The Issue In an order dated January 29, 1992, the State of Florida, Commission on Ethics found probable cause that the Respondent, as a city commissioner of the City of Cottondale, violated Section 112.313(7)(a), Florida Statutes, by having a contractual relationship with a business entity which was doing business with the city. The issue in this proceeding is whether the violation occurred and, if so, what penalty should be recommended.
Findings Of Fact Leonard Norsworthy served two two-year terms as a city commissioner for the City of Cottondale, a small community in the Florida panhandle. His tenure spanned from 1987 until July 1991. Mr. Norsworthy is sole proprietor of J. & L. Housepainting and Remodeling (J & L), a roofing and remodeling business. He has a State of Florida contractor's license. Sometime in 1990, the City of Cottondale, through its grants coordinator in Tallahassee, sought and obtained Community Development Block Grant (CDBG) funds for various needed public works. The project was advertised, and a bid was awarded to T & A Utilities Contractors, Inc. (T & A), a Lynn Haven, Florida, firm owned by Charles Williams. The total contracted amount of $244,282 included resurfacing two streets, a parking lot, a children's park, 8-inch water lines, and renovations to the city hall. Not all of the work was done immediately, as the city needed to get various permits. Due to changes in the scope of work, additional money became available for other projects, including renovating a public bathroom to make it accessible for handicapped persons. Some of the work was subcontracted by T & A to other firms. Charles Williams did not advertise for bids for the subcontracted work, but obtained proposals. He had obtained proposals from some Panama City firms for the bathroom and city hall renovations because he was not aware of firms closer to Cottondale. "Pete" Hilton was Cottondale's Public Works Director for eight years until he left in October 1992 for medical reasons. He told Charles Williams that he knew someone who could do the work for a good price, and shortly thereafter Leonard Norsworthy called Williams. Mr. Norsworthy's proposal was less than the prices quoted by the Panama City firms, and on June 5, 1991, T & A subcontracted with J & L for the renovation work for a total amount of $8,460. The sum was paid in three releases. The jobs performed by Mr. Norsworthy under the subcontract included redoing the bathroom and a handicap ramp entrance, installing rain gutters, removing a wall and plastering and finishing a wall. At no charge for his labor, Mr. Norsworthy also painted the building. Leonard Norsworthy knew about the city's revitalization contract with T & A because he was a city commissioner at the time. While the city was a party to the contract, the specifications and the background work were handled by the city engineer, who recommended the award to T & A. Leonard Norsworthy admits that he did the work and says, "You live and learn." He concedes that there are others in the area who could have done the work, but believes he gave a good price for the job. He says that work is scarce in the area and you have to take it where you find it. He knew that the law prohibited doing business with one's own agency, but he had no idea that the prohibition extended to subcontracts as well.
Recommendation Based on the foregoing, it is hereby, RECOMMENDED: That the Commission enter its final order and public report finding that Leonard Norsworthy violated Section 112.313(7), Florida Statutes, and recommending a penalty of $300.00. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 12th day of April 1993. MARY CLARK 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 12th day of April 1993. COPIES FURNISHED: Craig Willis, Esquire Michael Ingraham, Esquire Department of Legal Affairs The Capitol, Suite 1502 Tallahassee, Florida 32399 Leonard Norsworthy Post Office Box 299 Cottondale, Florida 32431 Bonnie Williams, Executive Director Ethics Commission Post Office Box 6 Tallahassee, Florida 32302-0006 Phil Claypool, General Counsel Ethics Commission Post Office Box 6 Tallahassee, Florida 32302-0006
The Issue The issue in this case is whether a proposed activity by Cayo Costa Island Partnership is exempt from permitting.
Findings Of Fact Cayo Costa Island is a bridgeless barrier island situated between Gasparilla Island to the north and Captiva Island to the south. East of Cayo Costa Island is Pine Island, and east of Pine Island is Cape Coral. In the 1960s, Travis Gresham subdivided and commenced development of a portion of Cayo Costa Island. Development included the dredging of canals. Eventually, one or more plat maps were recorded in the public records of Lee County, so that warranty deeds for residential lots referred to such recorded plat maps. There is also a subdivision sales plat map, which may not have been recorded. Not all of the land was subdivided into lots. The sales plat map reserves a considerable amount of land and canals for future development. One of the reserved areas is to the east of the subdivided lots. The location of the proposed dock is in the extreme southwest corner of this unplatted area. The dock would be located at the western end of a relatively wide manmade canal, which measures 2000 feet long and 105 feet wide. The east end of the canal terminates in Pine Island Sound. Petitioner and her late husband purchased from Mr. Gresham lot 16 in block 1 over 30 years ago, and they moved onto the island almost 20 years ago. The lot does not abut the canal, nor the upland adjacent to the subject dock. She has permanently resided on the island continuously since 1976. In 1984, she and her husband conveyed their property by warranty deed to the State of Florida, reserving a life estate. Petitioner's husband and some friends constructed the subject dock at the end of the canal in September 1978. A couple of years later, another nearby resident named Carl Noah substantially enlarged the dock. On March 16, 1993, Mr. Noah conveyed by warranty deed his real property to Paul Faust. At the same time, Mr. Noah gave Mr. Faust a quitclaim deed for "boat docks constructed by [Mr. Noah] to be used with the [residential] structure." After purchasing the property from Mr. Noah, Mr. Faust was contacted by Petitioner, who told him that she had previously owned the dock and that Mr. Noah had shared it with her. Mr. Faust agreed to share the dock with her, for as long as he owned it. There are no recorded easements concerning the use of the dock. On the sales plat map, the west end of the canal is clearly separated from the subdivided area by a road, which is named Harbor Drive. However, Harbor Drive was never constructed and there is no physical evidence of the proposed road. Petitioner's late husband and his friends who helped build the dock mistakenly believed that the west end of the canal terminated at Harbor Drive. Undoubtedly, other persons were similarly confused, including the property assessor, who had never assessed the property that separates the west end of the canal from Harbor Drive. However, in May 1993, Noel Andress, one of the partners of Cayo Costa Island Partnership, obtained a warranty deed from Mr. Gresham for a triangular- shaped piece of land running north just to the existing dock from the intersection of Harbor Drive and an actual road known as La Costa Drive. Mr. Andress quitclaimed the triangular-shaped parcel, which is described by metes and bounds, to Cayo Costa Island Partnership on January 13, 1994. After Mr. Andress acquired the triangular-shaped parcel, he directed his attorney to write Petitioner and Mr. Faust and inform them to remove their personal property from the real property that Mr. Andress had recently acquired. Mr. Faust is contesting this matter in court. Unfortunately, the record does not include the application or applications submitted by Cayo Costa Island Partnership. Mr. Andress testified that he submitted an application in February or March of 1993. The proposed dock, which would replace the dock built by Mr. Sellars and Mr. Noah, would serve a single family. The proposed dock would consist of two sections: a 5' by 92' main section and a 6' by 10' walkway to the upland area. Thus, the total area of the dock would be 520 square feet. The application reportedly provides that Cayo Costa Island Partnership would use turbidity barriers during construction. The location of a 92-foot dock running parallel to the end of a 2000- foot long undeveloped canal presents no impediment to navigation. There is no reason to infer an adverse impact to flood control or, as long as turbidity barriers are used, a violation of water quality standards. By letter dated June 15, 1994, the Department of Environmental Protection acknowledged receipt of the application, as well as additional drawings and documents submitted on April 8, 1994. Based on these materials, the letter states that the proposed project "appears to qualify as an activity which is exempt from the need for a Department wetland resource permit under Florida Administrative Code Rule 17-312.050(1)(h)."
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Department of Environmental Protection enter a final order dismissing the petition of Petitioner. ENTERED on November 22, 1994, in Tallahassee, Florida. ROBERT E. MEALE 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 on November 22, 1994. APPENDIX Rulings on Petitioner's Proposed Findings A-C: rejected as not findings of fact. A1: rejected as not finding of fact and irrelevant, except for last sentence, which is adopted or adopted in substance. A2-end: rejected as irrelevant, recitation of evidence, subordinate, and unsupported by the appropriate weight of the evidence. Rulings on Cayo Costa's Proposed Findings 1-10: adopted or adopted in substance. 11-12: rejected as subordinate. 13-15: adopted or adopted in substance. 16-23: rejected as subordinate, recitation of testimony, and unnecessary. 24-31: adopted or adopted in substance. 32-33: rejected as irrelevant. COPIES FURNISHED: Virginia B. Wetherell, Secretary Department of Environmental Protection Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 Kenneth Plante, General Counsel Department of Environmental Protection Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 Barbara Mathews Trescott Pepper Law Firm 1505 S.E. 40th St. Cape Coral, FL 33904 Mary F. Smallwood Ruden, Barnett P.O. Box 10888 Tallahassee, FL 32302 John Chaves Department of Environmental Protection Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400
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 The issue is whether Respondent engaged in an unlawful employment practice.
Findings Of Fact Mr. Hurley was 53 years of age when hired by Advance in 1998. He was born on June 19, 1944. His employment relationship with Advance was "at will." His work schedule was determined by Advance and was based entirely on the determination by Advance of its requirement to adequately serve its customers. When Mr. Hurley started working there, he worked Monday, Tuesday, and Wednesday from 7:30 a.m. until 5:00 p.m., although sometimes he worked until 6:00 p.m. Advance is a large retail auto parts retailer. It has many stores. Mr. Hurley was employed as a driver in the Advance store located at 52 North Young Street, Ormond Beach, Florida, during all times pertinent. William G. Nulf was the store manager of the Ormond Beach Store during 2006. The assistant store manager was Jose Rivera. Jim Ashcraft was the "commercial parts pro." All of these men were authorized to supervise Mr. Hurley. On October 30, 2006, Mr. Hurley returned in his assigned vehicle after completing deliveries for the store. Mr. Rivera asked Mr. Hurley about receipts for the parts he had delivered. Mr. Hurley believed the receipts should be accounted for in one way and Mr. Rivera another way. These divergent views resulted in a disagreement that devolved into loud speech. Mr. Rivera told Mr. Hurley to leave the store and go home, but Mr. Hurley refused on the ground that he believed Mr. Rivera was without authority to send him home. During the disagreement Mr. Hurley was on one side of a counter, and Mr. Rivera was on the other side. As the argument progressed, Mr. Rivera stated that Mr. Hurley was a dirty, old, perverted man who should have been discharged a long time ago. Mr. Hurley also made inappropriate comments. Mr. Rivera dared Mr. Hurley to come from behind the counter and fight him. He put his fist in front of Mr. Hurley's face. Ultimately, the "commercial parts pro," Mr. Ashcraft, intervened, and his intervention ended the threat of actual physical violence. Neal Potter, the division manager for Advance having responsibility for the Ormond Beach store, investigated the incident. He used the employee handbook as a guide. The employee handbook of Advance states, "Any threats, incidents of violence, or intimidation of any nature whatsoever (including indirect threats or acts of intimidation) directed against a Team Member or other party by another Team Member will result in immediate termination." Mr. Potter took written statements from the participants and witnesses. He determined that the incident did not rise to the level of workplace violence as described in the handbook. He determined that both parties were at fault, and the incident was no more than a heated argument. Mr. Potter transferred Mr. Rivera to the Daytona Store with an effective date of November 8, 2006, because as a manager Mr. Rivera was held to a higher standard, and he had allowed the incident with Mr. Hurley to get out of control. Mr. Rivera was informed that if any similar issues occurred in the future, he would be terminated. This was memorialized in an Employee Action Report. Mr. Hurley told Mr. Potter that he was very afraid of Mr. Rivera. Subsequent to this incident, Mr. Hurley performed his job satisfactorily and rarely was in the presence of Mr. Rivera, although he did on occasion make deliveries to the Daytona Store where Mr. Rivera was then working. Mr. Hurley did not complain of discrimination as a result of this incident. The Employee Handbook has detailed guidance on how to complain of discrimination or a hostile work environment. Mr. Hurley was familiar with the process. He had complained to Mr. Potter on numerous occasions about a variety of issues, including payroll matters, vacation time, new policies and procedures, and other matters. Mr. Potter regarded him as someone who was quick to complain about almost any matter. Prior to March 4, 2007, Tom Estes was the store manager at the Daytona Store. During his tenure at the Daytona Store, Mr. Rivera was transferred to his store and served as Mr. Estes' assistant. Although Mr. Estes was aware that Mr. Rivera had been transferred from the Ormond Beach store because of an altercation with a fellow employee, he did not know that the employee involved was Mr. Hurley. Mr. Estes had prior experience with Mr. Rivera, thought him to be an excellent employee, and was happy that he had been transferred to his store. On March 4, 2007, Mr. Estes was transferred by Advance and became the manager of the Ormond Beach store. He had required drivers at the Daytona store to maintain delivery logs. He instituted this practice when he took over the Ormond Beach Store. This conformed to company policy. Mr. Hurley did not like this policy. From January 6, 2007, until March 10, 2007, Mr. Hurley's hours generally were Monday and Tuesday from 7:30 a.m. until 5:00-5:30 p.m., and Wednesday from 8:00 a.m. until noon. A short period after becoming manager of the Ormond Beach Store, Mr. Estes determined that more coverage was needed in the late afternoon hours. He made the specific determination that the commercial business required coverage until 6:00 p.m. For the week ending March 31, 2007, he changed Mr. Hurley's hours to Monday and Tuesday from 9:00 a.m. until 6:00 p.m. and Wednesday from 8:00 a.m. until noon. This change was based solely on Mr. Estes' estimate of the business needs of the store. When Mr. Hurley learned of this on March 21, 2007, he displayed anger. He told Mr. Estes that he could not work until 6:00 p.m. because he had to feed his pet birds. On March 26, 2007, the first day he was to work the new schedule, Mr. Hurley was excused from work based on a doctor's note. As events transpired, he never worked the new schedule and, as of the hearing date, he had not returned to work. He did not assert at the time he departed that the proposed change in hours was discriminatory, harassing, or retaliatory. The only person involved in requiring Mr. Hurley to maintain trip logs, and the only person involved in the decision to change Mr. Hurley's hours was Mr. Estes. Mr. Estes was unaware of Mr. Hurley's statement to Mr. Potter. Mr. Estes could not have made changes in Mr. Hurley's work requirements based on retaliation because he was unaware of a complaint.
Recommendation Based upon the Findings of Fact and Conclusions of Law, RECOMMENDED that the Florida Commission on Human Relations dismiss Mr. Hurley's Petition for Relief DONE AND ENTERED this 9th day of September, 2008, in Tallahassee, Leon County, Florida. S HARRY L. HOOPER 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 9th day of September, 2008. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 David Glasser, Esquire Glasser and Handel Suite 100, Box N 150 South Palmetto Avenue Daytona Beach, Florida 32114 Steven David Brown, Esquire LeClair Ryan 951 East Byrd Street Richmond, Virginia 23219 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue The issue is whether Respondent Alexander J. Milanick should be required to pay attorney fees and costs in the amount of $4,976.00 to Petitioner Charles Osborne to compensate Petitioner for his defense of an ethics complaint filed with the Florida Commission on Ethics.
Findings Of Fact The Town of Beverly Beach, Florida has a population of about 600 located in Flagler County, Florida. It is about one mile from north to south, and occupies about .4 square miles. It is bounded on the west by the Intracoastal Waterway and on the east by the Atlantic Ocean. U.S. Highway A1A is the main north-south route through the town. Mr. Osborne is an aerospace engineer who served on the Beverly Beach Town Commission from 1997 through March 1999. He was mayor from March 1999 until 2001. He has lived at 2641 Osprey Circle, in Beverly Beach, in a home constructed at that location, since 1995. This residence is closer to the southern boundary of Beverly Beach than to the northern boundary. Dr. Milanick is a dentist who, along with his brother John, and a person named McGee, during times pertinent, owned land immediately north of Beverly Beach. On the property then and currently owned by Dr. Milanick, and east of A1A, is a restaurant named the Shark House. The premises has also been known as Crabby Joe's. In 1995, Dr. Milanick applied to the Town Commission to have his property, and that of his brother, and that of McGee, annexed into the town limits of Beverly Beach. He did this by asking a Mr. Taylor to do what was necessary to cause the annexation to occur. Mr. Taylor thereafter filed a petition with the Town Commission. By Ordinance 95-9-4, the Town Commission, in 1995, assented to the request and it was made effective November 15, 1995. The Ordinance purported to annex the Milanick property into the Town of Beverly Beach and to zone it general commercial. Mr. Osborne was not a member of the Town Commission and was not mayor during this time. The Ordinance, however, was defective in four ways. The Ordinance purported to annex the property into Bunnell, Florida; it was not properly signed by all commissioners; it was not publicly noticed; and it did not provide a legal description of the property. It was not filed with either the Flagler County Clerk of the Court or the Florida Secretary of State. The matter languished until 1997 when Dr. Milanick determined that his property had not in fact been moved within the boundaries of Beverly Beach. Dr. Milanick brought this to the attention of the Town Commission in October 1997. At a Town Commission meeting on December 3, 1997, the Town Attorney stated that he had not had a chance to look into the Milanick and Shark House issue. At a Town Commission meeting on February 4, 1998, Dr. Milanick inquired as to the progress being made on the annexation of his property and was told that the Town Attorney would get with him and discuss the procedure. Subsequently, the Town Attorney, Pat McCormick, suggested that it would be necessary to start the process from the beginning if the land was to be annexed. At a Town Commission meeting on March 4, 1998, Mayor Osborne stated that there was no benefit to the annexation of the Shark House. One member of the Town Commission suggested that they honor past commitments. Dr. Milanick was in attendance at this meeting. At a Town Commission meeting on May 5, 1999, Dr. Milanick and his brother again attended the Town Commission meeting and requested the annexation of their property and discussed the procedure that would be necessary. At a Town Commission meeting on June 2, 1999, a motion was made to go forward with Ordinance 95-9-4 and to amend the official city map and legal description to include the Shark House property. The motion passed but Mayor Osborne vetoed it. During a regular monthly meeting of the Town Commission on July 7, 1999, James Kearn, an attorney retained by Dr. Milanick, who was authorized to act for Dr. Milanick, appeared and requested that the Commission direct the Town Clerk to sign Ordinance 95-9-4 and to forward it to the county and the state in order to determine if the Ordinance was valid. This request was approved by the Town Commission. Mayor Osborne, vetoed the measure. Thereafter, the veto was over-ridden by the Commission. At a Town Commission workshop on July 21, 1999, there was additional discussion regarding the annexation of the Shark House. Mr. Kearn accused Mayor Osborne of discussing the Milanick annexation matter with Sid Crosby, Clerk of the Court of Flagler County. Mayor Osborne denied the charge. The discussion became heated and accusatory and Mayor Osborne threatened to have the sheriff eject Mr. Kearn from the meeting. Subsequent to the action of the Town Commission of July 7, 1999, the Town Clerk, Douglas Courtney, took Ordinance 95-9-4 to Syd Crosby, Clerk of the Court for Flagler County. In a memorandum dated July 26, 1999, Mr. Courtney reported to the Town Commission that Mr. Crosby would not file Ordinance 95-9-4 because it was defective. One of the defects cited was that the instrument purported to annex the land into the City of Bunnell, Florida. No creditable evidence was adduced which indicated that Mayor Osborne visited Syd Crosby for the purpose of preventing the recording of the annexation of Dr. Milanick's property. Mr. Crosby concluded from the beginning that Ordinance 95-9-4 was not recordable. Mayor Osborne suggested some solutions which would permit the annexation, including, re-submission of a proper application. Over a period of time some "glitch" bills were considered which would annex the land. However, none passed. Mr. Kearn attended the Town Commission meeting on February 2, 2000, and the minutes of the meeting noted that he was accompanied by "a person taking notes." Following this meeting, in a February 16, 2000, letter to Dennis Knox Bayer, Town Attorney, Mr. Kearn claimed that Mayor Osborne had a personal vendetta against Dr. Milanick, and that he was exercising dictatorial efforts to prevent citizens to speak at town meetings. He further demanded that ". . . all Town officials, including you as their representative, refrain from saying things that are simply and blatantly false, which only serve to incite Mr. Milanick." At a town meeting on March 1, 2000, Mr. Kearn complained about the annexation not being on the agenda and Mayor Osborne stated that a request for inclusion on the agenda had not been made in writing. Mr. Kearn was permitted to speak for three minutes, he spoke for three minutes, and immediately thereafter Mayor Osborne adjourned the meeting. On or about April 25, 2000, Dr. Milanick and his brother John, filed suit against the Town of Beverly Beach and Mayor Osborne personally, in the Circuit Court of the Seventh Judicial Circuit in and for Flagler County. The suit alleged that the Town of Beverly Beach and Mayor Osborne violated the civil rights of the Milanicks. The suit alleged that Mayor Osborne had a vendetta against Dr. Milanick and should be held personally liable to Dr. Milanick. The Circuit Court dismissed the civil rights count against Mayor Osborne and the town, and this dismissal was affirmed by the Fifth District Court of Appeal. The Circuit Court also dismissed the mandamus action, finding that the 30- day limitations' period for filing a petition for a writ of certiorari applied and that a prima facie case for mandamus had not been established. The Fifth District Court of Appeal, on October 19, 2001, remanded that count to the Circuit Court with directions to grant the petition for mandamus, but upheld the dismissal of the civil rights counts. On January 23, 2003, the Circuit Court entered its Alternative Writ of Mandamus. The Writ incorporated the allegations of Plaintiff's Complaint by reference and ordered that the Defendants take whatever steps necessary to sign and record Ordinance 95-9-4. When this occurred, Mr. Osborne was no longer an elected official of Beverly Beach. The Circuit Court complaint filed by Dr. Milanick recited that the recording of the ordinance did not occur because Mayor Osborne conferred with the Clerk of the Court to block recording of the ordinance. The adoption of the matters recited in the complaint as true, by the appellate court, does not make them proven facts because no evidence was taken in the case. The complaint, moreover, alleges actions, such as being tyrannical and peevish, which could not in any event constitute a violation of a person's civil rights. The complaint does not allege that Mr. Osborne took any action, as mayor, because he wished to obtain a personal advantage and does not allege that the annexation of Dr. Milanick's real property would affect Mr. Osborne's real property in terms of value or otherwise. As of the date of the hearing, Dr. Milanick's property had not been annexed into the corporate limits of Beverly Beach. Mr. Osborne, while serving as mayor, was not helpful in causing the annexation to occur and it is apparent that his relations with Mr. Kearn were not amicable. Mr. Osborne, while serving as mayor was irascible, intimidating, and controlling. Mr. Osborne believed that the annexation would bring no benefit to Beverly Beach and believed it would, "change the town's character." Mr. Osborne gained nothing directly or personally by preventing, or making difficult, the annexation of Dr. Milanick's land. As an elected official, he was permitted to advance his own ideas with regard to what he believed would be best for Beverly Beach and for himself as a citizen and property owner of Beverly Beach. He could act in this regard so long as he did not secure a special privilege, benefit, or exemption for himself, as opposed to a general benefit. A letter signed by Mr. Kearn dated July 18, 2003, accompanied by an affidavit signed by Dr. Milanick, requested that the Commission conduct an investigation into the activities of Mr. Osborne during the period when he was the mayor of Beverly Beach. For reasons which become apparent hereafter, this letter, which had the words "Via Airborne Overnight Mail" stamped on its face, will be hereinafter referred to as the "Airborne" letter. The following statements were contained in the "Airborne" letter: Specifically, while Mayor, Charles Osborne simply refused to sign and record the ordinance duly adopted by the Town, which annexed land into the Town as a general commercial, simply because he personally did not want anymore general commercial land in the Town, which could jeopardize his personal investment in the Town. He also met with the former Clerk of Court for Flagler County, Mr. Syd Crosby, to persuade the Clerk to not record anything regarding the annexation of such land, in order to prevent the completion of the annexation. He thus plainly put his purely personal concerns, ahead of his duties as mayor, and fiduciary duty to the citizens of Beverly Beach. The mayor still refused to oblige the Town's request, or to honor the duly adopted resolution, for his own personal reasons, irrespective of his duties as mayor to the citizens of Beverly Beach.... Even worse, he met with the former Clerk of Circuit Court of Flagler County, Mr. Syd Crosby, to attempt to persuade Mr. Crosby to not record any ordinance presented by the Town, annexing the Milanicks' property. Mayor Osborne repeatedly ignored and defied the will of the Town to complete the annexation, to pursue his own personal agenda, i.e., stopping annexation of land as general commercial. The "Airborne" letter then parroted items that indicated that the Circuit Court had found to be true, as follows: Additionally, Mr. Osborne simply does not allow anyone to speak with whom he disagrees, or to address matter that he does not want addressed. Mayor Osborne has... refused to put the Milanicks' matters or requests on the Town Council agenda; taken action regarding the Milanicks' properties, without any notice to the Milanicks, or without knowledge by the Milanicks that such action was being taken against their property, as required by the Town's own law; refused to allow the Milanicks to speak to matters that affect their personal and property interests, once the Town Council had opened discussion regarding the annexation and zoning of the Milanicks' properties; blatantly and willfully misrepresented the Milanicks' positions, actions, and statements at Town meetings, beyond the scope of the privilege normally attendant to a politician's statements at such meeting, in order to defeat the Milanicks' requests, and to harm the Milanicks; refused to honor Ordinances passed by previous Town councils, as detailed above; refused to follow through with completing the annexation approved by previous council members of the Town; worked to undercut the recording of the completion of the signing of the ordinance, and the recording of the ordinance, to complete the annexation, all as detailed above. The matters in paragraph 25, are misleading because they indicate that the Circuit Court found these items to be true when in fact no evidentiary proceedings with regard to these items occurred in the Circuit Court. Moreover, the Complaint alleged several matters which Dr. Milanick either knew to be untrue, or should have known that it was untrue. Specifically, the Complaint alleged that Mayor Osborne "did not want anymore general commercial land in the Town, which could jeopardize his personal investment in the Town." This allegation implies that he was acting for some personal and specific reason financial reason, as opposed to a general opposition to development. This allegation, had it been true, would have been actionable pursuant to Section 112.313(6) The Complaint also alleged that Mayor Osborne met with Syd Crosby in order to prevent the annexation of the Milanicks' property. This allegation, coupled with the allegation as to a financial interest, bolsters the asserted improper purpose. Based on this Complaint, the Executive Director of the Commission issued a Determination of Investigative Jurisdiction and Order to Investigate, which was filed with the Commission on September 26, 2003, and assigned Complaint Number 03-091. Investigator Travis Wade of the Commission was directed to conduct a preliminary investigation into whether or not there was probable cause to believe a violation of Section 112.313(6), Florida Statutes, had occurred. That section reads as follows: (6) Misuse of public position.--No public officer, employee of an agency, or local government attorney shall corruptly use or attempt to use his or her official position or any property or resource which may be within his or her trust, or perform his or her official duties, to secure a special privilege, benefit, or exemption for himself, herself, or others. This section shall not be construed to conflict with s. 104.31. Mr. Osborne learned of the Determination of Investigative Jurisdiction and Order to Investigate and thereafter retained Robert J. Riggio, of the firm of Riggio & Mitchell, P.A., located in Daytona Beach, as his attorney. Mr. Riggio worked on the case from October 24, 2003, until September 29, 2004. He charged $150 per hour, which is below the customary charge in the Daytona Beach area, and the hourly rate therefore, is reasonable. He expended 33 hours which is reasonable. He expended $180 in costs. These expenditures totaled $4,976 which was billed to Mr. Osborne. He paid the bill. On April 6, 2004, a second letter dated July 18, 2003, was sent to the Commission by Mr. Kearn by facsimile. This will be referred to as the "Fax" letter. This was precipitated by a request to Mr. Kearn from Investigator Wade that he provide a copy of the original letter. The "Fax" letter differed from the "Airborne" letter. In the second paragraph of the "Fax" letter the following sentence appears: "Specifically, while Mayor, Charles Osborne simply refused to sign and record the ordinance duly adopted by the Town, which annexed land just north of Mr. Osborne's manufactured home . . . ." And in the fourth paragraph of the "Fax" letter, the following sentence appears: "The Mayor objected, because it would serve to annex land as general commercial, just north of his own manufactured home." It further stated that his motivation was ". . . stopping land as commercial near him." Mr. Kearn testified under oath that when Investigator Wade was discussing the case with him, that he, Mr. Kearn, realized the "Fax" letter was a draft that had been sent to Investigator Wade in error. Mr. Kearn said that the "Fax" letter was a draft that had subsequently been edited by Dr. Milanick who knew, July 18, 2003, that Mr. Osborne did not live in a manufactured home located immediately south of the property which was sought to be annexed. Mr. Kearn said that it the "Airborne" letter was supposed to be the operative document. He said that he realized that the "Fax" letter was being used by Investigator Wade when he was talking to him on the telephone on June 8, 2004, and that he advised Investigator Wade of the error. He testified that he made it perfectly clear to Investigator Wade that the "Airborne" letter was the operative document. Investigator Wade's Report of Investigation, however, recites that during the telephone interview of Mr. Kearn, that Mr. Kearn advised him that Mr. Osborne resided in a mobile home community immediately south of the Milanick property, while he served as mayor and that Mr. Osborne's interest in stopping the annexation was to use his position for his personal benefit. At the hearing, Investigator Wade stated under oath that Mr. Kearn advised him during their telephone conversation that Mr. Osborne resided in a mobile home community immediately south of the Milanick property while he was serving as mayor. Investigator Wade stated that the issue of whether or not Mr. Osborne lived in the immediate vicinity of the Milanick property was the key element in his investigation because if that were true, stopping the annexation could be a personal benefit to Mr. Osborne. Mr. Wade was a disinterested and credible investigator and witness and his testimony is taken as true and accurate. Mr. Osborne did not live in either a manufactured or mobile home. The type of home he lived in is irrelevant. What is relevant is that Mr. Osborne did not live adjacent to, or in the vicinity of, the Milanick property. In fact, Mr. Osborne did not live near the north side of town. He lived closer to the south side of town and it is unlikely that the annexation of the Milanick property would have an economic effect on Mr. Osborne's property. Mr. Kearn was aware of Mr. Osborne's resident address because he had him served with a civil suit at his residence in 2000. Mr. Kearn knew that Mr. Osborne did not live in a mobile home community, or in a manufactured home near the Milanick property, or anywhere near it. Nevertheless, he asserted that to be true when he talked to Investigator Wade. Mr. Kearn is the attorney and agent of Dr. Milanick. Mr. Kearn is, therefore, the alter ego of Dr. Milanick so that the actions of Mr. Kearn, are the actions of Dr. Milanick. The Commission, found in their Public Report, dated September 8, 2004, that Mr. Osborne's opposition to the annexation was not connected to any desire to secure a benefit for himself. The Commission dismissed the Milanick complaint on a finding of "no probable cause."
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Ethics enter an order requiring Dr. Milanick to pay Mr. Osborne $4,976.00. DONE AND ENTERED this 1st day of July, 2005, in Tallahassee, Leon County, Florida. S HARRY L. HOOPER 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 1st day of July, 2005. COPIES FURNISHED: Kaye Starling, Agency Clerk Commission on Ethics 3600 Maclay Boulevard, South, Suite 201 Post Office Drawer 15709 Tallahassee, Florida 32317-5709 James J. Kearn, Esquire James J. Kearn, P.A. 138 Live Oak Avenue Daytona Beach, Florida 32114-4912 Gary S. Edinger, Esquire 305 Northeast First Street Gainesville, Florida 32601 Martin A. Pedata, Esquire Martin Pedata, P.A. 505 East New York Avenue, Suite 8 DeLand, Florida 32724 Robert J. Riggio, Esquire Riggio & Mitchell, P.A. 400 South Palmetto Avenue Daytona Beach, Florida 32114 Bonnie J. Williams, Executive Director Commission on Ethics 3600 Maclay Boulevard, South, Suite 201 Post Office Drawer 15709 Tallahassee, Florida 32317-5709 Phillip C. Claypool, General Counsel Commission on Ethics 3600 Maclay Boulevard, South, Suite 201 Post Office Drawer 15709 Tallahassee, Florida 32317-5709 Virlindia Doss, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050
Findings Of Fact The following relevant facts are undisputed: The Division is the arm of the Department of Business and Professional Regulation with the duty and responsibility to permit and regulate pari- mutuel wagering facilities throughout the state. §§ 550.002(7) and 550.01215, Fla. Stat. Petitioner is a pari-mutuel permittee that owns and operates the Daytona Beach Racing and Card Club in Volusia County, located at 1 Unless otherwise noted, all references to the Florida Statutes are to the 2020 version, which was in effect when the Petition was filed. 2 Petitioner waived the requirement in section 120.56(1)(c) that the final hearing be conducted within 30 days after assignment of the case. 960 South Williamson Boulevard in Daytona Beach, Florida (“Petitioner’s facility”). Intervenor is a pari-mutuel permittee doing business as St. Johns Greyhound Park in St. Johns County, at a leased facility located at 6322 Racetrack Road, St. Johns, Florida (“Bayard’s facility”), approximately 75 miles north of Petitioner’s facility. On July 8, 2020, Bayard filed with the Division a “Notice of Relocation” of Bayard’s facility to an eight-acre parcel in St. Augustine, Florida, which it is under contract to purchase. Bayard’s Notice of Relocation was filed pursuant to section 550.054(14)(b), Florida Statutes, which reads, in pertinent part, as follows: The holder of a permit converted pursuant to this subsection or any holder of a permit to conduct greyhound racing located in a county in which it is the only permit issued pursuant to this section who operated at a leased facility pursuant to s. 550.475 may move the location for which the permit has been issued to another location within a 30-mile radius of the location fixed in the permit issued in that county, provided the move does not cross the county boundary and such location is approved under the zoning regulations of the county or municipality in which the permit is located, and upon such relocation may use the permit for the conduct of pari-mutuel wagering and the operation of a cardroom. On September 11, 2020, the Division issued its Notice regarding Bayard’s relocation. Finding that Bayard had satisfied all the criteria for relocation pursuant to section 550.045(14)(b), the Division approved the relocation of Bayard’s permit to 2493 State Road 207 in St. Augustine, St. Johns County, Florida. On December 2, 2020, Petitioner filed the Petition challenging the Notice as an unadopted rule in violation of section 120.56(4). The Petition alleges, in pertinent part, as follows: 10. As part of the [Notice], the Division included a statement summarizing its application of the § 550.054(14)(b) relocation factors, yet failed to set forth any analysis of the conditions for relocation of greyhound permits set forth in § 550.0555(2). Based on this incomplete analysis of Bayard’s Notice of Relocation, the Division approved Bayard’s request to relocate. 12. Consequently, Petitioner is entitled to request a hearing challenging the Division’s agency statement interpreting the applicability of § 550.054(14)(b), and lack of applicability of § 550.0555(2), in the [Notice] as an unpromulgated rule. 21. When analyzing whether to approve Bayard’s request to relocate [Bayard’s facility], the Division reviewed the factors listed in § 550.054(14)(b), but wholly disregarded the factors listed in § 550.0555(2). In other words, the Division determined, that a request, “pursuant to § 550.054(14)(b)” need not satisfy the requirements of § 550.0555(2), despite the fact that such an interpretation finds no support in the relevant statutes themselves. This interpretation of law represents an “agency statement of general applicability that implements, interprets or prescribes law or policy[.]” § 120.52(16), Fla. Stat. Since the Division did not properly adopt this interpretation as a rule, this means it is an invalid unpromulgated rule that cannot support agency action. The crux of Petitioner’s argument is that the Notice reflects an unwritten policy of the Division to apply only the factors in section 550.054(14)(b) to applications to relocate which are filed “pursuant to that section,” and not apply the factors in section 550.0555(2).3 The Notice does not cite, analyze, or otherwise refer to, section 550.0555.
Findings Of Fact The following findings of fact are based upon the stipulation of the parties, as well as the evidence presented at hearing, including the demeanor of the witnesses: Polynesian Isles Developers, Ltd., was a developer of a time-share property, within the meaning of Section 721.05(9), Florida Statutes, in Osceola County in 1984. Bailey M. Weldon was a general partner of Polynesian Isles Developers, Ltd., and a developer of time-share property known as Polynesian Isles Resort Condominium I from November 23, 1982 to January 16, 1985. Polynesian Isles Developers, Ltd., submitted certain advertising to Petitioner for approval on January 9, 1984, and was noticed of deficiencies in its Polynesian Isles- Super Bowl advertising materials by notice issued by the Petitioner on January 17, 1984. These advertising materials were distributed in the January 18, 1984 Super Bowl Supplement to the St. Petersburg Times without correction of the noticed deficiencies. No time-share unit weeks were sold as a result of this ad. It was represented in the Polynesian Isles Developers, Ltd., public offering statement, and its sales contract with purchasers of time-share unit weeks, that purchasers would obtain fee title to purchased unit weeks free and clear of encumbrances. It was also represented in such sales contracts with purchasers of time-share unit weeks that Polynesian Isles Developments, Ltd., as Seller, would provide purchasers with an owner's title insurance policy upon closing Respondent agrees and stipulates that no owner's title insurance policy was issued for some of the unit weeks sold and closed in 1984. The evidence establishes that no title insurance policies were issued for 329 unit weeks. Respondent established an escrow account for the deposit and withdrawal of all funds received from, or on behalf of, time-share purchasers. Daniel Giannini served as escrow agent for Polynesian Isles Developers, Ltd., for the purpose of receiving and disbursing funds pursuant to Section 721.08 Florida Statutes. Respondent agrees and stipulates that some affidavits for release of escrow funds were delivered to Daniel Giannini as escrow agent when all conditions required by Section 721.08, Florida Statutes, had not occurred. The evidence establishes that these affidavits falsely stated that all conditions for closing had occurred when, in fact, closing had not properly occurred on 331 unit weeks in 1984 because title was not conveyed free and clear of all encumbrances. As a result, purchasers' funds in escrow were released to Respondent without the conveyance of free and clear title or the issuance of title insurance policies. Goldome Savings Association held the primary mortgage on the first phase of the Polynesian Isles Development. This mortgage encumbered unit weeks sold by the Development. Respondent failed to obtain partial releases from Goldome of the mortgages on 331 unit weeks which closed in 1984, and therefore the sale of these weeks closed without free and clear title. Deeds to the 331 unit weeks were recorded without disclosure of the underlying mortgage. Title insurance policies were not issued on 329 of these unit weeks as a result of the failure to obtain releases. Respondent Weldon was the general partner who was in charge of legal matters, closings and title insurance. He also supervised the general manager of Polynesian Isles with his other general partner, Richard Barcley. It was Weldon's general practice to sign escrow affidavits in blank and to rely on his employees to insure that they were used properly at closings. The general manager of the development during 1984 was Frank Cuyler. Respondent terminated Cuyler when he learned that Cuyler had agreed to an unfavorable change in the terms of Goldome's mortgage as an inducement to obtaining financing for phase II of the development, and had failed to report such change to Respondent, or obtain his approval. The effect of the change which was agreed to by Cuyler was to increase the amount the development had to pay to Goldome for a partial release on each unit-week from $1800 to approximately $3800. When it became apparent that it was not financially feasible for the development to pay this increased amount for releases, Cuyler simply proceeded to close on 331 unit-weeks without releases. Respondent was unaware of this practice, and when it came to his attention he immediately gave instructions that it be discontinued, and terminated Cuyler. In addition, he raised approximately $1.4 million, including $300,000 of his own money, to obtain the releases on these 331 unit-weeks, and to cure any mortgage default. However, the evidence does not establish that releases were ever obtained.
Recommendation Based upon the foregoing, it is recommended that Petitioner enter a Final Order assessing an administrative penalty against Respondent Bailey M. Weldon in the amount of $10,000. DONE AND ENTERED this 17th day of May, 1988, in Tallahassee, Florida. DONALD D. CONN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of May, 1988. APPENDIX (DOAH Case No. 86-1003) Rulings on Petitioner's Proposed Findings of Fact: 1.(a)-(c) Adopted in Finding of Fact 1. 1(d) Adopted in Finding of Fact 2. 1(e) Adopted in Finding of Fact 3. 1(f)-(g) Adopted in Finding of Fact 5 1(h)-(i) Adopted in Finding of Fact 3. 2(a)-(b) Adopted in Finding of Fact 2. 2(c)-(e) Adopted in Finding of Fact 5. 2(f) Rejected as unnecessary and cumulative. 2(g)-(h) Adopted in Finding of Fact 8. 2(i)-(j) Adopted in Finding of Fact 6. 2(k) Adopted in Finding of Fact 2. Rulings on Respondent's Proposed Findings of Fact: Rejected since this is a conclusion of law rather than a finding of fact. Adopted in Finding of Fact 1. 3A Rejected as irrelevant to the charges in this case. 3B Adopted in Finding of Fact 2. 3C Adopted in Findings of Fact 3, 5. 3D Adopted in Finding of Fact 3, assuming typographical error of 229 which should be 329. 3E Adopted in Finding of Fact 4. 3F(a) Rejected in Finding of Fact 7. 3F(b) Rejected as not based upon competent substantial evidence in the record. 3F(c) Adopted in part in Findings of Fact 6, 7 and 8. 3F(d) Adopted in part in Findings of Fact 4, 6. COPIES FURNISHED: Pamela S. Leslie, Esquire Eric H. Miller, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1007 Charles Edwin Ray, Esquire 6534 Central Avenue St. Petersburg, Florida 33707 E. James Kearney Director Division of Florida Land Sales, Condominiums and Mobile Homes Department of Business Regulation 725 South Bronough street Tallahassee, Florida 32399-1007 Van B. Poole Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1007 Joseph A. Sole General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1007
