Recommendation Based on the above facts and conclusions of law, I recommend that the licensee be issued an oral reprimand. DONE and ENTERED this 20th day of September, 1976, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675
The Issue The issue presented by these cases is whether fines totaling $350.00 should be imposed upon the Respondent for its alleged failure to report the absence of two residents from the facility, the first occurring on December 4, 1980, and the second on January 7, 1981, to the Petitioner as required by Chapter 10A-5, Florida Administrative Code.
Findings Of Fact The Respondent Jubilee Retirement Center is licensed as an Adult Congregate Living Facility (ACLF) pursuant to the "Adult Congregate Living Facilities Act", Part II, Chapter 400, Florida Statutes. On December 4, 1980 a sixty-three-year-old female resident of the facility who was on medication left the center sometime between the lunch and evening meal. A thorough search of the Center and the immediate neighborhood by Center personnel proved fruitless and a missing person report was promptly filed by the Respondent with the City of Miami Police Department. (Case No. 339- 3748B). The resident's husband was also contacted immediately by the Respondent. On December 12, 1980, an article appeared at page 4B of the Miami Herald entitled, "Woman Walks Out 0f Nursing Home, Vanishes." The article apparently alerted the Department to the disappearance of this particular resident. Mr. Rosenfeld, Administrator of the Jubilee Retirement Center, was contacted by Mr. Alvin DeLaney, ACLF Program Specialist, on December 12, 1980, concerning this incident and at that time he informed Mr. DeLaney that the resident was located at the Miami Beach Mental Health Center and sent from there to Dodge Memorial Hospital on December 8, 1980. On December 15, 1980, the resident was transferred from Dodge Memorial to South Florida State Hospital. Following this incident, Rosenfeld discussed with DeLaney the requirements of Rule 10A-5-06, Florida Administrative Code, which requires the reporting of major incidents as defined at Rule 10A-5.01(18), Florida Administrative Code, within 24 hours following the occurrence of the incident. Rosenfeld agreed to follow the Rule in the event of any future problems. Rosenfeld was unaware of this Rule since he had not received a copy of Chapter 10A-5 which was mailed by the Department to all licensed ACLF operators in July, 1980. Following his discussion with DeLaney, Rosenfeld also believed that in computing the time limit, three working days would be allowed and weekends and holidays would be excluded. On January 12, 1981, Bill Garrett, then an ACLF Specialist with the Department, received a call from Rosenfeld concerning the disappearance on January 6, 1981, of a male resident from the Center. On January 7, 1981, Center personnel had reported the resident to the City of Miami Police as a missing person and contacted a relative of the resident. From January 17-27, 1981, Rosenfeld was in frequent contact with the Department concerning efforts to locate this resident. The resident was located through an obituary in the Miami Herald which stated that the resident passed away on January 26, 1981 following a heart attack which occurred on January 6, 1981, in a MacDonald's Restaurant near the Center. Following this incident, Rosenfeld agreed to notify the Department within twenty-four hours of discovery of any missing resident. The Center has implemented policies designed to minimize the residents' ability to leave the facility without notifying Center personnel and at the same time guaranteeing basic privacy rights of residents. A twenty-four hour a day sign-in and sign-out sheet is now located at the front desk and alarms have been installed at all other exits. Many of the residents are former mental patients and this coupled with the size and physical lay-out of the facility makes it difficult for the Center to be aware of the movement of all residents. Additionally, at the same time of these incidents the Department had no access to the Missing Persons Report Registry maintained by law enforcement agencies and could do little to assist in the search for missing residents other than contact friends or relatives who might be unknown to the ACLF operators.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That the Department enter a final order assessing a $100.00 administrative fine for the failure to report a major incident which occurred on December 4, 1980 as alleged in the administrative complaint filed January 23, 1981, and dismiss the complaint filed February 27, 1981 which alleged a failure to report a major incident occurring on January 7, 1981. DONE and ORDERED this 14th day of July, 1981, in Tallahassee, Florida. SHARYN L. SMITH 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 14th day of July, 1981. COPIES FURNISHED: Martha Barrera, Esquire Department of Health and Rehabilitative Services 1320 South Dixie Highway Eleventh Floor Coral Gables, Florida 33146 Nelson Rosenfield, Administrator Jubilee Retirement Center 8000 Biscayne Boulevard Miami, Florida 33138
The Issue Whether the application of Respondent Gulf County (County) for permit to install a beach access road, constructed of oyster shell or dolomite, at the stumphole area on Cape San Blas should be granted.
Findings Of Fact On April 11, 1996, the County applied for a permit from DEP to install a beach access road constructed of oyster shell or dolomite over an area 275 feet in length by 12 feet wide at the stumphole area on Cape San Blas. The County owned the property at the site where a crude road bed to the beach already existed. On that same date, County Manager Donald Butler met with a DEP field engineer, William Fokes, on the site to determine the linear footage that would be necessary for the access road at the stumphole area. Fokes then issued the field permit for the access road to be constructed of oyster shell or dolomite over an area 275 feet in length by 12 feet wide. Since beach driving is permitted by the County in the area, the access road aids in preventing illegal crossing of beach dunes by motorists to get to the beach. Prior to issuance of the field permit and construction of the access road, the only legal motorist access to the beach was seven miles away. Permits to drive on the beach are issued by the County. DEP rules require that all applicants proposing to conduct permitted activities on a beach use a designated beach access. This road will allow access to conduct permitted activities, thereby preserving and enhancing public beach access. DEP will not permit a project that is expected to adversely impact the beach dune system. Although seaward of the Coastal Construction Control Line (CCCL) in the County, the area which is the subject of this field permit contained no dunes or vegetation since Hurricane Opal had flattened the area. Such a project cannot be permitted if the project will adversely impact existing upland property or property of others. In the instant case, neither the Petitioner’s property, which is located two miles away from the project site, or property of other owners in the area will be adversely impacted. The road is designed to be a non-rigid, pervious structure which causes less impact to any existing dune system. The road site is located on County property and provides logical and appropriate access. The construction of the road did not violate DEP prohibitions on permitting activities having adverse impact to marine turtles since the construction permit expired prior to the turtle nesting season. A requirement of field permit issuance is that the applicant and the DEP area engineer meet on site and review the project. This event occurred on April 11, 1996, when Butler and Fokes met on the site. Fokes determined that the project was within field permitting guidelines and issued the permit. Fokes was authorized to issue the field permit because the project fell in DEP’s category of a driveway or similar activity. Expected impacts of construction of the access road and a driveway are deemed similar by DEP. Subsequent review by DEP staff of Fokes’ issuance of the field permit determined that sufficient information had been provided to him for issuance of the permit, that the project falls in the category of minor activity and that no adverse impact to dunes, property of others, beach access or nesting marine turtles is expected.
Recommendation Based upon the foregoing findings of fact and the conclusions of law, it is, RECOMMENDED: That a final order be entered confirming the grant of the field permit which is the subject of this proceeding. DONE and ENTERED this 9th day of May, 1997, in Tallahassee, Leon County, Florida. DON W. DAVIS 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 9th day of May, 1997. COPIES FURNISHED: Lynette L. Ciardulli, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard, Mail Station 35 Tallahassee, FL 32399-3000 Michael Paulsson, Pro Se Route 1, Box 347B Port St. Joe, FL 32456 Timothy J. McFarland, Esquire Post Office Box 202 Port St. Joe, FL 32457 Virginia B. Wetherell, Secretary Department of Environmental Protection 3900 Commonwealth Boulevard Tallahassee, FL 32399-3000 Perry Odom, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard Tallahassee, FL 32399-3000
The Issue The issue in this case is whether Respondent unlawfully discriminated against Petitioner in connection with Petitioner’s employment by Respondent on the basis of his national origin.
Findings Of Fact Petitioner Leneve Plaisime (“Plaisime”), whose country of origin is Haiti, was employed as a busboy and room service attendant at the Marriott Key Largo Bay Resort (“Marriott”)1 from 1995 to 1997. On September 13, 1997, upon returning to work after a vacation of several weeks, Plaisime was fired by a manager named Eric Sykas who said to him: “There is no job for you because the owner says he’s not interested in Haitians.”2 This statement was overheard by a co-worker of Plaisime’s named Fito Jean, who testified at the final hearing, corroborating Plaisime’s account.3 In around the middle of October 1997 (approximately one month after his discharge), Plaisime found a new job at Tak Security Corporation (“Tak”). Evidence introduced by Plaisime shows that he earned $7,862.52 at Marriott in 1997, which reflects an average monthly wage of about $925. Had he worked the entire year at Marriott, Plaisime would have earned a total of approximately $11,100. In contrast, working for Tak in 1998 Plaisime earned $11,396 (or approximately $950 per month)——a 2.7% increase in his annual income. There is no evidence showing what Plaisime’s likely income would have been in 1998 had he remained in the employ of Marriott. Ultimate Factual Determinations Marriott discharged Plaisime because of his national origin. Thus, Marriott committed an unlawful employment practice in violation of Section 760.10(1)(a), Florida Statutes. The actual economic loss that Plaisime suffered as a result of Marriott’s unlawful discrimination against him was one month’s pay, or $925.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the FCHR enter a final order declaring that Marriott discharged Plaisime on the basis of his national origin, in violation of Section 760.10(1)(a), Florida Statutes; prohibiting Marriott from committing further such violations; and awarding Plaisime $925 to relieve the effects of the unlawful discrimination that Marriott perpetrated against him. DONE AND ENTERED this 14th day of February, 2003, in Tallahassee, Leon County, Florida. JOHN G. VAN LANINGHAM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of February, 2003.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: In 1981, Edgewater Development Associates, Ltd. applied for a development order for the Edgewater Beach Condominium project (the project), a development of regional impact (DRI) for a 15.4 acre parcel of property located in Walton County between County Road 2378 and the Gulf of Mexico. On June 8, 1982, respondent, Walton County (County), issued resolution 82-12 (the original development order) authorizing the development of the project. Although not then required by law to do so, but consistent with its policy for all DRI orders, the County included within Section 6 of the original development order the following provision regarding an expiration date: The development order shall remain in effect for a period of ten years or until the development is complete and all certificates of occupancy are issued by Walton County, whichever occurs first, provided that upon application by the developer, the county may extend the duration of the development order. Therefore, without an extension, the original development order was scheduled to expire on June 8, 1992. The project was originally authorized to include six phases with 476 condominium units and associated recreational facilities. When completed, the 476 units were to be located within a horseshoe-shaped building, with an east and west wing connected at the top of the horseshoe by a lobby area. Phases I and II, consisting of 175 units, were completed by 1984 but phases III through VI have never been constructed. Petitioner, Edgewater Beach Condominium Association, Inc. (EBOA or petitioner), is a Florida condominium association and the owner of phases I and II. On June 8, 1987, Edgewater Development Associates, Ltd. lost by foreclosure the approximately seven acres upon which the remaining four phases of the project were to be constructed. On July 10, 1987, EAB Realty of Florida, Inc. acquired title to that property. However, it never developed any of the remaining four phases. In May 1992, title to the property was transferred to respondent, KPM, Ltd. (KPM), and one of the KPM partners, Kero Investments, Inc. (Kero). KPM now owns the entire parcel. In early May 1992, or approximately a month before the original development order was to expire, representatives of KPM asked the County's assistant administrator with responsibility for planning and zoning about extending that order. They were told that they merely had to ask the Commission for such an extension. Relying on these instructions, KPM appeared before the County Commission on May 26, 1992, requesting that the termination date of the original development order be extended for thirty-five months. The Commission granted the request and voted to allow the extension. Shortly thereafter, however, KPM and the County were informed by intervenor, Department of Community Affairs (DCA), that the action by the County on May 26, 1992, was ineffective because it failed to comply with all of the requirements of Section 380.06, Florida Statutes. KPM was told that in order to extend a DRI development order termination date, it must file a formal notice of proposed change with the County, and the County would then give public notice of the hearing at which the change was to be considered. Until these procedures were followed, no further development could occur once the expiration date had passed. On June 5, 1992, KPM filed with the County a formal notice of proposed change requesting that the build-out date and expiration date of the original development order be extended to May 8, 1995. Thereafter, the DCA informed the County and KPM that, after June 8, 1992, the right to develop the property covered by the original development order had expired. It also advised them that further development of the property would have to be preceded by further DRI review, namely, either a notice of proposed change or formal abandonment. Petitioner received the same information when it inquired about the possibility of constructing an addition to phases I and II. In light of this advice, on July 17, 1992, KPM's counsel withdrew its application for extension and stated that he understood that the withdrawal caused the original development order to expire as of June 8, 1992. KPM then selected the notice of proposed change option because it felt that the DRI development order had value and that the abandonment procedure was basically the same as that required for a notice of proposed change. Had not KPM received this advice from DCA, it could have built up to 35 units per acre on the property, without any height restriction, under the local comprehensive plan then in effect. On September 28, 1992, KPM submitted another notice of proposed change in which it requested that the build-out dates and the termination date for phases III through VI be extended until January 1, 1999. On December 7, 1992, KPM revised its notice of proposed change to request certain changes in the project's configuration, including replacing the condominiums in phase III with townhouses and reducing the number of units in that phase from 42 to 19. The County treated the notice of proposed change as a presumptive substantial deviation to the original development order under Section 380.06(19)(e)3., Florida Statutes. In other words, the proposed changes were presumed by statute to create additional regional or state impacts so as to require further DRI review. However, that presumption could be rebutted by evidence submitted at a public hearing before the local government. Kero was the record owner of the portion of the property covered by the September 1992 notice of proposed change. This included a beachfront parcel of approximately 50 feet by 400 feet on the eastern boundary of the undeveloped portion of the DRI and a parking lot. Kero was fully aware of the requested changes and authorized Albert Paris, the owner of one of the other KPM partners, to file the application. On January 26, 1993, the County adopted the amended development order in issue here (resolution 93-2), which approved the extension of build-out and termination dates and the change in phase III configuration requested by KPM. In doing so, the County determined that, based on certain conditions placed in the amended development order, the amendment to the original development order was not a substantial deviation and thus it required no further DRI review. The DCA concurred in this determination. The amended development order requires, however, that before construction of phases IV through VI may commence, KPM must submit additional information to the County for approval and for another amendment to the DRI development order pursuant to Section 380.06(19), Florida Statutes. Contending that the amended development order was invalid, petitioner filed an amended petition on April 1, 1993. As clarified by the parties in the prehearing stipulation, petitioner cites three broad grounds for invalidating that order: (a) the original development order was constructively abandoned and therefore could not be amended, (b) the right to request an amendment of the original development order did not transfer to KPM, a successor owner to the original developer, and (c) the County did not have authority to revive the original development order and extend its termination date. In its proposed recommended order, however, petitioner addresses only the third issue, that is, whether the County had authority to revive an expired development order. By failing to address the remaining claims, the undersigned assumes that petitioner has abandoned these contentions. Nonetheless, and for the sake of providing a complete factual and legal record in the event of an appeal, the undersigned will discuss the other two issues. Standing In its amended petition, as clarified by the court's opinion in Edgewater Beach Owners Association, Inc. v. Board of County Commissioners of Walton County, Florida, 645 So.2d 541 (Fla. 1st DCA 1994), petitioner contends it has standing as an affected land owner to challenge the amended development order because its retention pond would be affected by the development. In other words, petitioner alleges that "the 'intensity' of the use of the retention pond would increase beyond its current use under KPM's plan." Under the original stormwater plans for the project, a 10,000 square foot wet retention pond designed to capture stormwater runoff was constructed that straddles what is now the boundary between petitioner's and KPM's property. Approximately 3,000 square feet of the pond are located on KPM property. The pond was intended to serve all six phases of the project. Assuming KPM develops its property, and the surface stormwater from that development is released into the wet retention pond, the pond will be impacted. However, KPM intends to utilize a stormwater design for phase III that provides for the retention of 100 percent of its stormwater on its own property. A retaining wall built along the edge of the pond would prevent any surface water runoff from KPM's development from entering the pond. Since surface water now flows into the pond from KPM's property in its undeveloped state, the retaining wall plan will not increase, and will probably decrease, the volume of water currently entering the pond. Notwithstanding this reduction in surface water runoff, petitioner contends that the development proposed on KPM property will influence the ground water flow into the retention pond. More specifically, it argues that in light of the geophysical characteristics of the property, some of the water which percolates from KPM's retention ponds will flow underground and impact the function of petitioner's retention pond. There will, of course, be a lateral exchange of water between KPM's and petitioner's property. In other words, in the same way that petitioner would be affected by KPM, KPM would also be affected by petitioner. This exchange of water is uncontrollable and also occurs between petitioner's property and all other adjacent properties. However, there is no evidence of record as to whether KPM's development would have any discernable effect on the water table. That is to say, there is no evidence to support a finding that, beyond the lateral exchange of water that now occurs, the proposed development would have a measurable impact on the water table. Even petitioner's own expert conceded as much. Given these considerations, it is found that the intensity of the use of petitioner's retention pond will not increase beyond its current use under KPM's plan. Therefore, petitioner is not an affected land owner and thus it lacks standing to bring this action. Was the Original Development Order Constructively Abandoned? In the prehearing stipulation, petitioner argues that the original developer constructively abandoned the original development order. According to petitioner, this occurred either through foreclosure of the original developer's interests or through actions or omissions by KPM. The DCA does not recognize constructive abandonment as a concept applicable to DRI development orders. Indeed, the only mechanism for abandoning a DRI development order is the procedure set forth in Rule 9J-2.0251, Florida Adminstrative Code. KPM made no attempt to initiate the abandonment procedures specified in the rule. There is insufficient evidence to establish that KPM evinced an intent to abandon development of its property. Rather, the evidence establishes that KPM considered the original development order to be valuable and took affirmative steps to assure its viability. While it is true that the prior owner of the property did go bankrupt, even petitioner's expert recognized that bankruptcy alone could not be deemed to constitute an abandonment of a DRI development order. As to the contention that KPM had no right to seek the changes approved by the County since it was not the original developer of the project, the evidence establishes that almost all DRIs in Florida have been sold subsequent to the issuance of their original DRI development orders. The DCA regards a DRI development order as incidental to the land itself, with the rights and obligations of the development order transferring to subsequent purchasers when title is transferred. In other words, a DRI development order runs with the land. Therefore, as the successor in title to the land, KPM had the right to seek changes approved by the County. Can An Expired Development Order be Revived? Petitioner further contends that a local government has no authority to revive a DRI development order after it has expired. In this case, the County issued an amended development order on January 26, 1993, or almost six months after the original development order had expired. The build-out date in a development order is the date by which the developer is to have completed the vertical structures. This date is important for assessing impacts such as public capacity (e. g., water, sewer and transporation). If a build-out date is missed, there may no longer be adequate public capacity to accommodate the proposed development. A termination date is the date at which the development order expires. Until 1985, there was no requirement in chapter 380 that a DRI development order include an expiration date. The expiration date is typically set at two to five years after the build-out date. This date provides a local government with the specific point in time at which it can determine whether the proposed development is still compatible with the community. The local government must determine whether an extension of the development order would create additional regional or state impacts, and if not, whether the extension should be granted. If the proposed change creates additional regional impacts, it constitutes a substantial deviation which must undergo additional DRI review. Even if the local government determines that the extension of a development order, after expiration, will not create additional regional or state impacts, the local government has the authority to deny such an extension. On the other hand, the DCA has only one decision with respect to termination date extensions - - whether such an extension will create additional regional or state impacts. Consequently, the DCA regards the extension of a termination date as largely a local decision. Since at least 1987, or well before the expiration of the original development order, the DCA has advised local governments and DRI developers that expired DRI development orders could be revived by the local government based on local considerations, such as whether the development is still compatible with the surrounding community. This interpretation of the statute was not shown to be clearly erroneous or unreasonable. Petitioner's expert disagreed with the above interpretation since he opined that permitting a local government to revive an expired development order would defeat efforts to plan for the future and hamper the ability of adjacent local governments to implement their plans of development. While this view may have some justification from a planning perspective, the DCA's interpretation of the DRI statutes is also reasonable. The amended development order in issue approved both an extension of the termination date and an extension of build-out dates. The DCA determined that the changes actually approved would not create additional regional or state impacts. Petitioner has not challenged this determination.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Florida Land and Water Adjudicatory Commission issue a final order dismissing the amended petition of Edgewater Beach Owners Association, Inc. DONE AND ENTERED this 26th day of July, 1995, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of July, 1995. APPENDIX TO RECOMMENDED ORDER Petitioner: Partially accepted in finding of fact 13. Partially accepted in finding of fact 1. Partially accepted in finding of fact 3. Covered in the preliminary statement. 5-6. Partially accepted in finding of fact 1. 7-8. Partially accepted in finding of fact 3. 9-11. Partially accepted in finding of fact 2. 12. Rejected as being unnecessary. 13-14. Partially accepted in finding of fact 3. 15-18. Partially accepted in finding of fact 4. 19. Rejected as being unnecessary. 20-21. Partially accepted in finding of fact 6. Partially accepted in finding of fact 7. Partially accepted in finding of fact 8. 24-25. Partially accepted in finding of fact 10. Partially accepted in finding of fact 13. Rejected as being unnecessary. Partially accepted in finding of fact 12. Rejected as being unnecessary. 30-41. Partially accepted in findings of fact 15-19. 42-45. Rejected as being unnecessary. 46-61. Partially accepted in findings of fact 24-31. Respondents: 1. Partially accepted in findings of fact 1 and 3. 2. Partially accepted in finding of fact 3. 3. Partially accepted in finding of fact 4. 4. Partially accepted in finding of fact 3. 5. Partially accepted in finding of fact 4. 5. Partially accepted in finding of fact 5. 6-7. Partially accepted in finding of fact 6. 8. Partially accepted in finding of fact 7. 9-10. Partially accepted in finding of fact 8. 11. Partially accepted in finding of fact 9. 12. Partially accepted in finding of fact 10. 13. Partially accepted in finding of fact 12. 14. Partially accepted in finding of fact 13. 15. Partially accepted in finding of fact 14. 16-24. Partially accepted in findings of fact 15-19. 25-28. Partially accepted in findings of fact 20-22. 29-32. Partially accepted in finding of fact 23. 33-42. Partially accepted in findings of fact 24-31. Intervenor: Rejected as being unnecessary. Partially accepted in findings of fact 1 and 3. 3-4. Partially accepted in finding of fact 3. Partially accepted in finding of fact 4. Covered in preliminary statement. 7-8. Partially accepted in finding of fact 2. 9-11. Partially accepted in finding of fact 6. 12. Partially accepted in finding of fact 7. 13. Partially accepted in finding of fact 11. 14. Partially accepted in finding of fact 25. 15. Partially accepted in finding of fact 26. 16. Partially accepted in finding of fact 11. 17. Partially accepted in finding of fact 8. 18-19. Partially accepted in finding of fact 10. 20. Partially accepted in finding of fact 13. 21. Partially accepted in finding of fact 29. Where a proposed finding has been partially accepted, the remainder has been rejected as being unnecessary for a resolution of the issues, cumulative, irrelevant to a resolution of the issues, not supported by the evidence, or a conclusion of law. COPIES FURNISHED: Robert B. Bradley, Secretary Florida Land and Water Adjudicatory Commission Executive Office of the Governor 1601 The Capitol Tallahassee, Florida 32399-0001 Richard H. Powell, Esquire P. O. Drawer 2167 Fort Walton Beach, Florida 32549-2167 Steven K. Hall, Esquire 1234 Airport Road, Suite 106 Destin, Florida 32541 David A. Theriaque, Esquire 909 East Park Avenue Tallahassee, Florida 32301-2600 George Ralph Miller, Esquire P. O. Box 687 DeFuniak Springs, Florida 32433-0687 Martha Harrell Chumbler, Esquire Nancy G. Linnan, Esquire P. O. Drawer 190 Tallahassee, Florida 32302-0190 David L. Jordon, Esquire Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399-2100
The Issue Whether DOT has improperly excluded Western Waste Industries, Inc. from bidding by combining two Volusia County sites in a single invitation to bid?
Findings Of Fact A three-man maintenance crew works out of DOT's Daytona Beach construction office, which is 16 miles distant from DOT's principal Volusia County facility, the Deland maintenance yard. In the summer, when both mowing operations and littering are at their peak, 72 DOT field people and 14 convicts set out from the Deland yard daily to sweep the roadways, police, grade and seed the shoulders, cut the grass and do other bridge, pipe and concrete maintenance. At one time, as the work day ended, crews dropped litter and mown grass at the county dump on their way back to the sites at which they assembled mornings in Deland and Daytona Beach. The Daytona Beach crew still does. But somebody calculated that DOT could save 100 man hours a month by arranging for "dumpsters" at both its Volusia County yards. That way all workers can return to their work stations directly, and no side trip is required in order to dispose of litter and cut grass. On April 1, 1988, petitioner Western Waste Industries, Inc. (WWII) installed two dumpsters, each with a capacity of eight cubic yards, at DOT's Deland yard. Under a month to month agreement, WWII empties both containers twice weekly in exchange for $273 monthly. DOT is satisfied with its decision to use dumpsters, but is obliged to invite bids, because DOT cannot procure the services it needs for less than $3000 a year. Among the specifications set out in DOT's invitation to bid is the form of the contract the successful bidder is to sign, which includes the following: 1.00 The Department does hereby retain the Contractor to furnish certain services in connection with Central Point Refuse Pickup and Disposal Originating at the Department's Maintenance Office Located at 1655 North Kepler Road, Deland, Florida, with an Option to Include Similar Services for the Department's Construction Office Located at 915 South Clyde Morris Boulevard, Daytona Beach, Florida. DOT's Exhibit No. 1 (emphasis in original) In Exhibit A to the form contract, entitled "SCOPE OF SERVICES," the specifications call for "trash containment and removal of litter ... from specific offices located in the Department's District Five." Id. Exhibit A specifies both the Daytona Beach and the Deland offices by name and address. Attachment B indicates that the successful bidder is to remove 40 cubic yards of refuse weekly from DOT's maintenance yard in Deland and, at DOT's option, additional refuse from the Deland yard, from the Daytona Beach office, or from both. If DOT exercised both options, the contractor would haul ten percent of DOT's refuse from the Daytona Beach office, on an annual basis. In its letter of protest, dated June 14, 1988, WWII complains that it "operate[s] on the West Side [of Volusia County] only." But the two companies who submitted bids in response to DOT's invitation to bid are willing to collect refuse at both sites. No exclusive franchise or other legal impediment precluded WWII from bidding on collection at both sites By soliciting bids for service at both sites, DOT avoids the administrative costs of inviting and evaluating two sets of bids.
The Issue Did Respondent, Robert Skidmore, III, violate section 112.313(6), Florida Statutes (2011),1/ by using his position as county commissioner to ask a county staff member to approve a zoning application for Beach Road Boutique? Did Mr. Skidmore violate section 112.313(6) by asking a county employee to look for and selectively enforce code violations against J.J.'s Restaurant?
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following Findings of Fact are made: At all times relevant to this proceeding, Mr. Skidmore was a Charlotte County commissioner. Beach Road Boutique Zoning Scott and Jill Hemmes, constituents of Mr. Skidmore, owned a business known as Beach Road Boutique in Charlotte County. They sought to obtain a state alcoholic beverage sales license. In order to obtain a license, the applicant must demonstrate local zoning approval. Charlotte County Commission employees enforce and apply zoning regulations in the county. Erin Mullen-Travis is the licensing manager for Charlotte County Planning and Development. During 2011, she was the code compliance and licensing manager. Ms. Mullen-Travis has worked for Charlotte County over 26 years. One of Ms. Mullen-Travis's duties as code compliance and licensing manager was the review and approval of the zoning requirements on applications of establishments wanting alcoholic beverage licenses. Ms. Mullen-Travis first denied the zoning application of Beach Road Boutique on February 17, 2011. Mr. and Ms. Hemmes sought Mr. Skidmore's assistance getting approval for their zoning application. Mr. Skidmore called Ms. Mullen-Travis about the application. Mr. Skidmore told Ms. Mullen-Travis that he had some nice people in his office and that he needed help getting zoning approval for them. In her 26 years of employment with Charlotte County, Mr. Skidmore was the only county commissioner who had ever directly sought her assistance with constituent matters. Other commissioners had always gone through the chain-of-command. He identified the applicant, and Ms. Mullen-Travis explained why the zoning had not been approved. Ms. Mullen-Travis felt intimidated by Mr. Skidmore. Mr. Skidmore, however, did not threaten Ms. Mullen-Travis or explicitly offer any reward available to him because of his position as county commissioner. He did, however, implicitly offer a reward, if she helped the Hemmes. It is common knowledge in Charlotte County that Ms. Mullen-Travis is a NASCAR fan. Among other things, she drives a car with Dale Earnhardt and NASCAR badges and decals. During the call, Mr. Skidmore asked Ms. Mullen-Travis about her affinity for NASCAR. He also offered to get her an autographed photo of Rusty Wallace (a NASCAR driver) and tickets to a race. He told her that he had gone to school with Rusty Wallace's son. This is true. And Ms. Mullen-Travis could not have known it without Mr. Skidmore telling her. Given the context, Ms. Mullen-Travis accurately considered that the tickets and photo were offered in exchange for her approval of the application to the benefit of the Hemmes. Also, the call was made in Mr. Skidmore's official capacity. Charlotte County has a Home Rule Charter (Charter). Section 2.3(A)(1) of the Charter makes the county administrator responsible for all administrative matters and operations. Section 2.3(C)(1) states: "Except for purposes of inquiry and information, the members of the board of county commissioners shall not interfere with the performance of the duties of any employee of the county who is under the direct or indirect supervision of the county administration." Also, the long-established practice was for commissioners to only contact agency directors. Mr. Skidmore's call to Ms. Mullen-Travis was contrary to the Charlotte County Charter and the practice under it. Therefore, it was not an authorized act pursuant to his duties or authorities as a county commissioner. Mr. Skidmore and Ms. Mullen-Travis were the only participants in the call. He denies the conversation. Ms. Mullen-Travis's account is more credible. This is based upon her contemporaneous communications about the call, the common recollection of all witnesses of a NASCAR component to the conversation, the fact that she could not otherwise have known Mr. Skidmore went to school with Rusty Wallace's son, the relative personal interests of the witnesses in the outcome of the proceeding, and the demeanor of the witnesses, particularly of Mr. Skidmore's. Shonna Jenkins worked as a contractor licensing investigator for Charlotte County for a little over seven years. She held that position in 2011 and reported to Ms. Mullen-Travis. Mr. Skidmore had obtained Ms. Jenkins cell phone number. He had a practice of calling her directly to check on contractor licensing matters. He also contacted Ms. Jenkins to ask her to approve the Beach Road Boutique zoning application. J.J.'s Restaurant After a meeting held on March 3, 2011, Mr. Skidmore flagged Ms. Jenkins down in the parking lot. He asked her to "do him a favor," and "go shut them [J.J.'s Restaurant] down. I want them out of this f**ing town." Mr. Skidmore wanted Ms. Jenkins to find code violations for J.J.'s Restaurant. Mr. Skidmore said that he would make sure that Ms. Jenkins got a pay raise or a pay grade increase for this. Either the ex-boyfriend or ex-husband of Mr. Skidmore's wife and father of her child had an interest in J.J.'s Restaurant. There was conflict between the two families. Mr. Skidmore had also requested the Charlotte County director of Growth Management, Jeff Ruggieri, to take code enforcement actions against J.J.'s Restaurant. Ms. Jenkins was intimidated and feared her job with the county was in jeopardy if she did not do as Mr. Skidmore asked. Ms. Jenkins reported the conversation to Ms. Mullen-Travis and Joanna Colburn, a licensing investigator, immediately afterwards. Ms. Jenkins was visibly upset and shocked. She also contemporaneously documented the incident. Ms. Jenkins is and has been frank about her dislike for Mr. Skidmore. This hostility, as well as the mental and emotional difficulties Ms. Jenkins suffered as a result of her employment and dealings with Mr. Skidmore, does not undermine her testimony. In light of the witnesses' demeanor and corroborating evidence, her testimony is credible. In addition, although evidence established Ms. Jenkins was taking several medications, the record does not indicate that the medications in any way affect a person's memory or veracity. Mr. Skidmore's requests to Ms. Jenkins and Mr. Ruggieri to act against J.J.'s Restaurant were in violation of the Charlotte County Charter and, therefore, not authorized acts pursuant to his duties or responsibilities as a county commissioner.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order and public report be entered finding that Respondent, Robert Skidmore, III, twice violated section 112.313(6) and that he be fined $5,000 for each violation for a total of $10,000, together with public censure and reprimand. DONE AND ENTERED this 27th day of February, 2015, in Tallahassee, Leon County, Florida. S JOHN D. C. NEWTON, II 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 27th day of February, 2015.
