The Issue Whether the Palm Beach Health Department (Respondent) committed an unlawful employment practice by failing to reasonably accommodate the alleged disabilities of DeLores Boatwright (Petitioner). Whether Respondent committed an unlawful employment practice by discriminating against Petitioner based on Petitioner’s age.
Findings Of Fact At all times pertinent to this proceeding, Respondent has been an agency of the State of Florida pursuant to section 20.43, Florida Statutes, and an employer within the meaning of section 760.02(7), Florida Statutes (2012). Petitioner was employed by Respondent between January 3, 2002, and January 31, 2013. On January 31, 2013, Respondent terminated Petitioner’s employment for cause. Petitioner worked as an HIV counselor, which required her to provide both pre-test and post-test counseling to clients interested in HIV testing. Counseling performed by Petitioner involved her sitting in an office setting with the door closed to discuss with clients risks for contracting HIV and methods to reduce those risks. HIV counseling sessions are typically conducted face to face. There was a dispute in the record as to how much computer input is necessary while conducting a counseling session. The greater weight of the credible evidence established that any notes would typically be taken by hand and that any computer input would typically be made after the counseling session had been completed. Counseling sessions typically lasted approximately 15 to 20 minutes. Due to privacy and HIPPA considerations, counseling sessions were conducted in a private office with the door closed. Petitioner was directly supervised by Robert Scott from 2005 until December 2011. In October 2009, Petitioner was rear-ended in a car accident while working. This accident prompted a workers’ compensation claim. Petitioner advised Mr. Scott that she had hurt her neck, upper back, and right shoulder. Initially, Petitioner had work restrictions of no lifting, no driving for the job, and no bending. As of October 27, 2009, Petitioner’s work restrictions were lifted, and no other work restrictions were placed on Petitioner. On January 28, 2010, Petitioner was referred to Dr. Edward Chung, an orthopedic specialist. Dr. Chung placed no work restrictions on Petitioner. On February 3, 2010, Dr. Chung determined Petitioner had reached maximum medical improvement and gave her an impairment rating of zero percent. During the remainder of her employment, Petitioner had no on-going impairment rating or work restrictions as a result of her automobile accident. Petitioner worked at the West Palm Beach Health Center, which is Respondent’s primary care medical clinic. This clinic, located on 45th Street in West Palm Beach, is generally known as the 45th Street Clinic. The majority of the rooms in the 45th Street Clinic are examination rooms with an examination table, a small sink, and a small desk for use by the nurse or doctor. The 45th Street Clinic has a limited number of consultation rooms, which are typically small interior offices with a desk that separates the counselor and client with counter space behind or to the side of the counselor for computer work. For a year and a half between 2004 and 2005, Petitioner conducted her counseling sessions in Room 104 of the 45th Street Clinic. Room 104 is a relatively small office with no windows. At the end of 2005, Petitioner’s office assignment changed to Room 102, which is also an interior office with no windows. This move was at Petitioner’s request when the room became available due to the retirement of a colleague. Room 102 is slightly larger than Room 104. Petitioner remained in Room 102 until the beginning of 2010. While she was assigned Room 102 and Room 104, Petitioner kept her door closed, even when she was not seeing clients. This practice was problematic because other staff members were unable to determine when Petitioner was available to counsel patients. Mr. Scott discussed with Petitioner on numerous occasions the need for her to keep her office door open when she was not with a client. Petitioner informed Mr. Scott that she kept the door closed because of a sinus problem that felt better when the door was closed. Petitioner never provided medical documentation of her alleged sinus problem, and there was no credible explanation why keeping her office door closed would improve a sinus condition. In early 2010, Petitioner’s room assignment was changed from Room 102 to Room 107. This reassignment was necessary because Respondent needed to make Room 102 available for another, legitimate business use. Room 107 was an exterior office with a window. Its furniture was in an “L” shape attached to a wall. The office contained a desk and a counter for a computer. During counseling sessions, the counselor and client would sit face-to-face on opposite sides of the desk. The computer was to the counselor’s side, which required the counselor to turn or swivel her chair away from the client to access the computer. In December 2010, Petitioner complained to Mr. Scott that the furniture arrangement in her office was causing her neck and back pain. Petitioner attributed that pain to turning to access her computer or turning to talk to a client while on the computer. In response to Petitioner’s complaint of pain, Mr. Scott requested that Michial Swank, Respondent’s risk manager, perform an ergonomic evaluation of the furniture in Room 107. Such an evaluation is a service that requires no medical documentation and is offered by Risk Management to any employee. Mr. Swank determined that if the furniture could be reconfigured, it should be so that Petitioner did not have to twist to look from a client to the computer or vice versa. Mr. Swank provided his assessment to Respondent’s General Services Department to determine whether the furniture could be reconfigured. Respondent’s General Services Department determined the furniture could not be reconfigured because it was modular furniture custom-made for the office and bolted together. Around March 2011, Dr. Cook, the director of the 45th Street Clinic, proposed that Petitioner change rooms with another HIV counselor located in Room 104. Mr. Swank performed an ergonomic assessment on Room 104 and determined the furniture and computer location to be ergonomically correct for counseling a patient while on the computer. Respondent offered Petitioner the option of moving from Room 107 into Room 104, but she refused that offer and opted to remain in Room 107. Petitioner cited her sinus problems as the reason she did not want to move back to Room 104. Despite her decision to remain in Room 107, Petitioner attempted to persuade Helen Bonner, a nurse, to switch offices with her. This attempt was without the knowledge or permission of Mr. Scott or any other administrator. Ms. Bonner’s room was set up for clinical use for patients with seizure disorders. When Yankick Gribikoff, the nursing supervisor, heard of Petitioner’s effort to have Ms. Bonner swap offices, Ms. Gribicoff immediately squelched the idea. Ms. Bonner’s office had specialized equipment, including specialized telephone equipment and refrigerators. Ms. Gribicoff had valid reasons to end Petitioner’s efforts to swap rooms with Ms. Bonner. In the fall of 2011, two of Respondent’s clinics were closed due to budgetary constraints. Certain personnel were moved from those closed clinics into the 45th Street Clinic. At that time, Rooms 104 and 107 were the only two rooms in the 45th Street Clinic available for HIV counseling. It became necessary to use Room 107 for both HIV and STD (sexually transmitted disease) counseling. Because of its location and proximity to other services, Respondent had a valid reason to select Room 107 over Room 104 as the room for HIV and STD counseling. While Petitioner had had some training in STD counseling, she had difficulty with that type of counseling. An expert in STD counseling was among the personnel being moved from one of the closed clinics to the 45th Street Clinic. Respondent had a valid reason to select the expert to occupy Room 107. Respondent reassigned Petitioner to Room 104. Petitioner agreed to the reassignment and moved into Room 104 on October 3, 2011. Petitioner kept the door to her office closed even when she was not counseling clients. In early November 2011, Mr. Scott received a complaint about the physical condition of Room 104 from someone who used that office while Petitioner was away. The complaint centered on the room’s lack of cleanliness. On November 18, 2011, Mr. Scott met with Petitioner to discuss certain concerns he had. It was during that meeting that Petitioner told Mr. Scott, for the first time, that she was claustrophobic in Room 104. Petitioner referred to Room 104 as being a “closet” and stated that she could not stay in that room. Petitioner brought to Mr. Scott a doctor’s note dated November 23, 2011, that reflected that Petitioner was experiencing claustrophobic symptoms and could not stay in a small, closed space for 15 to 20 minutes. Upon receiving the doctor’s note, Mr. Scott notified Human Resources of the doctor’s note. Arrangements were made to provide Petitioner a larger room in another clinic. Due to the merger of the two closed clinics with the 45th Street Clinic, no room at the 45th Street Clinic, other than Room 104, was available for Petitioner’s use as an HIV counselor. A larger office was found in the Lantana Clinic. The targeted Lantana office was being used by another HIV counselor. To accommodate Petitioner, Respondent arranged to have the Lantana counselor transferred to the 45th Street Clinic and Petitioner transferred to the Lantana Clinic. Petitioner was advised of this change in location and agreed to move around December 18, 2011. She never advised or stated she could not drive to the Lantana Clinic. Petitioner called in sick on December 18, the day she was scheduled to move to the Lantana Clinic. On December 19, 2011, Petitioner reported for work at the 45th Street Clinic instead of the Lantana Clinic. Petitioner stayed at work at the 45th Street Clinic for a few hours, but left because she was not feeling well. On December 19, 2011, Petitioner suffered a stroke1/ and went on medical leave. In May 2012, Petitioner told Mr. Scott that she was ready to return to work. For legitimate business reasons, the Lantana Clinic office was no longer available. Jacqueline Lester is the equal opportunity manager for the Florida Department of Health. Ms. Lester reviews requests for reasonable accommodations with the authority to approve or reject a request. Ms. Lester first became aware of Petitioner as a result of Petitioner’s accommodation request dated December 15, 2011. Petitioner asked to stay at the 45th Street Clinic in a larger office with a furniture arrangement not requiring her to turn her neck. That request was not processed because Petitioner soon thereafter went on medical leave for an extended period. On June 19, 2012, a second request for accommodation was received from Petitioner. In this request, Petitioner asked for a reasonably-sized office, which Petitioner described as being at least 10’ x 10’, with a window. She also asked that the office be within close distance to her home in Palm Beach Gardens due to her inability to drive or sit for “any great length of time.” Petitioner also requested that she start back to work on a part-time basis. Petitioner’s request included notes from two doctors. This medical documentation did not state that Petitioner could not drive due to a neck and back disability. After reviewing the request and medical documentation, Ms. Lester, whose office is in Tallahassee, talked with Respondent’s personnel in Palm Beach County. Ms. Lester decided to accommodate Petitioner’s request. The accommodation was an office located in Respondent’s clinic in Delray Beach. The office was 10’ x 10’ with a window. Although the Delray Beach Clinic was a substantial commute from Petitioner’s home in Palm Beach Gardens, the accommodation included permission for Petitioner to stop as needed while traveling to work without being penalized for late arrival at work.2/ The accommodation also provided that Petitioner could return to full-time schedule at the Delray Beach Clinic “upon release from her medical providers.” Petitioner refused the offer of the office at the Delray Beach Clinic. On January 31, 2013, Respondent terminated Petitioner’s employment for cause based on Petitioner’s refusal to return to work. Petitioner presented no meaningful evidence that Respondent discriminated against her based on age or because of her perceived disabilities. Petitioner filed her Complaint of Discrimination with the FCHR on September 5, 2012. FCHR issued its “Notice of Determination: No Cause” and “Determination: No Cause” on May 21, 2013. Petitioner filed her Petition for Relief on June 12, 2013.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order adopting the Findings of Fact and Conclusions of Law contained in this Recommended Order. It is further RECOMMENDED that the final order dismiss the Petition for Relief with prejudice. DONE AND ENTERED this 1st day of August, 2014, in Tallahassee, Leon County, Florida. S CLAUDE B. ARRINGTON 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 1st day of August, 2014.
Findings Of Fact New findings of fact have only been made in accord with the limited mandate/remand jurisdiction of the appellate court. Otherwise, findings of fact contained in the recommended order of Hearing Officer R. T. Carpenter entered September 18, 1985, have been adopted and incorporated by reference. To the extent the adopted original findings impact on the new findings, they have been adopted, following review of the record and the parties' submissions, for content. Any language from the original recommended order which has not been adopted is rejected in accord with the court's limited remand. Paragraph 1 (including footnote 1) of the original recommended order entered in this cause, copy attached as Exhibit "A", is adopted and incorporated by reference. The "service area" at issue was disputed by the parties. HRS District 9 encompasses Palm Beach, Indian River, Okeechobee, Martin and St. Lucie counties. Paragraph 3 of the original recommended order entered in this cause, copy attached as Exhibit "A", is adopted and incorporated by reference. Only the second and third sentences of paragraph 4 of the original recommended order entered in this cause, copy attached as Exhibit "A", are adopted and incorporated by reference. Paragraph 5 including (footnote 3) of the original recommended order entered in this cause, copy attached as Exhibit "A", is adopted and incorporated by reference. See also new finding of fact 8 infra. The Network 19 representative, who was similarly qualified, calculated a need for five additional stations but his methodology, calculations, and ultimate result is rejected for reasons clear from the remand opinion dealing with application by Mr. Moutsatos of the wrong population data and for use of an incorrect "service area" as set forth in new finding of fact 7 infra. As noted, the geographic location wherein the applicant, West Boca, seeks to locate, is Boca Raton, Palm Beach County, Florida, a county within HRS District 9. Rule 10-5.11(18), Florida Administrative Code, does not define "service area." District 9 has not been subdivided by either the local health council or HRS. The original application filed by West Boca indicated the proposed service area would be Palm Beach County. At the administrative hearing, West Boca, over Boca Raton AKC's and Delray AKC's objections, was permitted to introduce an amended application which designated a sub-area of Palm Beach County as its "service area", and the original recommended order entered herein recognized such an abbreviated area. Contrariwise, the HRS final order ruled that Palm Beach County was the appropriate service area to be used in applying the need methodology contained in the rule. Because this aspect of the final order was affirmed by the First District Court of Appeal, it becomes "law of the case" and Palm Beach County must be used as the service area for applying the methodology to this applicant. State v. Stebile, 443 So.2d 398 (Fla. 4th DCA 1984), Marine Midland Central v. Cote, 384 So.2d 658, (Fla. 5th DCA 1980). However, because the parties' submissions have insinuated this element of "service area" into the remand consideration of this cause, it may be noted that the record is clear that at all times relevant (including but not limited to the date West Boca's application was deemed complete, the date the application was preliminarily reviewed by HRS, and the date of hearing) HRS used Palm Beach County as the appropriate "service area" as contemplated by Rule 10- 5.11(18). West Boca has failed to demonstrate within the evidence received at the prior hearing that a smaller area should be defined for purposes of these proceedings. This determination is made notwithstanding evidence of desirable driving times for end stage renal dialysis (ESRD) patients and superfluous language employed by HRS' expert witness, Ms. Dudek, to the effect that although HRS policy and procedure always utilized Palm Beach County, a sub-area need determination is not an inappropriate measure of need for health planning purposes. These latter elements have been considered but are not persuasive that a smaller sub-area is appropriate in the face of sound health planning reasons for not using smaller than county sub-areas. The present submissions of West Boca on remand also fail to demonstrate any compelling reason to depart from normal HRS policy and procedure. In evaluating an application for a CON for a proposed chronic renal dialysis facility, HRS utilizes the methodology contained in Rule 10-5.11(18), Florida Administrative Code. The First District Court of Appeal has ruled that the need for the West Boca facility must be determined utilizing the "1983-84 population data as received into evidence at the prior hearing" and determining need for the proposed dialysis center one year from the date that the application is deemed complete by HRS. West Boca's application was deemed complete in February of 1983. The 1984 population of the service area (Palm Beach County) was 689,325. The 1984 new patient acquisition rate was 197.29 per million. The 1984 service area mortality rate was 23.8 percent. This data was gathered by the District 9 Health Council and the HRS Office of Community Medical Facilities from ESRD providers for the calendar year 1984. In calculating the need under the ESRD methodology the first variable is "current ESRD patients by census for service area." At the administrative hearing in this case, Elizabeth Dudek, Community Medical Facilities Consultant for HRS concluded that 4 stations were needed. (See original Finding of Fact 5, adopted in new Finding of Fact 5 supra.) However, Ms. Dudek also testified that this "patient census" number was 260. Ms. Dudek obtained this "260" figure from the Florida ESRD Network 19 First Quarter Report 1985. She totaled the in-patient census figures for the Palm Beach County facilities to obtain this figure. However, since that figure represents only in-center patients, from which the second variable ("ESRD patients on home dialysis") is to be subtracted, the patient census number of 260 as given by Ms. Dudek and as contained in HRS exhibit 1 is in error. The correct number for the first variable in the ESRD methodology can only be determined by adding in-center patients and home dialysis patients (260 + 24 284). HRS is required to correct any factual errors within its knowledge. Balsam v. HRS, 486 So.2d 1341 (Fla. 1st DCA 1986). Since the patient census in HRS exhibit 1 is in error, the correct figure should be substituted. Once this is done, the correct procedure for calculating the need for a proposed ESRD facility in Palm Beach County, which application was deemed complete in 1983, is as follows: Current ESRD patients by census for service area (Palm Beach County) 284 Less ESRD patients on home dialysis 24 Plus new ESRD patients per 1 million population for one year [computed using 1984 new patient acquisition rate multiplied by 1984 projected population] 136 Less projected number of ESRD patients to receive home dialysis training 12 Less number of ESRD patients receiving transplant operations for one year 7 Less number of unsuccessful transplants for one year 0 Less ESRD patient mortality for one year [In calculating need under the ESRD methodology, if the "patient census" number is changed, then the variable "ESRD patient mortality for one year" will also change. Therefore, the patient mortality is determined by the following procedure: mortality rate based on experience for service area applied to the subtotal of previous calculations (284-24+136-12-7-0--377; 377 x 23.8 percent 90). See Rule 10-5.11(18)(b)1. Florida Administrative Code and HRS exhibit 1.] 90 Plus 10 percent of current and projected ESRD patients on home dialysis 4 Equals number of patients requiring chronic dialysis services for one year in the service area 291 The Rule also provides that 80 percent of the capacity of four patients per station per week is to be utilized, yielding a factor of 3.2. This is divided into the number of patients requiring chronic dialysis services for one year in the service area (291). The dividend, 91, is the number of stations needed in the service area, less the 84 existing stations, for a net need of seven stations in Palm Beach County in 1984. (Note that where permitted all figures have been "rounded" to the nearest whole number). Petitioners identified some relatively minor errors in input data and calculations. These errors would not, however, significantly change the so- called "hard numbers" stated above in new Finding of Fact 8. The more significant error of Ms. Dudek described therein is purely one of arithmetic and its required correction, in no way does violence to that witness' correct application of the rule methodology. Both the Applicant and Petitioners presented additional expert testimony of health care consultants. Not surprisingly, their conclusions tended to reduce the need on one hand (Petitioners) and increase it on the other (Applicant). Although their testimony is incorporated in those considerations discussed in new Finding of Fact 11 (adopting original recommended order paragraphs 11-24 inclusive), it is rejected as to modification of the data utilized and generated by the HRS witness. 11. Paragraphs 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22 (see also new findings of fact 5-8,) 23, and 24 of the previous recommended order entered in this cause, copy attached as Exhibit "A", are adopted and incorporated by reference.
The Issue The issues for determination are: (1)whether Respondent violated Section 112.313(7)(a), Florida Statutes; (2) whether Respondent violated Article II, Section 8, Florida Constitution; and (3) if so, what penalty should be imposed.
Findings Of Fact At all times pertinent to this proceeding, and since November 1994, Kenneth Sattler (Respondent), served as a Commissioner on the St. Lucie County Board of Commissioners (Board of Commissioners). The Board of Commissioners also acts as the St. Lucie County Port and Airport Authority (St. Lucie Airport Authority). Accordingly, at all times relevant to this proceeding, Respondent was also a member of the St. Lucie Airport Authority. As a St. Lucie County Commissioner and a member of the St. Lucie Airport Authority, Respondent was subject to the requirements of Part III, Chapter 112, Florida Statutes, the Code of Ethics for Public Officers and Employees. Respondent first met Maurice Warren at an Elks Club function in early 1995. At this initial meeting, Mr. Warren mentioned to Respondent that he had a business proposition, but did not specify the nature of the business or any details related thereto. In or about June 1995, Mr. Warren met with Respondent and disclosed to him information about his proposed business venture. Mr. Warren told Respondent about Civil Aviation Academy, Inc. (CAA), a company that he had formed, and about his plans to establish a flight school. Moreover, Mr. Warren discussed the possibility of locating the school at the St. Lucie Airport. Later in the summer of 1995, Respondent met with Mr. Warren and Thomas B. Furse, a colleague of Mr. Warren, to discuss their plans to locate the proposed flight school at the St. Lucie County Airport. Respondent was particularly impressed with Mr. Furse's presentation of CAA's proposal for a flight school and believed that such a project would be good for the economy of St. Lucie County. In the summer of 1995, when the meetings between Respondent and Mr. Warren took place, CAA had developed a business plan. However, at that time, CAA was not a legal entity and appeared to have no substantial assets. CAA was incorporated by the Secretary of State on October 5, 1995. Prior to building and operating a flight school at the St. Lucie County Airport, CAA had to comply with the requirements of the St. Lucie Airport Authority. The conceptual lease was a preliminary requirement for obtaining a lease to operate at the St. Lucie County Airport. Recognizing this, in or about August 1995, CAA took steps to secure a conceptual lease by applying to the St. Lucie Airport Authority. On August 22, 1995, the Board of Commissioners granted approval for CAA to be given a conceptual lease. The conceptual lease, valid for a year, was set to expire on August 22, 1996. Respondent was not present at the August 22, 1995 meeting and did not participate in the vote. According to the conceptual lease, CAA was to "establish a full service fixed base operation on airport property." Moreover, under the terms and conditions of the conceptual lease, CAA was required to: (1) make a nonrefundable deposit of five percent of the monthly lease payment to the St. Lucie Airport Authority; (2) survey the property which was the subject of the conceptual lease; (3) develop a site plan for the property; and (4) submit the site plan to the St. Lucie County Planning and Zoning Board. Once these conditions were met, the St. Lucie Airport Authority was obligated to issue a lease to CAA. An integral part of CAA's plan to establish and operate a flight school at the St. Lucie County Airport involved purchasing an already existing flight school. At some point, CAA sought to purchase Pro-Flite, an accredited and established flight school, located in Vero Beach, Florida. Mr. Warren believed that by purchasing an accredited and established school, CAA could begin operating its flight school much sooner. At the time CAA was attempting to purchase Pro-Flite, CAA was aware that Pro-Flite had existing leases at the Vero Beach Airport, some of which extended to 2017. Moreover, CAA anticipated that the flight school initially would continue to operate from the Vero Beach location. However, if successful in its negotiations to purchase Pro-Flite, CAA fully expected that it would move Pro-Flite's operations to the St. Lucie County Airport as soon as was practical Respondent became involved with CAA on September 21, 1995, when he gave Mr. Warren $5,000 cash as seed money for CAA. Respondent believed that at least part of the funds would be used to cover the travel expenses of a person from whom CAA was seeking financial backing. Also, part of Respondent's $5,000 was used to pay all or part of the $3,267 deposit that CAA was required to pay the St. Lucie Airport Authority under the terms of the conceptual lease. In exchange for the $5,000 that Respondent gave to Mr. Warren, Mr. Warren gave Respondent a promissory note with a face amount of $5,000. The promissory note, given to Respondent by Mr. Warren on September 21 or 22, 1995, listed the borrower as CAA and was signed by Maurice Warren. Under the terms of the promissory note, Respondent would be repaid the $5,000, at an interest rate of nine percent, on September 22, 2000. Although the face amount of the promissory note was $5,000, the value of the note between September and December of 1995, is unknown. However, as of April 1996, it was determined that the promissory note had no value. In addition to the promissory note that Mr. Warren gave Respondent, Mr. Warren offered and wanted to give Respondent 500 shares of CAA stock. In response to the offer of stock in CAA, Respondent told Mr. Warren that he did not want shares of CAA stock and further indicated that this might create a conflict of interest. On September 25, 1995, Respondent obtained a power of attorney from Margaret Mansfield, the mother of his late first wife. The durable general power of attorney authorized Respondent to act for Ms. Mansfield and in her "name, place, and stead." On the date that the power of attorney was executed, Ms. Mansfield was eighty-three years old and resided in Respondent's home. Ms. Mansfield had lived with Respondent since 1977. At some point, Respondent asked Margaret Mansfield if she wanted shares of the CAA stock. According to Respondent, Ms. Mansfield told Respondent to "do what he wanted." Subsequently, Respondent asked Mr. Warren to issue the 500 shares of stock in his ex-mother-in-law's name. Mr. Warren complied with the Respondent's request. Pursuant to the aforementioned power of attorney, Respondent signed Ms. Mansfield's name on the November 16, 1995, CAA "Stockholders Agreement" and on the December 22, 1995, CAA "Stock Subscription Agreement." Ms. Mansfield was never personally involved in either of these transactions or any other business of CAA. On December 12, 1995, at the end of a meeting of the Board of Commissioners, Respondent announced that a gentleman by the name of Maurice Warren had been in attendance at the meeting, but had left after a couple of hours. Respondent mentioned that Mr. Warren was associated with the flight school being planned for the St. Lucie County Airport and then urged other commissioners to be supportive of the project. The particular issue being addressed at that time involved a request Mr. Warren recently had made to individual commissioners concerning the proposed flight school. Mr. Warren apparently had invited commissioners to come to the St. Lucie County Airport on December 18, 1995, for his public announcement regarding the flight school. At no time during the December 12, 1995, meeting of the Board of Commissioners did Respondent indicate that he was involved with Mr. Warren, CAA, and/or the proposed flight school. In or about March 1996, Respondent learned that CAA had been unable to obtain the financial support that it needed to establish its proposed flight school. At about this time, Mr. Warren contacted Respondent and asked him to assist CAA in purchasing Pro-Flite, a flight school located in Vero Beach, Florida. Respondent agreed to assist CAA in its effort to purchase Pro-Flite. In or about March 1996, when Respondent agreed to provide such assistance, he believed that CAA would be operating its proposed flight school in Vero Beach, Florida. Because Vero Beach is located in Indian River County, Respondent did not view his involvement with CAA as a "problem." On March 22, 1996, at a meeting of the CAA Board of Directors, Respondent was appointed to the CAA Board of Directors and also elected to serve as secretary of the CAA Board. Respondent was present at this meeting. When Respondent became a director and the secretary of CAA, CAA's conceptual lease remained in effect and the company was moving forward with its attempt to obtain a lease. Moreover, during the time Respondent was a director and the secretary of CAA, CAA was taking steps to purchase Pro-Flite and to eventually move the flight school to St. Lucie County Airport. After being elected to the CAA Board of Directors, Respondent followed through on his promise to assist CAA in its efforts to acquire Pro-Flite. In this regard, Respondent accompanied Mr. Warren on visits to the Pro-Flite facility in Vero Beach, Florida, and to financial institutions that might provide funds for the acquisition. On at least one occasion, Mr. Warren, Respondent and two other CAA investors went to Sun Bank to seek financing for the purchase of Pro-Flite. During this meeting, Respondent learned that only two people in attendance, Respondent and one of the other CAA investors, had sufficient assets to collateralize a loan in the amount necessary to purchase Pro-Flite. In or about April 1996, Respondent withdrew his support of CAA's proposed acquisition of Pro-Flite. The basis of Respondent's decision, as articulated in his April 19, 1996, letter to Mr. Warren, was because of Respondent's concerns about Mr. Warren's ability to provide leadership to CAA and his business practices. After withdrawing his support from CAA and its proposed acquisition of Pro-Flite, Respondent and another CAA investor formed another company. The newly formed company obtained a loan from a Vero Beach bank to keep Pro-Flite operating while the principals attempted to negotiate the purchase of the flight school. However, Respondent's new company never purchased Pro- Flite. After Mr. Warren received Respondent's April 19, 1996, letter and learned of Respondent's forming a new company and attempting to purchase Pro-Flite, the relationship between the two men became acrimonious. Although Respondent left CAA and withdrew his support of the Pro-Flite purchase, CAA's conceptual lease remained in effect. In or about May 1996, CAA apparently determined that it needed additional time in which to meet the conditions set out in the conceptual lease and, thus, requested that its conceptual lease be extended to December 1, 1996. At its May 14, 1996 meeting, the St. Lucie Airport Authority considered and approved CAA's request for an extension. Respondent abstained from voting on CAA's extension request, and stated that the reason for his abstaining was that he had previously been associated with CAA. On June 10, 1996, Respondent filed a Memorandum of Voting Conflict regarding the CAA extension request. While the conceptual lease was in effect, Curtis King, Director of the St. Lucie County Airport, went to Respondent and told him that CAA was "running behind" in complying with the conditions set forth in the conceptual lease and asked Respondent if CAA "could speed this up." After indicating that there was a possibility that CAA would be unable to meet the deadlines, Respondent asked Mr. King whether CAA might receive a refund of its "nonrefundable" deposit of $3,267 paid pursuant to the terms of the conceptual lease. Respondent then indicated to Mr. King that he had money invested in CAA.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that a Final Order and Public Report be entered finding that the Respondent, Kenneth Sattler, violated Section 112.313(7)(a), Florida Statutes; imposing a civil penalty of $4,100; and issuing a public censure and reprimand. DONE AND ENTERED this 27th day of July, 1998, in Tallahassee, Leon County, Florida. CAROLYN S. HOLIFIELD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 27th day of July, 1998. COPIES FURNISHED: Eric S. Scott Assistant Attorney General Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 Robert Watson, Esquire 3601 Southeast Ocean Boulevard Sewalls Point Stuart, Florida 34996 Bonnie Williams, Executive Director Commission on Ethics 2822 Remington Green Circle Suite 101 Post Office Drawer 15709 Tallahassee, Florida 32317-5709 Kerrie Stillman Commission on Ethics 2822 Remington Green Circle Suite 101 Post Office Drawer 15709 Tallahassee, Florida 32317-5709
Findings Of Fact Adventure Construction & Canvas, Inc. (Adventure or Applicant) applied to the Department of Environmental Regulation (DER) on November 4, 1986, modified on December 22, 1986, for a permit to construct a single four foot by 60 foot pile-supported dock in the Marco River (Class II waters), a natural, navigable water body in Collier County, Florida. The dock structure applied for would extend 60 feet eastward into the water from the southeast corner of the terminal platform of Adventures existing dock. The extension would lengthen the existing dock to a point almost as far into the water as the existing docks of the Applicant's neighbors to the north and south. As originally designed, the dock would run to the east 63 feet, with one 20 by 3 foot finger pier to the south, then run south 20 feet (by 4 feet), then run east again 20 feet. This original design would have extended approximately 20 feet further east into the Marco River than either the dock of the neighbor to the north, the Sunrise Bay Resort And Club Condominium Association (the Sunrise Club), or the dock of the neighbor to the south, the petitioners, the Riverside Club Condominium Association, Inc., (the Riverside Club) and Gary L. Hornsby, d/b/a Captain Jim's Motel Fishing Resort (Captain Jim's). As originally designed, the dock extension would have been approximately 30 feet from the Sunrise Club dock, at the closest point (the southern end of the "T" section at the waterward end of the Sunrise Club dock) and approximately 60 to 65 feet from the petitioners' dock at the closest point (between the northern end of the "T" section at the waterward end of the Riverside Club/Captain Jim's dock and the southernmost part of the proposed dock, as originally designed.) Although it would be in Class II waters, and there are shellfish in the vicinity, the bottom in the immediate area around the docks and proposed dock extension is sandy, and there are no shellfish beds, seagrass or other biologically significant features in the immediate area. With standard permit conditions, there are reasonable assurances that the proposed dock extension would not adversely affect marine or other wildlife. The Applicant's property and existing dock is under lease to Yacht Services, Inc., for five years with options to renew. The lessee conducts a business on the property consisting of: boat sales; sale and installation of marine radio and navigation equipment and of pre-made canvas sails and boat tops, covers and canopies; and boat engine repairs and tune-ups. Only minor engine repairs and tune-ups are and would be performed on the docks. These operations would not introduce oil or grease into the water and would not pollute the water. More major repairs are and would be made by driving or towing the boat to be repaired to the nearby municipal dock and trailing the boat over roads to the building on the upland portion of the Adventure property, some 150 to 200 feet from the river bank, where Yacht Services performs more major repairs. With standard permit conditions, there are reasonable assurances that the proposed dock extension will not adversely affect water quality in the Marco River. On review of the application, the DER perceived a navigation problem posed by the original location and design of the proposed dock extension. Although parts of the Sunrise Club dock are now under enforcement proceedings as having been constructed without a permit, the DER still recommended moving the location of the proposed dock approximately 20 feet to the south, putting approximately 50 feet between the two docks at the closest point. At the same time, the DER recommended that the Applicant (and its lessee) be limited to a single, straight four foot by 60 foot dock, eliminating the finger piers and turns. As a result, the distance between the proposed dock, as modified, and Captain Jim's dock also would increase, to 70 feet between the two closest points. In addition, the DER recommended that the Applicant (and Yacht Services) be limited to the use of only the north side of the dock extension for docking. The applicant agreed to the DER's recommendations and modified its application accordingly on or about December 22, 1986. But when the DER gave notice of its intent to grant the application, as modified, and issue a corresponding permit, the DER inadvertently omitted the limitation to use of only the north side of the dock for docking. When this omission was brought to the Applicant's attention at the final hearing, the Applicant, through Yacht Services' principal, reaffirmed the Applicant's acceptance of this limitation. The petitioners put on no evidence placing in controversy the Applicant's assurances, accepted by the DER as reasonable, that the proposed dock would have no significant adverse impact on water quality or on marine or other wildlife or any other biologically significant features of the Marco River. The only evidence the petitioners presented involved the alleged effect of the proposed dock on navigation. The current at the site of the proposed dock is relatively swift. Each day, there usually are two tidal periods, each lasting 12-13 hours. During each tidal period, the tides flow in (from north to south) and out (from south to north and somewhat stronger than the incoming tides.) The peak tide lasts for approximately one hour, preceded by approximately three to four hours of a strong, gradually increasing tide. Then there usually is approximately 90 minutes of slack tide before the tide gets stronger again (in the other direction.) During new moons, which occur for three days every 28 day cycle, the tidal flow is magnified. During periods of strong tides (and correspondingly strong current in the river at the site of the proposed dock), docking can be difficult at the Applicant's dock, the Sunrise Club dock, Captain Jim's dock and several other docks in the area. The difficulty encountered depends on the strength of the tidal current, the experience of the boat operator and the kind of boat (design, size and power.) But, generally, the distances between the proposed dock and the existing docks are enough for a reasonably experienced boat operator to use all three docks for boats of the size (15 to 30 feet) and kind normally used in the area without too much difficulty. Many of the boaters who can be expected to use these docks are quite inexperienced "snow-birds" wintering or vacationing in the area. Some of these can be expected to have difficulty docking and shoving off from these docks in strong tides with or without the proposed dock extensions. With the proposed dock extension, some might find themselves bumping the new dock, coming to rest at it or being pinned to it temporarily while docking at or leaving the Sunrise Club and Caption Jim's dock (just as this now occasionally happens with the existing Adventure dock and the other docks in the area.) Experienced boaters might have to alter their normal and preferred approach to the Sunrise Club and Captain Jim's dock as a result of Adventure's proposed dock extension and, depending on the factors previously mentioned, may on occasion find it difficult to dock there at all. (For example, if the docks are busy and the boat is very large.) There is access to Riverside's dock from both the north and south. Currently, access from the south is sometimes restricted during strong outgoing tides due to the fact that a boat moored to the south end of the dock may not possess enough power to pull away from the dock. During these times, access is easier from the north, the side closest to the proposed dock. There was no evidence as to how often the currents render the south side of Riverside's dock inaccessible to boats. However, boats are often moored on that side. During those times when the currents inhibit access to the south side of Riverside's dock (peak outgoing tides), there is access from the north. The presence of Adventure's proposed dock may potentially be a hindrance to boats attempting to gain access from this direction. Currently, boaters navigating larger boats in this area cut a wide angle to allow themselves to face directly into the current as they near the dock. This wide angle takes them across Riverside's riparian line near the area of Adventure's proposed dock. While the presence of this dock would not allow for such a wide angle in the future, the typical size boat using Riverside's dock (under 30 feet) does not need to make this wide angle. Even inexperienced boaters will still be able to make this approach, albeit with some difficulty. Exiting Riverside's dock from the north may also be a potential problem if the proposed dock is built. When docked on the northern side during strong outgoing tides, a boater often must back out into the area where Adventure's dock is proposed to be built and then execute a turnaround before heading into the channel. However, this is necessary only during the strongest outgoing tides; under any other situation, a boater can depart from the dock and head into the channel without having to cross the riparian line. It is the strength of the currents in the area that causes concern about the proposed dock's impact on navigation. The combination of existence of this dock and strong currents will make it more difficult for inexperienced boaters to dock on the northern side of Riverside's pier during peak outgoing tides. During incoming tides or slack times, those boaters (who make up a majority of Riverside's clientele) would have no problems entering or leaving the dock from either direction. Experienced boaters will still be able to access and leave the dock from either direction at any time of the day. In short, the potential for this proposed dock to create a navigational hazard will exist mainly during peak outgoing tides and even then there are other factors (, experience of the pilot, boat size, engine strength) that will determine the ability of boaters to navigate in the area. The proposed dock will have absolutely no impact on navigation in the channel to the east of the three docks involved in this case. There are reasonable assurances that the proposed dock will not be contrary to the public interest.
Recommendation Based on the foregoing Findings Of Fact and Conclusions Of Law, it is recommended that the Department of Environmental Regulation enter a final order granting the application of Adventure Construction & Canvas, Inc., as modified, and issuing a permit described in the Notice Of Intent To Issue (with the additional limitation that only the north side of the proposed dock extension be used for docking.) RECOMMENDED this 15th day of October, 1987, in Tallahassee, Florida. J. LAWRENCE JOHNSTON 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 15th day of October, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-0589 To comply with Section 120.59(2), Florida Statutes (1985), explicit rulings are made on the parties' proposed findings of fact. Petitioners' Proposed Findings Of Fact. Accepted and incorporated (although the number in the third sentence properly should refer to linear feet of distance, not to area.) Except for the fifth sentence, subordinate to facts found. The fifth sentence is rejected as contrary to the greater weight of the evidence and facts found. Last two sentences, rejected as conclusion of law and argument; the rest is subordinate to facts found. 4-5. Subordinate to facts found. Last sentence, rejected as argument (and also does not recognize the additional, inadvertently omitted limitation that boats not dock on the south side of the dock); the rest is subordinate to facts found. Accepted, but subordinate and unnecessary since it was not proven that DER's policy is to get Coast Guard or Marine Patrol input in all "navigation" cases. First sentence, subordinate to facts found; rest, accepted but unnecessary (in light of Findings of Fact). Subordinate to facts found. Subordinate to facts largely contrary to those found but in part consistent with facts found. Subordinate to facts found. Last sentence rejected as subordinate to facts contrary to the greater weight of the evidence; the rest, subordinate. Last sentence, rejected as contrary to the greater weight of the evidence; rest, rejected as contrary to facts found. Subordinate to facts already addressed. First sentence, subordinate to facts contrary to the greater weight of the evidence; rest, subordinate to facts accepted but unnecessary in light of permit condition 6, requiring compliance before construction begins. Rejected as contrary to facts found. Adventure's Proposed Findings Of Fact. Subordinate to facts found. Accepted and incorporated. 3.-6. Subordinate to facts found. Argument. Accepted and, to the extent necessary, incorporated. DER's Proposed Findings Of Fact. 1.-20. Accepted and, to the extent necessary, incorporated. COPIES FURNISHED: G. Donald Thomson, Esquire 801 Laurel Oak Drive Suite 300 Naples, Florida 33963 Claire A. Duchemin, Esquire Post Office Box 1833 Tallahassee, Florida 32302 Frederick C. Kramer, Esquire 870 Bald Eagle Drive Suite 18 Marco Island, Florida 33937 Richard Grosso, Esquire Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Dale Twachtmann, Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Daniel H. Thompson, Esquire General Counsel Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400
The Issue The issue presented is whether Petitioner's application for site approval and licensure of a private seaplane base near Manatee Springs on the Suwannee River should be approved.
Findings Of Fact By application dated July 18, 1990, Petitioner applied to the Department of Transportation for site approval and licensure for a private seaplane base to be known as Manatee Springs Seabase on the Suwannee River in Dixie County, Florida, seven miles south of Old Town. On the application, Petitioner agreed that the private seaplane base would be for his personal use, that it would not be used for commercial operations, that flight activities from the proposed site would be conducted only during the day, and that operations would only occur in VFR weather conditions. Petitioner owns 362 acres of land with approximately 2,400 feet of that land being riverfront property. Petitioner's property is on the west shore of the Suwannee River. Approximately across from the southern boundary of Petitioner's property is the Spring Run in Manatee Springs State Park. The Park extends a considerable distance to both the north and the south, far beyond the boundaries of Petitioner's property. Approximately 100 feet south of the entrance to Spring Run is the dock of Manatee Springs State Park. Numerous manatee have been sighted around the Park's dock, at the entrance to the Spring Run, in the Spring Run, and in the middle of the River across from the dock. The Suwannee River between Petitioner's property on the west bank and the Park's property on the east bank is between 600 and 700 feet wide. In that area, the Suwannee River is open to all kinds of boat traffic, some of which travels as fast or faster than a seaplane taking off and landing. That area of the River is used by fishing boats, ski boats, airboats, jet skis, houseboats, and canoes. There is a tour boat which travels through the area in question, and canoes can be rented at the Park from a concessionaire. Personnel at the commercial canoe rental business advise renters to stay within 50 to 100 feet from the east shore line, along the Park. However, some renters ignore the instructions and cross the River. Due to the heavier manatee and boat activity at the Spring Run and Park docking area across from the southern portion of Petitioner's property, Petitioner proposes that his landing and take-off area be located just to the north of the northern boundary of his property, away from the entrance to Manatee Springs State Park, in the middle of the River, and in a section of the River which is straighter, which would increase his visibility of boat traffic in the area. Petitioner will place no structures of any kind in the River. Under Petitioner's proposal, he will store his seaplane in an area in the northern portion of his property. No structures will be constructed in this storage area. Petitioner would taxi out from the seaplane's storage area to his take-off and landing area which starts approximately 300 feet north of his storage site. The take-off and landing area would extend approximately 2,600 feet up the River and would be 100 feet wide. Petitioner proposes to use either a two-passenger or four-passenger seaplane. Such seaplanes utilize 100 h.p. and 150 h.p. engines, respectively. Such seaplanes taxi at 3-5 knots per hour, which speed would create the same wake as a canoe. When a seaplane is idling, it creates no wake. When a seaplane takes off, it rotates onto the pontoon step within 15 to 20 seconds and completes take-off within an additional 10 to 15 seconds. The total take-off time is approximately 30-35 seconds, and the seaplane during take-off will achieve a speed of 40-45 m.p.h., less the head wind. The total take-off distance is approximately 1,000 feet. Accordingly, Petitioner would be on the River for approximately 5 minutes of taxiing and 30 seconds of take-off, at which point the seaplane is off the River. The amount of wake created during take-off is 2-3 inches. The distance betwen the entrance to the Spring Run into Manatee Springs State Park and the southern end of Petitioner's proposed landing and take-off area is 3,000 feet. Thus, Petitioner's proposed landing and take-off area is located a safe distance from where boaters and manatee congregate around the Springs. Further, although some of Petitioner's neighbors on the west shore of the Suwannee River tie their boats to trees along the shore, there are no docks extending into the River in or near the area proposed for the landing and take- off strip. There are a public boat ramp at Clay Landing approximately 2 miles above the proposed seaplane landing area, a public boat ramp somewhere south of the Park, and a third public boat ramp somewhere in the Park. The boat ramps are not close enough to Petitioner's proposed landing and take-off strip to pose any threat to their users from Petitioner's proposed use of his seaplane. Petitioner is a licensed pilot, who possesses all appropriate ratings and has passed the required physical examinations. He learned to fly in 1940 and operated a seaplane base in Fort Walton during the 1940s and 1950s. He was then employed as a pilot for Eastern Airlines for 33 years. He has 18,000 hours of flying time, which includes 1,000 hours of flying seaplanes. He will carry liability insurance on his seaplane of at least $100,000. Petitioner understands that when his seaplane is on the water, it is subject to the rules and regulations governing boats and other watercraft. Accordingly, when "no wake" restrictions are in effect on the Suwannee River when the River is high, Petitioner cannot use his seaplane base. The Department's aviation specialist assigned to process Petitioner's application for site approval visited Petitioner's property on five separate occasions, observing boat traffic on the River during his visits. On one occasion, he spent the day counting the boat traffic and estimating intervals of traffic relative to landing and take-off times. Although the River was high on that occasion, it was during a weekend when boat traffic would be heavier than during the week. He determined that the proposed location of Petitioner's seaplane base was a safe location and that Petitioner's activity would not constitute a hazard to boating traffic. The Department issued its Notice of Intent to approve Petitioner's seaplane base, subject to several conditions: All operations are conducted during daylight hours and during VFR weather conditions only. Operations are prohibited on long holiday weekends that generate a high volume of river traffic (Memorial Day, 4th of July, Labor Day). A non standard traffic pattern be used, all traffic patterns will be to the west of the extended runway center line to prevent over flight of Manatee Springs State Park. Pursuant to the Department's regulations, Petitioner was required to provide notice of his application to all property owners within 1,000 feet from any boundary of the airport operational area, and the Department's Notice of Intent was published notifying interested persons that a public meeting would be conducted, if requested, on Petitioner's application. A number of persons attended the public meeting, some of whom supported Petitioner's application, but the majority of whom opposed Petitioner's application. After the public meeting, the Department issued a letter denying Petitioner's application, citing the concerns voiced at the public meeting. Additionally, the denial letter advised Petitioner that the Trustees of the Internal Improvement Fund have state sovereignty jurisdiction of the River area where the proposed seaplane base would be located and that Petitioner would, therefore, need appropriate authorization from the Trustees through the Department of Natural Resources to use the sovereign submerged land. That letter further advised Petitioner that the Trustees' jurisdiction is subject to the navigation servitude of the federal government and that Petitioner, therefore, would need a permit from the Army Corps of Engineers to use the proposed site on the Suwannee River as a seaplane base. Although the statutes and rules regulating the Department's site approval and licensure of airports and seaplane bases do not contain a requirement for authorization from the Trustees or the requirement of a permit from the Army Corps of Engineers, Petitioner contacted those agencies. By letter dated June 28, 1991, the Florida Department of Natural Resources advised Petitioner as follows: Please be advised that you do not need authorization for the use of state-owned submerged lands if you are not storing your sea plane waterward of the Ordinary High Water Line of the Suwannee River, constructing structures waterward of the Ordinary High Water Line, or impacting state-owned submerged lands and resources when removing your seaplane from the Suwannee River. Petitioner's proposal does not contain any of those characteristics. By letter dated September 6, 1991, the Department of the Army, Jacksonville District Corps of Engineers, advised Petitioner that no authorization or permit was required for his proposed seaplane base. Petitioner can safely take-off and land in his proposed strip without presenting a danger to boaters and swimmers any greater than the risk presented by other fast moving vessels currently permitted to utilize the Suwannee River in the area under question. The height of a seaplane propeller poses no danger to swimmers or manatee. One must be fully licensed and trained to operate a seaplane, while one needs no training or licensure to operate a speed boat. The height of a seaplane presents a better view of obstacles in the River than the view of someone in a boat or in the River. A seaplane offers the ability to stop quickly or "pull up" in a split second to avoid something coming quickly into the path of the seaplane. Although the Florida Department of Natural Resources advised Petitioner that he did not need authorization to use the state-owned submerged lands of the Suwannee River, employees of the Division of Recreation and Parks of the Department of Natural Resources testified at the final hearing in opposition to Petitioner's application. Those employees believe that Petitioner's proposed landing and take-off area is within the jurisdiction of the Division of Recreation and Parks pursuant to a Management Agreement entered into between the Division and the Board of Trustees of the Internal Improvement Trust Fund of the State of Florida. That Management Agreement entered into on November 24, 1986, and amended on January 19, 1988, does grant management responsibilities to the Division over: All those sovereign submerged lands lying within 400 feet of the Mean High Water or Ordinary High Water Line, or in the case where the shoreline is vegetated with. . .wetland vegetation, within 400 feet of the emergent edge of the vegetation, and within the riparian area of any state park. . .administered by the Division of Recreation and Parks . . . . Petitioner's proposed landing and take-off strip is within 400 feet of the emergent edge of the vegetation of Manatee Springs State Park. That Management Agreement, however, also provides that the Board of Trustees of the Internal Improvement Trust Fund of the State of Florida retained the right to also engage in management activities over those sovereign submerged lands and further provides that the Management Agreement is not to be construed in any way to interfere with the traditional riparian rights of private landowners. Lastly, that Management Agreement required the Division of Recreation and Parks to submit to the Board for its approval a management plan for those submerged lands and prohibited the Division from engaging in activities not provided for in the required plan without the advance written approval of the Board. There was no evidence indicating that the Division had adopted any management plan for the area under consideration in this cause. Further, no explanation was offered as to how the Division of Recreation and Parks could impose requirements not imposed by the Department of Natural Resources.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered granting Petitioner's airport site approval and license application, with the conditions set forth in paragraph numbered 13 of this Recommended Order. DONE and ENTERED this 26th day of November, 1991, at Tallahassee, Florida. LINDA M. RIGOT 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 26th day of November, 1991. APPENDIX TO RECOMMENDED ORDER DOAH CASE NO. 91-4391 Respondent's proposed findings of fact numbered 1-4 have been adopted in substance in this Recommended Order. Respondent's proposed finding of fact numbered 5 has been rejected as not constituting a finding of fact. Respondent's proposed finding of fact numbered 6 has been rejected as being subordinate to the issues involved herein. Copies furnished: Ben G. Watts, Secretary Department of Transportation Haydon Burns Building Attn: Eleanor F. Turner 605 Suwannee Street Tallahassee, Florida 32399-0458 Vernon L. Whittier, Jr., Esquire Department of Transportation 605 Suwannee Street, MS-58 Tallahassee, Florida 32399-0458 Henry C. Fucik, 8290 S.W. 58th Street Miami, Florida 33143
Findings Of Fact On 17 July 1979, a few days after Harry W. Soward and his wife returned from a motor trip vacation and before the date he was to report for duty as Principal of Garden Elementary School in Venice, Florida, Soward left his residence to shop for shelving. Not finding the items desired at stores close to his residence, he proceeded further afield. After lunch he went to his son's place of business for a visit and upon arrival found his son absent. He then decided to go to a nearby beach for some sun enroute home. At this time Respondent was dressed in shorts, T-shirt and shoes. Upon parking the van he was driving, Respondent took off the T-shirt and donned a beach jacket which had been under the front seat of the van, locked his wallet in the van and walked north along the scarcely populated beach away from the area where most people congregate. Under the corduroy shorts Respondent was wearing black bikini briefs. After going some one-half mile or more from the parking area Respondent removed his corduroy shorts to sunbathe, leaving him wearing black bikini briefs and jacket. He then walked away from the water towards the wooded area clearly shown in Exhibit 1, and photographs constituting Exhibits 6 through 13. Officer Meredith of the Sarasota Police Department was assigned to the Lido Beach area on 17 July 1979 and had proceeded to North Lido Beach in response to a report that a nude made had been seen on the beach. Lido Beach is a publicly-owned swimming and sunning area; however, the north end of this beach is reputed to be an area where nude bathing occurs and homosexuals meet. Because of the topography and insects this area is not popular for picnicking. Officer Meredith had requested via radio a back-up when he departed for North Lido Beach and shortly after his arrival he was joined by Sergeant Schott, also of the Sarasota police. They saw no evidence of a nude male but decided to proceed southward inside the tree line from the beach where they would be able to observe activity on the beach without being seen. Meredith had 8 x 50 binoculars with which to detect something that might not be discernible to the naked eye. While walking inside the tree line the officers observed a large group of young boys supervised by older teenagers playing and proceeding southerly near the water's edge. After walking for several minutes inside the tree line the officers observed a white male ahead and a little seaward of them also moving southerly inside the tree line. When he reached a thicker clump of trees this man stopped for several seconds and Meredith focused the binoculars on him. This individual, later identified as Respondent, was facing south with his back to the officers when he stopped approximately 75 feet from the officers and some 500 feet from the water's edge where the young boys had been observed. For approximately one minute he was observed from the location occupied by the officers. Respondent, whose back was toward the officers, appeared to lower his bikini briefs and manipulate his penis in a manner both officers thought was masturbating. Meredith's testimony was that he could see Respondent's right arm moving but could not see his penis. While still under close scrutiny Respondent turned some 90 degrees to his left, placing his back to the water's edge and his profile to the officers. At this time they could see Respondent's briefs had been dropped enough to allow penis and testicles to be over the top of the briefs. At this time Respondent had his penis in his hand. Both officers testified Respondent did not have an erection but they did not believe the penis to be flaccid, nor did they believe he was urinating. Shortly thereafter Respondent turned towards the north, saw the two officers, pulled the briefs back over his privates and started to walk back to the beach. At this time, Officer Meredith yelled for Respondent to stop, which he did. Officer Meredith asked what he was doing in the tree area and Respondent replied "urinating". When asked his name, age and occupation, Respondent replied Soward, 54 years old, and a teacher at Venice. Respondent pronounces his name in one syllable. When Meredith asked if the name was spelled S-o-r-d, Respondent did not reply. When Meredith saw what he thought to be Respondent reaching into a pocket of the jacket he grabbed his hand, reached into the pocket and extracted a tube of K-Y jelly. Respondent extracted a pair of yellow women's briefs from the other pocket. When asked why he had the lubricant Respondent replied he used it occasionally for his hemorrhoids. The yellow bikini Respondent identified as belonging to his wife who also occasionally used the same jacket. After berating Respondent and accusing him of being a deviate Meredith ordered Respondent to get off the beach and warned him not to return "to our city beaches in the future." (Tr. p. 33). The testimony of all witnesses, consisting of the two police officers and Respondent, was essentially the same with respect to the facts noted above. Respondent testified that he went into the wooded area where he could not be seen by anyone on the beach to urinate, that he had a prostate condition which made it difficult at times for him to commence urination, and that massage of the prostate behind he testicles sometimes helped induce urination. He further testified that he was taking diuretics, which caused more frequent urination. The taking of diuretics was confirmed by his physician. Respondent produced at the hearing the jacket and briefs he was wearing, plus the yellow bikini bottom that was in the jacket pocket when he was accosted. This bikini bottom was identified by Mrs. Soward as belonging to her and having been left in the jacket pocket. Respondent identified it as the one removed from the jacket when he was apprehended, while Officer Meredith testified the yellow briefs removed from the jacket pocket had lace around the legs, were women's underpants and not the bottom of a bikini swimsuit presented at the hearing. After being ordered to leave the beach, Respondent donned his corduroy shorts and proceeded back to the parking lot. Meredith also went to the parking lot and after Respondent got in his van, Meredith came up to demand identification partially because he didn't think Respondent to be as old as he had stated. When he saw the name on the driver's license was not spelled Sord, Meredith accused Respondent of giving the wrong name. The driver's license did confirm Respondent's age to be what he had told Meredith. Meredith did not arrest or prefer charges against Respondent. His reason given for not doing so was that Respondent could not be seen from the beach and unless lewd and lascivious behavior was perpetrated in a place from which the perpetrator could be seen by "civilians" (as opposed to police) the judges in the Sarasota courts would not convict those arrested on charges of lewd behavior. Nevertheless, when he returned to the station Meredith prepared a report of his encounter with Respondent which, since a member of the school system was involved, was passed to the Superintendent of Schools of Sarasota County. The Superintendent talked to Meredith and Schott and received a copy of the report prepared by Meredith. The Superintendent advised the Director of Elementary Education, who was the supervisor of principals, of the police report and requested she bring Respondent to his office. When presented with the police report in the presence of the Superintendent, Respondent again denied any wrongdoing, insisted he had entered the wooded area to relieve himself and explained the purpose for which he had the K-Y jelly in the jacket, as a lubricant for hemorrhoids. The Superintendent chose not to believe the explanation offered by Respondent and gave him the option of resigning rather than suffer the unpleasantness of further investigation by Petitioner, to whom the Superintendent would refer the matter, and a possible hearing. Respondent declined to resign. Respondent was relieved of his duties as principal of Garden Elementary School, a position which he had held since the school opened in 1974, and was reassigned temporarily to the administrative staff of the school system. These charges here under consideration were subsequently preferred. A substitute principal was assigned to Garden Elementary School and when the school year began the Superintendent addressed the faculty at Garden Elementary to explain Respondent's absence was due to a report submitted by the police which had been turned over to the Petitioner and if the faculty wanted to know more they could read the police report at the police state. Many of them did so. The newspapers were aware of this police report but did not publish any news items relating thereto. After the School Board took action to relieve Respondent from duty and refer the matter to Petitioner, an article appeared in the Sarasota Herald-Tribune on August 2, 1979 and a similar article appeared in the Venice Gondolier, a newspaper whose circulation is limited to the southern part of Sarasota County. These articles reported the reassignment of Respondent pending an investigation of an incident reported by police and stated that no charges had been preferred by the police. Of the 17 witnesses called by Petitioner only two, the police officers, saw Respondent at any time material to these charges. Both of these officers were looking for nudes or perverts when they saw Respondent. Meredith was looking so hard he used 8 x 50 binoculars to observe Respondent from a distance of 75 feet. At that range this magnification should allow resolution of the order of one-fourth to one-eighth inch. A stationary housefly on an appropriate background could be seen at 75 feet with 8-power binoculars. Meredith testified regarding the reputation of North Lido Beach and anytime he saw someone in this section of the beach there was a question in his mind why they were there. (Tr. p. 62). One looking for deviate behavior would be more likely to associate movement that could be manipulation of the penis with masturbation than would an observer not looking for such behavior. Follow this impression with discovery of K-Y jelly in one pocket, ladies' bikini bottoms in the other pocket of the jacket, and a group of young boys in the vicinity (albeit 500 feet distant) and Officer Meredith was quite sure he had encountered a pervert. When Respondent told Meredith that he was a teacher, Meredith undoubtedly commented, as Respondent testified, about perverts working with kids (Tr. p. 352) and told Respondent he would get him out of the school system. Without sufficient evidence to arrest Respondent, Meredith was left to the writing of the report. Most of the witnesses called by Petitioner had read the police report and gathered from this report that Respondent was observed masturbating on North Lido Beach in the vicinity of an in view of children of tender ages and that he had questionable items in his jacket pocket. These witnesses were aware of the reputation of North Lido Beach as a nude and gay beach and many didn't think that was an appropriate place for a principal to go. These factors led them to conclude that Respondent could no longer function effectively in the Sarasota County School System. This conclusion was reached without the benefit of Respondent's explanation of his actions, without full knowledge of the density of the foliage, without realizing that no one but the police could or did see him with penis exposed, and without knowledge that neither K-Y jelly nor bikini bottoms were in use or evidenced until after Respondent started back to the beach. Those witnesses called by Petitioner who had been associated with Respondent at Garden Elementary School acknowledged that prior to this incident they considered Respondent to be an able and effective administrator. Many of these witnesses opined that even if found innocent of any wrongdoing, Respondent's effectiveness in the school system has been seriously reduced. Many of the 33 witnesses called by Respondent knew Respondent socially and professionally as a "fine man". Respondent's church workers think highly of him both in integrity and morality and they did not believe the truth of the police report that Respondent had masturbated on Lido Beach. The pastor of the First Church of Nazarene in Bradenton, an ordained minister, has known Respondent for the past 6-1/2 years as the church's unpaid associate pastor. Respondent has taught Sunday School at this church for many years and the pastor considers Respondent one of the finest men he ever knew. Neighbors know Respondent as a quiet family man and good neighbor who had never shown any indication of questionable morals or conduct. Professional associates found Respondent a competent administrator and teacher. Some found him strict but none ever had cause to question his moral character prior to July 17, 1979.
The Issue The issues in this case are whether Respondents violated Sections 498.023(1)(a), 498.023(2)(a), 498.035(1), and 498.049(5), Florida Statutes (1997), and Florida Administrative Code Rule 61B-9.003(1), by participating in the offer or disposition of subdivided lands that are neither exempt, registered, nor approved for the taking of reservation deposits, by failing to deliver a current public offering statement to each purchaser, and by disseminating advertising materials prior to filing for approval by Petitioner for the subdivided lands and what, if any, penalty should be imposed. (All references to chapters and sections are to Florida Statutes (1997) unless otherwise stated. Unless otherwise stated, all references to rules are to rules promulgated in the Florida Administrative Code in effect as of the date of this Recommended Order.)
Findings Of Fact Petitioner is the state agency responsible for regulating the disposition of any interest in subdivided lands within the meaning of Sections 498.003 and 498.004. Tanner is a Florida resident and the sole shareholder of Zephyr Valley, Sun Valley, and Members. Petitioner charges that between 1993 and 1995 Respondents violated Sections 498.023(1)(a) and (2)(a) and Section 498.049(5) by participating in an offer or disposition of any interest in subdivided lands located in the state without a valid order of registration for the subdivided lands and without delivering a public offering statement to the purchasers prior to the disposition of any interest in subdivided lands. Petitioner also charges that Respondents violated Section 498.035(1) in connection with the advertising used for the disposition of any interest in subdivided land. Respondents assert that they did not participate directly or indirectly in any offer or disposition of any interest in subdivided lands located in the state. Respondents assert that their role in the land at issue is limited to that of a creditor of the subdivider. If Respondents limited their role to that of a creditor of the subdivider, Respondents are exempt under Section 498.049(5) from joint and several liability with the subdividers unless Respondents assumed managerial or fiduciary responsibility in a manner related to the basis for which the subdividers are liable. In relevant part, Section 498.049(5) provides: Each person who materially participates in any offer or disposition of any interest in subdivided lands in violation of this chapter . . . and who directly or indirectly controls a subdivider or who is a general partner, officer, director, agent, or employee of a subdivider shall also be liable under this subsection jointly and severally with and to the same extent as the subdivider unless that person did not know, and in the exercise of reasonable care could not have known, of the existence of facts creating the alleged liability. . . except that a creditor of a subdivider shall not be jointly and severally liable unless the creditor has assumed managerial or fiduciary responsibility in a manner related to the basis for the liability of the subdivider. . . . (emphasis supplied) Sometime in 1993, Tanner, Mr. Gary Tanner, and Mr. John Tanner, Tanner's two sons, undertook to acquire approximately 300 acres of land (the "land") in Pasco County, Florida ("Pasco County") and to develop the land into an adult mobile home park to be known as Zephyr Springs Mobile Home Park (the "mobile home park"). The three individuals formed a joint venture to develop the mobile home park. Petitioner did not submit any evidence that the Tanners formed any business entity other than a joint venture to develop the mobile home park. For example, there is no evidence that the Tanners formed a corporation, limited liability company, or trust to develop the mobile home park. Petitioner did not submit any documentary evidence of a written joint venture agreement or of the terms of the joint venture agreement. Evidence of the joint venture agreement consists solely of the testimony of Tanner. The joint venture agreement called for development of the mobile home park in six phases referred to as Phases I-VI. Proposed amenities included lighted streets and an 18-hole golf course in Phase I. Phases II-VI contemplated lighted streets, a club house, swimming pool, jacuzzi, four tennis courts, shuffleboard, horse shoes, bocci board and court, and a lake with a dock. The joint venture agreement called for Tanner to function solely as a creditor for the development of the mobile home park. Tanner would finance the land acquisition and the improvements to the land in Phase I. Phases II-VI would be sold and developed by others. John Tanner was to be responsible for horizontal improvements to Phase I, including site plan, site clearing, streets, gutters, curbs, sewer, water, electric, other utilities, and an 18-hole golf course. Gary Tanner was to sell and market the mobile home sites in Phase I to the public. The joint venture agreement between the Tanners was a partnership (the "partnership"). Rather than paying each joint venturer a percentage of gross revenues, the agreement provided each partner with a percentage of the net profits derived from the development of the mobile home park (a "net profits interest"). The mobile home park consisted of 994 sites. The projected sale price for a site ranged from $25,000 to $40,000. Tanner projected gross revenues from the sale of all 994 sites to be approximately $20-$30 million. Expenses included approximately $1.75 million in land acquisition costs, debt service on the purchase-money mortgage, $90,000 in impact fees due on the land at the time of acquisition, back-taxes for three years, $750,000 in horizontal improvements to Phase I, and possibly some or all of the development costs for Phases II-VI. Petitioner failed to submit any testimony or documentary evidence that explained how the partnership structured the sale of Phases II-VI for development by others and retained an interest in either the gross income or net profits from the sale of the sites in those phases. Petitioner also failed to submit any evidence of the nature and scope of the partnership's continuing obligation, if any, for the development costs for Phases II-VI after those phases were sold. The testimony of Tanner and John Tanner also failed to address these issues. Petitioner also failed to submit any evidence showing that Tanner was a general partner in the partnership or otherwise had any management control of the partnership. The testimony of Tanner and John Tanner was the sole evidence on this issue. It showed that Tanner had no management or operational control over the partnership. Tanner's partnership capacity was that of a limited partner, capital partner, financier, or creditor. Prior to September 9, 1993, the land was owned by the Living Trust of Eva Stanley (the "Stanley Trust"). On September 9, 1993, Sun Valley contracted with Ms. Shirley A. Lanier for the purchase of the land. Petitioner failed to submit evidence explaining the authority of Ms. Lanier to sell the land, including a copy of the contract for sale. Evidence of the contract for sale consists solely of the testimony of witnesses. The contract for sale of the land called for Sun Valley to make a down payment of $250,000, execute a purchase money mortgage of $1.5 million dollars, pay impact fees of approximately $90,000, and pay back-taxes for three years. The terms of the debt service on the purchase-money mortgage, including the term of the mortgage, the interest rate, and payment amount and intervals, are not evidenced in the record. Sun Valley never took title to the land. In July 1994, Sun Valley assigned its interest in the contract for sale of the land to Zephyr Valley. Zephyr Valley closed on the land and took title to the land. Sun Valley financed the land acquisition by Zephyr Valley. Tanner borrowed approximately $1.4 million from Ms. Beverly Wibeck to finance the land acquisition and development of the mobile home park. He executed a promissory note for the loan and transferred the money to Sun Valley. Sun Valley used over $340,000 to finance the down payment, impact fees, and back taxes needed by Zephyr Valley to acquire the land from the Stanley Trust. Sun Valley loaned the remainder of the money to corporations owned by Gary Tanner and Bruce Hancock to fund improvements to the land and to fund the sales and marketing of the park. Sometime between July 1994 and the end of November 1994, Zephyr Valley entered into three conveyances of separate parcels of the land. First, Zephyr Valley sold the land for Phase I to Zephyr Springs Homeowners Association, Inc., a Florida Corporation wholly owned by Gary Tanner ("Homeowners"). Most of the terms of the sale to Homeowners are not evidenced in the record, including the purchase price and the terms of the note. From the testimony of Tanner, however, the evidence shows that Zephyr Valley placed a deed to the land for Phase I in escrow. Homeowners executed a promissory note for the purchase price. The note from Homeowners was a demand note. It required payment in full when all of the sites were sold and no debt service in the interim. Although arguably a "sweetheart" loan for Homeowners, the loan was not without economic reality or a legitimate business purpose for a creditor who was a limited partner with a net-profits interest in the partnership. To the extent Zephyr Valley decreased interest charges and other costs of the loan to Homeowners, Tanner, as the individual creditor of the partnership, enjoyed the potential for an increase in the dollar value of his eventual distributive share of net profits from the partnership. In November 1994, Zephyr Valley completed a second conveyance. It sold the land for phases II-VI to Five Star Development Trust ("Five Star"). Five Star is controlled and operated by Mr. Bruce Hancock ("Hancock"). Zephyr Valley and Five Star entered into an agreement for deed. Five Star was to pay $2.5 million for the land for phases II-VI. Other terms of the agreement for deed are not evidenced in the record. On November 30, 1994, Zephyr Valley completed the third conveyance. It sold 25 acres of the land for the golf club to Zephyr Springs Golf Club, L.P., a Delaware limited partnership ("Golf Club, L.P."), and International Golf Group, Inc. ("Golf Group, Inc."), a Delaware Corporation and the general partner in Golf Group, L.P. The sale price for the golf club site was approximately $675,000. Other terms of the sale are not in evidence. None of the foregoing land transactions are the subject of Petitioner's administrative action against Respondents. The initial land acquisition from the Stanley Trust and the subsequent conveyances to Homeowners, Five Star, and Golf Group, L.P., and Golf Group, Inc., are each exempt from the provisions of Chapter 498. Each transaction is a single transaction for a purchase price of at least $50,000, 20 acres, or both, within the meaning of Sections 498.025(1)(e) and (i). The land at issue in this proceeding is the land encompassing the 994 mobile home sites in the mobile home park (the "mobile home sites"). The mobile home sites comprise land that is situated in Pasco County and located "in this state" within the meaning of Section 498.023(1)(a). The mobile home sites are subdivided land within the meaning of Section 498.005(21). In relevant part, Section 498.005(21) defines subdivided land to include: . . . contiguous land which is divided . . . for the purpose of disposition into 50 or more lots, parcels, units, or interests; or Any land, whether contiguous or not, which is divided or proposed to be divided into 50 or more lots, parcels, units, or interests which are offered as a part of a common promotional plan. Petitioner failed to submit any evidence, including a plat map, other documentary evidence, or sworn testimony showing that 50 or more of the mobile home sites are contiguous. In the absence of such evidence, the mobile home sites fail to satisfy the definitional requirement for contiguity in Section 498.005(21)(a). Irrespective of whether the mobile home sites are contiguous for purposes of Section 498.005(21)(a), they are subdivided land within the meaning of Section 498.005(21)(b). The mobile home sites were divided into 50 or more lots, parcels, units, or interests and offered as part of a common promotional plan within the meaning of Section 498.005(22). The sale and marketing of the mobile home sites satisfy substantially all of the elements prescribed in Section 498.005(22) as relevant to the definition of a common promotional plan. Even if the mobile home sites were not contiguous, they were proximate to each other. They were located within the same 300-acre tract of land. In addition, the mobile home sites were known, designated, and advertised as a common unit or by the common name of Zephyr Springs Mobile Home Park. At least some of the mobile home sites were recorded as a subdivision in the official records of Pasco County. Pasco County determined that those mobile home sites are subdivided land. The number of mobile home sites included in the recorded subdivision is not evidenced in the record. Only 210 of the 994 mobile home sites planned for the mobile home park were acquired by the public. All 210 mobile home sites were acquired between December 12, 1993, and December 31, 1994. No mobile home sites were acquired after 1994. On June 1, 1995, Petitioner obtained an injunction in circuit court that prohibited any further sales of mobile home sites. The court ordered that monthly payments on mobile home sites already sold must be paid into an escrow account. Without the revenues from monthly payments on mobile home sites, Five Star was unable to service the debt to Zephyr Valley. In turn, Zephyr Valley, Tanner, and Sun Valley were unable to service the debt to the Stanley Trust or to finance any further improvements to the land. In addition, Tanner defaulted on his note to Ms. Wibeck. The Stanley Trust sold its mortgage to Russo and Company ("Russo"). Russo foreclosed against Respondents, Five Star, and the individual owners of the mobile home sites. Russo agreed not to disturb the individual owners of the mobile home sites. Petitioner agreed to pay the debt service on the mortgage purchased by Russo out of the escrow account required by the circuit court when the court enjoined any further sales of mobile home sites. Ms. Wibeck has filed a civil action against Tanner to recover the $1.4 million she loaned him to finance the mobile home park. That action was pending at the time of the hearing. Of the 210 mobile home sites acquired by the public, Petitioner submitted evidence concerning the sales and marketing of only 48 mobile home sites. The sales and marketing of the other 162 mobile home sites is not evidenced in the record. The 48 mobile home sites evidenced in this proceeding were acquired by the public pursuant to a common promotional plan carried out by Homeowners and Members. Between December 12, 1993, and October 4, 1994, the public acquired 30 mobile home sites from Homeowners. Between April 1 and December 31, 1994, the public acquired 18 mobile home sites from Members. Homeowners and Members offered mobile home sites to the public as part of a common promotional plan. They utilized common sales personnel, common sales offices, and common sales promotional methods to market mobile home sites to the public. Homeowners and Members employed common sales staff and housed them in a common sales center located on the mobile home park. The sales center was known by the singular name of Zephyr Springs Mobile Home Park Sales Center. Homeowners and Members offered mobile home sites in a similar plan of disposition. In relevant part, Section 498.005(4) defines a disposition to mean: . . .any transaction involving any interest in subdivided lands entered into for profit, including any sale, resale, lease for more than 5 years, assignment, or award by lottery. Homeowners and Members offered mobile home sites to the public in a similar plan of disposition. The written instrument of disposition was entitled a Membership Agreement. Each Membership Agreement purported to convey a membership in the homeowners' association and a license to use the premises described in each agreement. It is uncontroverted that Homeowners and Members entered into each Membership Agreement for profit within the meaning of Section 498.005(4). However, the parties disagree over whether the execution of each Membership Agreement was a transaction that involved any interest in land. Petitioner asserts that the execution of each Membership Agreement was a transaction "involving any interest in land" within the meaning of Section 498.005(4). Respondents claim that the execution of each Membership Agreement was a transaction that did not involve an interest in land. Respondents argue that each Membership Agreement involved only a membership in the homeowners' association and a license to use the mobile home site. The term "interest in land" is not defined in Chapter 498. The issue of whether a transaction involves any interest in land must be determined based on the facts and circumstances evidenced in each case. The facts and circumstances evidenced in this case show that the execution of each Membership Agreement was a transaction "involving any interest in land" within the meaning of Section 498.005(4). On balance, the bundle of rights conveyed in each Membership Agreement conveys a lease rather than a license. Each Membership Agreement conveys an exclusive possessory interest in a specific mobile home site described in the paragraph captioned "Premises." The premises described in each Membership Agreement is a specific mobile home site described by reference to lot and block number and more specifically by a legal description unique to each mobile home site. The fact that the premises described in each Membership Agreement also include a "non-inclusive right to use" common areas with others does not obviate the conveyance of an exclusive possessory interest in each mobile home site. Each Membership Agreement conveys an exclusive possessory interest in a specific mobile home site for a term of 99 years for a "purchase price" that ranges from $25,000 to $40,000 depending on the specific mobile home site described as the premises. The purchase price is paid in the form of a negotiable down payment plus $75 a month until the balance of the purchase price is paid in full. The balance of the purchase price is characterized in each Membership Agreement as an "annual membership fee" of $900 payable in equal monthly installments of $75. However, the "annual membership fee" terminates before the expiration of the 99-year term of the Membership Agreement. The "annual membership fee" terminates on different dates in each Membership Agreement depending on the original purchase price, the original date of purchase, and the down payment. For example, the "annual membership fee" for a mobile home site purchased for $40,000 on July 1, 1994, with a $5,000 down payment terminates on May 1, 2033. In contrast, the "annual membership fee" for a mobile home site purchased for $25,000 on June 17, 1994, with a $4,000 down payment terminates on October 1, 2017. The 99-year term in each Membership Agreement is not revocable at will. The agreement prescribes specific terms and procedures for revocation. Each Membership Agreement provides that each member's interest in the premises is assignable without the prior consent of the homeowners' association. In each Membership Agreement, the homeowners' association covenants and warrants the member's quiet, exclusive, and peaceable enjoyment of the premises. Each member is responsible for paying the real estate taxes for the specific mobile home site described in the Membership Agreement. Each member is also responsible for any construction costs for improvements to the site. The premises are subject to covenants, restrictions, and rules promulgated by the homeowners' association. Each Membership Agreement provides that these conditions run with the land. Homeowners and Members "offered" mobile home sites to the public within the meaning of Section 498.005(13). Homeowners and Members induced, solicited, and attempted to encourage individuals to acquire an interest in subdivided lands. Homeowners and Members "offered" mobile home sites to the public in violation of Section 498.023(1). It is uncontroverted that neither Homeowners nor Members obtained a valid order of registration for the subdivided lands and that neither the subdivided lands nor the transactions entered into by Homeowners and Members were exempt pursuant to Section 498.025. Both Homeowners and Members were required to obtain a valid order of registration in order to sell interests in the mobile home sites. Homeowners derived its title in the mobile home sites from the deed placed in escrow when Zephyr Valley sold the land for Phase I to Homeowners. Members derived its authority to sell mobile home sites from its apparent agency for Five Star. Five Star derived its title in the mobile home sites from the agreement for deed between Five Star and Zephyr Valley for the land for Phases II-VI. Bruce Hancock managed and controlled Five Star and Members as the sole officer and director for Members during the time Members sold memberships. Homeowners and Members violated Section 498.023(2). Each time Homeowners and Members entered into a Membership Agreement with a member, they disposed of an interest in subdivided lands without delivering a public offering statement to the purchaser prior to the disposition. Neither Homeowners nor Members ever provided a public offering statement for the mobile home park to any member of the public. Petitioner failed to submit evidence that Homeowners, Members, or Respondents violated Section 498.035. While Petitioner submitted evidence of the advertising used in the sale and marketing of the mobile home sites, Petitioner failed to show that either Homeowners or Respondents placed the advertisements. Petitioner did not show that Tanner, Sun Valley, or Zephyr Valley violated Section 498.023(1)(a) by offering or disposing of any interest in the mobile home sites. Although Tanner was the sole shareholder of Members and Members offered and disposed of 18 mobile home sites, Tanner was not an officer or director of Members and did not exercise any management control over Members prior to February 5, 1995. Members offered and disposed of all 18 mobile home sites prior to February 5, 1995. Members was incorporated by Bruce Hancock on April 1, 1994. Bruce Hancock was the sole director and officer until February 5, 1995, when Tanner became an officer and director. Members did not offer or dispose of any of the 18 mobile home sites after February 5, 1995. Neither Tanner, Sun Valley, nor Zephyr Valley owned any stock in Homeowners. On October 4, 1994, however, Tanner exercised management control over Homeowners pursuant to a letter agreement with Gary Tanner. Homeowners offered and disposed of all 30 mobile home sites in evidence in this proceeding prior to October 4, 1994. The letter agreement did not alter the stock ownership of Homeowners or its officers or directors but operated as a management agreement between Tanner and Gary Tanner. The letter agreement required Tanner to pay Gary Tanner $1,000 a month in consideration for Tanner's exclusive right to manage Homeowners. Tanner entered into the letter agreement because he believed Gary Tanner was stealing money from Homeowners. Petitioner claims that Tanner, Sun Valley, or Zephyr Valley violated Section 498.023(1)(a) by participating, either directly or indirectly, in the offer and disposition of the 48 mobile home sites in evidence in this proceeding. There is no evidence that Sun Valley or Zephyr Valley ever participated in any way in the offer and disposition of mobile home sites. A determination of whether Tanner participated in the offer and disposition of 48 mobile home sites is made more difficult by the absence of a statutory definition in Chapter 498 of the term "participate." The American Heritage Dictionary (Second College Edition 1982) at 905 states that the term "participate" means, "To take part; join or share with others . . . . To share in; partake of." Although the joint venture agreement between Tanner and his sons entitled Tanner to a share of the net profits of the venture, Tanner testified that he never in fact participated in the net profits. All of the gross revenues from the mobile home park were used for improvements to Phase I, debt service on the purchase money mortgage given by Zephyr Valley to the Stanley Trust, and the purchase money mortgage from Five Star that resulted from the agreement for deed for Phases II-VI. There was no debt service on the demand note given by Gary Tanner for the purchase of Phase I. Petitioner submitted no evidence that gross revenues from the mobile home park were used for any purpose other than the purposes evidenced by Tanner's testimony. There are no bank records in evidence showing the use of gross revenues by Tanner, Sun Valley, Zephyr Valley, and Members, for purposes other than debt service and financing the costs of development, sales, and promotion. No representative of the Stanley Trust testified that the Trust did not receive loan payments from Sun Valley on behalf of Zephyr Valley or that Zephyr Valley was in default on the purchase-money mortgage before Petitioner obtained an injunction in 1995. No evidence enabled a comparison of gross revenues with the cash flow required to service the debt in exempt transactions involving the agreement for deed between Zephyr Valley and Five Star and the purchase money mortgage from Zephyr Valley to the Stanley Trust. Petitioner did not show that Tanner directly participated in the offer and disposition of the 48 mobile home sites at issue in this proceeding. Neither Homeowners nor Members offered or disposed of any of the 48 mobile home sites after Tanner exercised management control over either corporation. Petitioner did not show that Tanner indirectly participated in the offer and disposition of the 48 mobile home sites at issue in this proceeding. Petitioner showed that Tanner had the authority to sign checks for Homeowners and Members and in fact signed several checks for both companies from February 25, 1994, through January 18, 1995. However, Petitioner failed to show that Tanner signed any checks for any purpose other than the repayment of loans. With one de minimis exception, all of the checks signed by Tanner were payable to Sun Valley and deposited to Sun Valley's account. Sun Valley was the creditor of Zephyr Valley. Zephyr Valley was the creditor of Five Star and Members. Five Star and Members were managed and operated exclusively by Mr. Hancock. Assuming arguendo that there was an evidentiary basis for disregarding the corporate form of each separate entity and that all of the checks flowed through to Tanner, Petitioner failed to show that Tanner signed the checks in any capacity, or for any purpose, other than the collection of debt by a creditor. Tanner signed two checks for Homeowners in the aggregate amount of $360,000. He signed one check on February 25, 1994, for $250,000 and the other check on March 24, 1994. The second check stated that it was for the partial repayment of a loan. The first check stated no purpose, but Tanner testified that it was for the repayment of a loan. Petitioner submitted no evidence to the contrary. Tanner signed 19 checks for Members in the aggregate amount of $240,730. Tanner testified that he signed all of the checks from Members to repay loans, and Petitioner submitted no evidence to the contrary. Of the 19 checks signed by Tanner on the Members account, 18 were made payable to Sun Valley and deposited to the Sun Valley account. One check in the de minimis amount of $230 was payable to Homeowners without explanation. The cancelled checks and Tanner's testimony show that Tanner's participation was limited to the repayment of development and sales costs financed by Tanner, as a creditor, or the repayment of loans owed either to Zephyr Valley by Five Star or to Sun Valley by Zephyr Valley. Petitioner did not show that Tanner used any of the checks to participate in the offer and disposition of mobile home sites by Homeowners and Members. Petitioner submitted no evidence that Tanner used funds evidenced by the cancelled checks for any purpose other than payments to Sun Valley as a creditor. No bank records of Sun Valley are in evidence showing that either Sun Valley or Tanner failed to use the check proceeds to service the debt Zephyr Valley owed to the Stanley Trust, to finance development and sales costs, to repay previously financed development and sales costs, or all three; or that Tanner or Sun Valley diverted any portion of the $600,500 for personal use, for operational or management purposes, or to fund a distributive share of any net- profits interest. There was no testimony from a representative of the Stanley Trust showing that debt service due on the purchase-money mortgage was not timely paid to the Trust on behalf of Zephyr Valley or that Zephyr Valley was in default before Petitioner obtained an injunction in 1995. By signing checks from Homeowners and Members to Sun Valley, Tanner collected loan payments in a manner that is the functional equivalent of the method used by an institutional lender when it is authorized to collect payments electronically by automatic debit to the customer's account. Instead of writing three separate checks from Members to Five Star to Zephyr Valley to Sun Valley, Tanner wrote one check from Members to Sun Valley. Similarly, Tanner wrote one check from Homeowners to Sun Valley instead of preceding it with an additional check from Homeowners to Zephyr Valley. The role of Tanner, Sun Valley, or Zephyr Valley was limited to that of a creditor within the meaning of Section 498.049(5). For reasons previously stated and not repeated here, Petitioner did not show that Respondents materially participated in any offer or disposition of any interest in the 48 mobile home sites or assumed managerial or fiduciary responsibility in a manner related to the basis of the liability of Homeowners and Members for offering or disposing of an interest in the 48 mobile home sites. Therefore, Respondents are not jointly and severally liable with Homeowners and Members for violating Sections 498.023(1)(a) and (2)(a). Petitioner asserts that Respondents should have known of the acts committed by Homeowners and Members in violation of Sections 498.023(1)(a) and (2)(a). However, Tanner required his two sons to obtain all necessary state approvals before he would finance any portion of the development. Tanner's two sons sought legal counsel to assist them in obtaining the required state approvals and relied on that legal advice. Petitioner did not call any members of the law firm named by Tanner to refute Tanner's testimony. Gary and John Tanner obtained letters from the Division of Mobile Homes and the law firm. They represented to Tanner that those documents satisfied his requirement for state approvals, and Tanner relied on their representations. Petitioner did not submit any documentary evidence from the law firm to refute Tanner's testimony. When Tanner learned of the problems confronting Homeowners and Members, Tanner engaged in reasonable efforts to intervene in the management and operation of Homeowners and Members. On October 4, 1994, Tanner executed a management agreement with Gary Tanner for operating control of Homeowners. On February 5, 1995, Tanner took over management of Members as an officer and director. Neither Homeowners nor Members sold any of the 48 mobile home sites after Tanner assumed management control of the two companies.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order finding Respondents not guilty of violating Sections 498.023(1)(a) and (2)(a), Section 498.035, and Section 498.049(5). DONE AND ENTERED this 16th day of April, 1998, in Tallahassee, Leon County, Florida. DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 16th day of April, 1998. COPIES FURNISHED: Richard T. Farrell, Secretary Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Lynda Goodgame General Counsel Department of Business and Professional Regulation Northwood Center 1940 North Monroe Street Tallahassee, Florida 32399-0792 Robin Suarez Chief Assistant General Counsel Department of Business and Professional Regulation Northwood Center 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-1007 Clayton D. Simmons, Esquire Stenstrom, McIntosh, Colbert, Whigham and Simmons, P.A. Suite 22 200 West First Street Sanford, Florida 32772-4848
The Issue Is it in the public interest to place Petitioners, Paradies Shops, Inc. and Paradies Midfield Corporation (Paradies Shops and Paradies Midfield) on the State of Florida Convicted Vendor List maintained by Respondent State of Florida Department of Management Services (the Department)? Section 287.133, Florida Statutes (1996 Supp.).
Findings Of Fact The corporate headquarters of Paradies Shops is located at 5950 Fulton Industrial Boulevard, Atlanta, GA 30336. Paradies Shops is conducting business with several Florida public entities in the form of airport retail concession contracts. Paradies Shops owns 65 percent of Paradies Midfield. Paradies Shops owns 75 percent of Paradies-Ft. Lauderdale. Paradies-Jacksonville, Paradies-Sarasota and Paradies-Daytona Beach are all Sub-Chapter S corporations, for tax purposes; therefore, Paradies Shops does not own any stock in these three corporations. The Paradies family and Richard Dickson own, on an individual basis, 75% to 85% of the Sub- Chapter S affiliates. The remaining stock is owned by the Disadvantaged Business Enterprise (DBE) partners of Paradies Shops in these ventures. Paradies Shops and Paradies Midfield do not operate through divisions. Paradies Midfield has one subsidiary, Paradies Country Stores, Inc. All of the corporate addresses for other Paradies Companies, in addition to Paradies Shops, are at 5950 Fulton Industrial Boulevard, Atlanta, GA 30336. The subsidiaries, affiliates, limited liability companies and Florida leases of Paradies are as follows: Subsidiaries Paradies-Chicago, Inc. Paradies-Fort Lauderdale, Inc. Paradies-Hartford, Inc. Paradies-Louisville, Inc. Paradies Midfield Corporation Paradies Pugh, Inc. PAS Group, Inc. Affiliates Mercaro Gifts-TPS, Inc. Paradies-Concessions II-Arch, Inc. Paradies-Dayton, Inc. Paradies-Huntsville, Inc. Paradies-Jacksonville, Inc. Paradies-Knoxville, Inc. Paradies-LaGuardia, Inc. Paradies-Metro Ventures, Inc. Paradies-Orange Co., Inc. Paradies-Sarasota, Inc. Paradies-South, Inc. Paradies-Toronto, Inc. Paradies-Daytona Beach, Inc. Paradies-Vancouver, Inc. PGA Tour Licensing Limited Liability Companies Paradies & Associates, L.L.C. Paradies-Colorado Springs, L.L.C. Paradies-Madison, L.L.C. Paradies-Desert House, L.L.C. Paradies-Phoenix, L.L.C. Current Florida Leases Company Name Paradies Southwest Florida Intl. Lee County Port Ft. Myers, Florida Authority Paradies Palm Beach Intl. Airport Palm Beach West Palm Beach, FL County Paradies Tallahassee Regional Airport City of Tallahassee, Florida Tallahassee Paradies Orlando Intl. Airport Greater Orlando Orlando, Florida Aviation Authority Paradies Ft. Lauderdale Intl. Airport Broward County Ft. Lauderdale, Florida Paradies Jacksonville Intl. Airport Jacksonville Port Authority Paradies Sarasota/Bradenton Intl. Sarasota-Manatee Sarasota, Florida Airport Authority Paradies Daytona Beach Intl. Airport County of Volusia Daytona Beach, Florida The following constitutes the Florida business registrations for Paradies, to include the company name and the Florida registration number: Company Florida Registration # Parent Paradies, Inc. 826058 Subsidiaries Paradies-Ft. Lauderdale, Inc. M11773 Sub-S Affiliates Paradies-Jacksonville, Inc. P30174 Paradies-Sarasota, Inc. P27093 Paradies-Daytona Beach, Inc. F92000000397 Pursuant to Section 287.133, Florida Statutes (1996 Supp.), the Department is responsible for investigating and prosecuting cases involved with persons or affiliates that it has reason to believe have been convicted of a public entity crime. This responsibility is as a means to maintain a list of the names and addresses of those persons or affiliates who have been disqualified from the public contracting and purchasing process engaged in with Florida public entities subject to that statute. Daniel M. Paradies, Paradies Shops and Paradies Midfield, were charged with public entity crimes as defined within subsection 287.133(1)(g), Florida Statutes (1996 Supp). That case was tried before a jury in January, 1994 (U.S. v. Ira Jackson, et al., Case No. 1:93:CR-310, U.S. District Court for the Northern District of Georgia, Atlanta Division.) On January 22, 1994 the jury returned a verdict of guilty. On April 15, 1994, the U.S. District Court for the Northern District of Georgia, Atlanta Division, entered judgments of conviction for 83 counts of mail fraud against Daniel M. Paradies, Paradies Shops and Paradies Midfield, for violations of Sections 1341 and 1346 of Title 18, United States Code. Daniel M. Paradies was also convicted of one count of conspiracy to commit bribery in violation of Section 371 of Title 18, United States Code. These judgments and convictions of Daniel M. Paradies, Paradies Shops and Paradies Midfield constituted convictions for public entity crimes as defined within Subsections 287.133(1)(g) and 287.133(3)(e), Florida Statutes (1996 Supp.). Further information concerning the judgments of conviction may be found in Exhibits M, N, O and P to the joint stipulation of facts by the parties. The nature and details of the public entity crimes for which judgments of conviction were entered against Daniel M. Paradies, Paradies Shops and Paradies Midfield may be found in Exhibit P to the stipulation by the parties. As well, that exhibit speaks to the culpability of the persons or affiliates proposed to be placed on the Convicted Vendor List. Section 287.133(3)(e)3b. and c., Florida Statutes (1996 Supp.). On September 23, 1996, the United States Court of Appeals for the Eleventh Circuit affirmed all convictions of Daniel M. Paradies, Paradies Shops and Paradies Midfield. The Eleventh Circuit denied rehearing on December 26, 1996, but stayed its mandate pending a Petition for Writ of Certiorari in an Order entered January 22, 1997. By seeking a stay of the Eleventh Circuit's mandate, the Paradies companies announced their intention to file a Petition for Writ of Certiorari in the United States Supreme Court within thirty (30) days after the mandate had been stayed. A copy of the Eleventh Circuit order granting the motion to stay pending a Petition for Writ of Certiorari is found as Exhibit A to the fact stipulation by the parties. The Petition for Writ of Certiorari has been filed. In consideration of the requirements of Section 287.133(e)3.d, Florida Statutes (1996 Supp.), requiring consideration of "prompt or voluntary payment of any damages or penalty as a result of the conviction" for a public entity crime, no restitution was required by the final judgment in that case. A fine and special assessment against Paradies Shops were payable over a five year period, once the judgment becomes final. Because the Eleventh Circuit order stayed issuance of the mandate pending United States Supreme Court's ruling for the Petition for Writ of Certiorari to be filed by Mr. Paradies, Paradies Shops and Paradies Midfield, the fine and special assessment are not due at this time. The Paradies Shops has established a reserve for payment of the fine and that reserve is reflected in its audited balance sheet. In the event the Supreme Court denies the Petition, Paradies Shops and Paradies Midfield intend to pay the full amount of the fine and the special assessment within thirty (30) days of a final judgment. A copy of "the Paradies Shops, Inc., its Subsidiaries and its Affiliates Consolidated and Combined Financial Statements June 30, 1996 and 1995," demonstrating the availability of the funds is attached to the fact stipulation by the parties as Exhibit D. In accordance with Section 287.133(3)(e)3.e, Florida Statutes (1996 Supp), Paradies Shops and Paradies Midfield cooperated with the state and federal investigations and federal prosecution of the public entity crime consistent with their good faith exercise of constitutional, statutory or other rights during the investigation or prosecution of the public entity crime, to the extent that: Paradies Shops and Paradies Midfield at all times cooperated with the federal government with its investigation. Paradies produced tens of thousands of pages of documents and made all of its employees available for appearance before the Federal Grand Jury. In addition, several Paradies Shops' employees were called by the government to testify at trial. Paradies Shops and Paradies Midfield, fully cooperated with the Department in connection with this investigation initiated pursuant to Section 287.133, Florida Statutes, and supplied the Department with all requested documents concerning the Atlanta proceeding. In association with Section 287.133(3)(e)3.f, Florida Statutes (1996 Supp.), the following acts of "disassociation from any person or affiliates convicted of the public entity crime" have transpired: Paradies Midfield and Paradies Country Store ceased all operations on March 31, 1995. In May, 1994, Dan Paradies resigned as President and Director for Paradies Shops and is no longer employed in any capacity with any company. Mr. Paradies has placed in a blind irrevocable trust all of the stocks he owns in Paradies Shops and its affiliates (including the companies operating in Florida). Mr. Paradies does not have any control over the stock in the blind irrevocable trust and cannot vote any of that stock. In regards to his capacity within the company, Mr. Paradies has no involvement nor any control over any of the Paradies companies. He is not employed in any capacity with any of the companies nor is he an officer or director of any of the companies. Paradies Shops and Paradies Midfield were held responsible based on the ownership and control of Mr. Dan Paradies. Charges were not brought against any other officer, director or employee of Paradies. The government did charge Mack Wilbourn, a director of Paradies Midfield, but he was acquitted. In association with Section 287.133(3)(e)3.g, Florida Statutes (1996 Supp.), "prior or future self-policing by the person or affiliate to prevent public entity crimes" has been shown to the extent that: Following the convictions Paradies Shops engaged the international accounting firm of Coopers & Lybrand to review and evaluate all DBE business relationships of Paradies Shops. These reviews were completed in May of 1994, and found no evidence of any improper activities. These reviews are found as Exhibit E to the fact stipulation by the parties. Paradies Shops has adopted a Code of Business Practices that is designed to provide officers and all management of the Company a guide to the basic principles to be applied in conducting the company's business. The failure on the part of a covered employee to abide by the provision of the Code is grounds for immediate dismissal. This code also directs employees to report any suspected violations of the law or other misconduct. The Code has been read and executed by all employees in the home office in Atlanta and all managers in all locations around the country. All future new employees at the home office and new management level employees are required to read and agree to follow the Code. The Company requires all covered employees to certify, on at least an annual basis, that they have reviewed the Code and that they will continue to abide by its terms. A copy of Paradies Code of business practices, which includes a blank certification form, is Exhibit F to the fact stipulation by the parties. In accordance with Section 287.133(3)(e)3.h, Florida Statutes (1996 Supp.), consideration is given any "reinstatement or clemency in any jurisdiction in relation to the public entity crime at issue in the proceeding." To that extent: No debarment proceedings have been initiated against Paradies by any state as a result of the Atlanta conviction. Paradies has not been debarred by any state as a result of the Atlanta conviction. The fact stipulation relates that: Since the convictions, Paradies has won thirteen (13) new contracts through competitive proposals and received the extensions of fourteen (14) existing contracts. Additionally, Paradies has been awarded five (5) off-airport contracts since the conviction to include a long-term contract with the World Golf Village, currently under development south of Jacksonville, Florida, and scheduled to open March of 1998. In addition, in 1996, the PGA TOUR has extended the Paradies exclusive license to operate the PGA TOUR Shops for an additional five (5) years. These representations in the fact stipulation are not found to relate to the factor to be considered by the undersigned which is Section 287.133(3)(e)3.h, Florida Statutes (1996 Supp.). Section 287.133(3)(e)3.i, Florida Statutes (1996 Supp.) makes it incumbent upon the person or affiliate who is convicted of a public entity crime applicable to that person or affiliate of that person to notify the Department within 30 days of the conviction of the public entity crime. Without necessity the parties stipulated that: On July 9, 1993, the same day the indictment was returned, Paradies Shops notified all airports at which Paradies Shops (or its subsidiaries or affiliates) operates, including all airports in Florida of the indictment that was returned by the Federal Grand Jury in Atlanta. Copies of the indictment were sent to all airports in Florida along with the notification. Copies of the notice of indictment sent to all Florida Airports at which Paradies Shops operated are attached and incorporated in the fact stipulation as Exhibit G. As contemplated by the statute and stipulated to by these parties: On January 24, 1994, the first business day after the conviction, Paradies Shops notified all such airports in Florida (and elsewhere) of the guilty verdicts returned by the jury in Atlanta. Copies of the Notices of Convictions sent to all Florida airports at which Paradies operated are attached and incorporated into this stipulation as Exhibit H. On April 15, 1994, the same day as the sentencing, Paradies Shops notified all such airports in Florida (and elsewhere) that the District Court had denied the Motion for Judgment of Acquittal or New Trial. Copies of the notices reporting Denial of the Motionfor Judgment of Acquittal or new trial sent to all Florida airports at which Paradies Shops operated are attached and incorporated into this stipulation as Exhibit I. Additionally, the parties stipulated that "the Department of Management Services has been informed of all subsequent developments and decisions." This refers to circumstances following the notification to the Florida airports that the District Court had denied the Motion for Judgment of Acquittal or New Trial. It is not clear from the fact stipulation upon what basis the Department was informed of the judgments of convictions within 30 days after the conviction of the public entity crime applicable to the subject persons or affiliates nor has it been shown that any public entity (Florida airports) which received the information that a person had been convicted of a public entity crime had transmitted that information to the Department in writing within 10 days after receipt of that information as contemplated by Section 287.133(3)(b), Florida Statutes (1996 Supp.). Nonetheless, the parties have stipulated that pursuant to Section 287.133(3)(b), Florida Statutes (1996 Supp.), Paradies Shops made timely notification to the Department of the conviction of public entity crimes applicable to persons or affiliates of that person and provided details of the convictions and that communication was direct. Section 287.133(3)(e)1., Florida Statutes (1996 Supp.), was complied with by the Department through its Notice of Intent to Paradies Shops and Paradies Midfield in writing indicating the intent to place those persons on the Convicted Vendor List. This notification occurred on April 29, 1997. A copy of the Notification is included with the parties fact stipulation as Exhibit B. On April 29, 1997, in accordance with Section 287.133(3)(e)2, Florida Statutes (1996 Supp.), Paradies Shops and Paradies Midfield timely filed a Petition for Administrative Hearing pursuant to Section 120.57(1), Florida Statutes (1996 Supp.) to determine whether it is in the public interest for Paradies Shops and Paradies Midfield to be placed on the State of Florida Convicted Vendor List. A copy of the petition for Formal Administrative Hearing is attached and incorporated in the parties fact stipulation as Exhibit C. Section 287.133(3)(e)3.j, Florida Statutes (1996 Supp.), calls for consideration of "the needs of public entities for additional competition in the procurement of goods and services in their respective markets." The parties have not stipulated concerning that criterion. Therefore, no factual basis exists for determining the needs of public entities for additional competition in the procurement of goods and services in the respective markets. Section 287.133(3)(e)3.k, Florida Statutes (1996 Supp.), addresses "mitigation based upon any demonstration of good citizenship by the person or affiliate." In responding to that factor the parties have stipulated to the following: Paradies Shops was rated the 'Best Airport Retail Concessionaire for 1995' by an expert group of Concessionaires, and Consultants and Airport Managers. Paradies Shops was also chosen as the 'concessionaire with highest regard for customer services'. These awards were reported in the December 20, 1995 edition of 'World Airport Retail News', a publication based in West Palm Beach, Florida. A copy of this report is attached and incorporated into the stipulation as Exhibit J. In addition, Paradies Shops has supplied letters from 26 airport authorities attesting to the good citizenship of Paradies Shops. Copies of such Supplied Letters are attached and incorporated into the stipulation as Exhibit K. Paradies Shops was rated the 'Best Airport retail concessionaire for 1996' by an expert group of concessionaires, and Consultants and Airport Managers. Paradies Shops has now won this award for the past two (2) consecutive years. In each year, Paradies Shops was honored with this Award by a separate panel of experts. Additionally, Paradies Shops was granted the following awards in 1996: 'Best Airport Retailer', 'Concessionaire with Highest Regard for Public Service', 'Best New Specialty Retail Concept', and 'Most Visually Attractive, Engaging Retail Store Front in an Airport'. Notice of these awards appeared in the February 20, 1997 edition of 'World Airport News', a copy of which is attached and incorporated into the stipulation as Exhibit L'. Having considered the fact stipulations and Exhibits J, K, and L, it is concluded that these facts and exhibits do not relate to demonstration of good citizenship as described in Section 287.133(3)(e)3.k, Florida Statutes (1996 Supp.).
Recommendation Having found the Respondent technically guilty of a violation of Section 489.129(1)(d), and thereby guilty of violating Section 489.129(1)(m), Florida Statutes, and based upon the matters in mitigation, the Hearing Officer recommends that the Respondent receive a private letter of reprimand for his technical violation. DONE and ORDERED this 30th day of March, 1982, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, 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 30th day of March, 1982. COPIES FURNISHED: Michael E. Egan, Esquire 217 South Adams Street Post Office Box 1386 Tallahassee, Florida 32302 Mr. David H. Otto 1527 C Road Loxahatchee, Florida 33470 J. K. Linnan, Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32201 Samuel Shorstein, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
