The Issue The issue to be determined is whether Destin is entitled to attorney’s fees pursuant to section 120.569(2)(e), from Respondents related to litigation between the parties in DOAH Case No. 19-3356.
Findings Of Fact On November 14, 2016, DEP issued a Permit Modification to the Corps which modified the location upon which spoil from the dredging of East Pass in Destin, Florida could be placed, from being on “a portion of the beach on Eglin Air Force Base (to the west of East Pass),” to “the Gulf-front beaches on the eastern and western sides of East Pass.” The modification deleted language from an original permit that prohibited, with minor exception, placement of dredged material “on any beach east of the Main Channel.” On November 16, 2018, John S. Donovan, David H. Sherry, and Rebecca R. Sherry filed a Petition for Administrative Hearing challenging the Permit Modification, which was referred to DOAH and assigned as DOAH Case No. 19-1915. The Petition in Case No. 19-1915 was dismissed as not being timely filed. A full account of the procedural history of that case is contained in the docket of Case No. 19-1915. On June 5, 2019, Thomas Wilson filed his Petition for Formal Administrative Hearing (Wilson Petition). The Wilson Petition was substantively identical to that filed in Case No. 19-1915. The Wilson Petition was referred to DOAH on June 19, 2019, and assigned as DOAH Case No. 19-3356. On June 28, 2019, David H. Sherry, Rebecca R. Sherry, and John S. Donovan filed a Motion for Leave to Intervene in Case No. 19-3356, which was granted on July 8, 2019. On August 20, 2019, Destin moved to intervene in DOAH Case No. 19-3356, which was granted on August 26, 2019. On August 21, 2019, DEP filed a proposed amendment to the Permit Modification, which changed the condition directing placement of dredged material to “the eastern and western sides of East Pass” to one requiring that “[b]each compatible material dredged from the initial maintenance dredge event following issuance of [the Permit Modification], shall be placed to the east of East Pass” (the Proposed Change). The Proposed Change also extended the term of the Permit. On September 4, 2019, John S. Donovan, David H. Sherry, and Rebecca R. Sherry filed a Petition for Formal Administrative Hearing to challenge the Proposed Change, which was referred to DOAH and assigned as DOAH Case No. 19-4979. On September 20, 2019, Case No. 19-4979 was consolidated with Case No. 20-3356.1 On October 21, 2019, Petitioners filed a First Amended Petition for Formal Administrative Hearing (Amended Petition) to address the August 21, 2019, Proposed Change. On November 5, 2019, the Amended Petition was accepted as filed. On November 15, 2019, Destin filed its Motion for attorney’s fees pursuant to the authority in section 120.569(2)(e). Also on November 15, 2019, Petitioners filed a Second Amended Petition for Formal Administrative Hearing. 2 The final hearing was convened on November 20, 2019, as scheduled. Issues related to the disposition of DOAH Case No. 19-1844 were taken up at the final hearing as a preliminary matter. Case No. 19-1844 involved the issuance of a permit to Destin to perform maintenance dredging of East Pass north of the U.S. Highway 98 bridge, with placement of dredged material to the beaches to the east of East Pass. A Recommended Order had 1 At the commencement of the final hearing, DOAH Case No. 19-4979 was severed, and a written Order Granting Renewed Motion to Dismiss, Relinquishing Jurisdiction, and Closing File was entered on January 29, 2020. Since the May 1, 2020, Renewed Motion was filed only with regard to Case No. 19-3356, further discussion of Case No. 19-4979 is unnecessary. 2 The purpose of the Second Amended Petition was primarily to drop Petitioners’ objection to the extended term of the Permit authorized by the Proposed Change, and is of no consequence to the disposition of this proceeding. been entered on October 14, 2019, which determined that dredged material from the maintenance dredging of East Pass should, to be compliant with section 161.142, Florida Statutes, be placed on adjacent eroding beaches east of the inlet. It also determined that the East Pass IMP is not an unadopted rule as described in section 120.57(1)(e). At the commencement of the final hearing, a Final Order in Case No. 19-1844 had not yet been entered. The substantial similarities in the issues of law and fact between Case No. 19-1844 and this case were discussed, and it was determined that if the Final Order in Case No. 19-1844 substantially adopted the Recommended Order, an Order to Show Cause would be entered, asking the parties to address whether collateral estoppel applied to some or all of the issues in this case. During the pendency of Case No. 19-1844, Destin filed a Motion for Attorney’s Fees, Expenses and Costs pursuant to sections 120.569(2)(e) and 120.595. The Recommended Order in Case No. 19-1844 reserved ruling on Destin’s Motion for Attorney’s Fees, Expenses and Costs under section 120.569(2)(e), “provided [Destin] renews its Motion within 30 days of DEP’s entry of the final order” in Case No. 19-1844. No renewed motion was filed. With regard to section 120.595 fees, the Recommended Order included a “determination” that John S. Donovan, David H. Sherry, and Rebecca R. Sherry did not participate in Case No. 19-1844 “for an improper purpose, i.e., primarily to harass or to cause unnecessary delay or for frivolous purpose or to needlessly increase the cost of litigation, licensing, or securing the approval of an activity…,” and recommended that the motion for attorney’s fees be denied. On November 20, 2019, after the final hearing in Case No. 19-3356 had convened, DEP entered its Final Order in Case No. 19-1844. The Final Order adopted the Recommended Order with minor modifications that are not pertinent here. An Order to Show Cause was issued on November 22, 2019, as to whether disposition of issues in Case No. 19-1844 would collaterally estop the challengers to the Permit in Case No. 19-3356 as to some or all of the issues in that case. It was thereafter determined, for reasons set forth in the Recommended Order in Case No. 19-3356, that Respondents were not estopped from challenging the Corps’ Permit Modification and Proposed Change. The Recommended Order in Case No. 19-3356 was entered on February 20, 2020. The Recommended Order considered the evidence offered by Destin, DEP, and Respondents, primarily expert in nature except for testimony as to standing, and found and concluded that the Corps was entitled to the Permit Modification as modified by the Proposed Change. Destin filed its Renewed Motion as authorized in the Recommended Order, and Respondents filed a Response. On July 27, 2020, oral argument was held on the Motion and Amended Motion as renewed. It was noted by the undersigned during a series of questions that the Motions did not identify a specific “pleading, motion, or other paper” alleged to have been filed for an improper purpose. Counsel for Destin thereupon stated that the pleadings alleged to have been signed for an improper purpose were the June 5, 2019, Wilson Petition, and the October 21, 2019, Amended Petition. No other pleadings, motions, or papers were identified as having been signed for an improper purpose. Thus, the analysis in this Order is limited to those pleadings.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: On or about March 6, 1984, petitioner applied for a DER permit to construct a marina on state owned submerged land located in Punta Rassa, Lee County, Florida. The original design requested approval to build slips for 54 boats. This design was later modified to conform to suggested modifications made by DER staff. The modification reduced the size of the marina to 30 boat slips. By an Intent to Issue dated April 24, 1985, petitioner was advised that the DER intended to issue the permit with 17 special conditions. Special Condition Number 1 advised petitioner of the Florida law which states that construction on state sovereignty lands may not be commenced prior to receiving from the Board of Trustees of the Internal Improvement Trust Fund the required lease, license, easement, or other form of consent authorizing the proposed use. In none of the 17 special conditions, nor in any other portion of the Intent to Issue, was it stated when the permit time would begin to run, or when it would expire. The expiration date of the proposed permit simply was not mentioned. The Intent to Issue did contain a standard "point of entry" notice, advising that a petition for a hearing could be filed and stating that the hearing process was designed to formulate agency action. Having no objection to the DER's Intent to Issue and the conditions thereof, the petitioner determined not to request an administrative hearing with regard to said Intent. On May 17, 1985, the DER issued to petitioner Permit Number 360836415. This permit included 15 general conditions and the same 17 special conditions that were contained in the Intent to Issue. In addition, the permit stated that it would expire on June 1, 1987. The permit was accompanied by a letter. Neither the letter, nor the permit, bore the stamp of the agency clerk or contained language advising petitioner of its right to petition for an administrative hearing or other "point of entry" language. DER never notified petitioner by any document that contained "point of entry" language that the permit time would begin running immediately and would expire on June 1, 1987. In order to obtain a sovereignty land lease from the Trustees of the Internal Improvement Trust Fund, petitioner was required to modify its proposed marina design by reducing the number of boat slips to 14. The Trustees approved the lease on or about July 29, 1986, although the Certification of Board Action attesting the Board's approval of the lease, as well as the sovereignty submerged land lease itself, was not forwarded to the petitioner until March 12, 1987. Due to the modifications required by the Trustees, the petitioner requested DER to modify its permit to reflect the reduction of the project scope. The request represented a minor modification to the permit and was granted by DER by letter dated September 30, 1986. The letter of modification does not suggest that the original expiration date of the permit had been changed. As of June 1, 1987, construction work on the proposed marina had not yet begun. The petitioner's agent relied upon a promulgated rule of the DER and assumed that the permit time would not begin to run on this project until petitioner had obtained consent to use state owned submerged land. DER's Dredge and Fill Application is encompassed in a form which is adopted by reference in Rule 17-1.203(1), Florida Administrative Code. This rule was adopted in 1982 and is still in effect today. A portion of that form, Appendix E, paragraph 3(g), on page 30, states that Where the proposed activity involves the use of state-owned submerged lands, DER shall not issue a permit before approval or consent of use is obtained from DNR, although DER will continue to process the application to the extent possible. (Emphasis supplied.) Except for this rule, DER has no other published instructions to applicants as to when permit times begin to run. Since the effective date of the Warren S. Henderson Wetlands Protection Act (Sections 403.91 - .929, Florida Statutes) in October of 1984, DER has not followed its policy outlined in Form 17-1.203(1), as adopted by rule. This contrary practice is based on DER's interpretation of the Henderson Act's failure to include language which was previously included in Section 253.124, Florida Statutes, to the effect that DER permits do not become effective until all other local, state and federal permits are issued. DER's internal practice that calculates the running of the permit time prior to receiving approval to use state owned submerged land is not the subject of any public notice, memorandum or instructions generally available to the public or permit applicants. DER does not require permittees to provide proof of submerged land consent subsequent to the issuance of the DER permit. Also, DER has no internal mechanism for regularly apprising itself of permits which are soon to expire. DER does process and grant time extensions of permits. Requests for time extensions are made through a simple written request, and DER will generally grant such requests if the subject permit is still valid. If the DER permit has already expired at the time that the request for an extension is made, DER requires a new permit application. In this case, petitioner did not request an extension at any time before June 1, 1987. As noted above, it was the belief of petitioner's agent that the two-year permit term would not begin to run until the required Trustee's consent was secured. It was not until June 23 or 24, 1987, that he learned that DER considered the permit to have expired on June 1, 1987. In July of 1987, petitioner did re-apply for a new permit, but DER had environmental objections to the issuance of a new permit. The petition initiating these proceedings was subsequently filed.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that the Department of Environmental Regulation enter a Final Order holding that Permit Number 360836415 does not expire until two years from March 12, 1987, and that appropriate recognition be given to the time which has elapsed due to the pendency of the instant proceeding. Respectfully Submitted and entered this 13th day of January, 1989, in Tallahassee, Florida. DIANE D. TREMOR Hearing Officer Division of Administrative Hearings The Oakland Building 2900 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of January, 1989. APPENDIX The Proposed findings of fact Submitted by the parties have been carefully considered and are accepted, incorporated and/or Summarized in this Recommended Order, with the following exceptions: Petitioner 7. Rejected as an improper factual finding. Respondent 19. Last three Sentences rejected as contrary to the evidence. 21. Partially rejected due to the existence of Rule 17-1.203(1), Florida Administrative Code. COPIES FURNISHED: Kenneth G. Oertel, Esquire Oertel, Hoffman, Fernandez & Cole, P.A. Post Office Box 6507 Tallahassee, Florida 32314-6507 Richard Grosso, Esquire Assistant General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Dale H. Twachtmann, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 =================================================================
The Issue The issue is whether Petitioner's request for attorney's fees and costs should be approved.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: In these cases, Petitioner, Couch Construction, L.P., seeks to impose sanctions against Respondents, Darel Holland (Holland) and Diane Lowery (Lowery), on the ground that they allegedly filed petitions for an improper purpose challenging the issuance of a permit by the Department of Environmental Protection (DEP). In responsive papers filed by Respondents, both deny that the actions were initiated for an improper purpose. The facts in the underlying DEP case involving Holland (OGC Case No. 98-3015) show that on October 30, 1998, Petitioner published a copy of DEP's Notice of Intent to Issue Permit to Petitioner authorizing the construction of a hot mix asphalt concrete plant at 2780 North Highway 95-A, Cantonment, Florida, with potential emissions of up to 29 tons per year of particulate matter. After learning of the proposed action, various citizens in the Cantonment area signed a petition opposing the project. In addition, a local attorney, John T. Reading, Jr., Esquire (Reading), offered to provide them with pro bono assistance as a "community service." Among other things, Reading prepared a form petition challenging the issuance of the permit and requesting a formal hearing. That form was apparently made available to the local citizens so that they could sign and file it, if they chose to do so. Holland says that he did, and it is fair to infer that this form was the source of Lowery's petition as well. Holland lives only 9 blocks from the proposed plant and suffers from a lung disease which has left him with only 58 percent of his lung capacity. Because of his legitimate concerns about the projected amount of particulate emissions and their potential effect on his respiratory system, on November 12, 1998, he filed in proper person a Petition for Formal Administrative Hearing challenging the proposed issuance of the permit. Holland's petition alleged that he was a property owner in the area where the plant would be constructed; that "due to respiratory problems," he would be "substantially affected by the permitted 29 tons of particulate emissions"; that his property "may be substantially reduced in value and peaceful enjoyment" as a result of the permit being issued; and that the petition was not "being interposed merely for the purposes of delay, or any other improper purpose as listed in F.S. 120.57(1)(b)(5)." There was no showing that the petition was filed for an improper purpose or that Holland's concerns were not genuine. Holland's petition also requested an extension of time "to determine which rules or statutes require reversal or modification of the Department's action" and "to obtain counsel" to assist him in his action. On December 21, 1998, DEP entered an order dismissing Holland's petition on the ground that he failed to allege the information required by Rule 28-106.201(2)(e), Florida Administrative Code. It also determined that no good cause had been shown to warrant an extension of time for Holland to determine if any rules or statutes supported his position. He was, however, granted leave to file an amended petition within 15 days from the date of service of DEP's dismissal order (December 23, 1998). This meant that an amended petition had to be filed with DEP no later than January 7, 1999. After learning that his petition had been dismissed, Holland had a brief conversation with Reading about the dismissal and was left with a somewhat vague understanding that Reading "would get an extension" from DEP. Thereafter, on January 12, 1999, or 5 days after the due date, Reading filed with DEP an Amended Petition of Darel Holland for Administrative Hearing. The petition was signed by Reading, and it represented that a copy of the petition had been served on Petitioner's counsel on January 5, 1999. On January 14, 1999, Reading also filed with DEP on behalf of Holland a paper styled Plaintiff's Motion to Enlarge Time in which Reading claimed that "due to circumstances not known," the amended petition had not been timely filed. Reading accordingly requested that DEP authorize the untimely filing. By order dated January 28, 1999, DEP denied the Motion to Enlarge Time and dismissed the amended petition, with prejudice, as being untimely. No appeal from that final agency action was taken. Lowery did not attend the final hearing. However, according to Holland, Lowery lives only 500 feet from the proposed cement plant. She boards horses on her property and frequently has children visit the property to ride their horses. The papers filed in her underlying case (OGC Case No. 98-2932) reflect that the facts in that case are essentially the same as those involving Holland. On November 12, 1998, Lowery filed in proper person a Petition for Formal Administrative Hearing which was virtually identical to the petition filed by Holland. As an additional ground, however, she alleged that the October 30, 1998, notice published by Petitioner was defective, and she requested that DEP require Petitioner to re-advertise the matter. There was no evidence that this petition was filed for an improper purpose or that Lowery's concerns were not genuine. On December 21, 1998, Lowery's petition was dismissed by DEP because she had failed to comply with the requirements of Rule 28-106.201(4), Florida Administrative Code. Like Holland, she was given until January 5, 1999, in which to file an amended petition. In papers filed by Lowery after this sanction proceeding arose, she denies that she had any knowledge that any further papers in the permit case would be filed on her behalf after the DEP dismissal order was entered. In any event, on January 12, 1999, or five days after the due date, Reading filed on Lowery's behalf with DEP an Amended Petition for Formal Administrative Hearing which was identical to that filed on behalf of Holland. Also, on January 14, 1999, Reading filed a Plaintiff's Motion to Enlarge Time seeking to excuse his tardiness in filing the amended petition. Both papers were served on Petitioner's counsel. On January 28, 1999, DEP entered its Final Order Denying Motion to Enlarge Time and dismissing Lowery's amended petition, with prejudice. No appeal from that final order was taken. Because no appeal was taken by either Respondent, DEP's intent to issue a permit became final, and it is fair to infer that a permit has been issued to Petitioner. On January 7, 1999, or prior to DEP's final order of dismissal, Petitioner's counsel noticed both Respondents for a deposition in Pensacola, Florida, on January 14, 1999. Because Reading had signed the amended petitions, Petitioner's counsel logically served the notices by Federal Express on Reading. However, Reading failed to notify Respondents, and neither he nor Respondents appeared at the deposition or advised counsel prior to the depositions that they would not appear. As a result, Petitioner incurred the costs and fees for having its counsel travel to Pensacola. In addition, Petitioner presumably incurred the cost of a court reporter's appearance fee. Assuming that Petitioner's claim is meritorious, those costs would be the responsibility of Reading, and not Respondents. At the hearing, it was represented that Reading is no longer a member of the Florida Bar. This is because in an unpublished order dated January 7, 1999, the Florida Supreme Court revoked his license to practice law effective 30 days thereafter, or on February 7, 1999. His current address is unknown. Petitioner has asserted that in defending against Respondents' petitions, "the bulk" of its costs and fees are related to the deposition and that a few other undisclosed fees and costs have been incurred. At the final hearing, Petitioner did not specify the amount of fees and costs that it seeks or provide any breakdown of those amounts; rather, it opted to provide an affidavit detailing those costs after this final order is rendered, assuming it prevails in this action.
The Issue Whether Respondent, East Coast Shutters, Inc. (“East Coast”), timely requested a hearing to contest the Second Amended Order of Penalty Assessment, issued by Petitioner, Department of Financial Services, Division of Workers’ Compensation (“Division”).
Findings Of Fact The Division is the state agency responsible for enforcing the statutory requirement that employers secure payment of workers’ compensation insurance for the benefit of their employees. § 440.107(3), Fla. Stat. (2019). Respondent is a contractor specializing in installation of doors, windows, and hurricane shutters. Rupert L. Jones is Respondent’s owner and registered agent. Respondent’s business address is 835 Creel Street, Melbourne, Florida 32935. Tresa Thomas was employed as Respondent’s office manager and worked at the business address at all times relevant hereto. Heather Cox was employed as Respondent’s routing coordinator and worked at the business address at all times relevant hereto. Ms. Offutt is a Division compliance investigator. She checks employers for compliance with Florida’s workers’ compensation law. If she determines that an employer is not in compliance, Ms. Offutt issues an SWO along with a penalty assessment for the asserted periods of non-compliance. The Division determines periods of non-compliance by examining business records obtained through a business records request. Ms. Offutt met with Mr. Jones and Ms. Thomas at East Coast on January 23, 2019, to perform a compliance check. As a result of that check, the Division issued Respondent an SWO and Order of Penalty Assessment. Ms. Offutt personally served the SWO and Order of Penalty Assessment on Mr. Jones at East Coast. The SWO included a Notice of Rights informing East Coast that it could request a hearing to contest the SWO within 21 days of receipt of the SWO. East Coast did not request a hearing. Following review of East Coast’s records by Cathy Núñez, the Division’s regulatory consultant, the Division issued an Amended Order dated April 29, 2019, imposing a penalty of $62,389.94. Ms. Offutt personally served the Amended Order to Mr. Jones at East Coast. The Amended Order included a Notice of Rights advising that East Coast had 21 days from receipt of the Amended Order to file a petition for a hearing challenging the assessment. The Notice of Rights also stated that failure to request a hearing during that period waived the right to challenge the assessment. East Coast did not request a hearing. In response to the Amended Order, Mr. Jones provided additional records to Ms. Núñez. Review of those records resulted in issuance of a Second Amended Order, reducing the penalty assessment to $45,274.90. Ms. Offutt personally served the Second Amended Order to East Coast’s business office on June 24, 2019. Neither Mr. Jones nor Ms. Thomas was in the office when Ms. Offutt arrived. On behalf of East Coast, Ms. Cox signed for, and received, the Second Amended Order, along with the Notice of Rights and Penalty Calculation Worksheet. The Notice of Rights informed Respondent of its right to request a hearing to contest the penalty within 21 days of receipt of the Second Amended Order. The Notice of Rights also contained the following prominently-displayed language: FAILURE TO FILE A PETITION WITHIN THE TWENTY-ONE (21) CALENDAR DAYS OF RECEIPT OF THIS AGENCY ACTION CONSITUTES A WAIVER OF YOUR RIGHT TO ADMINISTRATIVE REVIEW OF THE AGENCY ACTION. While at the East Coast office on June 24, 2019, Ms. Offutt also informed Ms. Cox that East Coast had a 21-day deadline to respond to the Second Amended Order. On July 3, 2019, Ms. Offutt telephoned East Coast, spoke with Ms. Thomas, and reminded her of the deadline to respond to the Second Amended Order. On July 3, 2019, Ms. Thomas sent an email to Ms. Núñez indicating she had questions regarding the Second Amended Order. The email indicates Ms. Thomas was very confused as she “thought [Ms. Núñez] had already closed this.” On July 10, 2019, Ms. Núñez called Ms. Thomas in response to the email and the two played “phone tag” that day, alternately leaving messages for one another. Ms. Núñez also sent an email to Ms. Thomas noting that she had received her message and inviting an email exchange. Ms. Thomas and Ms. Núñez finally spoke via telephone on July 10th, but Ms. Thomas did not have the worksheets available to review with Ms. Núñez at that time. On July 11, 2019, Ms. Núñez sent a second email to Ms. Thomas, attached copies of the worksheets and the Penalty Audit Summary Report, and requested that Ms. Thomas call her “at [her] earliest opportunity” so they could review the documents. Ms. Thomas contacted Ms. Núñez via telephone on July 12, 2019, and the two reviewed the worksheets together. Ms. Thomas stated that she would have Mr. Jones contact Ms. Offutt to work out a payment plan. The deadline for East Coast to file a petition to contest the Second Amended Order was July 15, 2019. On August 5, 2019, East Coast filed a Petition for Hearing challenging the penalty imposed by the Second Amended Order. In the Petition, Mr. Jones alleged, as follows: I am writing this letter in protest to the audit summary and am filing to petition for a hearing. I was told by Linda [Offutt] that the deadline had past [sic]. I was not given the paperwork that was dropped off to an office girl. I was in the field and the office manager was out sick so it was never given to anyone. This paper work explained the audit and talked about filing a petition. At the final hearing, Ms. Cox testified that she remembered receiving paperwork from Ms. Offutt, but thought it was a Saturday because she was in the office alone. The record established that June 24, 2019, was a Monday. Mr. Jones testified that he never received the Second Amended Order. The record clearly establishes that Ms. Thomas was in possession of the Second Amended Order and communicated with Division employees about it prior to the July 15, 2019 deadline. East Coast introduced no evidence tending to prove that either Ms. Offutt or Ms. Núñez, or any other employee of the Division, misrepresented to its employees the deadline for filing a petition to challenge the penalty imposed by the Second Amended Order.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Financial Services, Division of Workers' Compensation, dismiss the request for hearing of East Coast Shutters, Inc., as untimely. DONE AND ENTERED this 12th day of June, 2020, in Tallahassee, Leon County, Florida. COPIES FURNISHED: Rupert L. Jones East Coast Shutters, Inc. 835 Creel Street Melbourne, Florida 32935 (eServed) Leon Melnicoff, Esquire Department of Financial Services 200 East Gaines Street Tallahassee, Florida 32399-4229 (eServed) Barbara L. Davis, Esquire Department of Financial Services 200 East Gaines Street Tallahassee, Florida 32399-4229 (eServed) Julie Jones, CP, FRP, Agency Clerk Division of Legal Services Department of Financial Services 200 East Gaines Street Tallahassee, Florida 32399-0390 (eServed) S SUZANNE VAN WYK 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 12th day of June, 2020.
Recommendation Based on the foregoing, it is recommended that the Department of Environmental Protection enter a final order dismissing, with prejudice, the Second Amended Petition to Intervene in Licensing and Administrative Proceeding and for Formal Administrative Hearing filed in each of these cases by LEAF and Suzi Ruhl. RECOMMENDED this 1st day of November, 1996, at Tallahassee, Florida. J. LAWRENCE JOHNSTON, Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 1st day of November, 1996. COPIES FURNISHED: David A. Ludder, Esquire Legal Environmental Assistance Foundation, Inc. 1115 North Gadsden Street Tallahassee, Florida 32303 Cynthia K. Christen, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard, Mail Station 35 Tallahassee, Florida 32399-3000 Anthony Cleveland, Esquire Segundo J. Fernandez, Esquire Oertel, Hoffman, Fernandez and Cole Post Office Box 6507 Tallahassee, Florida 32314-6507 Virginia B. Wetherall, Secretary Department of Environmental Protection Douglas Building 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Perry Odom General Counsel Department of Environmental Protection Douglas Building 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000
Conclusions This matter came before the Department for entry of a Final Order upon submission of an Order Closing Files and Relinquishing Jurisdiction by R. Bruce McKibben an Administrative Law Judge of the Division of Administrative Hearings, and the Petitioner’s Notice of Voluntary Dismissal With Prejudice, copies of which are attached and incorporated by reference in this order. Accordingly, it is hereby ORDERED that this case is DISMISSED. DONE AND ORDERED this 19 day of March, 20K" in Tallahassee, Leon County, Florida. Filed in the official records of the Division of Motorist Services this \ | day of March, Bureau of Issuance Oversight 2014. Division of Motorist Services Department of Highway Safety and Motor Vehicles Tobin: Virago Neil Kirkman Building, Room A338 Nalini Vinayak, Dealer License Administrator Tallahassee, Florida 32399 Filed March 20, 2014 10:47 AM Division of Administrative Hearings NOTICE OF APPEAL RIGHTS Judicial review of this order may be had pursuant to section 120.68, Florida Statutes, in the District Court of Appeal for the First District, State of Florida, or in any other district court of appeal of this state in an appellate district where a party resides. In order to initiate such review, one copy of the notice of appeal must be filed with the Department and the other copy of the notice of appeal, together with the filing fee, must be filed with the court within thirty days of the filing date of this order as set out above, pursuant to Rules of Appellate Procedure. Copies furnished: Jason T. Allen, Esquire Bass, Sox and Mercer, P.A. 2822 Remington Green Circle Tallahassee, Florida 32308 jallen@dealerlawyer.com Jonathan Brennen Butler, Esquire Akerman Senterfitt 222 Lakeview Avenue, Suite 400 West Palm Beach, Florida 33401 Jonathan. butler@akerman.com R. Bruce McKibben Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Nalini Vinayak Dealer License Administrator STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS DAYTONA BEACH CYCLES, LLC, dba INDIAN VICTORY OF DAYTONA Petitioner, vs. CASE NO. 13-4593 POLARIS SALES, INC., Respondent. NOTICE OF VOLUNTARY DISMISSAL WITH PREJUDICE Petitioner Daytona Beach Cycles, LLC dba Indian Victory of Daytona, having amicably settled this matter, hereby voluntarily dismisses this action, with prejudice. 4s/ Jason T. Allen Jason T. Allen BASS SOX MERCER 2822 Remington Green Circle Tallahassee, FL 32308 850.878.6404 jallen@dealerlawyer.com Attorneys for Petitioner CERTIFICATE OF SERVICE 1 HEREBY CERTIFY that a true copy of the foregoing has been furnished by email to Jonathan B. Butler, Esquire, jonathan.butler@akerman.com, this 13" day of March, 2014. 4s/ Jason T. Allen Jason T. Allen Filed March 13, 2014 12:43 PM Division of Administrative Hearings STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS DAYTONA BEACH CYCLES, LLC, d/b/a INDIAN VICTORY OF DAYTONA, Petitioner, vs. Case No. 13-4593 POLARIS SALES, INC., Respondent. ORDER CLOSING FILE AND RELINQUISHING JURISDICTION This cause having come before the undersigned on the Notice of Voluntary Dismissal with Prejudiced, filed March 13, 2014, and the undersigned being fully advised, it is, therefore, ORDERED that: 1. The final hearing scheduled for February 18 through 20, 2014, is canceled. 2. The file of the Division of Administrative Hearings is closed. Jurisdiction is relinquished to the agency. DONE AND ORDERED this 13th day of March, 2014, in Tallahassee, Leon County, Florida. RE M . R. BRUCE MCKIBBEN 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 13th day of March, 2014. COPIES FURNISHED: Jennifer Clark, Agency Clerk Department of Highway Safety and Motor Vehicles Neil Kirkman Building, Room A430 2900 Apalachee Parkway, MS 61 Tallahassee, Florida 32399 (eServed) Jason T. Allen, Esquire Bass, Sox and Mercer, P.A. 2822 Remington Green Circle Tallahassee, Florida 32308 (eServed) Jonathan Brennen Butler, Esquire Akerman Senterfitt Suite 400 222 Lakeview Avenue West Palm Beach, Florida 33401 (eServed)
The Issue This is a case in which the Petitioner seeks to take disciplinary action against the Respondent on the basis of allegations in an Administrative Complaint signed May 1, 1987. The Administrative Complaint alleges that the Respondent has violated Section 489.129(1)(m), Florida Statutes, which authorizes disciplinary action when a contractor is "...guilty of fraud or deceit or of gross negligence, incompetency, or misconduct in the practice of contracting." (There is also a factual allegation that the Respondent abandoned a project, but the Respondent is not charged with a violation of Section 489.129(1)(k), Florida Statutes, which authorizes disciplinary action for abandonment of a construction project.) Subsequent to the hearing, the Respondent filed a proposed recommended order containing proposed findings of fact. Specific rulings on those proposed findings are contained in the Appendix which is attached to and incorporated into this recommended order. As of the date of this recommended order, the Petitioner has not filed a proposed recommended order.
Findings Of Fact Based on the parties' stipulations and on the evidence presented at the hearing, I make the following findings of fact. Findings based on stipulations Petitioner is the State agency charged with regulating the practice of contracting, pursuant to Section 20.30 and Chapter 455, Florida Statutes. At all times relevant hereto, Respondent was licensed by said Board [Construction Industry Licensing Board] as a registered residential contractor. At all times relevant hereto, Respondent had been issued by said Board, and held, license number(s) RR 0042259. Respondent's address of record is in Apalachicola, Florida. Respondent did, through the contracting business Respondent was then associated with and responsible for in his capacity as a licensed contractor, contract with Ms. Springer and Ms. Ibbotson, hereinafter referred to as the "Customer," to perform certain contracting work for the Customer. The details of the contracted work were generally as follows: Contract entered into on or about: 9-86. Job located in: Eastpoint, Florida. Job generally consisted of: add to Customer's house. Respondent's said contracting business thereafter began said job. Findings based on evidence at hearing Work on the subject project began on or about September 16, 1986. On or about October 24, 1986, Gerald Siprell, the Franklin County Building Inspector, visited the work site and issued an oral stop work order because the building permit issued for the project did not contemplate a new deck. Mr. Siprell advised Respondent that it would be necessary to obtain a plan for the new deck certified by an engineer, since the project site was located in a velocity zone. Only one stop work order was issued on the project. Mr. Siprell first issued the order orally, and it was later reduced to writing. The reason given was "improper permit." The stop work order applied only to the new deck. It did not apply to any of the other work under the contract. Mr. Siprell explained to Ms. Springer that the stop work order applied only to the new deck, and that the other work could proceed. Sometime in early November of 1986, Ms. Springer refused to allow Respondent's workers to proceed with the interior work. Ms. Springer cited Mr. Siprell's stop work order as the basis for her refusal to allow the work to proceed. Respondent's workers returned to the project the following day and Ms. Springer was again told that the stop work order applied only to the new deck. Nevertheless, Ms. Springer again refused to allow the workers to continue the job, so they collected their tools and departed. Less than a week later, Ms. Springer hired Denis Varnes, one of the Respondent's workers, to complete the job. Respondent did not abandon the job. Rather, Ms. Springer, by her actions, prevented Respondent from completing the job. As of the time Ms. Springer stopped Respondent's work on the project, she had advanced the sum of $6,500.00 to the Respondent. The reasonable value of the work performed by Respondent and of the materials left at the job site by Respondent is greater than the $6,500.00 advance. Respondent's conduct under the subject contract did not constitute fraud, deceit, gross negligence, incompetency, or misconduct in the practice of contracting.
Recommendation For all of the foregoing reasons, it is recommended that the Construction Industry Licensing Board issue a final order in this case dismissing all charges against Respondent. DONE AND ORDERED this 7th day of March, 1988, at Tallahassee, Florida. MICHAEL M. PARRISH, 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 7th day of March, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-4397 The following are my specific rulings on the findings of fact proposed by the parties. Findings proposed by Petitioner: The Petitioner did not file any proposed findings of fact. Findings proposed by Respondent: Paragraph 1: Accepted (including all subparts.) Paragraph 2: Accepted. Paragraph 3: All but last sentence accepted. Last sentence rejected as subordinate and unnecessary details. Paragraph 4: Accepted. Paragraph 5: Accepted. Paragraph 6: Accepted in substance. Paragraph 7: Rejected as constituting subordinate and unnecessary details. Paragraph 8: Accepted in substance, with some subordinate and unnecessary details omitted. Paragraph 9: Accepted. Paragraphs 10, 11, and 12: Accepted in substance, but most details omitted as subordinate and unnecessary. Paragraph 13: Accepted. COPIES FURNISHED: David L. Swanson, Esquire Staff Attorney Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Van Russell, Esquire Watkins & Russell 41 Commerce Street Apalachicola, Florida 32320 Mr. Fred Seely Executive Director Construction Industry Licensing Board 130 North Monroe Street Tallahassee, Florida 32399-0750 William O'Neil General Counsel 130 North Monroe Street Tallahassee, Florida 32399-0750
