The Issue Whether Respondent's Leasing Manual HRS M 70-1 is a rule and, if so, is it an invalid exercise of delegated legislative authority?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: The Department's Leasing Manual HRS M 70-1 (Manual) sets out the procedure to be followed when the Department is seeking to lease space of 2,000 square feet or more in privately owned buildings. Within this manual are the forms to be utilized for this purpose and, among other forms, is an Invitation to Bid (ITB) For Existing Facilities packet that contains a Bid Submittal Form (BSF) and, within the BSF is a page entitled Evaluation Criteria. The Department followed the procedure set forth in the manual in advertising for competitive bids on Lease No. 590:2029 for office space in Inverness, Florida service area of District Three and, in doing so, used the ITB For Existing Facilities packet that contained the BSF with the Evaluation Criteria page. The BSF, including the Evaluation Criteria page, is a slightly modified version of the Department of General Services' (DGS) Request For Proposal Submittal Form - BPM 4136, incorporated by reference in Rule 13M-1.015(3)(e), Florida Administrative Code, as a suggested format. The Evaluation Criteria page of the Department's BSF contains nine of the eleven evaluation criteria set forth on the evaluation criteria page of the BPM 4136, but does not place any limit on the weight of award factor as does BPM 4136 on two of the same criteria used by the Department. Both the BSF and BPM 4136 are used in bidding for space in existing facilities and, therefore, require a scaled floor plan showing present configuration, with measurements that equate to the net rentable square footage using the Standard Method of Space Measurement. The BSF does not attach a "floor plan for suggested configuration of offices and rooms" as does the BPM 4136 but does provide the number, types and sizes of rooms to be placed in the existing facility. Both forms leave the final configuration of the floor plan to the successful bidder and the lessee. The Department's reasoning for not including a "suggested floor plan" is that this may reduce the number of prospective bidders due to the varied configuration of existing facilities in the bid area. In accordance with the procedure set forth in the Manual an Evaluation Committee (Committee) was appointed to determine, among other things, the award factor (weight) to be placed on the nine evaluation criteria set forth on the Evaluation Criteria page of the BSF. The Committee determined the significance of the nine criteria on the Evaluation page to the Department's needs in regard to Lease No. 590:2029 and awarded a weight factor in accordance with the significance of the criteria. Those criteria most significant to the Department's needs received the highest weight. These award factors were added to the Evaluation page of the BSF at the time the ITB was advertised. The procedure and the forms set forth in the Manual and used by the Department, including the procedure followed by the Evaluation Committee, in putting together the ITB for Lease No. 590:2029 comports substantially with all substantive provisions of Rule 13M-1, Florida Administrative Code, and more specifically Rule 13M-1.015, Florida Administrative Code, adopted by DGS pursuant to Section 255.249(2), Florida Statutes. The differences, such as they are, are not substantial, nor is there any extrinsic or intrinsic divergence from the substance of the rule such as to mislead any potential bidder who sought to address the ITB. The Manual, including the ITB and BSF, sets forth the Department's policy and describes the procedure to be followed by the Department, including each Evaluation Committee selected, and all prospective bidders, in its leasing practices when the Department seeks to lease 2000 square feet of office space or more in privately owned buildings and, although the Manual has been reduced to writing, it has not been promulgated or adopted as a rule.
The Issue Whether Respondent, a dentist, committed the offenses alleged in the second amended administrative complaint and the penalties, if any, that should be imposed.
Findings Of Fact Petitioner, Agency for Health Care Administration (AHCA), is the state agency charged with regulating the practice of dentistry pursuant to Section 20.42, Florida Statutes; Chapter 455, Florida Statutes; and Chapter 466, Florida Statutes. References to Petitioner in this Recommended Order include the Department of Business and Professional Regulation, which regulated the practice of dentistry prior to the creation of AHCA. Respondent is, and has been at all times material hereto, a licensed dentist in the State of Florida, having been issued license number DN 0005929. Respondent's main area of practice is general dentistry. Respondent's last known address is his residence at 1205 Lincoln Road, Miami Beach, Florida 33139. At all times pertinent to this proceeding, Respondent lived at that address with his wife, Lisa Iver. Cocaine is a highly addictive central nervous system stimulant. Benzodiazepines, such as Valium and oxazepam, are central nervous system depressants that have the opposite effect of cocaine on the central nervous system. The usage of these two types of drugs by a cocaine user with medical knowledge may act to balance the visible and medically detectable effects of cocaine on the central nervous system. Since at least 1988, Respondent has been a cocaine addict. Various toxicology tests have reflected that he has taken a form of benzodiazepine following cocaine use. There are several factors that have worked to make Respondent's recovery more difficult. He has experienced severe marital problems, his mother was an alcoholic, and wife is also chemically dependent. The addiction recovery of one spouse directly affects the addiction recovery of the other. If one spouse falls off the wagon, the other spouse is very likely to fall out of recovery. The Physician's Recovery Network (PRN) is an independent program for monitoring certain impaired professionals, including dentists. PRN requires individuals to be evaluated and enter drug treatment, if appropriate, pursuant to a written agreement with the impaired practitioner. The PRN conducts random drug screens and provides for the exchange of information between the treatment programs, PRN, and the Petitioner for the protection of the public. The advocacy of PRN is designed to protect practitioners who have been offered the opportunity to receive care instead of discipline. The PRN program is confidential and not subject to public scrutiny. THE FIRST PRN CONTRACT - 1988 On or about March 12, 1988, Respondent was arrested as a result of a shooting incident involving his wife. Respondent was transported to South Miami Hospital due to his alleged cocaine abuse. Respondent was admitted to South Miami Hospital for substance abuse evaluation and treatment. During his evaluation and treatment at South Miami-Hospital, Respondent claimed a prior sedative overdose which required hospitalization at Mount Sinai Medical Center, allegedly due to his wife spiking his drink. During his evaluation and treatment, Respondent admitted to prior sporadic use of intra-nasal cocaine. Respondent also admitted to previously free basingcocaine, experiencing paranoia, and having other reactions from cocaine. Respondent refused a nasal examination. Detoxification was required and Respondent was diagnosed as possibly being addicted to cocaine. Respondent left South Miami Hospital against medical advice on March 15, 1988, two days after being admitted. Respondent was readmitted to South Miami Hospital on April 11, 1988. As a result of Dr. Iver's arrest in March 1988, and the recommendations of the doctors who evaluated him, the PRN was contacted. Respondent signed a Chemical DependencyContract with the PRN on or about May 23, 1988. On or about June 26, 1990, Respondent signed a Chemical Dependency Contract extending his monitoring for an additional three (3) years. On or about June 26, 1993, Respondent completed his PRN contract. AFTER THE FIRST PRN CONTRACT - SEPTEMBER 1993 On September 21, 1993, the PRN received multiple telephone calls from Ms. Iver stating Respondent was using "free base" cocaine. She later retracted this story and stated that she had spiked his food. On that date, Mrs. Iver filed a domestic violence complaint (#93-33887) against Respondent with the Miami Beach Police Department. An assault rifle, and other gun-related items were taken into custody by the police. The offense report states that the attack by Respondent on his wife was a result of an argument regarding his "narcotic use." The PRN ordered Respondent to submit to a professional evaluation. On September 24, 1993, Respondent was admitted to Mount Sinai Hospital for an inpatient evaluation. Dr. John Eustace was the evaluating physician. Dr. Eustace is board certified by the American Society of Addiction Medicine and is the medical director of the addiction treatment program at Mount Sinai. During that evaluation, Respondent tested positive for oxazepam and cocaine. As a result of the inpatient evaluation, Dr. Eustace formed the opinion that Respondent was in relapse and recommended that Respondent sign a chemical dependency contract with PRN and that he refrain from practicing dentistry until he had entered a recovery life-style. Dr. Eustace used the term "relapse" without regard to whether the ingestion was voluntary or involuntary. Dr. Eustace was of the opinion that Respondent did not have an adequate recovery program in September 1993 because he was no longer involved in the PRN monitoring program, he was not attending or actively involved in the twelve step program for recovering addicts. During the evaluation, Respondent admitted responsibility for having an inadequate recovery program. Dr. Eustace's diagnosis on Respondent's discharge were as follows: Chemical dependency, inactive by history. Chemical dependency relapse behaviors, active. Obsessive compulsive traits. Adult child of alcoholic mother. Co-dependent behavior. Dr. Eustace's specific recommendations for Respondent pertinent to this proceeding, made at a time Respondent and his wife were contemplating divorce and before she entered a treatment program, were as follows: Reinstitute a program of total abstinence. Enter into a second PRN contract with the length of time to be determined by the PRN staff. Recruit a home group of Alcoholics Anonymous (AA) or Narcotics Anonymous (NA). Recruit a sponsor for the purpose of working the twelve steps. Attend ninety meetings of AA or NA within the next ninety days. Detach from his office practice until his drug screen had cleared and he had entered a life- style of recovery. Detach emotionally and physically form his wife. Turn all further matters concerning his divorce over to his attorney. Obtain a personal physician to avoid self- medication. Begin a professional relationship with a therapist knowledgeable about the adult child of an alcoholic syndrome, knowledgeable about the disease of addiction, and knowledgeable about co-dependency treatment. PRN, based largely on Dr. Eustace's evaluation, recommended that Respondent enter into a new contract for monitoring and to continue treatment. Respondent refused to sign a new contract. On or about December 16, 1993, PRN forwarded a letter of complaint to Petitioner. Dr. Roger Goetz, Director of PRN, noted that Respondent had a urinalysis which contained metabolites of cocaine and benzodiazepines and that Respondent refused to voluntarily enter PRN. No further action was taken against the Respondent at that time. JULY AND AUGUST 1994 On or about July 7, 1994, PRN informed Petitioner it had information from a confidential informant that Respondent was free basing cocaine. The allegations stated that Respondent appeared to be "coked" up and failed to show up at his dental office. Dr. Goetz, Director of PRN, believed that intervention might be possible through a Miami affiliate. On July 7, 1994, Dr. Jules Trop, a doctor with the Miami affiliate of PRN, evaluated Respondent. Respondent denied any drug use but refused to submit a urine sample for drug testing. Dr. Trop observed Respondent's appearance to be disheveled and his speech pattern strained. Dr. Trop expressed the opinion that Respondent was in need of professional help. On or about July 26, 1994, the Agency was informed by PRN that Respondent refused intervention by PRN. As a result of the foregoing, an Order Compelling Physical and Mental Examination was ordered by the Agency on August 15, 1994. The evaluation pursuant to the Order Compelling Physical and Mental Examination was conducted a week after the Order was served upon Respondent. On August 23, 1994, Dr. Hans Ueli Steiner, a psychiatrist, evaluated Respondent pursuant to the Order Compelling Physical and Mental Examination. Dr. Steiner formed the opinion that Respondent presented characteristics of an addict in denial and was a potential risk to his patients. Dr. Steiner believed that objective monitoring was the only reliable way to ascertain the continued sobriety of Respondent. Respondent admitted to Dr. Steiner that he had used drugs in the past. He further admitted that he was an addict. JULY AND AUGUST 1995 On July 28, 1995, police officers from the City of Miami Beach Police Department were called to the Iver residence in response to a 911 call. Upon arrival the officers observed drug paraphernalia commonly associated with free basing cocaine in the bedroom shared by Dr. and Mrs. Iver. Respondent had been free basing cocaine prior to the arrival of the police. The officers confiscated the paraphernalia, but took no further action against Respondent that evening. On Wednesday, August 2, 1995, at approximately 8:38 p.m., police officers with the City of Miami Beach Police Department were dispatched to the Iver residence because Mrs. Lisa Iver called 911 stating that her husband Robert Iver had overdosed on cocaine. The 911 tape reveals a voice in the background making a loud verbal noise. According to the incident report prepared by the Miami Beach Police Department, Ms. Iver told the police officers who came to the Iver residence in response to the 911 call that the Respondent had gone crazy and was out of control due to free-basing cocaine. Accompanied by professionals from the City of Miami Beach Fire and Rescue Unit, the police officers entered the Iver residence and found Respondent naked and covered in blood. Additionally, the police discovered broken glass along with a cocaine pipe, propane torch, a glass beaker, and a can that had been altered to accommodate the smoking of crack cocaine. The cocaine pipe, propane torch, and glass beaker are items or devices commonly associated with free basing cocaine and are similar to the items removed from the house on July 28, 1995. Respondent indicated to the police officers at the scene that he had been free-basing cocaine and stated that he had taken a "hit" off the pipe and then thought he was being attacked by three men. According to the Miami Beach Police Department incident report, Mrs. Iver stated that Respondent had been smoking a lot of cocaine and then requested that she sodomize him with a sexual apparatus. Upon refusing, he began punching her in the chest and kicking her. He also pulled her across the floor by her hair. Ms. Iver had physical injuries that were consistent with the reported abuse by Respondent. Respondent was arrested for battery as a result of this incident. During this police investigation, Mrs. Iver was wearing a bandage on her chin and had two (2) broken teeth. Mrs. Iver stated that the observed injuries were a result of her husband, Respondent, punching her two days earlier, on Monday, July 31, 1995 after an argument regarding Respondent's drug abuse. A police photographer was called to the scene by Officer Hochstadt. Color photographs of Dr. and Mrs. Iver and of the scene were taken by the crime scene technician. The photographer's report listed the investigation as a possible attempted suicide. The cocaine pipe, propane torch, and glass beaker were taken into custody by the police. Respondent was transported by the Fire and Rescue Unit to Jackson Memorial Hospital emergency room for treatment. The States Attorney's Office charged Respondent with two counts of misdemeanor battery and one count of misdemeanor possession of drug paraphernalia based on the events of August 2, 1995. On or about October 17, 1995, Robert Iver was found guilty of one count of use, possession, manufacture, delivery, or advertisement of drug paraphernalia, and one count battery, after pleading nolo contendre to each charge. Adjudication was withheld and Iver was sentenced to twelve months probation for each charge to run concurrently. Among the terms of his probation was the requirement that he participate in a PRN approved recovery program. The aforementioned crimes relate to the practice of dentistry or dental hygiene. 1/ THE EMERGENCY SUSPENSION ORDER - SEPTEMBER 15, 1995 On September 13, 1995, after reviewing the substance abuse history of Respondent and the foregoing police incident reports relating to drug usage in the middle of the workweek, Dr. Roger Goetz of PRN opined that Respondent is impaired and that his inability to practice dentistry poses an immediate and serious danger to the public health, safety, and welfare. This opinion resulted in an Emergency Suspension Order being filed on September 15, 1995. Respondent has been prohibited from practicing dentistry since that date based on that order. MISCELLANEOUS FACTS BASED, IN PART, ON THE STIPULATION Respondent, by and through counsel, on approximately February 15, 1994, proffered to the Agency that Respondent had submitted himself to numerous drug screens and all were negative for any controlled or illegal substances. No actual laboratory reports were produced. From approximately January 1994 to June 1994, the Petitioner actively cooperated with Respondent's counsel to negotiate a satisfactory resolution to the complaint. Respondent has, at times, denied his addiction to cocaine after numerous past positive tests, treatment and counseling. Respondent's enthusiasm about prior recovery attempts tailed off as he became more involved with his dental practice. Lisa Iver testified that she and her husband, Robert Iver, Respondent, were getting along better since entering the Mount Sinai program in September 1995, because they were currently both clean and off drugs. THE SECOND PRN CONTRACT - OCTOBER 20, 1995 On September 22, 1995, Respondent went to Dr. Eustace for the purpose of establishing a program of personal recovery, marriage and family recovery, and reentry into the PRN. Mrs. Iver also entered a recovery program at Mt. Sinai. On October 20, 1995, Respondent signed a new contract with the PRN. While Respondent asserts that he "voluntarily" entered into this contract, that characterization is inaccurate since he entered this contract after the entry of the ESO. The order of probation entered in the criminal proceeding, also signed October 20, 1995, required his participation in such a program. By signing this PRN contract, Respondent agreed that he would have random unannounced urine or blood screens, that he would abstain from using all mood altering substances, medications, alcohol and others, that he would be monitored by a physician, that he would notify the PRN if he changed his address or employment; that he was to attend a self help group such as AA or NA seven times per week; that he would receive continuing care in group therapy one time per week; that he would attend a twelve step program for recovering professionals; that he would notify the PRN in the event of a relapse; that he would agree to withdraw from practice at the request of the PRN if any problem developed; and that his wife would also enter a recovery program. In his present capacity, Dr. Eustace provides evaluations for the PRN. In this respect he sees his role as that of a servant for the PRN. He renders reports and recommendations to the PRN. The PRN relies with confidence upon Dr. Eustace's opinions and reports. Since October 20, 1995, the date Respondent signed a PRN contract, Dr. Eustace has been his monitoring physician within the program. While in the program, Respondent has undergone psychological testing, personal interviews and has otherwise complied with the terms of his PRN contract. Dr. Eustace found no evidence of any chemical relapse, Respondent's behavior is one of compliance with the PRN and he is participating in a monitored group and in a peer professional group. Both Dr. and Mrs. Iver are progressing satisfactorily. It is important to the recovery life-style of Respondent that his wife continue progressing satisfactorily in her recovery program. One important difference in Respondent's life-style prior to his signing the October 20, 1995, PRN contract and subsequent thereto is that his wife is seeking professional help for her addiction. On October 31, 1995, Dr. Eustace wrote to Dr. Goetz advising him that it was his opinion that Respondent is adhering to a recovery life-style, is in full compliance with PRN directives, is not a danger to the public or himself and that he can safely practice dentistry. Dr. Goetz acquiesced in Dr. Eustace's opinion in testimony before the Board of Dentistry in November 1995. Both Dr. Eustace and Dr. Goetz testified that in their opinions, Respondent can practice dentistry with safety and without danger to the public health, safety or welfare as long as he is being monitored by the PRN. Dr. Goetz further testified that there has been a "decent" period of time over which to monitor Respondent since his emergency suspension in September. Dr. Hans Ueli Steiner, who had evaluated Respondent in August 1994, expressed the opinion that Respondent was beyond hope. Dr. Steiner based this opinion on his one and one half hour conversation with Respondent in August 1994, on the testimony presented at the formal hearing, and on his observations of Respondent at a deposition and on the first day of the formal hearing. He did not review any medical records as he thought that they were not important. It was Dr. Steiner's opinion that Respondent was not safe to practice dentistry based primarily on the fact that Respondent had relapsed in 1993 and 1994 and therefore the PRN program was unsatisfactory for him. Dr. Steiner also questions Respondent's honesty and his commitment to recovery. Dr. Steiner disagrees with Dr. Goetz and Dr. Eustace and states that they are emotionally involved with his recovery. This emotional involvement, in Dr. Steiner's opinion, prevents them from giving an objective medical opinion. However, Dr. Eustace clearly stated that all of his opinions related to Respondent were based upon the professional relationship and were medical opinions. Dr. Goetz stated that he had never met Respondent until the Board's November 1995 meeting and has relied, in most part, on the opinions expressed by Dr. Eustace. There was testimony as to the dangers of a recovering addict. An addict may be sober one day and under the influence of an addictive substance the next. It is possible that even after signing a PRN contract and being monitored, the Respondent may relapse. It is also possible that if the Respondent falls off the wagon or falls out of recovery, he could harm a patient before PRN is notified and appropriate action is taken. It is also true that no one, including PRN, Dr. Goetz, and Dr. Eustace, can guarantee that the Respondent will not use cocaine, and no one can guarantee that Respondent is able to practice dentistry with reasonable skill and safety. The greater weight of the evidence established, however, that the PRN was developed to assist recovering addicts, that the program is as good as any of its type, and that the program works as long as the impaired practitioner is adhering to the terms of the contract. The testimony of Dr. Eustace and of Dr. Goetz on January 10, 1996, that Respondent is presently safe to practice dentistry and that he poses no danger to the public's health, safety or welfare is more persuasive than that of Dr. Steiner that Respondent is beyond help. This conclusion is reached, in part, because of Dr. Eustace's expertise, his extensive work with the Respondent, and because Respondent was able to practice without incident while being monitored by the PRN. It is also concluded that Dr. Eustace is in a better position than Dr. Steiner to evaluate Respondent's honesty and his commitment to recovery. The PRN program worked for Respondent in the past as he was able to safely practice between 1988 and 1993 when he was being monitored pursuant to a PRN contract.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered which finds that Respondent violated the provisions of Section 466.028(1)(c) and (s), Florida Statutes, which imposes an administrative fine in the amount of $6,000.00, which suspends his license to practice dentistry until September 14, 1996, which requires the PRN to attest at its Board meeting in August 1996 that Respondent has adhered to the terms of his PRN contract and that he remains capable of safely practicing dentistry, and which places his licensure on probation for as long as he practices dentistry in Florida. It is further recommended that the terms of his suspension and the terms of his probation require that he maintain a contract with the PRN at all times and that he strictly adhere to all terms of the PRN contract. It is further recommended that Respondent be reprimanded for these two offenses. DONE AND ENTERED this 2nd day of February 1996 in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of February 1996.
Findings Of Fact Based upon the evidence adduced at the evidentiary hearing on the Department's Motion, and the record as a whole, the following Findings of Fact are made: In October of 1995, Petitioners, who desired to construct a single-family, concrete dock in the Hillsboro Canal (in Broward County, Florida) for their 171-foot yacht and to perform dredging adjacent to the dock (Project), filed with the Department a Joint Application for Environmental Resource Permit/Authorization to Use State Owned Submerged Lands/Federal Dredge and Fill Permit (Application). In the Application, Petitioners indicated that their mailing address was: c/o Flynn Enterprises 676 N. Michigan Ave., Suite 4000 Chicago, IL 60611 Flynn Enterprises, Inc., is a business owned by Petitioner Donald Flynn. The Application listed "Jeff Adair, Project Manager" of "Keith and Schnars, P.A., 6500 N. Andrews Avenue, Ft. Lauderdale, FL 33309," as the "agent authorized to secure permit" for Petitioners. The application form that Petitioners used to submit their Application contained the following signature page: By signing this application form, I am applying, or I am applying on behalf of the applicant, for the permit and any proprietary authorizations identified above, according to the supporting data and other incidental information filed with this application. I am familiar with the information contained in this application and represent that such information is true, complete and accurate. I understand this is an application and not a permit, and that work prior to approval is a violation. I understand that this application and any permit issued or proprietary authorization issued pursuant thereto, does not relieve me of any obligation for obtaining any other required federal, state, water management district or local permit prior to commencement of construction. I agree, or I agree on behalf of my corporation, to operate and maintain the permitted system unless the permitting agency authorizes transfer of the permit to a responsible operation entity. I understand that knowingly making any false statement or representation in this application is a violation of Section 373.430, F.S. and 18 U.S.C. Section 1001. Typed/Printed Name of Applicant (if no Agent is used) or Agent (if one is so authorized below) Signature of Applicant/Agent Date (Corporate Title if applicable) AN AGENT MAY SIGN ABOVE ONLY IF THE APPLICANT COMPLETES THE FOLLOWING: I hereby designate and authorize the agent listed above to act on my behalf, or on behalf of my corporation, as the agent in the processing of this application for the permit and/or proprietary authorization indicated above; and to furnish, on request, supple- mental information in support of the appli- cation. In addition, I authorize the above- listed agent to bind me, or my corporation, to perform any requirement which may be necessary to procure the permit or authorization indicated above. I understand that knowingly making any false statement or representation in this application is a violation of Section 373.430. F.S. and 18 U.S.C. Section 1001. Typed/Printed Name of Applicant Signature of Applicant Date (Corporate Title if applicable) Please note: The applicant's original signature (not a copy) is required above. PERSON AUTHORIZING ACCESS TO THE PROPERTY MUST COMPLETE THE FOLLOWING: I either own the property described in this application or I have legal authority to allow access to the property, and I consent, after receiving prior notification, to any site visit on the property by agents or personnel from the Department of Environ- mental Protection, the Water Management District and the U.S. Army Corps of Engineers necessary for the review and inspection of the proposed project specified in this application. I authorize these agents or personnel to enter the property as many times as may be necessary to make such review and inspection. Further , I agree to provide entry to the project site for such agents or personnel to monitor permitted work if a permit is granted. Typed/Printed Name Signature Date (Corporate Title if applicable) The name "Jeff Adair" appears on the "Name of Applicant (if no Agent is used) or Agent (if one is so authorized below)" line under the first paragraph on the signature page of Petitioners' Application; however, neither Adair's signature, nor any other signature, appears on the signature line under this paragraph. Petitioner Donald Flynn's signature appears on the signature lines under the second (agent designation and authorization) and third (access to property) paragraphs on the page. By letter dated November 17, 1995, the Department informed Petitioners of the following: Preliminary evaluation of your project leads staff to the conclusion that the project as proposed cannot be recommended for approval. While this is not final agency action or notice of intent, it does represent the staff review of your application based on consider- able experience in permitting matters. We are sending you this letter at this stage of the processing to allow you to assess fully the further commitment of financial resources for design dependent on permit issuance. . . . In summary, please revise plans to: (1) reduce the amount of dredging; (2) reduce impacts to natural resources; (3) reduce the size of the dock; (4) reduce encroachment on navigational channel; (5) reduce encroachment on adjacent properties; and (6) after minimization, offer mitigation plans that would address the loss of seagrass in the vicinity (watershed or basin) of the project site. Your application is currently "incomplete" and Final Agency Action will not occur until a reasonable amount of time is allowed for the submittal of a revised plan. A completeness summary has been sent under separate cover, addressing the items that are still outstanding. Staff will continue to process your application in the normal manner; however, I suggest you contact Tim Rach of this office . . . to discuss these possible alternatives regarding your project. The Department's November 17, 1995, letter was addressed to Petitioners "c/o Jeff Adair, Project Manager, Keith and Schnars, P.A., 6500 North Andrews Avenue, Fort Lauderdale, FL 33309-2132," as were subsequent requests for additional information made by the Department and other correspondence from the Department concerning the Project. Adair responded to the Department's requests for additional information and otherwise corresponded and communicated with the Department on behalf of Petitioners. In July of 1996, Adair participated in a telephone conference call during which the Department advised him that, if the Application was not withdrawn, it would be denied. On August 13, 1996, Adair sent the following letter to the Department concerning the Project: Pursuant to our recent discussions pertaining to the proposed mitigation plan and final review and processing of the Flynn Dock application, we have been advised via Mr. Flynn's attorney not to withdraw the application. Therefore, we await the Department's final decision relative to the permittability of this project. As you have indicated, we are anticipating the Depart- ment's response toward the end of this month. In making your decision, we strongly urge you to consider the merits or our innovative and "no risk" mitigation plan. We believe our mitigation plan more than compensates for proposed impacts and provides substantial net benefits to the environment and the research community. In particular, information obtained from our proposed research effort would not only benefit our project, but would also facilitate scientific analysis and review of similar applications and issues. As always, please do not hesitate to call should you have any questions or concerns. On August 19, 1996, the Department sent the following letter to Petitioners "c/o Flynn Enterprises, 676 N. Michigan Ave., Suite 4000, Chicago, IL 60611," the address that Petitioners had indicated in the Application was their mailing address: We have reviewed the information received on May 31, 1996 for an Environmental Resource Permit and authorization to use sovereign submerged lands. The Department has deemed the application complete as of this date. Final action on your application for an Environmental Resource Permit and sovereign[] submerged lands authorization will be taken within 90 days of receipt of your last item of information unless you choose to waive this timeclock. If you have any questions, please contact me at . . . . A copy of this August 19, 1996, letter was sent by the Department to Adair. On August 27, 1996, the Department issued a Consolidated Notice of Denial (Notice) in which it announced its preliminary decision to deny Petitioners' Application. The Notice contained the following advisement: A person whose substantial interests are affected by the Department's action may petition for an administrative proceeding (Hearing) in accordance with Section 120.57, Florida Statutes. Petitions filed by the permittee and the parties listed below must be filed within 14 days of receipt of this letter. Third party Petitioners shall mail a copy of the petition to the permittee at the address indicated above at the time of filing. Failure to file a petition within this time period shall constitute a waiver of any right such person may have to request an administrative determination (hearing) under Section 120.57, F.S. The Petition must contain the information set forth below and must be filed (received) in the Office of General Counsel of the Department at 3900 Commonwealth Boulevard, Mail Station 35, Tallahassee, Florida 32399-3000: The name, address, and telephone number of each petitioner, the permittee's name and address, the Department Permit File Number and county in which the project is proposed; A statement of how and when each petitioner received notice of the Depart- ment's action or proposed action; A statement of how each petitioner's substantial interests are affected by the Department's action or proposed action; A statement of the material facts disputed by petitioner, if any; A statement of facts which petitioner contends warrant reversal or modification of the Department's action or proposed action; A statement of which rules or statutes petitioner contends warrant reversal or modification of the Department's action or proposed action; and A statement of the relief sought by petitioner, stating precisely the action petitioner wants the Department to take with respect to the Department's action or proposed action. If a petition is filed, the administrative hearing process will constitute a renewed determination of the Department's decision on the application. Accordingly, the Department's final action may be different from the position taken by it in this letter. Persons whose substantial interests will be affected by any decision of the Department with regard to the permit have the right to petition to become a party to the proceeding. The petition must conform to the requirements specified above and be filed (received) within 14 days of receipt of this notice in the Office of General Counsel at the above address of the Department. Failure to petition within the allowed time frame constitutes a waiver of any right such person has to request a hearing under Section 120.57, F.S., and to participate as a party to this proceeding. Any subsequent intervention will only be at the approval of the presiding officer upon motion filed pursuant to Rule 28-5.207, and 60Q-2.010, F.A.C. This Notice constitutes final agency action unless a petition is filed in accordance with the above paragraphs or unless a request for extension of time in which to file a petition is filed within the time specified for filing a petition and conforms to Rule 62-103.070, F.A.C. Upon timely filing of a petition or a request for an extension of time this Notice will not be effective until further Order of the Department. . . . The Notice was mailed (by certified mail, return receipt requested) to Petitioners "c/o Flynn Enterprises, 676 N. Michigan Ave., Suite 4000, Chicago, IL 60611." Although the Notice's certificate of service reflected that a copy of the Notice had been mailed to Adair "before the close of business on AUG 27 1996," in fact, as a result of inadvertence on the part of Department staff, a copy of the Notice had not been mailed to Adair. On September 3, 1996, the Notice sent to Petitioners was received by a Flynn Enterprises, Inc., employee at the address to which it was mailed. The employee executed a return receipt upon receiving the Notice. The Notice was referred to Victor Casini, Esquire, the general counsel of Flynn Enterprises, Inc., on September 4, 1996. Casini set the document aside for filing. He did not believe that there was any immediate action that he or anyone else in the Flynn Enterprises, Inc., office in Chicago needed to take in response to the Notice. Casini noted that Adair's name was listed in the Notice as among those who purportedly had been furnished copies of the Notice. He knew that Adair was handling all matters relating to the permitting of the Project for Petitioners. He therefore assumed that any action that needed to be taken in response to the Notice would be taken by Adair on behalf of Petitioners. Inasmuch as it appeared (from his review of the Notice) that the Department had already furnished Adair with a copy of the Notice, he saw no reason to contact Adair to apprise him of the issuance of the Notice. In taking no action in response to the Notice other than setting it aside for filing, Casini acted reasonably under the circumstances. Adair first learned of the issuance of the Notice during a telephone conversation he had on September 9, 1996, with an employee of Broward County, who mentioned to him, in passing, that the Department had denied Petitioners' Application. 2/ Adair thereupon immediately telephoned the Department to confirm that the Application had been denied. The Department representative to whom he spoke confirmed that the Notice had issued, apologized for the Department's failure to have sent him a copy of the Notice, and promised to rectify the error by sending him a copy of the Notice as soon as possible. Keith Skibicki, the vice president of Flynn Enterprises, Inc., in charge of its day-to-day operations, served as the liaison between Adair and Petitioners. On September 12, 1996, Adair telephoned Skibicki to inquire (for the first time) if Petitioners had received a copy of the Notice. Skibicki, who previously had neither seen nor heard about the Notice, asked around the office and learned that the Notice had been received and was in Casini's files. Skibicki related this information to Adair. Later that same day, September 12, 1996, Adair received the copy of the Notice that the Department had sent him. He then faxed a copy of the Notice to Harry Stewart, Esquire, the Florida attorney who had been retained by Petitioners to assist them in their efforts to obtain favorable action on their Application. Shortly thereafter Adair telephoned Stewart to discuss what they should do in response to the Notice. During their conversation, Stewart expressed the opinion that the 14-day period for filing a petition for an administrative proceeding began to run only upon Adair's receipt of the Notice and that therefore Petitioners had until September 26, 1996, to file their petition. During the two-week period that followed their telephone conversation, Adair and Stewart worked together to prepare such a petition. The petition was filed with the Department on September 26, 1996 (which was 23 days after the Notice had been delivered to the Chicago office of Flynn Enterprises, Inc., but only 14 days after Adair, Petitioners' designated agent in their dealings with the Department, had received a copy of the Notice). The actions taken on behalf of Petitioners in response to the Notice were intended to preserve Petitioners' right to challenge the proposed denial of their Application. At no time was there any knowing and intentional relinquishment of that right.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department enter an order finding that Petitioners' petition challenging the proposed denial of their Application is not time-barred and remanding the matter to the Division of Administrative Hearings for a Section 120.57(1) hearing on the merits of Petitioners' challenge. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 6th day of February, 1997. STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 6th day of February, 1997.
The Issue Whether respondent's license as a registered residential contractor and a registered plumbing contractor should be disciplined on charges that he unlawfully (1) diverted funds received for the purchase of a lot and construction of a home; (2) acted in the capacity of a contractor and used a name other than that appearing on his license; (3) aided and abetted an uncertified or unregistered person to violate the Construction industry Licensing Law; and (4) failed to properly qualify percent business organization.
Findings Of Fact Respondent Is a Licensed Contractor At all times material to the charges, respondent John W. Powell was licensed as a registered residential contractor (license no. RR 0002745) and a registered plumbing contractor (license no. RF 0038050). (Prehearing Stipulation; P-7) Respondent's Sale and Conveyance of Real Property In October, 1978, Joseph J. D'Antoni, a resident of Baltimore, Maryland, visited Indian Lake Estates Subdivision ("Subdivision") in Polk County, Florida, with the intention of purchasing a lot. Respondent, who owned numerous lots in the Subdivision, agreed to sell two lots to Mr. D'Antoni (and his brother-in-law) for the sum of $7,500. Mr. D'Antoni gave him a $1,000 payment, then mailed him the $6,500 balance after returning to Maryland. (Testimony of D'Antoni; P-2) Respondent then executed and mailed a warranty deed conveying Lot 5, Block 340, Indian Lake Estates Subdivision, Unit II, to Mr. D'Antoni and his wife. He used a standard warranty deed form printed for Lawyers' Title Guaranty Fund, Orlando, Florida, and conforming to Section 689.02, Florida Statutes. As grantor, he "fully warrant[ed] the title to said land, and [promised to] defend the same against the lawful claims of all persons whomsoever." (Testimony of D'Antoni; P-2) The deed was prepared by John P. White, an attorney in Lake Wales, Florida. Although respondent, as grantor, did not limit his warranty except for a standard limitation relating to taxes, easements, restrictions, and conditions of record), the preparer of the deed included a personal disclaimer indicating that he (the preparer) was expressing no opinion as to the condition of title: The preparer of this instrument was neither furnished with or requested to review an abstract on the described property and therefore expresses no opinion as to the condition of title. (P-2) Mr. D'Antoni was unaware that the property was encumbered by a mortgage held by the First Highlands Service Corporation. The mortgage had been executed by respondent in 1973. It covered numerous lots in the Subdivision and secured a loan of $330,000. Mr. D'Antoni, who trusted respondent, thought that he was receiving the property free and clear of encumbrances. Respondent did not tell him otherwise. Although the title disclaimer was not read by Mr. D'Antoni, it, by its terms, applied only to Mr. White, the identified preparer of the deed. It did not affect the warranty of title given by respondent, the grantor. (Testimony of D'Antoni; P-2) A year later, in December, 1979, First Highlands Service Corporation sued the D'Antonis, Joseph Giardina, (his brother-in-law), and 19 other owners, seeking to foreclose its mortgage covering the Subdivision lots. In order to obtain release from the mortgage, the D'Antonis and Mr. Giardina paid First Highland Service Corporation $4,000 each. Respondent neither defended their title to the property, nor repaid them the $4,000. (Testimony of D'Antoni; P-4, P-5) Respondent's Construction of a House for the D'Antonis On November 6, 1978, after the deed to lot 5 was executed and delivered, the D'Antonis executed a construction contract with J. W. Powell and Sons, Inc. Respondent, who signed as President of J. W. Powell and Sons, Inc., had not qualified that company with the Florida Construction Industry Licensing Board. (Testimony of D'Antoni; Prehearing Stipulation, P-6) Under the contract, respondent agreed-to build a house on lot 5, in accordance with certain specifications, for $42,000. Item 10 of Article 8 specifies that the price includes "city water." The home was built; the D'Antonis paid the purchase price, then moved in. Some time later, they were sued by Consolidated Utility Company for $425, the waterline connection fee. They subsequently paid that amount, plus court costs, to the utility company. (Testimony of D'Antoni; P-6) At the time respondent built the D'Antonis' house, Wilbur Sheffer was employed by Consolidated Utility Company to install waterlines along Fort Meyers Drive, the road where the D'Antonis' house was located. Mr. Sheffer installed the waterlines up to the individual property boundaries. It was standard practice for contractors to pay sewer charges and water meter deposit and connection (or tap-in) fees when they obtained their building permits, after which he would install the meter. The contractors would then lay waterline from the meter to the home, leaving the line uncovered for later inspection. Property owners were not allowed to connect to the adjacent waterlines unless fees were paid and the meters installed. Respondent paid the meter fee on the D'Antonis' home, but the meter was not installed because he did not pay the connection fee. Nevertheless, respondent, without authorization from the utility company, connected the D'Antonis' house to the utility's adjacent waterlines. (Testimony of Sheffer; P-8) On block 340 of the subdivision, where Ft. Meyers Drive was located, respondent was responsible for paying the water tap fees when the water was available. Records of the utility company show that respondent paid two of the four water tap fees he was billed for on block 340. At the time the D'Antonis' home was under construction, the utility company sometimes negotiated with contractors, who were building homes in the Subdivision, and waived tap fees in exchange for their constructing adjacent waterlines. However, such line extension agreements were usually handled through the office of the company's engineer, Richard Madaus. Mr. Madaus had no record of any agreement with respondent regarding waterline extensions to block 340, where the D'Antonis' home was being constructed. Instead, the records show that respondent was billed for connection fees on block 340 as early as October 26, 1978, and that, thereafter, he paid tap fees for two of the four homes on that block in March and July of 1979. (Testimony of Madaus; P-9a, P-9c, P-9d, P-9e) Respondent's testimony that he was never billed for water connection fees in block 340 and that it was not his responsibility to pay those fees because he had already paid for installing the adjacent waterline, is not credible given the fact that he paid two such connection fees and that the utility company requested these connection fees from him before he began building the D'Antonis' home. The only change in the utility company's policy occurring around the time the D'Antonis' home was constructed was to request the health department to notify the company when septic tank permits for homes in the Subdivision were paid for so that the company could request tap fees at the same time. (P-9a-F) Respondent's Failure to Qualify J. W. Powell and Sons, Inc. It is undisputed that respondent failed to qualify J. W. Powell and Sons, Inc. with the Construction Industry Licensing Board. He did not know that such action was required. The attorney who formed the corporation did not tell him of this requirement. Neither did the county tax collector who Issued him occupation licenses under both his and the corporation's name. (Testimony of respondent)
Recommendation Based on the foregoing, it is RECOMMENDED: That respondent be fined $500. DONE and ENTERED this 16th day of February, 1983, in Tallahassee, Florida. R. L. CALEEN, JR. 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 16th day of February, 1983.
Findings Of Fact Petitioner corporation came into existence in April 1989. From that time until the present, Petitioner corporation has had possession or control of several beach concessionaire spots in Volusia County. Respondent Department of Revenue audited Petitioner for the five year period of November 1, 1985 through December 31, 1990. Petitioner had never obtained the certificate or receipt contemplated by Section 212.10(1) F.S., so Respondent's audit and assessment held Petitioner liable for all sales tax due from all predecessor owners. In response to the Notice of Intent to Audit, Petitioner made available for inspection all of its business records. Petitioner's records were found by the auditor to be both adequate and accurate for the period of time that Petitioner corporation had been in existence, with certain exceptions which included assigning the wrong tax rate on certain items. Respondent's auditor pointed out errors in collection and remittance of the tax by Petitioner during the period of April 1989 to the end of the audit period and Petitioner remitted the tax due with respect to each subject of the error. Respondent reviewed Petitioner's records and used such records to arrive at its estimate of Petitioner's tax liability. In assessing Petitioner's tax liability, Respondent's auditor, Albert E. Seyforth, projected backwards using all records provided by Petitioner to reach an estimate or projection of what the predecessor owners/sellers should have been paying in tax. To make this backwards projection, he worked from the Petitioner's current figures substantiated by their records which he deemed adequate and accurate for the period of April 1989 to the end of the audit period. Petitioner's records already indicated that two of the spots acquired by Petitioner were no longer actively utilized. He treated the Volusia County transfer fee and license fee as taxable rights in real estate pursuant to Rule 12A-1.070 F.A.C. He made allowance for Petitioner's misapplication of a sales tax rate. He calculated a 24-month projection rather than an 18-month projection to give Petitioner taxpayer the benefit of the doubt. He then applied an adjustment by allowing an arbitrary percentage reduction on compensable versus noncompensable units and allowing for market conditions, differences in inventory, or pricing. In applying this percentage reduction factor, he accepted Petitioner's oral unquantified anecdotal representations that (1) beach business overall had gotten progressively worse over the five- year audit period (which would lower sales figures) and (2) that Petitioner's current corporate operation which had eliminated business at certain spots and which was otherwise more efficient, was more profitable than prior businesses. (This latter assumption would raise sale figures). The percentage reduction factor the auditor devised was an arbitrary 25 percent because Petitioner did not provide any quantifiable way to measure its anecdotal oral representations on the foregoing business trends. The auditor did not accept or consider Petitioner's oral representations as to how many units Petitioner acquired from each seller because Petitioner produced no adequate "paper trail" to back up their oral representations as to what was acquired and because all concerned considered the concession business one in which physical inventory at each "spot" changed from day to day. Upon presentation of prior taxpayer identification numbers, Respondent gave Petitioner credit against the figure obtained by the foregoing methodology for prior taxes paid under those prior taxpayer identification numbers during the audit period. The foregoing assessment methodology, including credits, which was devised by Mr. Seyforth, was accepted as "reasonable" by Mr. Seyforth's superior auditor, Mr. Samuel B. Eckhardt, Jr. In approving Mr. Seyforth's methodology, Mr. Eckhardt considered two other standard methods of assessing business trends which could have been used instead of using an arbitrary 25 percent reduction factor. One alternative method would have been to assemble and apply information concerning the ramp toll census to the beach in each of the audit years. The other alternative method would have been to somehow devise a hotel/motel occupancy census and apply that information. Nonetheless, Mr. Eckhardt determined that the methodology applied by Mr. Seyforth and described in Finding of Fact 5 and the deduction of taxes actually paid as described in Finding of Fact 6 was appropriate and reasonable. At formal hearing, Petitioner did not affirmatively demonstrate how a formula for business trends on the beach could be more accurately derived from either the toll ramp census or the hotel/motel occupancy rate method. Specifically, it was not shown how the toll ramp census would relate number of cars to number of people to number of purchasers of concession products or how the hotel/motel occupancy rate would accurately reflect number of purchasers of concession products. While the 25 percent reduction figure utilized by the auditor might be "arbitrary," Petitioner did not affirmatively demonstrate how either of the alternative methods would be either more accurate or would lower the assessment figure. Petitioner presented evidence that Volusia County has always regarded the County's charge of seven percent of the purchase price on the transfer of a concession as an administrative fee. This fee was a negotiated charge agreed upon by the concessionaires, as a group. It was based on earlier such fees. However, Messrs. Seyforth and Eckhardt, on behalf of the Respondent state agency regarded this fee as a "lease or license of real property," pursuant to agency interpretation of Rule 12A-1.070 F.A.C. and treated it as such. Petitioner presented evidence that the license fee paid annually to Volusia County by each concessionaire in the amount of ten percent of gross sales or $1,000.00, whichever is greater, has always been regarded by Volusia County as a regulatory fee for use of a certain beach location and is utilized by Volusia County in lieu of occupational license fees, garbage disposal charges, and charges for other goods and services provided to the concessionaire. These services included licensed concessionaires having the right to ask Beach Rangers to move trespassing concessionaires out of the respective license-holders' assigned territories. Messrs. Seyforth and Eckhardt, on behalf of Respondent state agency regarded this fee as a "lease or license of real property" pursuant to agency interpretation of Rule 12A-1.070 F.A.C. and treated it as such. Petitioner presented evidence that it had acquired beach spots 128 and 130 and paid the Volusia County annual license fee on each but did not operate them in order to render Petitioner's entire "multi-spot operation" more efficient and profitable. Any physical business assets acquired at these locations were transferred to other spots. The license fee continued to be paid for these spots' respective locations, so as to eliminate competition. This factor was built into the agency's calculations, but Petitioner contended that the auditor's using a backward projection on these spots was unreasonable because it assigned a 75 percent profit to them which had never existed. Contrary to Petitioner's assertion, it is found that the auditor's 25 percent reduction figure lumped the unquantified increased efficiency of the whole of Petitioner's operation in with the unquantified decrease in beach traffic and thus made a reasonable adjustment for these unoperated "spots." Petitioner also contended that when it acquired beach concession spots 128 and 130 no "stock of goods" was also acquired, but Petitioner produced no "paper trail" to prove no goods were acquired. Petitioner also admitted to paying to acquire the "business" at each location and that in so doing Petitioner either directly or indirectly acquired the license to operate (or not operate) each of these spots. Section 212.10 F.S. is phrased in the disjunctive, "business or stock of goods." Petitioner produced certain books and records at deposition which were derived from the preincorporation proprietorship of Petitioner corporation's principals, and, presumably, the proprietorship/spot acquired from Mr. Harold S. Lloyd's parents, and the auditors dismissed these as inadequate. These particular records were not introduced at formal hearing. The only records of any prior owners of beach spots acquired by Petitioner which were introduced at formal hearing were certain documents from John Bowes and Richard Ruich. Mr. Bowes' records (Petitioner's Exhibit 2) are merely totals for various types of rentals and sales and are not adequate for the agency's detailed accounting procedures. They do not comply with the Unified Beach Code, and Mr. Bowes own accountant found them inadequate for federal income tax purposes. No expert witness credibly stated that they were adequate for assessment purposes. Mr. Bowes' records do not contain any prior taxpayer identification number which potentially could be linked to prior taxes paid so as to offset the assessment against Petitioner. Mr. Ruich's records (Petitioner's Exhibits 3 and 4) consisted only of monthly sales tax reports, called "DR-15's." No expert witness credibly stated that they were adequate for assessment purposes. The agency does not accept DR- 15's as proof of tax liability, but Mr. Ruich's DR-15's do contain Mr. Ruich's taxpayer identification numbers, 74-16-044761-07 and 74-16-038917-07. The record is not clear whether Petitioner was given credit for the taxes actually paid by Mr. Ruich under these taxpayer identification numbers. Since Respondent has established the precedent in this case for giving credit to Petitioner for taxes actually paid under predecessor taxpayer numbers during the audit period, Mr. Ruich's taxes actually paid during the audit period should be calculated and deducted from the assessment against Petitioner, if that has not already been done. Richard Ruich executed a sales agreement and an indemnification agreement in the sale of his business to Petitioner.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is recommended that the Department of Revenue enter a final order sustaining the subject audit and assessment against Petitioner, less credit to Petitioner for prior tax paid, if any, during the audit period by predecessor in interest Ruich, Taxpayer I.D. Nos. 74-16-044761-07 and 74-16-038917-07, if credit therefore has not previously been afforded to Petitioner. RECOMMENDED this 1st day of April, 1993, at Tallahassee, Florida. ELLA JANE P. DAVIS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st day of April, 1993. APPENDIX TO RECOMMENDED ORDER 92-2348 The following constitute specific rulings, pursuant to S120.59 (2), F.S., upon the parties' respective proposed findings of fact (PFOF) Petitioner's PFOF: 1 Accepted so far as it goes. Covered in Findings of Facts 4, 14. 2-4 Accepted but not dispositive, ultimate, or material, Covered in Findings of Facts 4-6, 14-17. 18,25,27-28 Accepted. Covered in Findings of Facts 5-12, 14. 5 Accepted but subordinate. Covered in Findings of Fact 14-17. 6-7,11-13 Rejected as stated because as stated it does not reflect the greater weight of the credible record evidence as a whole. Covered in Findings of Facts 5-9. 8,14,21-23 Rejected as out of context and misleading. Not supported by the greater weight of the credible record evidence as a whole. 9,10,24,26 Rejected as stated because as stated it does not reflect the greater weight of the credible record evidence as a whole, and because it attempts to state a Conclusion of Law. Covered in Findings of Fact 5-11, 14-17, and Conclusions of Law. 15-17,19-20,29-30 Accepted but subordinate and unnecessary. Respondent's PFOF: 1-11 Accepted except where subordinate unnecessary, or cumulative. COPIES FURNISHED: Larry Fuchs Executive Director Department of Revenue 104 Carlton Building Tallahassee, Florida 32399-0100 Linda Lettera, Esquire General Counsel Department of Revenue 204 Carlton Building Tallahassee, Florida 32399-0100 Michael L. Brewer, Esquire 500 Canal Street New Smyrna Beach, Florida 32168 Leland L. McCharen, Esquire Assistant Attorney General Tax Section Department of Legal Affairs The Capitol Tallahassee, Florida 32399-1050
The Issue The issue is whether Petitioners' Motions for Attorney's Fees should be granted, and if so, in what amount.
Findings Of Fact Based upon the stipulation of counsel, the papers filed herein, and the underlying record made a part of this proceeding, the following findings of fact are determined: Background In this attorney's fees dispute, Petitioners, Anderson Columbia Company, Inc. (Anderson Columbia) (Case No. 00-0754F), Panhandle Land & Timber Company, Inc. (Panhandle Land) (Case No. 00-0755F), Support Terminals Operating Partnership, L.P. (Support Terminals) (Case No. 00-0756F), Commodores Point Terminal Corporation (Commodores Point) (Case No. 00-0757F), and Olan B. Ward, Sr., Martha P. Ward, Anthony Taranto, Antoinette Taranto, J.V. Gander Distributors, Inc., J.V. Gander, Jr., and Three Rivers Properties, Inc. (the Ward group) (Case No. 00-0828F), have requested the award of attorney's fees and costs incurred in successfully challenging proposed Rule 18-21.019(1), Florida Administrative Code, a rule administered by Respondent, Board of Trustees of the Internal Improvement Trust Fund (Board). In general terms, the proposed rule essentially authorized the Board, through the use of a qualified disclaimer, to reclaim sovereign submerged lands which had previously been conveyed to the upland owners by virtue of their having filled in, bulkheaded, or permanently improved the submerged lands. The underlying actions were assigned Case Nos. 98- 1764RP, 98-1866RP, 98-2045RP, and 98-2046RP, and an evidentiary hearing on the rule challenge was held on May 21, 1998. That proceeding culminated in the issuance of a Final Order in Support Terminals Operating Partnership, L.P. et al. v. Board of Trustees of the Internal Improvement Trust Fund, 21 F.A.L.R. 3844 (Div. Admin. Hrngs., Aug. 8, 1998), which determined that, except for one challenged provision, the proposed rule was valid. Thereafter, in the case of Anderson Columbia Company, Inc. et al. v. Board of Trustees of the Internal Improvement Trust Fund, 748 So. 2d 1061 (Fla. 1st DCA 1999), the court reversed the order below and determined that the rule was an invalid exercise of delegated legislative authority. Petitioners then filed their motions. Fees and Costs There are eleven Petitioners seeking reimbursement of fees and costs. In its motion, Anderson Columbia seeks reimbursement of attorney's fees "up to the $15,000 cap allowed by statute" while Panhandle Land seeks identical relief. In their similarly worded motions, Support Terminals and Commodores Point each seek fees "up to the $15,000 cap allowed by statute." Finally, the Ward group collectively seeks $9,117.00 in attorney's fees and $139.77 in costs. In the Joint Stipulations of Fact filed by the parties, the Board has agreed that the rate and hours for all Petitioners "were reasonable." As to all Petitioners except the Ward group, the Board has further agreed that each of their costs to challenge the rule exceeded $15,000.00. It has also agreed that even though they were not contained in the motions, requests for costs by Support Terminals, Commodores Point, Anderson Columbia, and Panhandle Land in the amounts of $1,143.22, $1,143.22, $1,933.07, and $1,933.07, respectively, were "reasonable." Finally, the Board has agreed that the request for costs by the Ward group in the amount of $139.77 is "reasonable." Despite the stipulation, and in the event it does not prevail on the merits of these cases, the Board contends that the four claimants in Case Nos. 00-754F, 00-755F, 00-0756F, and 00- 757F should be reimbursed only on a per case basis, and not per client, or $7,500.00 apiece, on the theory that they were sharing counsel, and the discrepancy between the amount of fees requested by the Ward group (made up of seven Petitioners) and the higher fees requested by the other Petitioners "is difficult to understand and justify." If this theory is accepted, it would mean that Support Terminals and Commodores Point would share a single $15,000.00 fee, while Anderson Columbia and Panhandle Land would do the same. Support Terminals and Commodores Point were unrelated clients who happened to choose the same counsel; they were not a "shared venture." Each brought a different perspective to the case since Commodores Point had already received a disclaimer with no reversionary interest while Support Terminals received one with a reversionary interest on June 26, 1997. The latter event ultimately precipitated this matter and led to the proposed rulemaking. Likewise, in the case of Anderson Columbia and Panhandle Land, one was a landowner while the other was a tenant, and they also happened to choose the same attorney to represent them. For the sake of convenience and economy, the underlying cases were consolidated and the matters joined for hearing. Substantial Justification From a factual basis, the Board contends several factors should be taken into account in determining whether it was substantially justified in proposing the challenged rule. First, the Board points out that its members are mainly lay persons, and they relied in good faith on the legal advice of the Board's staff and remarks made by the Attorney General during the course of the meeting at which the Board issued a disclaimer to Support Terminals. Therefore, the Board argues that it should be insulated from liability since it was relying on the advice of counsel. If this were true, though, an agency that relied on legal advice could never be held responsible for a decision which lacked substantial justification. The Board also relies upon the fact that it has a constitutional duty to protect the sovereign lands held in the public trust for the use and benefit of the public. Because lands may be disclaimed under the Butler Act only if they fully meet the requirements of the grant, and these questions involve complex policy considerations, the Board argues that the complexity and difficulty of this task militate against an award of fees. While its mission is indisputably important, however, the Board is no different than other state agencies who likewise are charged with the protection of the health, safety, and welfare of the citizens. The Board further relies on the fact that the rule was never intended to affect title to Petitioners' lands, and all Petitioners had legal recourse to file a suit to quiet title in circuit court. As the appellate court noted, however, the effect of the rule was direct and immediate, and through the issuance of a disclaimer with the objectionable language, it created a reversionary interest in the State and made private lands subject to public use. During the final hearing in the underlying proceedings, the then Director of State Lands vigorously supported the proposed rule as being in the best interests of the State and consistent with the "inalienable" Public Trust. However, he was unaware of any Florida court decision which supported the Board's views, and he could cite no specific statutory guidance for the Board's actions. The Director also acknowledged that the statutory authority for the rule (Section 253.129, Florida Statutes) simply directed the Board to issue disclaimers, and it made no mention of the right of the Board to reclaim submerged lands through the issuance of a qualified disclaimer. In short, while the Board could articulate a theory for its rule, it had very little, if any, basis in Florida statutory or common law or judicial precedent to support that theory. Although Board counsel has ably argued that the law on the Butler Act was archaic, confusing, and conflicting in many respects, the rule challenge case ultimately turned on a single issue, that is, whether the Riparian Rights Act of 1856 and the Butler Act of 1921 granted to upland or riparian owners fee simple title to the adjacent submerged lands which were filled in, bulkheaded, or permanently improved. In other words, the ultimate issue was whether the Board's position was "inconsistent with the . . . the concept of fee simple title." Anderson Columbia at 1066. On this issue, the court held that the State could not through rulemaking "seek to reserve ownership interests by issuing less than an unqualified or unconditional disclaimer to riparian lands which meet the statutory requirements." Id. at 1067. Thus, with no supporting case law or precedent to support its view on that point, there was little room for confusion or doubt on the part of the Board. E. Special Circumstances In terms of special circumstances that would make an award of fees unjust, the Board first contends that the proposed rule was never intended to "harm anyone," and that none of Petitioners were actually harmed. But the substantial interests of each Petitioner were clearly affected by the proposed rules, and the appellate court concluded that the rule would result in an unconstitutional forfeiture of property. The Board also contends that because it must make proprietary decisions affecting the public trust, it should be given wide latitude in rulemaking. It further points out that the Board must engage in the difficult task of balancing the interests of the public with private rights, and that when it infringes on the private rights of others, as it did here, it should not be penalized for erring on the side of the public. As previously noted, however, all state agencies have worthy governmental responsibilities, but this in itself does not insulate an agency from sanctions. As an additional special circumstance, the Board points out that many of the provisions within the proposed rule were not challenged and were therefore valid. In this case, several subsections were admittedly unchallenged, but the offending provisions which form the crux of the rule were invalidated. Finally, the Board reasons that any moneys paid in fees and costs will diminish the amount of money to be spent on public lands. It is unlikely, however, that any state agency has funds set aside for the payment of attorney's fees and costs under Section 120.595(2), Florida Statutes (1999).
The Issue Whether Bill Colon, the Respondent, should be required to pay attorney's fees and costs to Steven B. Feren, the Petitioner, pursuant to Section 112.317(8), Florida Statutes?
Findings Of Fact The Parties. Steven B. Feren served as a member of the City Commission of the City of Sunrise, Broward County, Florida, at all times relevant to this proceeding. Mr. Feren served as a Commissioner from approximately March, 1987 until late 1992. Bill Colon is a citizen of the State of Florida and resides in the City of Sunrise, Florida. Mr. Colon served as a member of the City Commission of the City of Sunrise from approximately 1981 to 1987. Mr. Colon's Ethics Complaint Against Mr. Feren. On or about March 26, 1992, Mr. Colon filed a Complaint against Mr. Feren (hereinafter referred to as the "Complaint") with the Florida Commission on Ethics. The Complaint contained the following allegations: Feren is a City Councilman and now as a City Commissioner is a practicing attorney whose firms [sic] has for a continuous period of time performed legal services, particularly title closings for Universal Title Insurors which is a subsidiary of the Lennar Corporation. This has been a continuous conflict of interest as the Lennar Corporation is a corporation that continually conducts business before the City Commission. It presents plats, zoning changes and other matters relating to their business as a real estate developer in Sunrise. Feren has never filed a conflict of interest form nor has he ever announced at a public hearing that a potential conflict of interest arose because of his vote on any matter involving Lennar Corporation. . . . . Petitioner's Exhibit 1. A letter dated June 10, 1992, (Petitioner's exhibit 4) was sent to Mr. Colon from Peter Ostreich, a staff attorney for the Commission. In the June 10, 1992, letter, Mr. Colon was asked to provide more specific information concerning the allegations of his Complaint: . . . . Section 3 of the complaint form requires the Complainant to provide a detailed description of the facts and the actions of the person named in the complaint, any relevant dates, and the names and addresses of witnesses. The complaint you filed with this office does not contain this required information. In order to undertake a review of the complaint for legal sufficiency, I must request that you first provide us with detailed factual allegations that support your claims, particularly as to the matters of Mr. Feren's conflict of interest. . . . Mr. Ostreich goes on in the letter to ask Mr. Colon to answer specific questions concerning Mr. Colon's allegations against Mr. Feren. In response to Mr. Ostreich's June 10, 1991, letter, Mr. Colon filed another complaint (hereinafter referred to as the "Amended Complaint"), with the Commission. In response to Section 3 of the Amended Complaint Mr. Colon attached a one and one-half page, legal sized, "Statement of Facts." See Petitioner's Exhibit 5. In the Statement of Facts attached to the Amended Complaint, Mr. Colon lectured the Commission concerning Mr. Colon's perception of the Commission's responsibility in investigating his initial Complaint. Mr. Colon also addressed some of the specific questions Mr. Ostreich had asked. In the Statement of Facts attached to the Amended Complaint, Mr. Colon mentioned a telephone call that he made to Lennar Corporation concerning whether Lennar Corporation owned Universal Title Insurors. Although requested to do so by Mr. Ostreich in his letter of June 10, 1991, Mr. Colon did not provide the names of any potential witnesses to Mr. Ostreich. The Commission's Investigation of the Complaint. Robert G. Malone was involved in the Commission's investigation of the Complaint. Mr. Malone spoke by telephone with Mr. Colon concerning the Complaint several times. In the Report of Investigation (Petitioner's Exhibit 2) issued by the Commission on January 16, 1992, at the conclusion of the investigation of the Complaint, the following finding was made: (4) Mr. Colon stated by telephone that he learned that Mr. Feren's law firm performs real estate closings for Universal Title Insurors from an anonymous letter that was mailed to him in February 1991. Mr. Colon said he has no idea who mailed him the letter, and he could not locate the letter for examination, stating that he must have misfiled it in his personal papers. The Complainant acknowledged that, other then [sic] the anonymous letter, he has no evidence which verifies that [Mr. Feren] has performed any work for Universal Title Insurors. Mr. Colon was provided a copy of the Report of Investigation and was aware of the findings contained therein. Mr. Colon did not attempt to contact Mr. Malone or the Commission after receiving the Report of Investigation and question the statement that the only evidence to support his allegations was the anonymous letter. The Commission's Disposition of the Complaint and the Amended Complaint; Mr. Feren's Request for Fees. On March 11, 1992, the Commission entered a public report. Based upon the Report of Investigation and a recommendation from an Advocate for the Commission, the Commission dismissed the Complaint. On or about April 2, 1992, Mr. Feren filed a pleading titled "Respondent's Petition for Attorney's Fees and Costs" with the Commission. Information Relied By Mr. Colon to Support His Allegations Against Mr. Feren. The allegations in the Complaint and the Amended Complaint were based primarily upon an anonymous letter Mr. Colon received in approximately February, 1991 (hereinafter referred to as the "Anonymous Letter"). The Anonymous Letter stated the following: Councilman Colon I know you are concerned about what is going on in Sunrise. Please look into Steve Feren's dealings with DCA. I know that he is doing title closings for them and has kept quiet about them. Check with the City Clerk and the city records you will find that he as never mentioned his working for DCA. He should not be permitted to get away with it. You are the only one who cares what happens in this city. A concerned Taxpayer In filing the Complaint and Amended Complaint, Mr. Colon assumed the following: (a) the reference to "DCA" in the Anonymous Letter was a reference to the Development Corporation of America; (b) Lennar Corporation had purchased Development Corporation of America; (c) Lennar Corporation had appeared before the Sunrise City Commission and, in particular, Mr. Feren; (d) Universal Title Insurors was a subsidiary of Lennar Corporation; (e) Mr. Feren had conducted title closings with Universal Title Insurors; and (f) Mr. Feren had not filed notice of his having worked for Universal Title Insurors or Lennar Corporation. These assumptions are not identified in the Anonymous Letter. The weight of the evidence also failed to prove that any of these assumptions are correct except (a). Mr. Colon's Effort to Verify the Anonymous Letter and the Mr. Colon's Assumptions. At some time after receiving the Anonymous Letter Mr. Colon telephoned the Sunrise City Clerk's office and inquired whether Mr. Feren had filed a form indicating he had a working relationship with Lennar Corporation. Mr. Colon was told that no such disclosure form had been filed. Mr. Colon also telephoned an employee of the City of Sunrise, Joan Vega. Mr. Colon believed that Ms. Vega attended most City Commission meetings. Ms. Vega told Mr. Colon that she had not heard Mr. Feren disclose any conflict of interest concerning Lennar Corporation. Mr. Colon also telephoned Lennar Corporation's Miami office and asked someone whether Universal Title Insurors was a subsidiary of Lennar Corporation. Mr. Colon was told that Universal Title Insurors was a subsidiary of Lennar Corporation. Based upon findings of fact 16, 17 and 18, Mr. Colon attempted to determine whether the assumptions he had made as set out in finding of fact 15(d) and (f). The weight of the evidence failed to prove that Mr. Colon made any effort prior in filing the Complaint or Amended Complaint to verify the assumptions he had made as set out in finding of fact 15(a), (b), (c) or (e). The most significant of the assumptions which Mr. Colon made no effort to verify was the assumption that Mr. Feren had performed closing for Lennar Corporation or Universal Title Insurors. Mr. Colon's Complaint was frivolous and without basis in law or fact. F. Other Alleged Efforts to Verify Mr. Colon's Assumptions: The Anonymous Telephone Call. In addition to the Anonymous Letter and the telephone calls to the Clerk's office, Ms. Vega and Lennar Corporation, Mr. Colon testified during the taking of his deposition of September 8, 1992 (Petitioner's Exhibit 6), that he had received an anonymous telephone call from a man who made allegations similar to those contained in the Anonymous Letter. Mr. Colon, however, failed to disclose this telephone call to the Commission's investigator. He also did not mention the telephone call in response to the questions asked by Mr. Ostreich. Mr. Colon also failed to mention the telephone call during his direct examination during the final hearing in response to a question from counsel for Mr. Feren concerning what Mr. Colon had relied upon in filing the Complaint. Finally, Mr. Colon failed to list the telephone call on Respondent's Exhibit 1, Mr. Colon's list of efforts he purportedly took to verify his charges against Mr. Feren. Based upon the weight of the evidence, it is concluded that Mr. Colon did not receive an anonymous telephone call concerning the allegations against Mr. Feren prior to the filing of the Complaint. Even if such a telephone call had been received, it would add no more support for the specific allegations made by Mr. Colon in his Complaint and Amended Complaint than the Anonymous Letter. H. Other Alleged Efforts to Verify Mr. Colon's Assumptions: Former Mayor Larry Hoffman's Comment. In addition to the Anonymous Letter and the telephone calls to the Clerk's office, Ms. Vega and Lennar Corporation, Mr. Colon testified during the taking of his deposition of September 8, 1992 (Petitioner's Exhibit 6), and during the final hearing of this case that a former Mayor of the City of Sunrise, Larry Hoffman, had told him the following: To the best of my knowledge and belief, Mayor Hoffman said that, he brought to my attention that it had come to his attention that Steven Feren was doing work for Universal Title Insurors. Page 10, Lines 9-12, Petitioner's Exhibit 6. The Report of Investigation, Petitioner's Exhibit 2, does not mention the alleged comment by Mr. Hoffman. Nor is there any indication in the Report of Investigation that any effort was made by the investigator for the Commission to determine if Mr. Hoffman had any knowledge about the incident. In the Report of Investigation, as quoted in finding of fact 10, it is only reported that Mr. Colon "acknowledged that, other then the anonymous letter, he has no evidence which verifies" the charges Mr. Colon made against Mr. Feren. Mr. Colon also did not inform Mr. Ostreich of Mr. Hoffman or the alleged comment that Mr. Hoffman made in response to Mr. Ostreich's letter to Mr. Colon. Based upon the weight of the evidence, Mr. Colon's testimony concerning the alleged comment of Mr. Hoffman is rejected. Even if Mr. Hoffman had made the comment to Mr. Colon, it would add no more support for the specific allegations made by Mr. Colon in his Complaint and Amended Complaint than the Anonymous Letter. Mr. Colon indicated that he made no effort to discuss Mr. Hoffman's comment with Mr. Hoffman. Mr. Colon testified that Mr. Hoffman simply made the statement and that he did not ask any questions concerning the source of Mr. Hoffman's information. I. Other Alleged Efforts to Verify Mr. Colon's Assumptions: The Telephone Call to Universal Title Insurors. In addition to the Anonymous Letter and the telephone calls to the Clerk's office, Ms. Vega and Lennar Corporation, Mr. Colon testified during the final hearing of this case that he had telephoned Universal Title Insurors and inquired whether Mr. Feren was conducting title closings at Universal Title Insurors. Mr. Colon testified that he was told "yes." Mr. Colon's testimony concerning his alleged telephone call to Universal Title Insurors is rejected. Mr. Colon made no mention of the alleged telephone call to Universal Title Insurors in his deposition of September 8, 1992: Q. Who did you speak to at Universal or Lennar; do you recall? A. No, I don't. There was a lady that I know that I used to deal with in claims there, but I don't recall if she was the one who I talked to. Q. But, you would have talked to somebody at Universal and asked them what, specifically? A. I didn't say that. I said Lennar Corporation. Q. Oh, you talked to somebody at Lennar? A. I asked the question is Universal Title Insurers a subsidiary of Lennar Corporation, and they said yes, that it was. Q. Did you speak to somebody that you knew or somebody who was an officer? A. As I recall, I spoke to somebody; not that I spoke to somebody, I asked for somebody that I knew. It sounds like an Israeli name that I talked to, but I don't recall if that was the person that I talked to, but the only question I had is Universal Insurers a subsidiary of Lennar, and they said yes, that it was . . . . Page 36, Lines 6-25 and Page 37, Lines 1-8, Petitioner's Exhibit 6. The alleged telephone call to Universal Title Insurors was not mentioned in the Report of Investigation. Mr. Colon did not mention the alleged telephone call to Mr. Ostreich in response to Mr. Ostreich's June 10, 1991, letter. It also was not listed on Respondent's Exhibit 1, Mr. Colon's list of the efforts he purportedly made to verify his charges against Mr. Feren. Mr. Colon brought up the alleged telephone call to Universal Title Insurors for the first time during the final hearing of this case and only after extensive questioning about the other alleged events that he had already testified he had relied upon. His only explanation as to why he had not mentioned the alleged telephone call earlier was that he "probably forgot." Page 78, Line 24, Transcript of November 16, 1992. Mr. Colon's Purpose in Filing the Complaint and the Amended Complaint. Mr. Colon testified that he filed the Complaint against Mr. Feren because he was a concerned citizen who has been involved in the politics of the City of Sunrise for over 20 years and that his main concern was that the people receive an honest and responsible government. Mr. Colon also considers himself the "Watchdog of the City". Mr. Colon's explanation of why he filed the Complaint is not a credible explanation of Mr. Colon's total reason for filing the Complaint. While Mr. Colon does have some concern about good government in the City of Sunrise, Mr. Colon's judgment in exercising that concern has been distorted by his vindictiveness against, and his malice toward, Mr. Feren. Therefore, it is concluded that Mr. Colon's motivation for filing the Complaint was not limited to any public mindedness on the part of Mr. Colon. Mr. Colon also was motivated by his desire to harm Mr. Feren. This finding of fact is based upon Mr. Colon's dealings with Mr. Feren as evidenced by the testimony of Mr. Colon and Mr. Feren. Mr. Colon filed the Complaint with a malicious intent to injure Mr. Feren's reputation. The incidents between Mr. Colon and Mr. Feren have been adequately addressed in Mr. Feren's deposition testimony and are summarized in Mr. Feren's proposed finding of fact 32 (to the extent accepted and relevant--see the discussion of proposed finding of fact 32 in the Appendix to this Recommended Order). There is no need to reiterate those disagreements here. Additionally, Mr. Colon has filed two prior complaints with the Commission against Mr. Colon. All three complaints filed by Mr. Colon against Mr. Feren have now been dismissed. Although filing a complaint in and of itself may not be of much consequence in determining a person's motive, the fact that Mr. Colon has filed other complaints against Mr. Feren, when considered with the other testimony, supports the conclusions reached in this Recommended Order. Mr. Colon professed in his testimony to be neutral concerning Mr. Feren as an individual. His actions and his testimony in his deposition of September 8, 1992, and during the final hearing of this case indicate otherwise. During Mr. Colon's testimony at the final hearing he made statements such as the following: . . . . If you're talking to me whether I feel he is a competent legislature [sic], whether he was a competent City Commissioner, that has nothing to do with personality, that has all to do with ability. [Mr. Feren] has no abilities as far as I'm concerned. Page 90, Lines 20-24, Transcript of November 16, 1992. And you said, I did not contact Mr. Feren because I wouldn't believe him no matter what he said. That is correct, sir. I made that statement, yes. If he told me it was raining outside I would look out the window. Let me go further to say this: Mr. Feren probably holds the only title of a person getting elected to the state house because the citizens of Sunrise didn't want him in the city. Page 91, Lines 16-23, Transcript of November 16, 1992. Following a description by Mr. Colon of things that Mr. Feren allegedly did as a City Commissioner which were contrary to the best interest of the citizens of Sunrise, Mr. Colon stated the following: There are so many things that this man has done that - and I will say this I am the president of the Sunrise Political Club. We have a membership totaling over 300 members and every one of those members voted for Mr. Feren to the state house because that was the only way they could get rid of him and get him out of the city; does that answer your question, sir? Page 97, Lines 13-19, Transcript of November 16, 1992. Mr. Colon should have been aware when he filed his Complaint of the potential harm which could be caused to Mr. Feren. Mr. Colon has suggested that no harm should have come to Mr. Feren because proceedings before the Commission confidential prior to a finding of probable cause of wrong doing by the Commission. Mr. Colon's position ignores the possibility that the Complaint could have been disclosed and the potential harm to Mr. Feren's reputation that could have resulted therefrom. Mr. Colon's position also ignores the possibility that probable cause that a violation could have been found, the Complaint would then have been made public and ultimately the Complaint could have been found to be without basis. Finally, Mr. Colon's position ignores the potential harm to Mr. Feren's reputation which may have arisen as a result of the Complaint having been filed even after it was dismissed. Mr. Colon's should have been aware of the potential harm to Mr. Feren's reputation when he filed his Complaint. Legal Representation of Mr. Feren. Stuart R. Michelson, Esquire, represented Mr. Feren before the Commission and in this proceeding. The City of Sunrise authorized the payment of some of the attorney fees owed to Mr. Michelson as a result of his representation of Mr. Feren. The evidence failed to prove who retained Mr. Michelson, or what type of agreement was entered into for Mr. Michelson's legal services, or who was liable for Mr. Michelson's services. The evidence failed to prove whether Mr. Feren was liable for any of the fees or costs incurred as a result of defending the Complaint. The evidence also failed to prove that Mr. Feren paid any of the fees or costs incurred as a result of defending the Complaint or Amended Complaint. Cost and Attorney's Fees Incurred. A reasonable hourly rate for Mr. Michelson's legal service is $125.00 per hour. Based upon Mr. Goren's expert testimony, the total amount of attorney fees reasonably incurred as a result of Mr. Colon's Complaint is $19,200.50. Although Mr. Goren testified that the total reasonable fee was $19,255.00, the amounts of the individual bills for service that he reviewed totalled $19,200.50. Mr. Feren offered into evidence a bill for legal services dated May 18, 1992, in the amount of $1,768.75. See Petitioner's Exhibit 9. No testimony concerning this exhibit was offered to explain what the exhibit is, other than Mr. Goren's testimony that a bill for $1,770.00 of May 18, 1992, was reasonable. Mr. Colon offered a number of exhibits which appear to be minutes and/or agendas of meetings of the City Commission of Sunrise. Mr. Colon also offered what appears to be several bills from Mr. Michaelson concerning this matter. These exhibits, Respondent's Exhibits 5-8 and 10, were not properly authenticated or identified. They also constitute hearsay. It is also not apparent from the exhibits whether the amounts identified were actually paid or whether they were reasonable. The weight of the evidence failed to prove what the reasonable costs of responding to the Complaint was. Although Mr. Colon did offer into evidence which included what appeared to be information concerning the costs which may have incurred by Mr. Michelson, there was no testimony concerning what the information was, whether the costs were paid or even whether that the costs were incurred as a result of the Complaint. Additionally, there was no testimony that those costs were "reasonable".
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission on Ethics enter a Final Order dismissing the Petition for Attorney's Fees and Costs be DISMISSED. DONE and ENTERED this 5th day of February, 1993, in Tallahassee, Florida. LARRY J. SARTIN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 5th day of February, 1993. APPENDIX The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. Mr. Feren's Proposed Findings of Fact 1-2 Accepted in 1. Accepted in 3. The correct date is March 26, 1991 and not March 29, 1991. Accepted in 4. Accepted in 5, 8 and hereby accepted. Accepted in 9-10. Accepted in 11. Accepted in 12. See 40-44. The evidence failed to prove exactly who "hired" Mr. Michelson. Not supported by the weight of the evidence. The only evidence concerning this matter consisted of document that suggested that bills were provided to the City of Sunrise. The documents were not identified, authenticated nor explained. The only credible evidence concerning the amount of attorney fees was offered through the testimony of Mr. Goren. That testionly dealt with the question of the reasonable amount of time and fees for Mr. Michelson's work. Evidence concerning who was responsible for the fees and whether the fees were paid was not offered by Mr. Feren. 11 See 41-44. Accepted in 21 and 24. Accepted in 30. Accepted in 29. 15 See 24-27 and 29-32. Accepted in 10-11. Hereby accepted. Not supported by the weight of the evidence. Accepted in 21 and 24. 20-24, 26-28 These proposed findings of fact are cumulative and unnecessary. Almost identical proposed findings of fact have already been made. Proposed finding of fact 23 is not supported by the weight of the evidence. Mr. Colon did rely on something besides the anonymous letter. See findings of fact 16-18. 25 See 28. Hereby accepted. See 45. Primarily a summary of testimony. See 46. Primarily a summary of testimony. See 35. The 5th and 6th sentences are not relevant. 33-35 Hereby accepted. Accepted in 33-34 and 36. Accepted in 39. Whether Mr. Feren was caused "great personal distress" is not the legal issue. At issue is whether Mr. Colon acted with the intent of injuring Mr. Feren's reputation. These proposed findings of fact are cumulative and unnecessary. Almost identical proposed findings of fact have already been made. The second sentence is not supported by the weight of the evidence. Accepted in 33-34. Accepted in 33-34 and 39. Not supported by the weight of the evidence. See 39. Not supported by the weight of the evidence. Accepted in 20. Mr. Colon's Proposed Findings of Fact 1-2 Accepted in 1. Mr. Feren was elected in 1987 and not 1989. Not relevant to this proceeding. The decision in this case did not depend on whether Mr. Colon disclosed the Complaint to the media. Nor was any evidence offered by the Mr. Feren to support such an allegation. The last two sentences are not supported by the weight of the evidence. There is no proposed finding of fact 4. The first sentence is not supported by the weight of the evidence. Mr. Colon did contact Lennar Corporation, the city clerk's office and Ms. Vega. See 16-18. The evidence failed to prove that Universal Title Insurors is a subsidiary of Lennar Corporation. Not supported by the weight of the evidence. See 27. 16-18. The third sentence is not supported by the weight of the evidence. See 29-32. The last two sentences are not supported by the weight of the evidence. Accepted, in part, in 3. Whether Mr. Colon receives lots of anonymous letters is not relevant. He also did not contact "various" city officials. He contacted two. See 16 and 17. The last sentence as "(d)" are not supported by the weight of the evidence. See 5. Not supported by the weight of the evidence, not relevant or conclusions of law. Not relevant. Not relevant and not supported by the weight of the evidence. Although consistent with Mr. Colon's testimony, see 33-34. Mr. Colon's testimony was not "credible and supported by the facts" in all respects. Not supported by the weight of the evidence. See 33-39. There is no proposed finding of fact 15. Not supported by the weight of the evidence. Not supported by the weight of the evidence. 18 See 40-44. Not supported by the weight of the evidence. Not supported by the weight of the evidence. Not supported by the weight of the evidence. Not supported by the weight of the evidence and not relevant. The remainder of Mr. Colon's proposed order beginning on page 14 consists of conclusions of law. COPIES FURNISHED: Stuart R. Michelson, Esquire 1111 Kane Concourse, Suite 517 Bay Harbor Islands, Florida 33154 Bill Colon 11640 N.W. 30th Place Sunrise, Florida 33323 Bonnie J. Williams Executive Director Commission on Ethics Post Office Box 6 Tallahassee, Florida 32302-0006 Phil Claypool General Counsel Commission on Ethics Post Office Box 6 Tallahassee, Florida 32302-0006
The Issue Is Respondent TPE Structures of Bay County, Inc. (TPE Bay County) an employer as defined in Section 760.02(7), Florida Statutes (2003), conferring jurisdiction on the Florida Commission on Human Relations (the Commission) to consider the complaint filed by Petitioner William D. Hunt (Petitioner Hunt) and Petitioner Charles C. White (Petitioner White) against TPE Bay County?
Findings Of Fact Petitioner Hunt worked for TPE Bay County from August 13, 2003, through October 4, 2003. Petitioner White worked for TPE Bay County from August 11, 2003, through September 6, 2003. These are the relevant time periods in this inquiry. Both Petitioners were terminated from employment. According to the Amended Employment Charges of Discrimination, the Petitioners accuse their supervisor/manager Gary Williams of sexual harassment while employed with TPE Bay County. On August 21, 2000, TPE Bay County filed the necessary documents for incorporation with the Florida Department of State. It was incorporated as a Florida for profit corporation. As of April 11, 2002, the mailing address for the corporation was Post Office Box 18155, Panama City Beach, Florida 32417. Kenneth L. Karr is the registered agent for the corporation. He is the president and only director. Mr. Karr is the only shareholder in the corporation holding 400 shares. Mr. Karr's address is 7109 Lagoon Drive, Panama City Beach, Florida 32408. This information concerning TPE Bay County and Mr. Karr pertained during the relevant time contemplated by the Amended Charges of Discrimination referred to before, with the exception that Mr. Karr had a prior address in Panama City Beach, Florida. Mr. Karr filed with the Florida Secretary of State a year 2004 for profit corporation annual report. That report was filed April 26, 2004. It is one in a series of reports filed with that agency since the inception of the corporation. Earlier a corporation identified as TPE Structures, Inc. (TPE) had been formed. On March 26, 1999, the necessary documents were filed with the Florida Department of State to incorporate TPE. At times relevant, the principal address for TPE was 5970 Peninsula Avenue, No. 3, Key West, Florida 33040. The mailing address was Post Office Box 2066, Key West, Florida 33045. Mr. Karr serves as resident agent for TPE. His address is 7109 Lagoon Drive, Panama City Beach, Florida 32408 for those purposes. The 2004 TPE for profit corporation annual report was filed with the Florida Department of State on April 4, 2004. Before April 14, 2004, other for profit corporation business reports were filed with that agency. Mr. Karr was the president and only director for TPE from the inception and continues in those roles at present. He holds 500 shares in TPE that represents all shares. At times relevant Mr. Karr received a salary from TPE Bay County and from TPE. The Florida General Contracting license pertaining to TPE Bay County and TPE is No. CBC059131. At times relevant TPE Bay County and TPE maintained separate employee telephone numbers or contact lists. Those lists set forth the names and addresses for the employees. Persons whose names and addresses are related in the TPE Bay County list and the TPE list do not overlap. TPE Bay County is engaged in the business of concrete spalling, stucco repair, termite and water damage, waterproofing, caulking, texture coatings and painting. TPE is engaged in the business of concrete spalling, stucco repair, termite and water damage, waterproofing, caulking, texture coatings and painting. TPE Bay County in its breakout of work performed is involved 60 percent in waterproofing, 25 percent in stucco and wood repair and 15 percent in painting and texture coatings. By contrast TPE is involved with 80 percent concrete spalling, and 20 percent painting. TPE Bay County does work in Bay County, Florida. TPE does work in the lower Florida keys in Monroe County, Florida. The work is done through separate company employees assigned to those jobs from the business locations where the jobs are found. The work is not done by exchanging employees who work for TPE Bay County and TPE respectively. TPE Bay County and TPE have separate managers whose job it is to estimate, promote, market, bid, solicit, and obtain contracts. Those managers do not communicate or deal with each other in the regular course of business. Mr. Karr's job duties in relation to his companies is to deal with corporate functions, set goals for profit, set goals for sales, deal with the respective managers of the two companies, deal with cash-flow, oversee accounting, sign checks, and visit job sites routinely. Mr. Karr hired the managers for the two locations and would be responsible for firing those managers. He has a similar role in dealing with a single accounting staff that serves both companies. Gary Williams serves as the manager for TPE Bay County. Stace Valensuelela manages TPE. Those managers are responsible for labor relations and safety activities. The managers are responsible for approving time cards for payroll purposes and establishment of hourly wages for employees, for billing customers and approving invoices for payment. The bookkeeping for the companies is done by Georgianne Davis who is overseen by Mr. Karr's wife. The business records for TPE Bay County Respondent are maintained at 7915 North Lagoon Drive, Panama City Beach, Florida 32408. The mailing address for that company is Post Office Box 18155, Panama City Beach, Florida 32417. The telephone number for TPE Bay County is (850) 235-4811. The fax number for TPE Bay County is (850) 230-3617. The e-mail address is ken@tpestructures.com. The business records for TPE had been maintained at 5970 Peninsula Avenue, No. 3, Key West, Florida 33040. The mailing address for TPE was Post Office Box 2066, Key West, Florida 33045. The telephone number for TPE was (305) 292-4111. The fax number for TPE was (305) 292-4615. The e-mail address for TPE is ken@tpestructures.com. After September 29, 2004, the Key West office closed and the records of TPE were sent to the Panama City Beach address related to TPE Bay County for storage purposes. TPE Bay County has assigned an FEIN number 59-3666286. TPE has assigned an FEIN number 65-0929637. TPE Bay County does business with Peoples Bank in Panama City Beach, Florida. TPE has transacted banking business with First State Bank in Key West, Florida. An occupational license was issued by Panama City Beach for TPE Bay County's operations in Bay County, whereas TPE's operations in Key West for Monroe County was issued a separate occupational license by that local government. According to employee information for TPE Bay County and TPE, at times relevant nine persons were employed by TPE Bay County and 20-plus persons were employed by TPE. At times relevant none of the persons employed by TPE Bay County worked on projects around south Florida. Similarly, none of the TPE employees worked on projects in the Florida panhandle. No funds related to TPE Bay County were used to pay the debts for TPE. No funds for TPE were used to pay debts of TPE Bay County. On advice of counsel Mr. Karr formed TPE Bay County as a separate corporation from TPE to limit debt liability. These arrangements were not intended in their design to avoid employment discrimination claims by employees. A business card presented as evidence bearing Mr. Karr's name sets forth TPE as the company. It provides the post office address for TPE Bay County and TPE in their respective locations at Panama City Beach and Key West. It gives the telephone numbers for TPE Bay County and TPE. It gives the fax number for TPE. It has a website listed which is www.tpestructures.com. A letterhead refers to TPE with a post office address for both the TPE Key West company and the TPE Bay County Panama City Beach company. Advertising in several telephone book listing services refers to "TPE Structures, Inc." and "TPE" while containing the TPE Bay County's 7914 North Lagoon Drive, Panama City Beach, Florida address and telephone number at 235-4811. Those listings bore the website address www.tpestructures.com with the contractors license number CBCO59131. Two separate telephone listings bore the name "TPE Structures, Inc.," with the initials "TPE" the 5970 Peninsula Avenue address for TPE and the telephone number for TPE as (305) 292-4111. A website address in those listings was given as www.tpestructures.com. A contact form soliciting information from outsiders refers to TPE, not TPE Bay County, at the location 7914 North Lagoon Drive, Panama City Beach, Florida 32408, with a telephone number of (850) 235-4811 and the fax number (850) 230-3617. That same form refers to TPE at telephone number (305) 292-4111 and fax number (305) 292-4615. It carries an e-mail addresses for general information as info@tpestructures.com and under the president as ken@tpestructures.com. An information sheet referring to the "TPE" office staff shows photos of Mr. Karr as founder and president, Suzanne Karr, Gary Williams as manager of Panama City Beach, and Georgianne Davis, secretary and accounting at Panama City Beach, Florida. On that same page with photos unavailable is a reference to Stace Valensuelela as manager of Key West and an unnamed secretary at Key West, Florida. A brief employment application form refers to joining the "TPE" team and sending the information to "TPE Structures, Inc." at 7914 North Lagoon Drive, Panama City Beach, Florida 32408. It provides the fax number (850) 230-3617 related to Panama City Beach. At times relevant TPE Bay County had filed with the Florida Department of Revenue its employers quarterly report. TPE Bay County has filed a Form 940-EZ with the Internal Revenue Service related to the Employers' Federal Unemployment (FUTA) tax return for calendar year 2003. TPE Bay County had filed a Form 941 Employers' Quarterly Federal Tax Return for the quarter ending September 30, 2003, with the Internal Revenue Service. In a document prepared that refers to the "TPE history", it is stated that in addition to the Key West office, TPE is proud to announce the opening of the Panama City Beach, Florida office at 7914 North Lagoon Drive on February 1, 2001. The phone numbers are (850) 235-4800 and fax (850) 230-3617 or toll free at 877-660-4811. A truck used in the business related to TPE Bay County had signs displayed referring to "TPE." One sign on the truck indicated the telephone number for TPE Bay County's business, which is (850) 235-4811. At times relevant employees working for TPE Bay County wore painter whites referring to "TPE Structures" that displayed the telephone numbers for Key West and Panama City Beach with a common 1-800 number. When Petitioner White was hired, Mr. Karr told him that he has trying to keep Key West going and was having monetary trouble in that location. From the hearing record nothing additional was said to Petitioner White on the subject. Mr. Karr told Petitioner Hunt that there was a Key West branch of his business. Notwithstanding this remark, Petitioner Hunt did not become personally familiar with the Key West operation.
Recommendation Upon the consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That a final order be entered by the Commission finding that it is without jurisdiction to proceed in these cases based upon Petitioners' failure to show that the Respondent is "an employer" as defined in Section 760.02(7), Florida Statutes (2003). DONE AND ENTERED this 22nd day of December, 2004, in Tallahassee, Leon County, Florida. S CHARLES C. ADAMS 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 22nd day of December, 2004. COPIES FURNISHED: Daniel A. Perez, Esquire Allen & Trent, P.A. 700 North Wickham Road, Suite 107 Melbourne, Florida 32935 Kenneth L. Karr, President TPE Structures of Bay County, Inc. Post Office Box 18155 Panama City Beach, Florida 32417 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue The issues are whether Respondent violated section 112.313(6), Florida Statutes (2018), by exhibiting inappropriate behavior toward city staff; and, if so, what is the appropriate penalty.
Findings Of Fact Respondent served as a city commissioner of Madeira Beach from 2007 through March 2013, and was reelected to the office in March 2017. Shane Crawford served as the city manager of Madeira Beach from January 2012 through July 2017. Cheryl McGrady Crawford served as a full-time employee of Madeira Beach in different capacities: intern for the planning and zoning coordinator; in the building department; and city clerk. In addition, she served as the executive assistant to then-City Manager Shane Crawford from September 2012 through February 2017, where her job responsibilities included acting as deputy clerk when the city clerk was unable to attend a function or meeting. David Marsicano has been serving as Madeira Beach’s public works and marina director for 17 years. Travis Palladeno served as the mayor of Madeira Beach from 2011 through 2017. Terry Lister served as a city commissioner of Madeira Beach from 2008 through 2018. Francine Jackson was a Madeira Beach employee for approximately 11 years. Her last position was as the assistant to Public Works Director Marsicano from 2012 through 2014. Thomas Verdensky is the president of the Old Salt Foundation, which is a volunteer organization. Joseph Campagnola is a retired 13-year New York City police officer who has volunteered as head of security (coordinates sheriff’s department and personal guards) for Old Salt Foundation events for the past nine years. Nicole Bredenberg was present at the November 3, 2012, Madeira Beach City Commission (“City Commission”) meeting. Respondent is subject to the requirements of chapter 112, part III, the Code of Ethics for Public Officers and Employees, for her acts and omissions during her tenure as a city commissioner of Madeira Beach. See § 112.313(6), Fla. Stat. and City Charter Section 2-31 Duties and Responsibilities. As a city commissioner of Madeira Beach, Respondent took an oath “to faithfully perform the duties of [her] office and the Constitution of [sic] the laws of the State of Florida and the United States of America.” As a city commissioner of Madeira Beach, Respondent was prohibited from interfering with administration as provided: “The Board of Commissioners nor any member thereof shall give orders to any subordinate or Officer of said City, either publicly or privately, directly or indirectly.” As a city commissioner, Respondent’s responsibilities included attending City Commission meetings, regular or special. At the City Commission meetings, the city clerk is responsible for taking the meeting minutes. If the city clerk is unavailable, a substitute is needed or the meeting cannot be held. Mr. Palladeno told the new Madeira Beach city manager, Shane Crawford, that he wanted an outdoor meeting since they are a beach community. In November 2012, an outdoor City Commission meeting was held in conjunction with the King of the Beach Tournament, a fishing tournament occurring biannually in Madeira Beach. The meeting was to recognize Bimini, Bahamas, as Madeira Beach’s sister city with a presentation of a key to the city and a proclamation. The King of the Beach Tournament is organized by the Old Salt Fishing Foundation. The event was held on a baseball field having field lights, which turned on as it started to get dark. Respondent was present at this event in her official capacity to participate in the meeting. She had consumed alcohol at the all-day fishing tournament. Then-city clerk, Aimee Servedio, could not attend this meeting, so a substitute was required or the meeting could not go forward. Ms. McGrady (prior to her becoming Ms. Crawford) had been assigned the role of deputy clerk and was prepared to take minutes. Respondent dislikes Ms. Crawford because she believed, without any proof produced at hearing and a firm denial at hearing by Ms. Crawford, that she and Shane Crawford were having an affair at the time of the meeting at issue, which was prior to their marriage. The City Commission could not start the meeting the evening after the tournament because Respondent refused to go on stage due to Ms. McGrady’s role as deputy clerk. There was a heated discussion between Shane Crawford, Ms. McGrady, and Respondent. Respondent actually refused to attend the meeting if Ms. McGrady was present, and demanded that she be removed from the area. Mr. Palladeno and an official Bimini representative were in the vicinity of the heated discussion. Referring to Ms. McGrady, and in her presence, Mr. Palladeno heard Respondent say, “You need to get that f[***]ing b[itch] out of here.” Mr. Palladeno rushed in to move the Bimini representative away from the situation. Lynn Rosetti, who at that time was the planning and zoning director, had to fill in because Respondent refused to attend the meeting if city employee, Ms. McGrady, was allowed to substitute for the city clerk. Respondent’s actions interfered with Ms. McGrady’s job duties. After the meeting was over, Respondent approached Shane Crawford with Ms. McGrady, David Marsicano and his then- wife Shelley, and Nicole Bredenberg also in the immediate area. Using her tongue, Respondent licked City Manager Shane Crawford up the side of his neck and face. This act was witnessed by Ms. McGrady, Mr. Marsicano, Mr. Bredenberg, and Mr. Verdensky. Respondent then groped City Manager Shane Crawford by grabbing his penis and buttocks. This act was witnessed by Ms. McGrady and Mr. Bredenberg. Respondent then threw a punch at Ms. McGrady after she told Respondent that her actions were inappropriate. Mr. Marsicano’s ex-wife intervened and confronted Respondent. Mr. Verdensky, who testified that he had been licked by Respondent on a different occasion, called for the head of security, Joseph Campagnola. Mr. Campagnola arrived between one to two minutes after the call. By the time he arrived, Respondent was walking away. However, he found Shane Crawford, Ms. McGrady, and Ms. Marsicano. He was told by Mr. Crawford that Respondent licked his face and grabbed him, which was corroborated by Mr. Marsicano and Ms. McGrady. Mr. Marsicano, who testified he had also been licked by Respondent on a different occasion, has a distinct memory of Respondent’s actions at the November 2012 City Commission meeting because of the “disruptions and shenanigans” that happened before, during, and after the meeting. He had to lead his wife away because she was so upset with Respondent. Mr. Marsicano also testified that he witnessed the face-licking of Mr. Crawford by Respondent. He subsequently spoke with Francine Jackson about what happened at that meeting. Ms. Jackson was not present for the November 2012 City Commission meeting. However, that following Monday or Tuesday, she discussed the weekend with Mr. Marsicano and was informed by him that Respondent licked Mr. Crawford’s face. Ms. McGrady was placed in a predicament when Respondent’s animosity towards her became overt and physical. Respondent created a hostile environment and employees were rightfully fearful of retaliation if they reported Respondent’s actions. Robin Vander Velde is a former city commissioner of Madeira Beach and has known Respondent since 2007. Ms. Vander Velde was outraged about an ethics complaint being filed against her very good friend of ten years. Present in her capacity as a city commissioner at the November 2012 meeting, her recollection of the events was foggy, at best. Ron Little is Respondent’s best friend of 20 years and Ms. Vander Velde’s boyfriend. He honestly acknowledged that it is a given that he would want to help Respondent. Mr. Little was unaware of Respondent’s Driving under the Influence (“DUI”) arrest, petit theft arrest, alleged participation in a United States Postal Service (“USPS”) mail hoax, and the reasons why she left her City of Clearwater employment. Elaine Poe is a former city commissioner of Madeira Beach. Ms. Poe was unaware of Respondent’s petit theft arrest, alleged participation in a USPS mail hoax, and why she left her City of Clearwater employment. While Ms. Poe was at the November 2012 meeting, she did not recall the meeting starting late. Jim Madden is a former city manager of Madeira Beach. He was also unaware of Respondent’s petit theft arrest and alleged participation in a USPS mail hoax. Doreen Moore was unaware of Respondent’s petit theft arrest and alleged participation in a USPS mail hoax. Linda Hein met Respondent in 2016. She was unaware of Respondent’s petit theft arrest. Originally, Ms. Hein did not remember attending the November 2012 meeting until her memory was refreshed; regardless, she could not provide eyewitness testimony concerning the alleged licking incident. Michael Maximo, is the former Madeira Beach community services director. He testified he had been licked by Respondent on a different occasion, during the soft opening of a Bubba Gump’s Restaurant in John’s Pass Village. He recalled the details of the specific incident and said Respondent was inebriated at the time, and she came over to him and licked his face and neck in the presence of her husband, who quickly escorted her from the building. Mr. Maximo refuted the testimony of Respondent’s witnesses as his knowledge of Respondent’s reputation in the community was as a “fall down drunk,” who should not be representing the community. This was a different picture from the one painted by Respondent’s friends who, while admitting she liked to have a drink or several with them and others, they could not imagine her licking someone in public.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Ethics enter a final order finding that Respondent, Nancy Oakley, violated section 112.313(6), Florida Statutes, and imposing a public censure and reprimand and a civil penalty of $5,000. DONE AND ENTERED this 7th day of December, 2018, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 7th day of December, 2018. COPIES FURNISHED: Kennan George Dandar, Esquire Dandar & Dandar, P.A. Post Office Box 24597 Tampa, Florida 33623 (eServed) Melody A. Hadley, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 (eServed) Elizabeth A. Miller, Esquire Office of the Attorney General Plaza Level 01, The Capitol Tallahassee, Florida 32399 (eServed) Millie Fulford, Agency Clerk Florida Commission on Ethics Post Office Drawer 15709 Tallahassee, Florida 32317-5709 (eServed) C. Christopher Anderson, III, General Counsel Florida Commission on Ethics Post Office Drawer 15709 Tallahassee, Florida 32317-5709 (eServed) Virlindia Doss, Executive Director Florida Commission on Ethics Post Office Drawer 15709 Tallahassee, Florida 32317-5709 (eServed)
