported by competent evidence introduced, and that densities of less than four dwelling units per acre can be implemented without creating an "inverse condemnation" situation. As to the reasonableness of the preservation effort, the Agency has reviewed the testimony as to that point, and concludes that the finding is within the allowable inferences from the evidence presented, and within the permissible prerogatives of the Hearing Officer. [Dorman (Vol. III), page 13.] The inverse condemnation finding is rejected as being legally incorrect, but this rejection is irrelevant as to the result because it is cumulative in nature. PETITIONERS/INTERVENORS" EXCEPTIONS #16 and #17 are DENIED. Exception #18. This exception is directed to the finding of fact in paragraph 51 which states that "the great majority of undeveloped areas on the Garcon peninsula currently fall within the wetlands permitting jurisdiction of DEP [Department of Environmental protection] and the federal government. As a consequence, permits for development will be difficult to obtain at best." Petitioners/Intervenors aver that there was no evidence introduced to support this finding. To the contrary, however, the finding is adequately supported by competent, substantial evidence. [Edmisten (Vol. III), pages 90-91.] PETITIONERS/INTERVENORS' EXCEPTION #18 is DENIED. Exception #19. In Exception #19, Petitioners/Intervenors take exception to the finding of fact in paragraph 52 of the Recommended Order, in which it is stated that the Petitioners/Intervenors "failed to prove to the exclusion of fair debate that the plan inappropriately treats wetlands and wildlife habitat on the Garcon peninsula in light of chapter 163 requirements." This is a permissible inference from the evidence presented, both from testimony adduced at hearing, and from the Santa Rosa County Comprehensive Plan itself. PETITIONERS/INTERVENORS' EXCEPTION #19 is DENIED. Exception #20. This exception takes issue with the findings of fact of paragraphs 55-63 of the Recommended Order because the Hearing Officer "failed to consider or give any ruling" on the proposed conclusions of law in the Petitioners/Intervenors' proposed recommended order at paragraphs 142 and 143. The Hearing Officer is not required to do so for the reasons more specifically set forth in disposing of Exception #13, above. PETITIONERS/INTERVENORS' EXCEPTION #20 is DENIED. Exception #21. In Exception #21, Petitioners/Intervenors take exception to the findings of fact of paragraphs 64-70 of the Recommended Order in that the Hearing Officer "failed to consider or give any ruling" on Petitioners/Intervenors' proposed findings of fact at paragraphs 41 and 54-56 of their proposed recommended order, as well as their conclusions of law at paragraphs 112-118 and 121-126 of the same. As to the findings of fact, the Hearing Officer made such rulings, "[paragraphs] 35-56. Partially accepted in findings of fact 16-20 and 64-70." [RO page 38.] As to the conclusions of law, that issue has been addressed above in disposing of Exception #13, as also applied in disposing of Exception #20. PETITIONERS/INTERVENORS' EXCEPTION #21 is DENIED. Exception #22. Petitioners/Intervenors ground this exception on the failure of evidence to support the finding of fact, in paragraph 64 of the Recommended Order, that the Santa Rosa County Comprehensive Plan requires "restoration of preexisting impacts of altered dunes . . The finding is based upon competent, substantial evidence, and therefore the exception must be denied. [Joint Exhibits 3 and 4.] PETITIONERS/INTERVENORS' EXCEPTION #22 is DENIED. Exception #23. Petitioners/Intervenors take exception to the finding of fact in paragraph 69 for the following reasons: The Hearing Officer found that the dune system was protected because the County encourages dune walkovers, sand fences, and other similar methods. The evidence introduced at the administrative hearing clearly refutes this finding. Without a mandatory program of providing such methods to protect the dune system from pedestrian traffic, the plan's alleged protection is illusory. This finding is based upon competent, substantial evidence of record. [Joint Exhibits 3 and 4; Plan Policies 7.A.6.3 and 11.A.1.3.] PETITIONERS/INTERVENORS' EXCEPTION #23 is DENIED. Exception #24. Petitioners/Intervenors base this exception on the finding of fact in paragraph 70 of the Recommended Order wherein the Petitioners/Intervenors assert that the Hearing Officer finds that the Petitioners/Intervenors failed, in the words of the filed exception: "to prove to the exclusion of fair debate, or even by a preponderance of the evidence, that the plan" does not fulfill the Chapter 163 and Rule 9J-5 requirements for protection of the Navarre Beach dune system. The testimony of Dr. Stone clearly refutes this finding. In point of fact, that is not an appropriate paraphrase of the wording of the finding of fact in paragraph 70. The finding of fact, verbatim, is as follows: [P]etitioners have failed to prove to the exclusion of fair debate, or even by a preponderance of the evidence, that the plan does not contain policies which are designed to prevent individual and cumulative impacts of development on beach and dune systems. The finding is a permissible conclusion from the evidence adduced at the hearing, and is based upon competent, substantial evidence. [Joint Exhibits 3 and 4.] PETITIONERS/INTERVENORS' EXCEPTION #24 is DENIED. Exception #25. Petitioners/Intervenors take exception to the findings of paragraphs 74-76 of the Recommended Order based upon the failure of the Hearing Officer to consider or rule on conclusions of law contained in paragraphs 128- 132 of the Petitioners/Intervenor's proposed recommended order. As specified in the disposition of Exception #13, above, and as carried forth in the disposition of Exceptions #20 and #21, above, the exception is denied. PETITIONERS/INTERVENORS, EXCEPTION #25 is DENIED. Exceptions #26, #27, and #28. These exceptions are directed to paragraph 75 of the Recommended Order. The findings of the paragraph that are the basis for the exception include the following: The record does not reflect impacts, if any, the project may have to the environment, but does indicate that adequate mitigation is proposed. The County cannot legally adopt any plan provisions which are inconsistent with a state transportation project. . [P]etitioners have failed to show to the exclusion of fair debate that the plan's treatment of the proposed Santa Rosa Bay Bridge is inappropriate. The findings are supported by competent, substantial evidence. [Edmisten (TR Vol. III); Joint Exhibit 2, Vol. I, pages 4-32 through 4-40.] Exceptions #27 and #28 are simply argument of the Petitioners/Intervenors' position in this proceeding and, as such, are insufficient to overturn findings supported by competent, substantial evidence. PETITIONERS/INTERVENORS' EXCEPTIONS #26, #27, and #28 are DENIED. Exception #29. This exception is directed to paragraphs 77-79 of the Recommended Order, alleged to be in error because the Hearing Officer failed to consider or rule on the conclusions of law in Petitioners/Intervenors' paragraphs 133-140 of their proposed recommended order. As more specifically discussed in disposing of Exception #13, and as concluded in the denials of Exceptions #20, #21, and #25, the Hearing Officer is not required to make such rulings. PETITIONERS/INTERVENORS' EXCEPTION #29 is DENIED. Exceptions #30, #31 and #32. In these exceptions, Petitioners/Intervenors assert that there was no evidence introduced to support the findings, in paragraph 77-79 of the Recommended Order, concerning beach access points. In paragraph 77, Petitioners/Intervenors take exception to the finding that reads, "The plan contains a number of provisions designed to ensure the continued availability of beach access. The future land use map indicates a number of beach access points shown on the map as conservation/recreation." In support of this exception, Petitioners/Intervenors state, "Indeed, during cross examination of Ms. Miller by the County, counsel for the County attacked Ms. Miller for stating that the beach access points were identified on the Navarre Beach Future Land Use Map." In response, Respondent County and Petitioner/Respondent Department state: The Petitioners' own witness, Yvonne Miller, testified that beach access points were indicated on the FLUM. [Citation omitted.] The fact that counsel for the County obtained clarification from Ms. Miller concerning her understanding of how access points were identified on the map is irrelevant to the validity of this finding of fact, and is not a basis for overturning same. As to paragraph 78, Petitioners/Intervenors take exception to the finding that reads that "petitioners have failed to prove to the exclusion of fair debate, or even by a preponderance of the evidence, that the plan does not include appropriate objectives and policies concerning public access to the beach." In response, Respondent County and Petitioner/Respondent Department state, "The plan support documents include extensive data and analysis concerning public access to beaches." With respect to paragraph 79, Petitioners/Intervenors take exception to the finding that the Future Land Use Map includes many public access points. The Agency has reviewed the testimony adduced at hearing regarding beach access points [Miller (TR Vol. 1), pages 150- 169]. The Hearing Officer's conclusions drawn from the testimonial evidence are within the allowable range of inferences. Based upon the record testimony, the findings of fact in paragraphs 77-79 to which exceptions are taken is based upon competent, substantial evidence in the record. [Miller (TR Vol. 1), pages 150-169; Joint Exhibit 2, Vol. II, pages 7-17 through 7-19; Joint Exhibit 7.] PETITIONERS/INTERVENORS' EXCEPTIONS #30, #31, and #32 are DENIED. EXCEPTIONS TO CONCLUSIONS OF LAW Exception #33. Petitioners/Intervenors take exception to the conclusion of law in paragraph 87 of the Recommended Order wherein the Hearing Officer concluded that the petitions challenging the plan must fail. Petitioners/Intervenors assert that they have met their burden of proof, and their petition must be granted. The Hearing Officer found that the Petitioners/Intervenors failed to meet their burden of proof. The conclusion of law ultimately was based upon the Hearing Officer's findings of fact in this case. Factual issues susceptible of ordinary methods of proof are the prerogative of the hearing officer. Heifetz v. Department 6f Business Regulation, 475 So.2d 1277 (Fla. 1st DCA 1985). It is for the hearing officer to consider the evidence presented, resolve conflicts, judge credibility of witness, draw permissible inferences from the evidence, and reach ultimate findings of fact based on competent, substantial evidence. Id., 475 So.2d at 1281. In this case, the Hearing Officer did so, and his findings of fact did not support the position of the Petitioners/Intervenors. The conclusion of law was the logical result of the Hearing Officer's permissible rulings on the findings of fact. PETITIONERS/INTERVENORS' EXCEPTION #33 is DENIED. Exception #34. Petitioners/Intervenors take exception to the conclusion of law in paragraph 90 of the Recommended Order wherein the Hearing Officer recommends that the Department of Community Affairs enter the final order in this cause, finding the Santa Rosa County Comprehensive Plan in compliance. Petitioners/Intervenors assert that both the Department of Community Affairs and the Administration Commission should enter a final order finding the plan to be not in compliance. For the reasons set out in disposing of Petitioners/Intervenors' Exceptions #1 and #2, above, the Administration Commission is not the entity to whom the Recommended Order in this cause should be directed. The Department of Community Affairs is the appropriate Agency to enter the final order in this cause. As to the issue of compliance, the Department found the plan, as amended, to be in compliance; the Hearing Officer heard evidence and considered the issues, and found the plan, as amended, to be in compliance. The conclusion is the logical and ultimate result of the findings of fact in this case, which were based upon competent, substantial evidence. The Petitioners/Intervenors have not borne their burden of proving that the plan, as amended by remedial amendments, is not in compliance. PETITIONERS/INTERVENORS' EXCEPTION #34 is DENIED. WHEREFORE, the Department of Community Affairs adopts the Recommended Order of the Hearing Officer, and issues this Final Order determining that the Santa Rosa County Comprehensive Plan, as amended, is in compliance.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Department of Community Affairs enter a final order determining the Santa Rosa County comprehensive plan, as amended, to be in compliance. DONE AND ENTERED this 12th day of July, 1994, in Tallahassee, Florida. DONALD R. ALEXANDER 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 12th day of July, 1994. Petitioners: APPENDIX TO RECOMMENDED ORDER CASE NOS. 90-7706GM AND 93-4980GM 1-3. Partially accepted in finding of fact 2. 4. Covered in preliminary statement. 5-6. Partially accepted in finding of fact 1. 7-34. Partially accepted in findings of fact 10-15 and 37-54. Partially accepted in finding of fact 9. 36-56. Partially accepted in findings of fact 16-20 and 64-70. 57-65. Partially accepted in findings of fact 31-36 and 74-76. 66-77. Partially accepted in findings of fact 24-26 and 77-79. 78-83. Partially accepted in findings of fact 27-30 and 55-63. Note - Where a proposed finding has been partially accepted, the remainder has been rejected as being irrelevant, not supported by the more credible, persuasive evidence, subordinate, or unnecessary to the resolution of the issues. Respondents: Because respondents' joint proposed order exceeded the forty page limit imposed by Rule 60Q-2.031, Florida Administrative Code, the undersigned has considered the contents of the proposed order but has not made specific rulings on each proposed finding. See Sunrise Community, Inc. v. DHRS, 14 F.A.L.R. 5162 (DHRS, 1992), affirmed 619 So.2d 30 (Fla. 3rd DCA 1993). COPIES FURNISHED: Linda Loomis Shelly, Secretary Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399-2100 Dan R. Stengle, Esquire 2740 Centerview Drive Tallahassee, Florida 32399-2100 Stephanie M. Callahan, Esquire 2740 Centerview Drive Tallahassee, FL 32399-2100 Thomas V. Dannheisser, Esquire County Attorney Santa Rosa County Courthouse Room 106 Milton, FL 32570 Kenneth G. Oertel, Esquire Post Office Box 6507 Tallahassee, FL 32314-6507 David A. Theriaque, Esquire Building F, Suite 100 820 East Park Avenue Tallahassee, FL 32301 Mr. Robert Carl 9277 Deer Lane Navarre, FL 32566 John M. Harold, Esquire J. Dan Gilmore, Esquire 4400 Bayou Boulevard, Suite 45 Pensacola, FL 32503
