Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the argument of counsel, and the entire record compiled herein, the following relevant facts are found. 1/ By its one count Administrative Complaint filed herein on approximately October 13, 1981, the Petitioner, Department of Professional Regulation, Board of Real Estate, seeks to take disciplinary action against Respondent, Harold O. Polson, a licensed real estate salesman and broker. During times material, Respondent was a licensed real estate salesman and holds License No. 0179858. Respondent is also a licensed real estate broker and has been since April 17, 1981. During October of 1979, Respondent secured a listing from Wayne and Linda Overby to sell certain real property which they owned, located at 241 Coral Drive, Fort Walton Beach, Florida. (Tr. pp. 43 & 44.) Mrs. Addie Simmons, a licensed real estate salesman who was then affiliated with the same office as Respondent, obtained a contract to purchase the Overby residence from Mary Theresa Dickson on September 30, 1979. (Petitioner's Exhibit 1.) The transaction closed on November 19, 1979, however, Mrs. Dickson took possession of the residence pursuant to an occupancy agreement which the parties executed on October 12, 1979. (Respondent's Exhibit 1.) The offer to purchase and contract for sale which was executed by Mrs. Dickson on September 30, 1979, fixed the closing date for this subject transaction on or before December 1, 1979. According to the terms of the contract to purchase, Mrs. Dickson was obligated to satisfy herself that all heating, air-conditioning, electrical, plumbing, appliances and lawn pumps were in normal working order at the time of closing or prior thereto. (Petitioner's Exhibit 1, paragraph 13.) According to an inspection and acceptance of property executed by Mrs. Dickson on November 19, 1979 (Petitioner's Exhibit 2), Mrs. Dickson indicated that all of the above appliances, equipment and systems were in normal operating condition on the date of closing with the exception that a discrepancy existed in the following items: Kitchen faucet leaking; Living room window could not be opened or closed; Main bath vanity faucet dripped; Bedroom window would not crank, Tub ring missing; The bath adjoining the master bedroom leaked water; and Two range burners were inoperable. Salesman Simmons who represented purchaser Dickson and Respondent orally agreed to correct the deficiencies noted in Petitioner's Exhibit 2 to "have a happy buyer and happy seller." (Tr. p. 74.) This representation was made by Ms. Simmons although Respondent was not legally obligated to make such repairs pursuant to the terms of the deposit receipt and offer to purchase (contract for sale) which was executed by Mrs. Dickson on September 30, 1979. Subsequent to the closing on November 19, 1979, Respondent commenced making the repairs which were listed in the inspection and acceptance of property executed by Mrs. Dickson. A majority of the deficiencies were corrected within several months of the closing. As example of Respondent's efforts, documentary evidence received indicates that Respondent purchased materials to correct the deficiencies to the plumbing which were noted by the purchaser during November and December of 1979. (Respondent's Exhibits 1-A and 2.) The repairs to the windows were not finally completed until September of 1980, due to the age of the windows and the resulting difficulty experienced by Respondent in obtaining suitable replacement parts. (See Respondent's Exhibits 3, 4 and 5.) Respondent completed the repairs to Mrs. Dickson's range in January of 1980. (Respondent's Exhibit 7.) Respondent had made an earlier attempt to correct the range and ultimately had to order additional parts to complete the needed repairs. (Respondent's Exhibit 7.) Contrary to the allegations contained in the Administrative Complaint, evidence revealed that Respondent had no dealing with Mrs. Dickson until the date of closing nor did Mrs. Dickson enter into the sales contract upon the reliance and trust placed in statements alleged to have been made by Respondent to Mrs. Dickson. (Testimony of Dickson and Respondent.)
Recommendation Based on the foregoing findings of fact and conclusions of law, it is hereby RECOMMENDED: That the Administrative Complaint filed herein be DISMISSED. RECOMMENDED this 7th day of April, 1982, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of April, 1982.
Findings Of Fact Petitioner is a special taxing district providing fire protection and rescue services to the residents of the Estero area of Lee County. The fire station is located at 20241 Tamiami Trail, Estero, Florida. Petitioner employs 14 employees, including administrative staff and firefighters. The firefighters work 24 hours straight and then are off-duty for 48 hours. Two to four employees work each shift. Firefighting requires a fast response. Thus, Petitioner requires that on-duty firefighters remain at the station for their entire 24-hour shift, unless they are out fighting fires or performing rescue duties. The fire station contains an 8' x 13' bedroom with six mattresses located on three bunk beds. On-duty firefighters are allowed to bring pillows and sheets so they can sleep at the station while on duty. There are no dressers in the room, which contains small lockers that the firefighters may use to store a change of clothes. Petitioner provides kitchen facilities at the fire station and well water. The well water is used for washing equipment, taking showers, and flushing the toilet. The well water is not used for any other purposes, nor is it used by any other persons. Petitioner provides bottled water for drinking and cooking. All of the firefighters have residences apart from the fire station and within a reasonable commuting distance from the fire station. No firefighter has ever lived at the station. Petitioner does not charge, or reduce the pay of, the firefighters for their use of the limited sleeping facilities. Petitioner lawfully does not treat the use of the limited sleeping facilities by firefighters as gross income for the purposes of withholding federal income tax or making social security contributions. By letter dated July 18, 1995, Respondent informed Petitioner that the fire station's water system is a limited use community water system because the sleeping facilities constituted rental residences, as defined by Rule 10D- 4.024(21), Florida Administrative Code. Respondent advised Petitioner that it was therefore required to obtain a permit. As noted in the following section, the statute authorizes Respondent to regulate as limited use community public water systems those systems serving a certain number of "rental residences." The statute does not define "rental residence." In Rule 10D-4.024(21), Respondent defines a "rental residence" as follows: a dwelling unit, a structure or part of a structure that is rented for use, or furnished with or without rent as an incident of employ- ment, for use as a home, residence, sleeping place by one or more persons, a mobile home rented by a tenant. This term does not apply to facilities offering transient residency such as public lodging establishments. This term includes other facilities where residency or detention is incidental to the provision of medical, geriatric, educational, counseling, religious, or similar services. Respondent equated a "rental residence" with a "dwelling unit" when it based its definition of "rental residence" on the statutory definition of "dwelling unit" in Chapter 83, Part II, Florida Statutes, which is the Florida Residential Landlord and Tenant Act. A "dwelling unit" is a "residence." The American Heritage dictionary defines a "dwelling" as "a place to live in; residence; abode." Similarly, the same dictionary's first definition of "residence" is "the place in which one lives; a dwelling; an abode." But the statutory definition qualifies "residential" with "rental." The word "rental" requires consideration of the nature of the relationship of the occupant to the dwelling and its owner. Obviously, the Florida Residential Landlord and Tenant Act addresses rental transactions, but it does not do so in the definition of "dwelling unit." Other provisions of the Act describe the kind of activity that must take place for a person to be considered a tenant renting a dwelling unit. Most importantly, Section 83.43(6) defines "rent" as "periodic payments due the landlord from the tenant for occupancy under a rental agreement " The facts of this case present a revealing illustration of the distinction between a "residence" or "dwelling unit," on the one hand, and a "rental residence," on the other hand. There is no rental relationship between the occupants of the sleeping quarters at the fire station and the residence or dwelling itself. The firefighters do not pay, directly or indirectly, for these beds or the rooms in which the beds are located. Their employer legitimately does not include the value of the use of these sleeping quarters in the compensation paid to the firefighters. The firefighters have residences within commuting distance of the fire station and use the meager sleeping quarters and kitchen facilities only because they are required to spend long hours continuously at the fire station.
Findings Of Fact Floralino Properties, Inc. is a small utility providing water and sewer service in Pasco County. During the period May 30, 1978 until March 12, 1979, it purchased a substantial portion of its water from the Pasco Water Authority, Inc. (PWA) for resale to its customers. In order to recoup the costs of those purchases, the Public Service Commission authorized the utility to assess a surcharge upon each customer's bill. (See Order No. 7494). However, because the surcharge exceeded the actual charges for water purchased, the utility was required to escrow all excess revenues. Respondent failed to do so thereby precipitating the issuance of Order No. 9320. A subsequent Commission audit reflected the excess revenues to be $2,228.05. Prior to the hearing, but after the issuance of Order No. 9320, the respondent escrowed the funds in a Pinellas County bank. The utility now agrees to make an appropriate refund with interest within 30 days to all customers who received service during the period in question.
Recommendation Based upon the foregoing findings of fact and conclusions of law, the Hearing Officer recommends that respondent be found guilty of violating Order No. 7494, dated November 2, 1976; that a fine of $250 be imposed upon respondent; that respondent make an appropriate refund of $2,228.05 with 6 percent interest to those customers entitled to such refund within 30 days; and that a final report setting forth the disposition of such monies be submitted to the Public Service Commission within 90 days. DONE AND ENTERED this 22nd day of August, 1980, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: M. Robert Christ, Esquire 101 East Gaines Street Tallahassee, Florida 33542 Floralino Properties, Inc. 2320 East Bay Drive Clearwater, Florida 33516 Steve Tribble Commission Clerk 101 East Gaines Street Tallahassee, Florida 32301 Herman B. Blumenthal, III, Esquire 10401 Seminole Boulevard (Alt. 19) Seminole, Florida 33542
Findings Of Fact Both Ryder and Disney World are self-insurers as defined by Section 440.38, Florida Statutes (1979). If the proposed rules were adopted both parties would be liable for assessments required by the rules.
The Issue Whether Petitioners are entitled to validation of an alleged determination by Respondent of the landward extent of its dredge and fill jurisdiction over a portion of Petitioners' Property?
Findings Of Fact Under former DER rules, those using the vegetative index adopted June 10, 1975, as amended March 11, 1981, DER's dredge and fill jurisdiction upland of the mean high water line depended exclusively on the landward extent of waters of the state, as evidenced by the dominance of certain species of plants that thrive under wet conditions. Only if these indicator species, in the aggregate, were not dominant along the edge of a water body would DER's jurisdiction end at the shoreline. In 1977, Petitioners Fabre and Jacobs acquired more than 43 acres of unimproved land on Garcon Point, fronting Blackwater Bay in Santa Rosa County. By the time of the hearing, their original development plans had changed, but Petitioners still held the property in the hope of subdividing part of it for resale. At Petitioners' request, somebody from the Pensacola office of the Department of Environmental Regulation (DER) inspected the site in the fall of 1979, probably Michael C. Applegate on October 3, 1979. Petitioners wanted to know what DER permits, if any, would be required in order for a road to be built on the property. In connection with their inquiry, they furnished DER a legal description of the parcel and an aerial photograph of the area. Whether DER also received a site plan at that time depicting the proposed road is not shown by the record. DER's pre-application file on the parcel has probably been destroyed. At least in the minds of some DER employees, there is a clear difference between advising whether a particular project falls within DER's permitting jurisdiction, based on a site visit; and making a jurisdictional determination, which may involved planting flags that are then surveyed or photographed from the air. Petitioner Fabre received a letter from Michael C. Applegate, at the time DER's dredge and fill supervisor in Pensacola, which stated: RE: Approximate 43.48 acre parcel located between State Road 191 and Blackwater Bay, Garcon, Section 14, Township I s, Range 28 w, Santa Rosa County, Florida Dear Mr. Fabre: The above referenced land parcel (legal description enclosed) was inspected by a member of this Department to determine the necessity of obtaining dredge and fill permits for future construction activities on the site. It is the opinion of the staff that since the site is dominated by upland vegetation (oaks, pines, etc.) and has no water bodies connecting to the adjacent B1ackwater Bay that dredge and fill permits will not be required for construction activities within the interior of the property; however, any construction along the shoreline or any attempt to connect artificial lakes or canals to Blackwater Bay will require prior permit authorization from this Department in accordance with the provisions of Section 403.087, Florida Statutes, 253.123 and 253.124, F.S. and Section 17-4.28, Florida Administrative Code. Further, should your development of the property result in and [sic] increased stormwater discharge, a stormwater permit may also be required. Joint Exhibit No. 4 In the opinion of DER's expert witness, "along the shoreline" usually means to the edge of open water. In surveying, "shoreline" is a term of art meaning mean high water line. As a practical matter, mean high water line surveys are seldom undertaken because they are complex, expensive and time- consuming. Because Mr. Applegatets letter was undated, Mr. Fabre later asked for a dated reiteration, which DER furnished by copy of a memorandum to the file from DER's William H. Daughdri11, stating: SUBJECT: Review of Undated Correspondence to Frank Fabre [sic] (Baskerville Donovan Engineers) Regarding Proposed Construction on a 43.48 Acre Parcel of Property on Blackwater Bay. On June 23, 1980, I received a call from Mr. Prank Fabre, [sic] during which he requested clarification of a letter written by Mike Applegate in October, 1979. I advised Mr. Fabre that my recollection of the proposed project and subsequent letter was that the excavation was on the interior of the property and not subject to Department of Environmental Regulation's permitting jurisdiction. I cautioned Mr. Fabre [sic] to read the letter carefully and proceed accordingly. On June 24, 1980, I reviewed Mile's letter to Mr. Fabre [ sic] (copy) attached). Mike's letter indicated that no permit would be required for construction activities in the interior of the property; however, construction along the shoreline or any attempt to connect artificial lakes or canals to Blackwater Bay would require a valid Department permit. I called Mr. Fabre and advised him of same. Finally, in reviewing Mr. Applegate's letter to Mr. Fabre, I discovered it to be undated. The photograph attached to the letter referenced a date of October 3, 1979. I assume that the letter to Mr. Fabre went out within a week of the inspection and would therefore be properly dated between October 5 and October 10, 1979. Joint Exhibit No. 3. Having received this memorandum, Petitioners filled out a form Army Corp of Engineers/DER joint application for activities in the waters of the State of Florida. They attached an aerial photograph on which a proposed road is shown, lying more than 200 feet inland; and a drawing representing a proposed community building elevated on piling, approximately 50 feet inland of the mean high water line. Joint Exhibit No. 5. On September 24, 1984, copies of the joint form application with attachments were mailed to DER, along with a cover letter stating, "As we discussed, an application fee is not included since D.E.R. does not have jurisdiction based on enclosed letters from Michael Applegate and William Draughdrill [sic]." Joint Exhibit No. 5. In response, W. Richard Fancher, DER's dredge and fill supervisor, wrote Petitioners, on October 9, 1984: I have reviewed your permit application for a fill road leading to Blackwater Bay, along with the accompanying jurisdictional determinations. However, the Department's dredge and fill jurisdiction has changed significantly since Mr. Applegate's and Mr. Daughdrill's determinations, specifically, since October 1, 1984. Unless you have had the old pre- October 1 jurisdiction verified by our Bureau of Permitting in Tallahassee ("grandfathered"), the Department must consider the project under the post-October 1 jurisdiction and permitting standards. Joint Exhibit No. 7 (emphasis supplied.) A DER "completeness summary" also dated October 9, 1984, was included indicating that Petitioners' application was incomplete for failure to pay the application fee, because, "approximate MHW's" had not been labeled, a claim at least partially belied by attachments to the application, and because certain water quality information allegedly had been omitted. Joint Exhibit No. 7. On October 15, 1984, DER received Petitioners' request for validation with supporting papers. Joint Exhibit No. 9.
Findings Of Fact The Respondent, Sharla Lavon Speakman, is a licensed masseuse in the State of Florida, holding license number 0004056. The Petitioner is an agency of the State of Florida charged with administering and enforcing the licensing standards, status and practice standards of masseurs in Florida, and with the regulation and enforcement of those standards of practice. On or about May 4, 1984, the Respondent was contacted by telephone by a gentleman who made an appointment with her for massage services. The client was a resident at Room 202 of the Quality Inn at 1425 South Trail, Sarasota, Florida. The Respondent went to that address to keep the appointment on that date. Personnel of the Sarasota County Sheriff's Department had prearranged to have that room monitored through electronic surveillance and sound recording equipment, as well as with the aid of an undercover police operative, who was to be present in the room. Indeed, the undercover police operative was the client who made the appointment with the Respondent. That police operative had previously been given $160 in marked bills. The Respondent arrived at the room at approximately 6:55 p.m. on that date, and engaged in a conversation with the police operative concerning what sort of massage services she could provide, and the price therefor. The Respondent agreed to provide the operative with a massage and set up a massage table for that purpose. During her continuing conversation with the police operative, the Respondent discussed certain sexual acts she might perform for the police operative, and quoted prices therefor. She ultimately agreed to perform an act of oral sex with the undercover police operative. The entire conversation was recorded by personnel of the Sheriff's Department through electronic surveillance procedures involving an undercover van parked outside the door to the subject room. (See Petitioner's Exhibit 2). The Respondent was at the point of performing the sexual act in question when, the detectives sequestered in the van having heard the conversation, burst into the motel room and photographed the commencement of the said act. (See Respondent's Exhibit 4). The Respondent admits engaging in a sexual act with the undercover police operative. The Respondent originally came to the motel room to perform a massage service based upon an appointment made for the purpose of rendering that massage service. After entering the room, the Respondent agreed to perform a massage service for compensation. The Respondent appeared at the room with a massage table and was in possession of her business card bearing her name which advertised her various massage services, and had set up the massage table for the purpose of performing a massage at the time of her arrest.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, the evidence of record and the candor and demeanor of the witnesses, it is RECOMMENDED: That a Final Order be entered revoking the license of the Respondent, Sharla Lavon Speakman. DONE and ENTERED this 31st day of July, 1984 in Tallahassee, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31st day of July, 1984. COPIES FURNISHED: Bruce D. Lamb, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Michael Sweeting, Esquire LEE and SURFUS 150 East Avenue, South Sarasota, Florida 33577 Jane Raker, Executive Director Board of Massage 130 North Monroe Street Tallahassee, Florida 32301 Fred N. Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
The Issue The issue to be resolved in this proceeding concerns whether Lagoon Oaks, Inc., (Petitioner) is entitled to an award of attorney's fees, pursuant to Section 57.111 Florida Statutes, by becoming a prevailing party in accordance with the final order issued by the Department of Health and Rehabilitative Services (Department) in the underlying case related to this proceeding which is Case No. 95-4394. The primary issue concerns whether the Agency's intended action was "substantially justified." Additionally it must be determined whether the Petitioner is a "small business party" in terms of its net worth.
Findings Of Fact The preponderance of the testimony and evidence of record establishes that the Petitioner, Lagoon Oaks, Inc.'s domicile and principal office is located in Panama City, Bay County, Florida. Lagoon Oaks is a de Jure Florida corporation. It has no employees and has a net worth which does not exceed $2 million. Additionally, it is established that Lagoon Oaks, Inc., is a "prevailing small business party," inasmuch as the above- referenced final order has been entered by the Department granting Lagoon Oaks' permits, which were originally denied, thereby sustaining Lagoon Oaks' position that it was entitled to the permits pursuant to applicable Florida Statutes and Rules. That order has not been reversed on appeal and the time for seeking judicial review thereof has expired. Further, this case qualifies as an "administrative proceeding pursuant to Chapter 120 initiated by a state agency." The agency herein was required by law to advise the Petitioner of a clear point of entry after some recognizable event in the investigatory or other proceeding by the agency, to wit, the denial of the sought permits. See Section 57.111(3)(b), Florida Statutes. The Petitioner has requested and the undersigned takes "judicial notice" of the original record in this proceeding including the transcript of the hearing in DOAH Case No. 95-4394, pursuant to Rule 60Q.2010, Florida Administrative Code. The Findings of Facts and Conclusions of Law in the Recommended Order entered by the undersigned in that proceeding are hereby adopted and incorporated by reference herein as well. In the final order entered, the Department found and conceded that: ". . . the Department did not follow the applicable rules in Chapter 10D-6 Florida Administrative Code, in denying the permit applications. The site evaluation forms do not identify a recognizable water body (ie. a normally wet drainage ditch), nor do they establish the presence of surface water for the requisite 72 hours following rainfall. The forms do not indicate the setback which exists from the proposed system to the disputed feature. The forms are not signed or dated. The observed water table and estimated wet season water table are not provided, nor is high water table vegetation indicated. The extensive soil sampling that was detailed at the hearing is not described. Much of the evidence tending to demonstrate the presence of a surface water apparently was not gathered until well after the permits were denied. Finally, the denial letter, as noted by the hearing officer, references a 'normally wet area' which is not a 'surface water' feature described in statute or rule that may justify denial of a septic system permit. (footnotes omitted)." The Department has thus conceded that it did not follow its own rules in denying these permits, that the documentation allegedly supportive of the denial was incomplete and did not justify the denial and that much of the evidence tending to demonstrate the presence of a surface water apparently was not gathered until well after the permits were denied. Thus, when the intended agency action was taken (the denial) by the Department's own admission, it had not gathered much of the evidence which it contended supported its position concerning presence of the surface water involved in the underlying proceeding. Attorney's fee affidavits required by Section 57.111(4)(b)1. Florida Statutes and submitted by the Petitioner demonstrate that Lagoon Oaks incurred the sum of $17,950.00 in attorney's fees and $2,281.98 in costs in the course of this proceeding. Additionally, the affidavit of R. Steve Lewis, Esquire, illustrates that Lagoon Oaks incurred an additional $2,707.50 in attorney's fees for services he performed for this proceeding (This is not inclusive of any fees or services for which Mr. Lewis might have become entitled for work done unrelated to the subject proceeding). The attorney's fees submitted and represented by affidavit (Exhibit E) by Attorney Lee Killinger, counsel of record, alone exceed the $15,000.00 limit provided for in Section 57.111(4)(d)2, Florida Statutes. Testimony and evidence adduced at hearing demonstrates that the fees and costs claimed are reasonable under the circumstances of the underlying case and this proceeding.
The Issue Whether a consumptive-use permit for the quantities of water applied for should be granted.
Findings Of Fact Applicant, City of Winter Haven, submitted application No. 7500096 for a consumptive-use permit for an average daily withdrawal of 18 million gallons to be withdrawn from the Florida Aquifer in Polk County, Florida. The application is for an existing use and withdrawal is for public supply from twelve (12) withdrawal points. The center of withdrawls will be located at Latitude 25 degrees 01' 40" North, Longitude 81 degrees 43' 54" West in Polk County, Florida. Notice of the September 3, 1975 hearing was published in a newspaper of general circulation, to-wit: The Lakeland Ledger, published daily in Lakeland, Florida, on August 9 and 16, 1975, pursuant to Section 373.146, Florida Statutes. Notices of said public hearing were duly sent by certified mail as required by law. The application and map of the premises, the legal description, receipt of certified mail, copy of notice, and the affidavit of publication were received without objection and entered into evidence. No letters of objection were received, however, at the hearing the recommendation for granting the permit was conditioned upon certain things being done by the City and Mr. Cecil Thurmond, the Assistant City Engineer for the City of Winter Haven, and Mr. Jegg McKibbon, Assistant County Attorney for Polk County, objected to the conditions and it was decided that this Recommended Order would not be issued until the parties could agree and stipulate on conditions to be met by the permittee. The stipulations were entered into and are attached together with pertinent maps to this report and made a part hereof.
Recommendation Grant the requested consumptive-use permit as requested. DONE and ORDERED this 29th day of March, 1976. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Mr. Cecil Thurmond Assistant Engineer City of Winter Haven 245 22nd Street, S.W. Winter Haven, Florida Jay T. Ahern, Esquire Staff Counsel Southwest Florida Water Management District Post Office Box 457 Brooksville, Florida 33512 STIPULATIONS CITY OF LAKELAND #7500098 and CITY OF WINTER HAVEN #7500096 Totalizing flow meters will be installed on all production wells, monthly flow meter reports will be submitted in writing to the District On April 15, July 15, October 15 and January 15, for each respective proceeding quarter. The permit will expire On December 31, 1980.
The Issue The issues to be determined in this proceeding concern whether the Respondent committed the violations of Sections 943.13(7), 943.1395(7), and 800.03, Florida Statutes, and Florida Administrative Code Rule 11B-27.0011(4)b, concerning the licensure qualification of good moral character.
Findings Of Fact The Petitioner is an agency of the State of Florida, charged, as pertinent, with licensure and regulation of the practice standards and practice of certified law enforcement officers, in the manner prescribed by Chapter 943, Florida Statutes. The Respondent was certified as a Law Enforcement Officer on May 8, 1995, and issued Certification Number 155216. The Respondent was a Fire Chief in Gulf Breeze, Florida, at times pertinent to this proceeding. On June 21, 2008, the Respondent went to the Edge of Paradise Day Spa (the Spa) as a customer seeking a massage. He arrived at about 5:45 p.m. The Spa is owned by Ms. Vickie Edge. She holds a Massage Establishment License and a Facial Specialist License issued by the State of Florida. The business is located in Destin, Florida, on Highway 98. It offers its customers massage therapy and various beauty treatments. It employed Jennifer Edwards, a state-licensed massage therapist, on June 21, 2008. Because he did not have an appointment, the Respondent had to wait until the massage therapist, Ms. Edwards, returned from a meal break. During this time he conversed with the owner, Ms. Edge, while he completed a "new customer form." The Respondent is a public servant and did not want his identity associated with patronizing a massage establishment. Ms. Edge assured him that customers often did not use their true identities, in completing the form, for this reason. The Respondent therefore entered a fictitious name, "Jim Martin" on the form, also stating that he was from Ohio. He told Ms. Edge that he was a guest at a nearby Days Inn motel and was in the area on business, working on a “Networking” job for a Pensacola bank. The customer form contained a notice to the effect that removal of all clothing was not required, that body parts not being massaged would be covered by a large sheet or towel, and that “. . . no reputable massage therapist will ever touch you in a sexual way.” The Respondent signed the form, with the fictitious name and phone number, and paid Ms. Edge a cash fee of $75.00 for a 60-minute massage. The massage therapist, Ms. Edwards, returned to the spa at about 6:10 p.m., accompanied by her friend, Karen Arrington. She met the Respondent (for the first time) and then went to the massage room to prepare for the Respondent’s massage. About five minutes later she showed the Respondent to the massage room. She told him to undress and lie face down on the massage table under a twin-size bed sheet. She told him to thus cover his "private areas" and to tuck the sheet under his hips. The Respondent agreed and, while Ms. Edwards was out of the room, he disrobed. After several minutes, Ms. Edwards knocked on the door and re-entered the room, finding the Respondent lying face down under the bed sheet. He was nude, except for the sheet covering him. Ms. Edwards pulled the sheet down to his lower back and began massaging his lower back, keeping his buttocks covered by the sheet. During this process the Respondent pulled the sheet down, exposing his buttocks. Ms. Edwards replaced the sheet, admonishing him to keep that area covered. Upon finishing with his back, Ms. Edwards told the Respondent to roll over and lie on his back while she continued with the massage. He was covered from the top of his back downward while this change of position was made. Ms. Edwards then continued with the massage. While thus lying on his back, the Respondent pulled the sheet down, exposing his erect penis to Ms. Edwards while she was about three feet away. She testified that she had never before seen a man’s penis like that, in that there was ". . . excess skin over the top of his penis." The Respondent acknowledged in testimony that he is uncircumcised. While thus exposed, the Respondent began to apparently masturbate, using his hand. Ms. Edwards was about three feet away at the time. She did not consent to this conduct and was very upset by such an act in front of her. Ms. Edwards ran out of the room and to the lobby area and told Ms. Edge that the Respondent was "back there jerking off.” She also told Ms. Arrington, and told her to call the police. The Respondent then dressed and came into the lobby. Ms. Edwards yelled at him that the spa was a respectable establishment and that the police were being called. Ms. Edwards tried to block his exit, but the Respondent fled the building at this point. Ms. Edwards followed him. Ms. Arrington was already outside speaking with the “911” operator on her cell phone. Ms. Arrington grabbed the Respondent by the shirt and confronted him, at which point he pushed her to the ground and fled on foot down the sidewalk along Highway 98. He left his car in the spa parking lot. Ms. Edwards and Ms. Arrington followed the Respondent, calling to him to stop and that the police were on their way. Ms. Arrington stopped and picked up a beer bottle and broke it, carrying it with her to use as a weapon. She testified that she feared the Respondent might do her violence if she confronted him. The chase continued for more than one-half mile. A deputy sheriff arrived and Ms. Arrington pointed out the Respondent. The deputy took him into custody. On his own volition, the Respondent told the deputy that he had scratched himself during a massage and the masseuse had gone “ballistic.” The Respondent stated that he had done nothing wrong. When the officer asked him why he fled, he replied that one of the women was throwing bottles at him. Both Ms. Edwards and Ms. Arrington wrote witness statements for the deputy. In testimony, Ms. Edwards described the Respondent’s act verbally and with an illustrative hand motion. She did not describe the duration of the act, as she observed it. The Respondent maintained that he was doing no such act, but rather was scratching himself because the sheet caused him to itch. The Respondent used false identification information when he went to the spa because he is a public servant (fire chief) and did not want adverse publicity associated with his paying for a massage during a time when employees were subject to lay-offs due to shrinking budgets. He did not flee in his car because he did not want his identity to become known through means of his tag number.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the record evidence and the pleadings and arguments of the parties, it is Recommended that a Final Order be entered by the Criminal Justice Standards and Training Commission, revoking the Respondent’s Law Enforcement Certification, Number 155216. DONE AND ENTERED this 3rd day of December, 2009, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF 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 3rd day of December, 2009. COPIES FURNISHED: Joseph S. White, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Gene Mitchell, Esquire 2101 North 9th Street Pensacola, Florida 32502 Michael Ramage, General Counsel Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Gerald M. Bailey, Commissioner Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
The Issue Whether Petitioner is entitled to an award of attorney's fees and costs as a prevailing small business party in an adjudicatory proceeding initiated by a state agency as provided under the Florida Equal Access to Justice Act (FEAJA), Section 57.111, Florida Statutes.
Findings Of Fact Petitioner, Hyacinth D. Wynter, now known as Hyacinth D. Wallace, is the owner of a residence and care facility located at 2323 Tuscawilla Road, Winter Springs, Florida, from 1996 to the present. Respondent, Department of Health, a successor agency to the Department of Health and Rehabilitative Services, is the state agency charged with the responsibility of investigating and correcting sanitary nuisances in the state. The Seminole County Health Department, a division of Respondent, was aware that the Petitioner had purchased the subject commercial property to establish an elderly residence facility. A member of the Seminole County Development Review Committee was aware that the Petitioner had purchased the property for an elderly home business. The Respondent's Inspector acknowledged that on his first visit to the residence, he observed three elderly persons who looked like they lived there. The Petitioner established that she had three residents living in a family care program, which was not required to be licensed, but, prior to the proceedings, moved them to one of her other licensed assisted living facilities. Petitioner established that she was operating a business on the property as a sole proprietor; that her principal place of business was located at 2323 Tuscawilla Road, Winter Springs, Florida; that she did not have more than 25 full-time employees; and that she did not have a net worth of more than $2,000,000. On or about June 19, 1996, the Seminole County Public Health Department received a complaint of a possible sanitary nuisance existing on the Petitioner's property. On June 21, 1996, an inspection of Petitioner's property revealed that the property contained a large home with a septic tank and drainfield in the front yard and another in the back yard. A kennel for small animals and an apartment was also located in the rear of the property. The septic tank and drain field in the rear of the property were located in a low spot which was subject to the accumulation of surface water runoff from the kennel and during periods of above-average rainfall. Observation by the Respondent's inspector revealed standing water in the backyard. The water showed discoloration and had a pungent odor. However, no solid waste was visible. Although, subsequent tests for sewage contamination were inconclusive, the inspector's observation indicated the drain field had failed. Petitioner was given a Sanitary Nuisance form letter which recommended that the septic tank be pumped, the ground disinfected and the drainfield be repaired within ten days. Respondent re-inspected Petitioner's property on July 2, 1996, and observed the same conditions as were observed on June 21, 1996. A three-day extension was granted to Petitioner in order for the tank to be pumped. On July 3, 1996, Orlando Septic Tank Service, Inc., pumped the septic tank and disinfected the area. It also advised Petitioner that the drainfield had failed and would need to be replaced. On July 8, 1996, Respondent inspected the area again and observed the same conditions as on the prior inspections. An Official Notice to Abate a Sanitary Nuisance and a Notice of Intended Action was issued by Respondent on July 11, 1996. It was served on Petitioner by posting and by certified mail, on July 12, 1996. Petitioner was directed to abate the nuisance within seven days of the notice or an administrative fine would be imposed. On August 13, 1996, Respondent inspected the Petitioner's property again and observed the same conditions as on previous inspections. Respondent was informed of the projected starting date for repair of the drainfield; however, a Citation for Violation was issued on August 16, 1996, calling for corrective actions to abate the condition by 4:00 p.m., August 19, 1996. In the Recommended Order, the findings of fact determined that the test for sewage contamination was inconclusive. The evidence was insufficient for the Petitioner to meet its burden of proof that the standing water was a nuisance injurious to health or that the kennel immediately adjacent to the site did not contribute to the coloration and the odor associated with the standing water. The Recommended Order was adopted by the Agency in a Final Order on July 13, 1997. Petitioner established a contractual relationship with the law firm of Leffler & Associates, P.A., and Michael D. Jones, Esquire, to represent her interest in this cause on a contingent fee basis whereby the legal fees received would be those awarded by this Administrative Law Judge. Michael D. Jones testified that prior to the instant proceeding, his firm had billed a total of 27.75 hours, billed at the rate of $185 per hour. Jones anticipated an additional $500 in time to prepare and attend the hearing, together with $50 in costs for Landmark Reporting. Tom F. Lang, Esquire, a licensed attorney with experience in the administrative area of law, testified that after review of the file and Jones' time records that a reasonable fee which should be charged in the Central Florida area would be in the vicinity of $6,500 together with costs.
