Findings Of Fact Respondent, Lori Goldston, was employed by the Petitioner, City of Clearwater, for approximately seven and one-half years as a Building Construction Inspector II. On April 13, 1994, Respondent was placed on administrative leave and on April 21, 1994, she was terminated and all pay and other benefits were terminated as of 4:00 p.m. on April 21, 1994. Specifically, Respondent was terminated for alleged violations of Rule 14, Sections 1(b), (d), (k), and (1) of the Civil Service Rules and Regulations of Respondent, to-wit: (b) Is incompetent in the performance of the specific duties of [her] position. (d) Has been careless or negligent in the care of the property of the City; or has participated in the unauthorized use thereof. Has been . . . guilty of conduct un- becoming a City employee defined as scandalous or disgraceful conduct while on or off duty where such conduct tends to embarrass the City or bring its service into public disrepute. Has violated any lawful and reasonable official regulation or order or failed to obey any lawful and reasonable direction made and given . . . by [her] superior officer when such violation or failure to obey amounts to insubordination or serious breach of discipline which may reasonably be expected to result in a lower morale in the department or to result in loss, inconvenience, or injury to the City or the public. During the week of April 4, 1994, Tom Chaplinsky received two complaints that a City vehicle was observed leaving the city limits with a magnetic sign covering the City seal. The complainants related that the driver appeared to be Respondent and that the vehicle was heading north on alternate route 19 when it was so observed. Vick Chadora, assistant central planning director, requested that Chaplinsky investigate the complaints. Chaplinsky along with Kevin Garriot, a building code analyst, initiated an investigation to check Respondent's inspection schedule and job sites for the day of April 11, 1994. Chadora and Chaplinsky reviewed Respondent's inspection schedules and job sites on April 11, 1994, and discovered that most of Respondent's inspections were completed by mid-morning. Chadora then instructed Chaplinsky to check Respondent's residence which is located north of Palm Harbor, approximately 8 to 10 miles outside of the city limits. During mid-morning on April 11, 1994, Chaplinsky parked near the end of the dead end street on which Respondent's residence is located. He saw what appeared to be her city vehicle but was unable to make a positive identification. On Tuesday, April 12, 1994, Chaplinsky again found that a majority of Respondent's inspections had been completed by mid-morning. Chaplinsky contacted her by radio at approximately 11:00 a.m., to determine her location and she replied that she was in Clearwater Beach. Chadora drove to the beach area while Chaplinsky and Garriot drove to Respondent's residence between 11:00 and 11:15 a.m. Messrs. Chaplinsky and Garriot parked at the entrance to the dead end street where Respondent resides and waited. At approximately 11:45 a.m., Chaplinsky and another staff assistant began trying to reach Respondent by radio. At approximately 12:55 p.m., Respondent answered her radio. At that time, Respondent was asked to investigate a complaint on the beach. At approximately 1:20 p.m., Messrs. Chaplinsky and Garriot observed Respondent in her city vehicle, with the City seal covered, leaving her neighborhood. They lost Respondent in traffic but later caught up with her at the site of the complaint. At that time, the City seal on her vehicle was no longer covered. On April 13, 1994, Messrs. Chaplinsky and Garriot again drove to Respondent's residence during mid-morning and waited at the entrance to her street. Respondent was observed leaving the City in the city vehicle with the City seal covered. At approximately 2:55 p.m. on April 13, 1994, with Messrs. Chaplinsky and Garriot present, Respondent was advised by Chadora that two people had complained that she was using her city vehicle with the City seal covered while leaving the city limits. Before Chadora could complete his inquiry, Respondent immediately denied that it was her. Upon Respondent's repeated and adamant denial, Chadora told her that he and Garriot has observed her leaving her residence on Tuesday, April 12 and Wednesday, April 13 in the City vehicle. Upon being confronted with that information, Respondent admitted that they had caught her in a lie and she admitted that she did leave the city limits in the city vehicle. Respondent indicated that she was trying to complete a construction project at home in order to re-finance and satisfy a balloon note which was coming due and the lender was insisting that certain renovations be completed prior to closing. During 1990, Respondent was disciplined for leaving the city limits and going to her home. At that time she was specifically advised that she should not leave the city limits to return home in the city vehicle without first obtaining permission from her supervisor. For that offense, Respondent was suspended for four days. Petitioner has a system of progressive discipline in effect which is utilized to discipline employees who engage in conduct contrary to the City's rules and regulations. An employee who violates the rules accumulates points under the disciplinary system. An employee who receives up to 60 points within a specified period (24 months), can be subjected to discharge. Respondent accumulated 140 points for the alleged infractions that she received for leaving the City limits during the days April 11-13, 1994. Petitioner also has a liberal sick leave policy which employees may avail by demonstrating need to use sick leave. Respondent did not advise Petitioner that she was suffering from any medical disability or other infirmity which would warrant the utilization of sick leave prior to her discharge. Respondent maintained that she failed to advise Petitioner of her need for sick leave -- she suffers from severe depression which is prompted by a chemical imbalance in her brain -- because she did not want other employees to know about her problems as she feared it would be common knowledge among her colleagues. Respondent attempted to show that she was being treated unfairly and more harshly than other employees had been treated for similar misconduct. Specifically, Respondent related an incident wherein an employee threw a temper tantrum during a grievance meeting, tossed a beeper against a bookcase and was generally insubordinate when he was questioned about an infraction. Petitioner explained that that employee "blew up" when he was confronted about a simple rule infraction and that employee was suspended as was Respondent when she was first disciplined for leaving the City in a vehicle without authorization in 1990. Respondent failed to show that she was treated more harshly or that she was the recipient of disparate treatment by Petitioner. Respondent demonstrated that the other employee was similarly treated when Petitioner was disciplined in 1990. Moreover, that employee was subjected to discharge when he later violated the city's rules and regulations (a drug offense-employee failed a urinalysis screen). Petitioner had no way of knowing prior to April 21, 1994, that Respondent requested or was otherwise in need of "an accommodation" due to her health in April of 1994.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order dismissing Respondent from her position of a Building Construction Inspector II effective April 21, 1994. DONE AND ENTERED this 28th day of February 1995 in Tallahassee, Leon County, Florida. JAMES E. BRADWELL 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 28th day of February 1995. APPENDIX The following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. Paragraph 1, adopted as modified, paragraphs 2, 18, and 19, Recommended Order. Paragraph 3, rejected, unnecessary. Paragraph 4, adopted as modified, paragraph 18, Recommended Order. Paragraph 7, rejected, irrelevant. Paragraph 8, conclusionary and argument. Paragraph 11, adopted as modified, paragraph 22, Recommended Order. Respondent's Proposed Findings of Fact. Paragraph 5, rejected, contrary to the greater weight of evidence, paragraph 16, Recommended Order. Paragraph 8, rejected, irrelevant. Paragraph 11, rejected, contrary to the greater weight of evidence, paragraphs 2, 14, and 19, Recommended Order. Paragraph 13, rejected, contrary to the greater weight of evidence. Paragraphs 15 and 16, rejected, contrary to the greater weight of evidence, paragraph 23, Recommended Order. Paragraph 17, adopted as modified, paragraphs 17-20, Recommended Order. Paragraph 18, rejected, contrary to the greater weight of evidence, paragraph 23, Recommended Order. Paragraphs 19-22, rejected, irrelevant and unnecessary. COPIES FURNISHED: Miles A. Lance, Esquire Assistant City Attorney City of Clearwater Post Office Box 4748 Clearwater, Florida 34618-4748 Robert McCormack, Esquire Prestige Professional Park 2655 McCormick Drive Clearwater, Florida 34619 Karleen DeBlaker City Clerk City of Clearwater P.O. Box 4748 Clearwater, Florida 34618-4748
The Issue The amount of reasonable attorney’s fees and costs to be awarded to Petitioner, Palafox, LLC (“Petitioner” or “Palafox”), and against Respondent, Carmen Diaz (“Respondent”), in the underlying administrative matter as a sanction pursuant to section 120.595, Florida Statutes.
Findings Of Fact Petitioner is a Florida limited liability company and was the applicant for the Permit challenged in Case No. 19-5831. Respondent is the owner of Lot 18, Block A, of the Palafox Preserve Subdivision, and was the Petitioner in Case No. 19-5831. Petitioner was represented by the firm of Carlton Fields, P.A. (“the Firm”), in Case Nos. 19-5831 and 20-3014F. Petitioner’s counsel and paralegal with the Firm spent 392.4 hours litigating both the underlying substantive case and entitlement to attorney’s fees, for a total of $123,763.50 in fees, broken down as follows: Name Hours Rate Subtotal W. Douglas Hall 171.8 $382.50 $65,713.50 James E. Parker-Flynn 197.4 $270.00 $53,298.00 Christine Graves .3 $382.50 $ 114.75 Kimberly Pullen 22.9 $202.50 $ 4,637.25 The hourly rates shown above were discounted by approximately 10 percent of the standard rates charged by the Firm at the time this matter originated. Furthermore, over the course of representing Palafox in this matter, the Firm discounted a number of its bills as a courtesy because of the amount of time required to litigate the matter and to adjust for potential overlap among attorneys working on the case. Those courtesy adjustments totaled $7,437.45. Applying that discount to the total fees shown above, the total amount of attorney’s fees incurred by Palafox in litigating this matter is as follows: Total Unadjusted Attorney’s Fees $123,763.50 Less Courtesy Adjustments $ 7,437.45 Total Adjusted Attorney’s Fees $116,326.05 In addition to attorney’s fees, Palafox incurred the following taxable costs and expenses: Court Reporter - Diaz Depo. $ 564.28 JSB-Advantage Court Reporters - Carswell Depo. $ 1,032.48 Phipps Reporting - DOAH Transcript -Day 1 $ 1,605.67 Phipps Reporting - DOAH Transcript -Day 2 $ 542.52 WSource Group, LLC (1/8/20-1/27/20) $ 3,987.50 WSource Group, LLC (2/6/20-2/20/20) $ 9,652.50 Total Taxable Costs $ 17,384.95 Additionally, Palafox is seeking the costs incurred by its expert, Mr. Varn, up through and including the final hearing. Mr. Varn’s hourly rate for his work on this case was $250, and, including the final hearing, he spent 9.8 hours on the case. The total cost for his services was $2,450.00. Palafox is seeking a total of $136,161.00 in fees and costs. Mr. Varn testified that both the rates charged by Palafox, and the hours Palafox’s counsel spent on the matter, were reasonable and consistent with the rates charged and time spent for similar work by other attorneys in the area. His opinion was supported by detailed time records kept by Palafox’s counsel, who confirmed that the fee statements were reviewed and periodically adjusted as necessary to account for potential overlap and duplication of effort among the attorneys working on the case, or if it appeared the bill simply needed to be reduced. Respondent stipulated that Mr. Varn is an attorney with sufficient qualifications to render an opinion regarding the amount of reasonable attorney’s fees to be awarded to Palafox in this proceeding. Respondent did not object to the rates charged by the Firm, and did not challenge any of the Firm’s time entries, fees, or costs. The number of hours set forth above by the attorneys and the paralegal working on this case were reasonable, the rates charged were reasonable, and the costs expended by Palafox were reasonable.
Recommendation Based on the forgoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent, Carmen Diaz, pay to Palafox its reasonable attorney’s fees and taxable costs in the amount of $136,161.00. DONE AND ENTERED this 23rd day of June, 2021, in Tallahassee, Leon County, Florida. S SUZANNE VAN WYK Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 23rd day of June, 2021. COPIES FURNISHED: Nicholas D. Fugate, Esquire Nicholas D. Fugate, P.A. Post Office Box 7548 Tallahassee, Florida 32314 James E. Parker-Flynn, Esquire Carlton Fields, P.A. Post Office Drawer 190 Tallahassee, Florida 32302 Brett J. Cyphers, Executive Director Northwest Florida Water Management District 81 Water Management Drive Havana, Florida 32333-4712 W. Douglas Hall, Esquire Carlton Fields, P.A. 215 South Monroe Street, Suite 500 Post Office Drawer 190 Tallahassee, Florida 32301 Jefferson M. Braswell, Esquire Braswell Law, PLLC 116 Northeast 3rd Avenue Gainesville, Florida 32601
Findings Of Fact Respondent was initially employed by Petitioner on April 13, 1970. He was appointed to the position of Superintendent of Petitioner's West Palm Beach Field Station in 1973, and continued in that position until March 9, 1983, when he was discharged. As Superintendent of the West Palm Beach Field Station, Respondent supervised approximately 80 maintenance operations and administrative employees. The facility is located adjacent to Petitioner's headquarters, and is somewhat larger in terms of employees than Petitioner's other field stations. Respondent was a generally capable and dedicated employee of Petitioner. However, his management style and personality were often irritating to his employees, coworkers and supervisors. The incident which precipitated his discharge involved the retirement of a valued employee who was supervised by Respondent. The employee informed Respondent's supervisor that one of the reasons for retirement was his difficulty in working for Respondent. Specifically, the retiring employee was embarrassed by Respondent's handling of a subordinate's failure to earn promotion. Respondent advised the employee in his subordinate supervisor's presence that he (Barnette) was ready to promote the employee, but that the subordinate supervisor was opposed. The cancellation of the promotion was unnecessarily dramatized by Petitioner dropping the promotion form in the wastebasket in the presence of the subordinate supervisor and the employee. The testimony of witnesses from the West Palm Beach Field Station established that the Respondent has a hot temper, and is subject to frequent temper outbursts. His radio room operator overheard Respondent yelling at people in his office through a closed door once every week to two weeks. Other witnesses also observed the Respondent engaged in loud arguments with his subordinates. Respondent admitted on cross-examination to having a temper, and did not deny that the incidents attested to by Petitioner's witnesses. Respondent's temper outbursts were unacceptable conduct, and Petitioner counseled Respondent regarding this deficiency in 1978 and periodically thereafter. The testimony of Mr. George Dupley, Supervising Professional Engineer, established that on several occasions Respondent refused to comply with design instructions from headquarters, which resulted in additional project cost to the District. His testimony also indicated Respondent had a generally uncooperative attitude, and that he was much less cooperative than other field station superintendents, with whom Mr. Dupley had no problem. Mr. Rob Baskin, Assistant Structure Maintenance Coordinator, was subjected to an incident where Respondent blew up at him in the presence of other employees and told him to leave the job, while he was attempting to carry out assigned duties. Dupley, Baskin and other headquarters staff personnel avoided dealing with Respondent whenever possible because of his hot temper and hostile attitude. Respondent's uncooperative attitude extended to the District's personnel office. Respondent generally disregarded the Petitioner's recruitment policy which required that no external applicant be interviewed or hired for an open position until internal employees had been interviewed. Respondent's refusal to comply with this policy created morale problems and prompted the filing of several employee grievances. Respondent was counseled on this problem in 1981. Respondent's disregard of personnel policy was most flagrant in his hiring of his niece's husband in 1982, after being advised by Petitioner's personnel office that such action would constitute a violation of its anti- nepotism policy. Respondent was disciplined for this infraction under Petitioner's "Corrective Action Policy" (discussed below), and assigned 25 points. This was a "category 2" offense for which the penalty was to remain in effect for six months. This disciplinary action would have expired March 14, 1983, five days after Respondent was discharged. In the nepotism memorandum, dated September 17, 1982, Respondent's supervisor also stated: [I]t has come to my attention from numerous sources that both employees and supervisors avoid discussions with you for fear of temper outbursts. You are attempting to maintain a one man iron rule at the station which is out of step with the District's management philosophy . . . Any future problems may require dismissal. Although Respondent never received an unsatisfactory merit review rating, his April 7, 1978, rating included the following observations: A negative form of reluctance is evident relative to meeting organizational and program objectives. There is too much disregard for certain headquarters expertise. As a superintendent improvement is mandatory. Decision-making on certain occasions appears tainted with prejudice against endeavors of well intentioned key staff members. Respondent's most recent merit review rating, dated October 21, 1982, included the following: The handling of matters which impact on board personnel must improve. Emphasis has been placed upon this issue in several previous evaluations, including the last two. Thus, Respondent had ample notice of his expected performance and the opportunity to correct his deficiencies. In addition to the above notices and meetings, Petitioner's efforts to upgrade Respondent's performance included his attendance at several management training seminars. After concluding that Respondent would have to be replaced, Petitioner considered demoting rather than discharging him. However, no suitable position was available. Petitioner's Corrective Action Policy (Respondent's Exhibit One, in evidence) sets forth expected standards of performance for all District personnel. Respondent is familiar with these standards, both as a supervisor and as an employee of Petitioner.
Recommendation From the foregoing, it is RECOMMENDED: That Petitioner enter a Final Order discharging Respondent. DONE and ENTERED this 23rd day of September, 1983, in Tallahassee, Florida. R. T. CARPENTER, 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 23rd day of September, 1983.
Findings Of Fact Floralino Properties, Inc. is a small utility providing water and sewer service in Pasco County. During the period May 30, 1978 until March 12, 1979, it purchased a substantial portion of its water from the Pasco Water Authority, Inc. (PWA) for resale to its customers. In order to recoup the costs of those purchases, the Public Service Commission authorized the utility to assess a surcharge upon each customer's bill. (See Order No. 7494). However, because the surcharge exceeded the actual charges for water purchased, the utility was required to escrow all excess revenues. Respondent failed to do so thereby precipitating the issuance of Order No. 9320. A subsequent Commission audit reflected the excess revenues to be $2,228.05. Prior to the hearing, but after the issuance of Order No. 9320, the respondent escrowed the funds in a Pinellas County bank. The utility now agrees to make an appropriate refund with interest within 30 days to all customers who received service during the period in question.
Recommendation Based upon the foregoing findings of fact and conclusions of law, the Hearing Officer recommends that respondent be found guilty of violating Order No. 7494, dated November 2, 1976; that a fine of $250 be imposed upon respondent; that respondent make an appropriate refund of $2,228.05 with 6 percent interest to those customers entitled to such refund within 30 days; and that a final report setting forth the disposition of such monies be submitted to the Public Service Commission within 90 days. DONE AND ENTERED this 22nd day of August, 1980, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: M. Robert Christ, Esquire 101 East Gaines Street Tallahassee, Florida 33542 Floralino Properties, Inc. 2320 East Bay Drive Clearwater, Florida 33516 Steve Tribble Commission Clerk 101 East Gaines Street Tallahassee, Florida 32301 Herman B. Blumenthal, III, Esquire 10401 Seminole Boulevard (Alt. 19) Seminole, Florida 33542
Findings Of Fact At all times to the issues herein the Department of Environmental Protection was the state agency in Florida responsible for the regulation of water pollution and the issuance of dredge and fill permits in the specified waters of this state. Mr. Byrd has been a resident of the City of Treasure Island, Florida for many years and resides at 123 123rd Avenue in that city. His property is located on Boca Ciega Bay next to a public boat ramp operated by the City. On April 12, 1995, the City of Treasure Island applied to the Department of Environmental Protection for a permit to construct a dock six feet wide by seventy-five feet long, located on the edge of its property on which the public boat ramp is located. This property is located in a basin off Boca Ciega Bay, which is classified as a Class III Outstanding Florida Water. The dock involves the placement of pilings in the water, and the construction of a walkway thereon. In order to be obtain a permit, the applicant must provide the Department with reasonable assurances that the proposed project will not degrade water quality and will be in the public interest. The project is permanent in nature, but the temporary concerns raised by construction have been properly addressed in the permit. In the instant case, the dock is intended to accommodate the boating public which will utilize it to more safely launch, board, debark, and recover small boats at the ramp in issue. The dock will be equipped with a hand rail which will increase the safety of the project. Evidence establishes that without the dock, boaters have to enter the water to launch and recover their boats on a ramp can be slippery and dangerous. The site currently in use as a boat ramp, a part of which will be used for the dock, is almost totally free of any wildlife. No evidence could be seen of any sea grasses or marine life such as oysters, and there was no indication the proposed site is a marine habitat. Manatees do periodically inhabit the area, and warning signs would be required to require construction be stopped when manatee are in the area. The water depth in the immediate area and the width of the waterway is such that navigation would not be adversely impacted by the dock construction, nor is there any indication that water flow would be impeded. No adverse effect to significant historical or archaeological resources would occur and taken together, it is found that the applicant has provided reasonable assurances that the project is within the public interest. Concerning the issue of water quality, the applicant has proposed the use of turbidity curtains during construction which would provide reasonable assurances that water quality would not be degraded by or during construction. The water depths in the area are such that propeller dredging and turbidity associated therewith should not be a problem. No evidence was presented or, apparently is on file, to indicate any documented water quality violations at the site, and it is unlikely that water quality standards will be violated by the construction and operation of the structure. The best evidence available indicates there would be no significant cumulative impacts from this project. Impacts from presently existing similar projects and projects reasonably expected in the future, do not, when combined with the instant project, raise the possibility of adverse cumulative degradation of water quality or other factors of concern. By the same token, it is found that secondary impacts resulting from the construction of the project would be minimal. It is also found that this project is eligible for an exemption from the requirements to obtain a permit because of the Department's implementation on October 3, 1995 of new rules relating to environmental resources. However, the City has agreed to follow through with the permitting process notwithstanding the exemption and to accept the permit including all included conditions. This affords far more protection to the environment than would be provided if the conditions to the permit, now applicable to this project, were avoided under a reliance on the exemption to which the City is entitled under current rules. To be sure, evidence presented by Mr. Byrd clearly establishes the operation of the existing boat ramp creates noise, fumes, diminished water conditions and an atmosphere which is annoying, discomfiting, and unpleasant to him and to some of his neighbors who experience the same conditions. Many of the people using the facility openly use foul language and demonstrate a total lack of respect for others. Many of these people also show no respect for the property of others by parking on private property and contaminating the surrounding area with trash and other discardables. It may well be that the presently existing conditions so described were not contemplated when the ramp was built some twenty years ago. An increase in population using water craft, and the development and proliferation of alternative watercraft, such as the personal watercraft, (Ski-Doo), as well as an apparent decline in personal relations skills have magnified the noise and the problem of fumes and considerably. It is not likely, however, that these conditions, most of which do not relate to water quality standards and the other pertinent considerations involved here, will be increased or affected in any way by the construction of the dock in issue.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that the Department of Environmental Protection issue to the city the requested permit to construct the dock in issue at the existing public boat ramp at the east end of 123rd Avenue right of way in the City of Treasure Island. RECOMMENDED this 12th day of December, 1995, in Tallahassee, Florida. ARNOLD H. POLLOCK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of December, 1995. COPIES FURNISHED: Ronald Schnell, Esquire 3535 First Avenue North St. Petersburg, Florida 33713 James W. Denhardt, Esquire 2700 First Avenue North St. Petersburg, Florida 33713 Christine C. Stretesky, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Virginia B. Wetherell Secretary Department of Environmental Protection 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Kenneth Plante General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000
Findings Of Fact The applicant, Homeport Homeowners Association, represents the property owners of Homeport Development. Homeport Development is a planned unit development consisting of eighty single family lots. The development is located at Navarre Beach, Florida, on the south shore of Santa Rosa Sound. At least six of the development's lots are located on the water. The area surrounding Homeport development is primarily residential in character, with some condominiums adjoining the residential area and a canal leading to a public boat ramp within several hundred feet of the development. The area is fairly pristine. However, there are several piers of varying lengths located in the surrounding area. At least one of those piers is close to 400 feet in length. None of the piers have posed any significant pollution or water quality problems and have not had an adverse impact on the public as a whole. Nor were any of these piers shown to adversely impact the conservation of fish or wildlife and their habitats, cause harmful erosion or shoaling or pose a navigational hazard to boats using the area. Water depths offshore are shallow and do not get over three to four feet for approximately 650 feet. On May 25, 1989, the applicant submitted an application (permit application No. 17-165358-1) to the Department of Environmental Regulation for a dredge and fill permit to construct a 727 foot by five foot pier with a 100 foot by four foot "T", ten boat slips and a hexagonal gazebo. The pier would be constructed out of wood and rest on wooden pilings. The pilings are spaced so as not to impede the flow of water or cause harmful erosion or shoaling. The wood used to construct the pier would be marine treated lumber. The wood would not be treated using creosote. The evidence did not demonstrate that the marine treated wood the applicant intends to use in the construction of the pier would cause any significant pollution or water quality problems or adversely affect fish or wildlife. The proposed pier would be located on property leased to the the Association as part of Homeport Development. The pier would extend from the road adjacent to the lot on which the pier is located, would cross an area of wetlands which is under the jurisdiction of the department and would cross over the adjoining beach to reach the waters of Santa Rosa Sound. The pier would have a stair ingress and egress to the beach and the public may use these stairs to cross over the pier. The water portion of the dock would cross over a sandy bottom; and therefore, would not adversely affect vegetation. The pier is intended to be a permanent amenity of the development. Construction of other piers by lot owners who have waterfront property is limited and this pier is intended to be a substitute for such private docks. After evaluating the application for consistency with the relevant pollution control standards, the Department determined that the pier, as it was originally proposed, did not meet departmental standards for water quality and the public interest. Specifically, the Department determined that the 727 foot pier would likely pose a hazard to the navigation of small boats in the area and that the gazebo would have an adverse impact on the salt marsh in which it would be located. On August 8, 1989, the Department issued an Intent to Deny based on its assessment of the proposed project. The Intent to Deny provided that the project could be permitted if the gazebo were moved to an upland location not within the jurisdiction of the Department and the pier shortened to approximately 400 feet to remove the hazard to navigation posed by the 727 foot pier. The applicant took the Department's advice and modified its application. Specifically, the applicant modified the project to relocate the gazebo to an upland site and shorten the pier to 400 feet. The applicant also eliminated the ten boat slips. All other specifics of the original application remained the same. On August 9, 1990, the Department issued an Intent to Issue with a draft permit authorizing the construction of a 400 foot pier subject to several permit conditions. The modifications of the application along with the permit conditions provide reasonable assurances that the project will not violate water quality standards as provided in 403.918, Florida Statutes. Additionally, the historical evidence the Department has gained through observing the impact of other piers in a similar environment on water quality provides strong support for the above conclusion and in itself is a reasonable assurance that water quality standards will not be adversely impacted by the construction of this pier. For similar reasons, the evidence demonstrated that the proposed pier would not be contrary to the public interest. In essence, the better evidence demonstrated that the pier would not adversely impact the public health, safety, welfare or property of others, the current condition or relative value of the area surrounding the proposed project, the conservation of fish or wildlife and their habitats, or cause harmful erosion or shoaling, or involve historical or archaeological resources. The evidence demonstrated that some temporary impact on the vegetation of the wetlands would occur in the immediate path of construction of the pier. However, the evidence also demonstrated that the impact would not be significant and would repair itself within a reasonable period of time. The length of the pier does not pose a hazard to navigation of either small or large boats, or motorized or non-mechanized craft. However, the permit does not require the pier to be lighted during periods of darkness or adverse conditions. Given the fact that the location of the proposed pier does not appear to be in a well lit area, and because of the pier's proximity to a canal leading to a public boat ramp that is subject to periodic high use, the pier would likely pose a hazard to navigation should adequate lighting not be required. Therefore, a condition that the pier be constructed with lights sufficient to illuminate it to a person in the water during periods of darkness or poor viewing conditions should be added to the draft permit attached to the Department's Intent to Issue. Subject to the addition of the above condition, permit application NO. 17-165358-1 sought by Homeport Homeowners Association, for a permit to construct a 400 foot pier should be issued.
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 issuing a permit to construct a 400 foot pier as sought by Homeport Homeowners Association in permit application NO. 17-165358-1 and subject to the additional permit condition that lighting be added to the pier. DONE and ENTERED this 4th day of June, 1991, in Tallahassee, Florida. DIANE CLEAVINGER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Filed with the Clerk of the Division of Administrative Hearings this 4th day of June, 1991. APPENDIX TO RECOMMENDED ORDER CASE NO. 90-6184 The facts contained in the third sentence of paragraph 1 of Petitioner's Proposed Findings of Fact are adopted in substance, in so far as material. The facts contained in the first two sentences of paragraph one were not shown by the evidence and are not appropriate facts for official recognition. The facts contained in paragraphs 3, 11, 13, 14 and 19 of Petitioner's Proposed Findings of Facts are subordinate. The facts contained in paragraphs 6, 7, 15, 17 and 18 of Petitioner's Proposed Findings of Facts were not shown by the evidence. The facts contained in paragraphs 5, 12 and 16 of Petitioner's Proposed Findings of Fact are irrelevant or immaterial. The facts contained in the first paragraph of finding number 4 of Petitioner's Proposed Findings of Fact were not shown by the evidence. The facts contained in the second paragraph of finding 4 are adopted. Paragraph 2 and 9 of Petitioner's Proposed Findings of Fact are legal argument. The facts contained in paragraph 7 of Petitioner's Proposed Findings of Facts are subordinate except for the fact referencing the a navigational hazard which fact was not shown by the evidence. The facts contained in the first sentence of paragraph 8 of Petitioner's Proposed Findings of Fact are subordinate. The facts contained in the second sentence of paragraph 8 were not shown by the evidence. The facts contained in the second, third and fifth sentences of paragraph 10 of Petitioner's Proposed Findings of Fact are subordinate. The facts contained in the first and fourth sentences of paragraph 10 were not shown by the evidence. The facts contained in paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 12 and 13 of Respondent's Proposed Findings of Fact are adopted in substance, in so far as material. The facts contained in paragraph 10 of Respondent's Proposed Findings of Fact are adopted except for the fact relating a navigation hazard which was not shown by the evidence. COPIES FURNISHED: Mary Callaway P.O. Box 36097 Pensacola, Florida 32501 Bruce A. McDonald 700 South Palafox Street Suite 3C Pensacola, Florida 32501 Michael P. Donaldson Assistant General Counsel Department of Environmental Regulation 2600 Blairstone Road Tallahassee, Florida 32399-2400 Carol Browner, Secretary Twin Tower Office Building 2600 Blair Stone Road Tallahassee, Fl. 32399-2400 Barbara Ownes 113 Riverdale Covington, Louisiana 70433 Daniel H. Thompson, Esquire Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Fl. 32399-2400
The Issue The issue is whether Florida Administrative Code Rules 40E-0.109(1)(a), 40E-1.511(1)(b), and 40E-1.5095 are invalid exercises of delegated legislative authority, pursuant to Section 120.52(8)(b) and (c), Florida Statutes.
Findings Of Fact On March 8, 2003, Respondent published in The Stuart/Port St. Lucie News, a daily newspaper published in Martin County, the following notice (Published Notice): The South Florida Water Management District (SFWMD) Governing Board will consider, for approval, a Water Use Permit Renewal/Modification (Application 971224-8, Permit 40-00089-W) for the Martin County Utilities (Martin County Consolidated System), PO Box 9000, Stuart, FL 34995 at its March 13 2003 Governing Board Meeting. The Applicant has requested an annual allocation of 4,529 MG (17.41 MG on a maximum daily basis) with a permit duration of 5 years, for a Public Water Supply to service approximately 17,000 acres located in Martin County. The water will be withdrawn from the Surficial Aquifer System. A copy of the proposed agency action, a description of the project, and a staff analysis of the project, are available for inspection at the South Florida Water Management District, Environment Resource Regulation Department, 3301 Gun Club Road, West Palm Beach, FL 33406, or a copy may be obtained by contacting Ralph Peno at 561- 582-9605. Interested persons may comment upon the proposed agency action and are entitled to request an Administrative Hearing regarding the proposed agency action by writing the Governing Board of the South Florida Water Management District, PO Box 24680, West Palm Beach, FL 3316, but which comments or requests must be received within 21 days from the date of this publication. Publish March 8, 2002 (The only copy of the Published Notice is a facsimile copy that is illegible in certain places. Typographical errors therefore may appear in the version set forth above, but none of the possible discrepancies would affect the outcome of this case.) Petitioner and his wife own a single-family residence at 2039 Ginger Terrace, Jensen Beach, Florida. Petitioner lives in close proximity to certain lands that he claims have been adversely affected by overpumping of Martin County's wellfields. Petitioner enjoys various recreational activities on these lands. Unaware of the Published Notice on March 8, 2003, Petitioner filed his petition challenging the proposed permit to Martin County on September 25, 2003. This date was within 21 days of when Petitioner received actual notice of the proposed agency action and 21 days of the decision of Respondent's Governing Board to approve Martin County's application for a water use permit. The Governing Board did not approve and may not have considered the proposed agency action on March 13, 2003, as indicated in the Published Notice. The delay between the date on which the Published Notice announced that the Governing Board would take action on Martin County's application and the date on which the Governing Board took action was due to the time consumed by successful efforts of the Governing Board and Martin County to resolve a dispute that another party had raised with respect to the proposed permit. With the challenged provisions underlined, Florida Administrative Code Rule 40E-0.109 provides: 40E-0.109 Point of Entry Into Proceedingsand Mediation. Point of entry into proceedings determining substantial interests are governed by Rule 28-106.111, F.A.C., and this section. (1)(a) “Receipt of written notice of agency decision” as set forth in Rule 28-106.111, F.A.C., means receipt of either written notice through mail or posting that the District has or intends to take final agency action, or publication of notice that the District has or intends to take final agency action. (b) If notice is published pursuant to this chapter, publication shall constitute constructive notice to all persons. Until notice is published, the point of entry to request a formal or informal administrative proceeding shall remain open unless actual notice is received. If the Board takes action which substantially differs from the notice of intended agency decision, the applicant or persons who may be substantially affected shall have an additional point of entry pursuant to Section 28-106.111, F.A.C., unless otherwise provided by law. The Board action is considered to substantially differ from the notice of intended agency decision when the potential impact on water resources has changed. Notwithstanding Rule 28-106.111, F.A.C., intended agency decisions or agency decisions regarding consolidated applications for Environmental Resource Permits and Use of Sovereign Submerged Lands pursuant to Section 373.427, F.S., shall provide a 14 day point of entry to file petitions for administrative hearing under Rule 28-106.111, F.A.C. Specific Authority 120.54(5), 373.044, 373.113 FS. Law Implemented 120.54(5), 120.569, 120.57, 120.60, 373.146, 373.413, 373.427 FS. History–New 7-2-98, Amended 6-12-00 Challenged in its entirety, Florida Administrative Code Rule 40E-1.5095 provides: 40E-1.5095 Publication of Notice of Agency Decision or Intended Agency Decision. In cases where a project is determined to be of heightened public concern, or where there is the likelihood of a request for an administrative hearing, where the proposed activity is potentially harmful to the water resources of the District or contrary to the overall objectives of Chapter 373, F.S., as outlined in Section 373.016, F.S., or if objection(s) to the application has been received, the District shall publish, or require the permit applicant to publish notice of agency decision or intended agency decision in the Florida Administrative Weekly or newspapers of general circulation in the area affected by such decisions as required by Chapter 50, F.S., and shall post notice and mail copies of its notice to applicants and interested groups. Such publication may be used as evidence of constructive and sufficient notice. Specific Authority 120.54(5), 373.044, 373.113 FS. Law Implemented 120.54(5), 120.569, 120.57, 373.146, 373.413 FS. History–New 7-2-98, Amended 6-12-00. With the challenged provisions underlined, Florida Administrative Code Rule 40E-1.511 provides: 40E-1.511 Point of Entry Into Proceedings. Procedures regarding point of entry into proceedings determining substantial interests and mediation are set forth in the Uniform Rules of Procedure Rule 28-106.111, F.A.C. The following exceptions are applied in combination with the applicable Uniform Rules of Procedure. (1)(a) “Receipt of written notice of agency decision” as set forth in Rule 28-106.111, F.A.C., means receipt of either written notice through mail or posting that the District has or intends to take final agency action, or publication of notice that the District has or intends to take final agency action. (b) If notice is published pursuant to this chapter, publication shall constitute constructive notice to all persons. Until notice is published, the point of entry to request a formal or informal administrative proceeding shall remain open unless actual notice is received. If the Board takes action which substantially differs from the notice of intended agency decision, the applicant or persons who may be substantially affected shall have an additional point of entry pursuant to Rule 28-106.111, F.A.C., unless otherwise provided by law. The Board action is considered to substantially differ from the notice of intended agency decision when the potential impact on water resources has changed. Notwithstanding the timeline in Rule 28-106.111, F.A.C., intended agency decisions or agency decisions regarding consolidated applications for Environmental Resource Permits and Use of Sovereign Submerged Lands pursuant to Section 373.427, F.S., shall provide a 14 day point of entry to file petitions for administrative hearing. Specific Authority 120.54(5), 373.044, 373.113 FS. Law Implemented 120.54. On March 13, 1998, Respondent published in Florida Administrative Weekly, Volume 24, Number 11, a copy of its petition to the Administration Commission for, among other things, an exception from the Uniform Rules of Procedure adopted by the Administration Commission. The petition states, in relevant part: The SFWMD seeks an exception from Rule 28-106.111(2), F.A.C., regarding notices of agency decision. This exception is sought to clarify that "written notice of agency decision," as used in Rule 28-106.111, includes the publication of notice and posting of notice, as well as actual written notice by mail. Chapter 373, F.S., provides the authority to require publication of notice in addition to actual or mailed written notice of an agency decision or intended agency decision. . . . Publication is required if desired by the applicant, or if the proposed project is potentially harmful to the water resources, of heightened public concern or contrary to the overall objectives of Chapter 373, F.S. Rule 28-106.111, F.A.C., provides for a petition requesting an administrative hearing to be filed within 21 days of receipt of "written notice" of an agency's decision. The phrase "written notice" is not defined in Rule 28-106.111, F.A.C. or elsewhere in the Uniform Rules, however, it could be narrowly interpreted as only allowing notice by mail or similar actual notice. Publication is an accepted legal procedure providing a clear point of entry for filing a petition. It has been recognized as a viable noticing procedure in administrative law forums. See, e.g., City of LaBelle v. Bio-Med Services, Inc., et al, 598 So. 2d 207 (Fla. 2d DCA 1991). Based on the above, this exception is necessary both to implement the authority under Chapter 373, F.S., and for the efficient operation of the SFWMD. By Final Order entered March 25, 1998, the Administration Commission granted Respondent an exception from Florida Administrative Code Chapter 28-106 for proposed Rule 40E-0.511, "on the basis of implementation of statute and the most efficient operation of the agency." During subsequent rulemaking, "Rule 40E-0.511" became the three rules that, in whole or in part, Petitioner is challenging in this case (Rules). By Order of Non-Compliance with Requisite Rules and Dismissing Petition with Leave to Amend dated October 29, 2003, Respondent found Petitioner had not timely filed his initial petition because it was not filed within 21 days of the publication of the Published Notice. The Order dismissed the petition with leave to file an amended petition within 21 days. Petitioner filed his First Amended Request for Administrative Hearing on November 17, 2003. Reserving all rights concerning the timeliness of the petition, Respondent, by Order dated January 7, 2004, transmitted the petition to the Division of Administrative Hearings, which designated the case as DOAH Case No. 04-0104. Pursuant to the procedures discussed during the March 22, 2004, telephone conference, Respondent and Martin County have requested a summary disposition of DOAH Case No. 04-0104, which would be granted if the Administrative Law Judge dismisses the challenge to the Rules and sustains the sufficiency of the Published Notice.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, as well as my observation of the demeanor of the witnesses who observed and/or participated in each of the four episodes, the following facts are found: At all times material to the charges herein, respondent DeSantis was an on-duty Clearwater Police Department. officer, holding the rank of patrol sergeant. The respondent had been employed by the Clearwater Police Department since March 14, 1977. He was certified by the Criminal Justice Standards and Training Commission on July 7, 1977, and was issued Certificate Number 02-18239. THE ANDERSON INCIDENT At approximately 8:00 p.m. on October 27, 1984, a radio dispatch was transmitted to Clearwater police officers advising that there was an armed black male in the area who had threatened that he was either going to get some money or someone would be hurt. Respondent observed a suspect, later identified as Harold Anderson, in front of a laundromat where three or four people were sitting in chairs. Respondent drove up to the laundromat, and observed Mr. Anderson walk inside. A woman and a child were inside the front area of the laundromat. Respondent followed Anderson into the laundromat and Anderson proceeded to walk the back area, keeping his back to the respondent. Assuming that Anderson had a gun in his hand and fearing a possible hostage situation with the woman and child, respondent drew his service revolver and informed Anderson that he was under arrest. With pistol drawn and facing Anderson's back, respondent made two attempts within the laundromat to take Anderson into custody. During the second attempt and while respondent's gun was placed on Anderson's spine, a struggle ensued near the front doorway. The struggle caused both the respondent and Anderson to fall, with Anderson on the bottom, upon the hood of a car parked outside the entryway to the laundromat. Sometime during the struggle, respondent was attempting to place his service revolver under Anderson's chin. Instead, the barrel of respondent's pistol went into Anderson's mouth, where it remained for between 20 and 40 seconds, causing Anderson to make choking and gagging sounds. Respondent's pistol was removed from Anderson's mouth after Anderson was handcuffed with the assistance of two other police officers. A loaded handgun was retrieved from the waistband of Anderson's trousers. Officer Kettel arrived on the scene as respondent and Anderson were struggling at the doorway of the laundromat. He observed that Anderson was resisting arrest and that respondent was attempting to calm Anderson down and to retrieve his gun. He recalled that respondent's pistol went into Anderson's mouth as they both landed on the car hood. Officer Watson was the third police officer to arrive. He did not observe the struggle between respondent and Anderson prior to the two reaching the hood of the parked car. When Watson arrived at the scene, Anderson was lying on his back on the car hood and respondent was holding a pistol in Anderson's mouth. Watson's testimony was conflicting as to the exact point in time that Anderson ceased to struggle and the point in time that the pistol was removed from his mouth. Until the point in time that Anderson was handcuffed and his loaded gun retrieved from him, respondent was in fear for his life. He admits that the barrel of his service revolver went into Anderson's mouth, but states that this was unintentional and that he could not remove it without endangering himself until he received assistance from other officers in subduing Anderson. The testimony of two civilian eyewitnesses to this incident was somewhat conflicting as to when the gun went into Anderson's mouth, when Anderson ceased resisting his arrest, and when the gun was removed from Anderson's mouth. There was no evidence that Mr. Anderson was injured as a result of respondent's revolver being inside his mouth. THE HEYWOOD INCIDENT On November 3, 1984, three police officers responded to a radio dispatch concerning an individual who had returned to a Maas Brothers department store armed with sticks and bricks after previously having had an altercation with the security guard there. The individual was Steve Heywood, a 19 year old black male, who had testified that he had returned to Maas Brothers "to defend himself" because the security guard had broken his necklace approximately one-half hour earlier in the evening. When respondent drove into the Maas Brothers parking lot, he observed five or six people standing near the doorway and saw Heywood, dressed only in shorts and tennis shoes, throw some bricks and sticks in a bush. Respondent got out of his cruiser and Heywood started walking away from him. Respondent told Heywood to "freeze" and to "hit the ground." Heywood took three or four more steps, then turned around quickly. At that point, respondent drew his service revolver. Heywood put his hands out or up, started pleading that he had done nothing and went down to the ground on his stomach, with his hands visible. Respondent then approached Heywood with his gun still pointing at him, put his knee on Heywood's back, and placed the barrel of his service revolver next to Heywood's head where it remained for a period of about 30 seconds until another officer handcuffed Heywood. While Heywood appeared excited or upset during this process, he did not fight or struggle. THE TRUBY INCIDENT On October 5, 1984, respondent and Reserve Officer Karen Jackson were dispatched to investigate a report of a fight at an apartment complex. Soon after the officers arrived, Paul Truty began creating a disturbance in the parking lot by shouting abusive and threatening remarks at a victim of a prior sexual abuse, her family and the police officers. Detective Margaret Jewett was also dispatched to the scene to assist the sexual a~use victim. When Truby refused to stop yelling obscenities and inciting the crowd, respondent told him he was under arrest. Truty then began to walk backwards away from the respondent. Respondent pounded his nightstick on the ground three or four times, demanding that Truby return, and Truby then turned and started walking between two apartment buildings. Respondent and Detective Jewett followed Truby a short distance and apprehended him. The respondent pushed Truby against a wall and Jewett placed handcuffs on Truby, securing his hands behind his back. The respondent and Detective Jewett each took one of Truby's arms and escorted him approximately fifty yards back to the respondent's police car. During the walk back to the car, Truby did not resist or struggle and was cooperative and submissive. From this point, there is conflicting evidence between respondent's recollection of events and the recollections of Reserve Officer Jackson and Detective Jewett. Respondent states that Truby was highly intoxicated at the time of his arrest and that he had to use his nightstick to keep Truby's spine stiff and steer him while they were walking back to the patrol car. Respondent explains that Truby stumbled near the car due to the presence of some concrete tire stops adjacent to the passenger side of the cruiser. Detective Jewett and Officer Jackson recall that respondent positioned his police baton parallel to Truby's spine and under his handcuffed hands. As Truby was beginning to enter the police cruiser, respondent intentionally pulled up on the lower end of the nightstick near the handcuffs, thus causing TruLy to stumble and fall off balance. According to these witnesses, respondent then made a sarcastic remark about Truby falling and subsequently pulled Truby up with the nightstick and placed him in the car. Detective Jewett stated that Truby may have been intoxicated. THE VONDERAU INCIDENT On the evening of October 5, 1984, Officer David Watson was dispatched to investigate a report of a domestic disturbance in a residential neighborhood. Officer Green was dispatched as a back-up officer. Upon arrival at the scene, the officers spoke to a very upset woman who told them that her son had done extensive damage to her home and had threatened her. The interior of the woman's home was in shambles. A neighbor led the son, later identified as John Vonderau, to the area of the street where the officers were. He was wearing no shirt and the officers believed he had been drinking. Vonderau exhibited bizzare behavior, marked bye dramatic swings of mood from calm and lethargic to aggressively pacing the street with clenched fists. Officer Watson was concerned that Vonderau could become violent, but he was unsure of his legal right to arrest him since no crime had been committed in Watson's presence. He considered taking Vonderau to a detoxification center or effecting an involuntary commitment to a treatment facility for the mentally ill, pursuant to the Baker Act. Being unsure of the legal ramifications of doing so, Watson radioed respondent, who was his superior on duty that evening, and asked him to come to the scene to advise on the proper course of action. Before respondent arrived, Officer Desrosiers drove by and Officer Watson requested that he stay because Vonderau appeared to be getting more agitated. When respondent and Reserve Officer Jackson arrived on the scene, Officers Watson, Green and Desrosiers were standing in the street in a loose circle around Vonderau, who was pacing back and forth. Officer Watson advised respondent that Vonderau had made death threats to his mother and had completely ramshackled her house. A decision was made that the officers would take Vonderau into custody as a Baker Act patient. When respondent and Watson began to approach Vonderau, he brushed against respondent's shoulder and then assumed a martial arts/karate-type stance, and said, "You'd better get your clubs out. You're going to need them." The officers all took out their police batons, and Vonderau continued to make karate- type motions. Officer Desrosiers was talking on his radio when Vonderau swung at him. Respondent thought Vonderau struck Desrosiers, but no contact was made. Vonderau also approached Officers Watson and Green in an aggressive fashion. When he turned away from Officer Watson, Watson struck Vonderau's leg with his police baton. Vonderau then ceased his crouched stance, stood erect, put his hands in the air and said, "You got me." Officer Watson then ordered Vonderau to get down on the ground. After hesitating momentarily, Vonderau then assumed a push-up position, facing the street and suspending himself with his feet and hands. Immediately after Officer Watson ordered Vonderau to lie flat on the street, the respondent struck a very hard blow with his police baton across Vonderau's shoulders, causing a welt. Vonderau then went immediately to the ground. Once Vonderau was down flat on the street, at least three of the officers quickly moved to securely hold him down and handcuff his hands behind his back. The fourth officer walked over to the police vehicle to retrieve a set of "flex cuffs" to place around Vonderau's legs. At some point, respondent drew his service revolver and, after Vonderau was down and was being handcuffed by the other officers, respondent held his gun to the back of Vonderau's neck behind his ear, while pushing his nightstick against Vonderau's neck. Vonderau had ceased resisting and being aggressive from the time he went flat on his stomach to the street. Respondent held the gun to Vonderau's neck or head for approximately thirty seconds, angrily telling him that if he moved, respondent would "blow his head off." After Vonderau was hand and leg cuffed, he was taken to the police station by Officers Watson and Desrosiers. The testimony is somewhat conflicting as to the exact point in time that respondent withdrew his service revolver from his holster. Respondent states, and the other officers present admit the possibility, that his pistol was drawn when Vonderau first assumed his karate-type stance and began swinging at the other officers. He further states that he thereafter attempted to place his pistol back in its holster, but, because his holster lining was torn, he had to hold it there. However, on cross- examination, respondent admitted that he intentionally placed his gun next to Vonderau's head because he felt he and the other officers were in jeopardy. Respondent felt that the placing of his service revolver against Vonderau's neck was effective in calming him down. All officers on the scene believed that Vonderau possessed knowledge of a martial art and that he was dangerous. However, officers Watson, Green, Desrosiers and Jackson agreed that Vonderau ceased to resist completely once he was flat on the ground on his stomach.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED THAT: Respondent Joseph DeSantis be dismissed as an employee of the Clearwater Police Department for utilizing excessive force during the arrests of Steve Heywood and John Vonderau, and that the Administrative Complaint filed by the Criminal Justice Standards and Training Commission be DISMISSED. Respectfully submitted and entered this 20th day of April, 1987. DIANE D. TREMOR Hearing Officer The Division of Administrative Hearings 2009 Apalachee Parkway The Oakland Building Tallahassee, Florida 32301 (904) 488 9675 FILED with the Clerk of the Division of Administrative Hearings this 20th day of April, 1987. COPIES FURNISHED: Louis Kwall, Esq. 133 N. Ft. Harrison Avenue Clearwater, FL 33516| Margot Pequignot, Esq. P.O. Box 1669 Clearwater, FL 3351 Robert G. Walker, Jr., Esq. P.O. Box 4748 Clearwater, FL 33516 Miles A. Lance, Esq. P.O. Box 4748 Clearwater, FL 33516 Joseph S. White, Esq. Florida Department of Law Enforcement P.O. Box 1489 Tallahassee, FL 32302 APPENDIX The proposed findings of fact submitted by each of the parties have been carefully considered and have been accepted and/or incorporated in this Recommended Order, except as noted below: Petitioner, CJSTC 22. The evidence is unclear as to the number of officers holding Vonderau down. 40, 41 and 43. Rejected; not established by competent, substantial evidence. Rejected; not established by competent, substantial evidence. First sentence rejected; contrary to the evidence. 55. Rejected, contrary to the evidence. Petitioner, City of Clearwater (NOTE: Many of the City's proposed findings of fact constitute recitations or summaries of an individual's testimony. The following rejections of the proposed factual findings does not indicate that the cited witness did not so testify, but that said testimony was not sufficient, in light of other testimony, to support a factual finding.) 8(b) Rejected. 8(f) Rejected. 8(i)(2) Rejected, as contrary to the evidence. 8(i)(5) Rejected, as contrary to the evidence. 8(i)(6) Rejected, as contrary to the evidence. 8(i)(7) Rejected, as constituting a legal conclusion as opposed to a factual finding. 9(i) McKenna was accepted as an expert in the area of law enforcement standards. 9(k)(5) Rejected as a factual finding. 10(d)(l) Rejected, not established by competent, substantial evidence. 10(d)(3) Rejected, not established by competent, substantial evidence. 10(g)(3) & (i) Rejected, not established by competent, substantial evidence. Respondent (NOTE: Many of respondent's proposed factual findings constitute verbatim recitations of testimony. These are improper findings of fact and are rejected as such.) page 6, first Rejected, as contrary to the sentence of last evidence. paragraph page 24, second Rejected, not supported by full paragraph competent evidence. page 27, first Rejected, as contrary to the paragraph evidence. page 28A, last Rejected as irrelevant and paragraph immaterial to the issues in dispute. ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA, DEPARTMENT OF LAW ENFORCEMENT CRIMINAL JUSTICE STANDARDS AND TRAINING COMMISSION CRIMINAL JUSTICE STANDARDS AND TRAINING COMMISSION, Petitioner, vs. DOAH Case Nos. 85-3698 86-0889 JOSEPH R. DESANTIS, CJSTC Case No. L-1703 Certificate Number: 02-18239 Respondent. /
Findings Of Fact The City owns and operates a marina at the Godman Yacht Basin which is contiguous to Flamingo Canal a Class III body of water comprising a man made dead-end canal. Petitioners live along the Flamingo Canal. In 1924 DER issued a dredge and fill permit to the City of Cape Coral to allow the construction of 39 boat slips in the basin. That permit prohibited any boat and motor maintenance in the basin. In assessing the City's request for modification of this prohibition DER representatives visited the yacht basin and reinspected the facility and the land area from which water drains into the basin. Current regulations by the city prohibit the discharge of refuse or waste from boats in the basin. Nevertheless, as testified to by Petitioners' witnesses, refuse and waste is often discharged from boats and finds its way into Flamingo Canal. Petitioners' primary concern is that if boat maintenance is allowed, more boats will visit the basin and more fouling of the waters will occur. The survey by DER personnel found that the City had no equipment at the basin to contain or clean up an oil spill if one accidentally occurred, and that storm water run-off from one parking lot near the basin discharged more pollutants in the basin than could be expected from limited boat and engine maintenance. To alleviate the storm water run-off problem the City, as a condition to the removal of the boat repair prohibition, agreed to install infiltration trenches through which this run-off from the parking lot will pass before entering the basin. The City further agreed to provide oil/fuel spill control devices at the facility and to monitor the water quality in the basin and report its findings to DER. The infiltration trenches are designed to treat the first one-half inch of rainfall falling on this parking lot before it reaches the basin. The heaviest load of pollutants from paved surfaces used by automobiles is carried by the first surge of rainwater; therefore, a system designed to treat the first one-half inch of run-off is acceptable. The direct, untreated discharge of storm water into the yacht basin contributes more pollutants including oils, greases and heavy metals, to the basin than would the performance of minor boat and motor maintenance. Accordingly, the net result of allowing minor boat and motor maintenance coupled with the installation of the infiltration trenches will result in higher water quality in the basin. Petitioners contention that these infiltration trenches will treat only a small portion of the total storm water run-off entering the basin, while true, over- looks the maxim that half a loaf is better than no bread at all. No evidence was submitted that petitioners, as well as the majority of the population of the City of Cape Coral, are willing to pay the taxes required to raise the funds necessary to provide such treatment of all storm water run-off entering the basin. The permit proposed to be issued contains provisions which have been accepted by the City of Cape Coral. These include a requirement that the city provide oil/fuel spill control devices at the yacht basin; that all boat owners be provided with written information concerning protection of the basin's water quality; that only chlorine and biodegradable cleaning agents be used at the facility; and finally, the City submit to DER extensive water quality data for the basin through at least 1989, to permit a closer monitoring of the water quality in the basin by DER to insure acceptable water quality standards maintained.
