Findings Of Fact Respondent David Halfen applied for a permit from the Department of Environmental Regulation authorizing construction of a footbridge across Little Red Fish Lake in Section 7, Township 3 South, Range 19 West in Walton County, Florida. The footbridge would be 490 feet long and four feet wide with a raised area five feet high in the middle permitting small boat traffic underneath. The bridge would be constructed from treated pilings, timbers and planks and the pilings would be jetted down into the sub-strate or bottom of Little Red Fish Lake. Mr. Cliff Rohlke was accepted as an expert witness in water quality. He is employed by the Department as an Environmental Specialist with the specific duties of dredge and fill inspector. In this capacity he conducts field appraisals, reviews and makes reports of biological impacts of dredge and fill projects in conjunction with applications filed with the Department for dredge and fill permits. In this regard, Mr. Rohlke went to the site of the project and made an assessment of both the long and short-term impacts of the project on water quality in Little Red Fish Lake. Mr. Rohlke made a biological appraisal of the subject project in evidence in this proceeding as Exhibit 1. It was thus established that the short-term impacts of the project would be limited to minor turbidity and sub-strate disturbance related to the placement of the pilings. Long-term impacts will be insignificant. Based upon his long experience as a dredge and fill inspector and biologist, Mr. Rohlke established that no significant problems or impairment of water quality are associated with the construction of such a pier or footbridge by using treated pilings and timbers. Mr. Richard Fancher was accepted as an expert witness in water quality. He is the Environmental Supervisor of the Department's northwest district, supervising the Department's permitting and enforcement program in the area of dredge and fill permitting. In his years of experience with the Department, he has reviewed some 3,000 dredge and fill applications. He evaluated Mr. Halfen's application for the proposed footbridge. His review of the proposed project was conducted with a view toward whether it complied with the standards of Chapters 253 and 403, Florida Statutes and Chapter 17-3 and 17-4, Florida Administrative Code. He established that the water quality standards that the Department is charged with enforcing by these legal provisions would be complied with, with construction of the proposed project, in that the pilings for the pier or footbridge would be jetted into the sub-strate of the lake and turbidity curtains would be used to minimize the short-term deleterious effects of turbidity or sediment disturbance on the lake as a whole by confining such turbidity to the immediate area of the project. The project will not significantly affect fish and wildlife in the water body involved, nor impair water flow so as to be contrary to the public interest. Neither will any significant loss of fish or wildlife or fish or wildlife habitat be occasioned by installation of the subject bridge. Mr. Fancher was of the opinion that the bridge would impede and interfere with navigation to some extent, but not, in his opinion, so as to be contrary to public interest. Mr. Fancher, however, has not visited the site himself and has no direct knowledge as to how the lake is used in terms of navigation, fishing, water skiing and the like. Mr. Rohlke opined that navigation in terms of "normal boat traffic" would not be interfered with since on his brief inspection he saw no boats using the lake, and the bridge would have a single span raised to a five-foot elevation over the lake's surface for the purpose of permitting boats to pass under the bridge. Mr. Rohlke, however, spent only a period of less than an hour visiting the lake site and did not confer with any adjacent landowners to ascertain what uses they made of the lake. He did not measure the lake bottom depth but did acknowledge that it was of sufficient size to be used for both sailing and water skiing. He admitted that a portion of the lake would be cut off by the bridge, consisting of approximately two acres on the western side. The Petitioners, the Bannermans, as well as witnesses Klep and Hughes own property and homes on the western side of the lake and their access to the remainder of the approximately 50-acres of the lake would be partially cut off by the bridge. They would be denied some use and enjoyment of the majority of the lake. Mr. and Mrs. Bannerman have a home which fronts on the western edge of the lake. Mr. Bannerman has measured the lake and established that it is five to seven feet deep near the water's edge and approximately 12 to 15 feel deep in the center of the lake. He has a dock and a small boat on the lake and uses the boat for fishing and navigation of the lake. Fishermen frequently utilize the lake from a public access point. The lake is large enough to be used for normal recreational pursuits such as water skiing, sailing, and fishing. Mr. John Klep owns property bordering on the western edge of the lake. Access to the lake was an important consideration in his purchase of the property, and in his continuing use of it. The lake is in excess of six feet deep at his property and physically navigable. He does not wish his access to the entire lake to be restricted. Mr. Lyle Hughes has legal access to the lake conveyed to him by deed although his own property does not actually border the lake. Sailing has been his lifetime recreational pursuit and he desires to use the lake for sailing for himself and members of his family, especially the children in his family. The small sailboats for which the lake is suited generally have a mast of approximately 14 feet in height. Such a boat could not pass under the bridge if constructed as proposed, since the five-foot raised center span would only barely permit small power boats and their occupants to safely pass under it. In short, the subject bridge, while it permits small fishing and pleasure boats to pass under with their occupants, would preclude the adjacent landowners in the western end of the lake cut off by the bridge, from sailing beneath the bridge or water skiing on the lake, since their point of access for water skiing and other purposes is at their own property and it would be impossible to water ski in the lake since the bridge would not be navigable for water skiing boats and skiers. The only way sail boats could navigate under the bridge would be to use a motor, oars or paddles until the sailboat negotiates the bridge span, with attendant stepping and unstepping of the mast every time the boat passes under the bridge. This arrangement is totally impractical for those adjacent landowners to do in order to use the lake for sailing. Water skiers could not pass under a five-foot span for obvious reasons of safety. In short, it has been established that the proposed project comports with Department permitting requirements in terms of water quality impacts and impacts on fish and wildlife and fish and wildlife habitats. The project, however, has not been established to be in the public interest and not contrary to the public interest in terms of its impact on the rights of adjacent landowners to navigate the entire 52-acre lake which they presently have access to for the above-mentioned reasons. Any approval of the permit applied for must be in conjunction with a condition that the bridge be so constructed that sailboats can pass through without having to unstep their masts and water ski boats and skiers can pass through it, possibly through use of a movable span. An additional and more basic problem exists in approving this project as proposed. Department's Rule 17-1.203, Florida Administrative Code requires that a permit applicant execute and submit, with his application, an affidavit of ownership of the property involved in a dredge and fill project. The affidavit and rule requires that a permittee be either the record owner, lessee, record easement holder or an applicant to the record owner of the property for an easement to the property described in the application, and in the affidavit. Mr. Halfen submitted this affidavit with his application certifying that he was the record owner, lessee, or record easement holder of the property upon which the bridge was to be constructed and of the property landward of the construction site, and either had or would have the permission of all other persons with a legal interest in the property prior to undertaking the project. It is the policy of the Department to require the applicant to be the record owner of the submerged land, his lessee or easement holder and to submit the necessary affidavit of ownership or control. The rationale for this policy is so that the Department "will not knowingly issue a permit for dredging and filling or other activities which would constitute a trespass." 1/ The property involved at the project site is subject to an active title dispute being litigated in the Circuit Court. In dispute is the question of whether the title to the lake bottom is held by the Petitioners, the Bannermans or FDIC, Mr. Halfen or the State of Florida. The property was initially conveyed into private ownership by the President of the United States, Woodrow Wilson, in 1918 as shown by stipulated Exhibit 2 in evidence. The federal government thus conveyed the pertinent property, Lots 1 and 2 of Section 7 in Township 3 South of Range 19 West together with other unrelated land to one Carl Froholm. That conveyance transferred all of the land in Lots 1 and 2 without making reference to Little Red Fish Lake. It does not indicate any reservations of public rights in and to the waters located on that property. It does not indicate any reservation of title to the bottom of the lake to be held by the State or Federal governments. Thus, the legitimate title question now being litigated in the court, is whether the Petitioners, Mr. Halfen or the State of Florida own the lake bottom upon which the bridge will be constructed and not simply whether DNR approval for its use has been obtained. Resolution of that quiet title action is still pending and argument and legal authority has been extensively briefed and provided to the Hearing Officer in the form of the various parties' proposed findings of fact and conclusions of law and memoranda. 2/
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is, therefore RECOMMENDED: That the application by David Halfen for a dredge and fill permit, as described above, be granted, provided the plans and construction of the proposed bridge are sufficiently altered so as to permit water skiers and sailboats to safely and simply navigate and pass under or through the area of the proposed bridge and provided that Mr. Halfen, at the conclusion of the pending quiet title action, can establish that he has ownership or other right of control of the property on which the project will be built. DONE and ENTERED this 14th day of February, 1985, in Tallahassee, Florida. P. MICHAEL RUFF 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 February, 1985.
The Issue Whether Respondent committed the violations of Section 112.313(4), Florida Statutes, alleged in an Order Finding Probable Cause dated July 22, 1992, and if so, what penalty should be recommended.
Findings Of Fact On July 22, 1992, pursuant to its Report of Investigation, the State of Florida Commission on Ethics issued an order finding probable cause to believe that Respondent, Frank Messersmith, violated Section 112.313(4), Florida Statutes, by accepting an all-expense paid hunting trip in November 1987 to Riverview Plantation in Camilla, Georgia, when he knew or should have known that the trip was given to influence his official actions, and to believe that the Respondent violated Section 112.313(4), Florida Statutes, by accepting an all- expense paid hunting trip in November 1988 to Riverview Plantation in Camilla, Georgia, when he knew or should have known that the trip was given to influence his official actions. On February 3, 1993, the Executive Director of the Commission on Ethics forwarded this case to the Division of Administrative Hearings. On May 19, 1993, Respondent filed his "Statement of Position" in this cause. In so doing, while Respondent does not admit wrongdoing or violation of Section 112.313(4), Respondent made very clear that he did not legally challenge or contest the Commission's findings and determinations that Respondent improperly accepted two all-expense paid hunting trips. Also, in lieu of continued litigation and the incurring of additional fees and costs associated therewith, Respondent agreed to pay the requested fine of $1,800. Based on that Statement of Position, Respondent filed a Motion for Order of Remand, sending this matter back to the Commission on Ethics for entry of a Final Order resolving this matter consistent with the Statement of Position. Based on the Statement of Position, I find that Respondent does not dispute the facts set out in the Report of Investigation. It is incorporated herein by reference. On May 27, 1993, the parties filed a Joint Motion requesting this Hearing Officer to enter this Recommended Order.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: That the Commission on Ethics enter a Final Order and Public Report finding that the Respondent, Frank Messersmith, violated Section 112.313(4), Florida Statutes, in two instances as alleged in Complaint No. 90-170, and that civil penalty of $1,800 be imposed upon him for said violations. DONE AND RECOMMENDED this 8th day of June, 1993, in Tallahassee, Leon County, Florida. MARY CLARK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of June, 1993. COPIES FURNISHED: Virlindia Doss Advocate for the Commission on Ethics Department of Legal Affairs The Capitol, Suite 1601 Tallahassee, Florida 32399-1050 James C. Hauser, Esquire Messer, Vickers, Caparello, Madsen, Lewis, Goldman & Metz, P.A. Post Office Box 1876 Tallahassee, Florida 32302 Bonnie Williams, Executive Director Ethics Commission Post Office Box 6 Tallahassee, Florida 32302-0006 Phil Claypool, General Counsel Ethics Commission Post Office Box 6 Tallahassee, Florida 32302-0006
Findings Of Fact In his application for registration as a real estate salesman submitted August 21, 1972 (Exhibit 1), Respondent, in response to Question 9 which asked if he had ever been arrested for, or charged with, the commission of an offense against the laws of any municipality, state or nation, answered yes and listed "1958 W. Va--traffic, 1964 So. Carolina-Traffic, 1/16/70 Fla--Traffic, 6/2/71 Fla--Traffic, and 9/17/71 Fla-- Traffic." In his application for registration as a real estate broker submitted February 4, 1972 (Exhibit 3), Respondent answered the same Question 9 exactly as he had done on his application for salesman. Court records from South Carolina (Exhibit 2) show that Ernest Clyde Bourne, Jr., was arrested on a warrant charging him with stealing a boat and trailer of the value of more than $200; that on November 30, 1964, he posted an appearance bond in the amount of $9,000; that he was indicted on March 3, 1965, on an indictment alleging that Bourne, on August 12, 1964, at Georgetown, S.C., feloniously did steal, take and carry away one 25 foot Bertran boat and one six wheel trailer of the value of more than fifty dollars the proper goods and chattels of Earnest Mohler, Jr.; and that on September 21, 1965, he pleaded nolo contendere to receiving stolen goods, the Court entered judgment that he be confined for six months or pay a fine of $500, and that the fine was paid on September 21, 1965. In his defense, Respondent testified that, prior to acquiring the boat he was charged with stealing, he had owned two or three boats, the last of which was destroyed in a fire while at a Princeton, West Virginia, storage during the winter of 1964; and that he was looking for a replacement for the boat. While enroute from his home in Princeton to Myrtle Beach, South Carolina, he stopped at Columbia, South Carolina, to visit a boat yard and, while looking at a boat, was approached by a person representing himself as a salesman. The salesman told him that he knew of a 25 foot Bertram boat in an estate that may be for sale. When Bourne showed interest, he advised that he would know in about a week and Bourne was to call him. In due course, Bourne called the "salesman" who said he had the boat and arranged for Bourne to pick up the boat at Columbia. The address at which Bourne came for the pick up was a corner containing a Texaco station and a wrecked car lot. After inspecting the boat Bourne paid $5,000 cash and executed a lien on a trailer for $2,300. No record was subsequently found that the lien had been recorded and Bourne retained no copy. Bourne towed the boat and trailer to his home in West Virginia where the boat was registered and used by Bourne during the remainder of the summer. At this time Bourne was enrolled at Stetsen Law School in Florida, where his mother resided. Bourne returned to West Virginia in November, 1974, and enroute back to Florida with the boat in tow, he was stopped by the police and arrested at Orangeburg, South Carolina, and charged with larceny of the boat. The sheriff from Georgetown, South Carolina, picked up and drove Bourne to Georgetown where he spent the weekend in jail awaiting the posting of bond. At his trial in September, 1965, Bourne appeared, represented by his lawyer from West Virginia, and a South Carolina attorney. The attorneys arranged for a nolo contendere plea which Bourne entered under the impression he was pleading to an attempt to commit a misdemeanor. Exhibit 4, the deposition of the attorney who represented Bourne at the trial, confirmed that Bourne pleaded nolo contendere to an attempt to commit a misdemeanor in a negotiated plea worked out with the prosecuting attorney. Although the attorney characterized the charge to which Bourne pleaded as "no offense," the negotiated settlement included a $500 fine. This was described in the deposition as a forfeiture of a $500 bond (apparently connected to the $5,000 appearance recognizance previously entered to get Bourne released from jail) and as "the [law] firm check in the amount of $500 which was left with the clerk of the court when the clerk presented a blank form for Bourne to sign. It is presumed the "blank form" subsequently became the judgment page of Exhibit 2 on which Bourne plead nolo contendere to receiving stolen goods and the judge signed the sentence to be confined at hard labor for six (6) months or pay a fine of five hundred dollars ($500).
Findings Of Fact Upon consideration of the oral and documentary evidence received at the hearing, the following relevant facts are found: In February of 1980, the University of North Florida (UNF) sent to 26 potential bidders the contract documents and specifications for the enlargement of Canoe Lake on the UNF campus and the removal of materials and soil from the project. While six potential bidders attended the pre-bid conference, only the petitioner, G & T Trucking, Inc., submitted a bid for the project. After the bid opening, the UNF decided not to resolicit for bids and awarded the contract to the petitioner. Pursuant to the contract, the petitioner agreed to excavate and enlarge Canoe Lake on the UNF campus pursuant to the conditions, specifications and drawings set forth in the invitation to bid documents. (Joint Exhibit 1) The petitioner was to pay the UNF the lump sum of $10.00 and was to receive all fill removed from the site. The bid documents required the petitioner to commence work within ten calendar days after receipt of a Notice to Proceed and to complete the work within one year. Other pertinent requirements expressed in the bid documents were that "the bidder . . . be familiar with all Federal, State and local laws, ordinances, rules and regulations that in any manner affect the work," (Section II, paragraph 6) and that "The Contractor shall, without additional expense to the Owner, be responsible for obtaining any necessary licenses and permits, and for complying with any applicable Federal, State and municipal laws, codes and regulations in connection with the prosecution of the work . . . ." (Section II, paragraph 8) In the Purchase Order dated March 20, 1980, and in the Notice to Proceed issued by the UNF on March 21, 1980, petitioner was instructed that ". . . any changes in the scope of work set forth in the contract documents must be authorized by a written change order . . . Changes in the scope of the work without prior written authorization shall not be authorized and shall be subject to subsequent rejection and correction at no expense to the Owner." (Joint Exhibits 3 and 4) The petitioner did enter upon performance of the contract and did commence the excavation and enlargement of Canoe Lake in early April of 1980. At some point, the petitioner estimated that it would excavate approximately 300,000 cubic yards of fill material from the project as originally designed and would be able to sell that fill material for $663,000. After expenses, it was estimated that petitioner would realize a profit in the amount of $86,722.26. Original documentation to support either the estimated expenses or the revenue from the sale of fill material was not adduced at the hearing. Also, the petitioner's estimate of 300,000 cubic yards of saleable fill material was based upon prior experience in the business of land clearing and selling fill material, and not upon actual borings made at the site of the project. The time at which the petitioner's profit estimations were made was not sufficiently established, though it was suggested that it could have been as late as September of 1981. In June of 1980, the Department of Environmental Regulation (DER) became aware of the work being performed on Canoe Lake and visited the site. Prior to this time, neither the UNF nor the petitioner was aware that a permit from DER was required for this project. Officials from DER met with officials from the UNF with regard to the project in June of 1980, and in July of 1980, the UNF submitted an application to the DER for a dredge and fill permit for the Canoe Lake project as originally designed and set forth in the bid documents. DER would not approve the project as originally designed because of water quality concerns. Had work on the originally designed project continued, DER would have undertaken enforcement procedures in the form of a Notice of Violation, Notice for Corrective Action, or a Cease and Desist Order. A period of six months is the normal time taken by DER to process a standard dredge and fill permit application. The permit process is often a matter of negotiation and "give-and-take" between the applicant and officials from DER. Negotiations between DER and the UNF began in July of 1980 and continued through March of 1981. The original project called for a lake depth of at least 12 feet and one continuous body of water around two center islands. At first, DER officials indicated that they would only approve a depth of four feet. After negotiations between DER and the UNF, the project was redesigned to a depth of no more than eight feet. One reason for this compromise was the fact that petitioner had already excavated in some areas to a depth of eight feet. The project as redesigned and ultimately permitted reduced the cubic yardage to be excavated, changed the grade of the slopes and required that a dam or dike be constructed between two water bodies. The permit for the redesigned project was ultimately issued on March 10, 1981. During the nine-month long period of negotiations between the UNF and DER, petitioner was never asked for input into the redesign of the project. The UNF never requested petitioner to secure the DER permit, and all drawings submitted for approval by DER were prepared by UNF officials. In November of 1980, approximately seven months after the petitioner had commenced work on the project, the UNF notified petitioner that it was to immediately stop all work on the Canoe Lake project due to petitioner's failure to obtain the required DER permit. (Joint Exhibit 15) At this time, petitioner had completed approximately twenty-five to thirty-three percent of the work on the project, and most of that work was non-revenue producing work for the petitioner. After the permit from DER was secured in March of 1981, petitioner's attorney advised the UNF Purchasing Department Director that it was anticipated that the UNF would issue a Change Order incorporating the reduced scope of work permitted by DER and that petitioner expected to recommence work on the revised project. Petitioner's attorney further advised that, due to the reduced scope of work, petitioner would experience an actual loss when the permitted work was completed. In order to mitigate that loss, it was suggested that the UNF apply to the DER for a modification to the permit which would allow the increase of the depth of the lake to the original project depth of 12 feet. (Joint Exhibit 20) By letter to petitioner dated April 2, 1981, the UNF confirmed its prior verbal cancellation of the November, 1980, Stop Work Order and advised petitioner that all future work was to conform with the permit and drawings approved by DER. (Joint Exhibit 21) The UNF advised the petitioner by letter dated May 6, 1981, that it would accept the permit, as issued by the DER, and would discuss the revised scope of work at a later meeting. (Joint Exhibit 22) No evidence was adduced as to such a later meeting having been held. Petitioner's work on the revised project continued until early September, 1981, when petitioner was advised that the UNF considered the work performed by the petitioner to be complete. (Joint Exhibit 23) By letter dated September 22, 1981, the petitioner's attorney advised the UNF that he was submitting petitioner's claim for losses in the amount of $95,135.08, said amount representing an actual loss of approximately $8,500 plus lost profits anticipated from the original project in the amount of $86,722.26. The UNF was requested to acknowledge this claim for money damages and to inform petitioner of the procedure for processing the claim and appeal. (Joint Exhibit 25) The UNF never acknowledged the petitioner's claim or the petitioner's attorney's letter. Although no original documentation was produced by the petitioner at the hearing, it was the testimony of petitioner's witnesses that, as of the time of completion of the project, petitioner sold 155,541 cubic yards of fill material and received revenues of $351,514.95. Petitioner claims that its expenses in completing the project amounted to $359,927.77. This figure includes expenses for clearing and removal of overburden; excavating, loading and pumping; trucking costs; project supervision; grading banks and a ten percent administrative overhead. All these items were included in a greater amount in the petitioner's estimates of expenses for the originally designed project. The additional expenses claimed as a result of the redesigned project include $2,000 to build the newly required dikes, $2,200 for pumping during the stop-work period and $8,775 for increases in fuel costs due to the delay. Had the original bid documents included the design of Canoe Lake as ultimately permitted by the DER, the petitioner would have submitted a bid requiring the UNF to pay petitioner between $40,000 and $50,000, plus retainage of the fill for resale. The respondent UNF offered no evidence regarding the value of the project.
Recommendation Based upon the Findings of Fact and Conclusions of Law recited herein, it is RECOMMENDED that a Final Order be entered awarding petitioner $45,000 for its services in connection with the enlargement of Canoe Lake on the campus of the University of North Florida. Respectfully submitted and entered this 15th day of July, 1983, in Tallahassee, Florida. COPIES FURNISHED: Daniel D. Richardson, Esquire 1636 Atlantic Bank Building Jacksonville, Florida 32202 William L. Coalson, Esquire 2600 Gulf Life Tower Jacksonville, Florida 32207 Caesar Naples, Esquire Board of Regents 107 West Gaines Street Collins Building Tallahassee, Florida 32301 DIANE D. TREMOR Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of July, 1983. Dr. Barbara Newell Chancellor Board of Regents 107 West Gaines Street Tallahassee, Florida 32301 Dr. Curtis L. McCray President University of North Florida 4567 Saint Johns Bluff Road Jacksonville, Florida 32216
The Issue The issue is whether respondent should have an administrative fine levied against him for allegedly performing repossesions without a Class "E" repossessor license.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: On May 15, 1990, Charlotte County deputy sheriff Terry Harbes was dispatched to Maple Leaf Estates in response to a "domestic call". Upon arriving at the subdivision, deputy Harbes found a white male, George Guy, lying on the ground in an incoherent state and bleeding from the face. Guy had been assaulted by respondent, Richard Vee Collier. According to Collier's admission at the scene of the incident, Collier was in the process of repossessing Guy's step van when the assault occurred. Collier further acknowleged that he did not hold a repossessor license issued by petitioner, Department of State, Division of Licensing (Division). This latter admission was confirmed by Division records which show that Collier does not hold a repossessor license, a prerequisite to engaging in the trade of repossessing motor vehicles. Testimony of Arthur D. Morgan, former manager of Time Motor Sales in Charlotte Harbor, Florida, established that Collier worked as an independent contractor for Time Motor Sales during the period from March 23, 1990, through May 15, 1990. During that time period, Collier repossessed nine motor vehicles and was paid fifty dollars per vehicle for his services. It may be reasonably inferred from the evidence that such repossessions occurred as a result of the owners' default in payment for such motor vehicles to the lienholder.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent be found guilty of violating Subsection 493.319(1)(g), Florida Statutes (1989), and that he pay a $1,000 administrative fine within such a time period as is specified in the final order rendered in this matter. DONE and ENTERED this 29th day of November, 1990, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of November, 1990. COPIES FURNISHED: Henri C. Cawthon, Esquire Division of Licensing The Capitol, M.S. 4 Tallahassee, FL 32399-0250 Mr. Richard Vee Collier 2204 Alton Road Port Charlotte, FL 33952
The Issue The issue in this case is whether Petitioner, Charles M. Childers, is entitled to an award of attorney's fees and costs from Respondent, the Department of Environmental Protection, pursuant to Section 57.111, Florida Statutes (1997).
Findings Of Fact Petitioner, Charles M. Childers, has been at all time material to this proceeding a commercial shrimp fisherman in the State of Florida. Mr. Childers has held, and continues to hold, a Saltwater Products License (hereinafter referred to as the "License") issued by the State of Florida. Respondent, the Department of Environmental Protection (hereinafter referred to as the "Department") is an agency of the State of Florida. The Department is charged with the responsibility for, among other things, the administration of Chapter 370, Florida Statutes. On or about September 27, 1995, Mr. Childers, was cited for alleged violations of Article X, Section 16(b)(2), Florida Constitution. In particular, Mr. Childers was charged with using shrimp trawl nets greater in size than 500 square feet in the nearshore and inshore waters (within three nautical miles of the shore) of the State of Florida. On February 9, 1996, following a non-jury trial, the County Court for Franklin County, Florida, determined that Mr. Childers was guilty of a second degree misdemeanor as a result of the activities that gave rise to the September 27, 1995, citation. Adjudication of guilt was withheld by the County Court. Mr. Childers was required to pay $125.00 in court costs. By letter dated July 5, 1996, the Department notified Mr. Childers that it intended to suspend his 1996/1997 License for a period of ninety days. The Department gave the following reason for its proposed action: This suspension is based upon your failure to comply with Saltwater Fisheries statutes for a conviction of a violation of Section 16, Article X of the State Constitution. Specifically, this concerns your September 27, 1995 arrest and subsequent conviction of using a gill net in Florida waters. The Department's decision to suspend Mr. Childers' License was predicated upon the following provision of Section 370.092(8)(b), Florida Statutes (1995), which provided: (b) In addition to being subject to any other penalties provided in this chapter, any violation of s. 16, Art. X of the State Constitution or any rules of the Marine Fisheries Commission which implement the gear prohibitions and restrictions specified therein shall be considered a major violation; and any person, firm, or corporation convicted of such violation shall be subject to the following additional penalties: 1. For a first major violation within a 7-year period, suspension of the saltwater products license for 90 days. [Emphasis added]. The Department informed Mr. Childers of his right to contest the proposed suspension of his License by requesting administrative proceedings pursuant to Section 120.57, Florida Statutes. On July 11, 1996, Mr. Childers requested an informal hearing to contest the Department's proposed action. Mr. Childers argued that the Department's proposed suspension of his License was inappropriate because he had not been "convicted" of any offense for which the Department could suspend his license. On or about August 8, 1996, the office of the Department's General Counsel issued a Memorandum discussing the issue of whether Mr. Childers had been "convicted" within the meaning of Section 370.092(8)(b), Florida, Statutes (1995). General Counsel's office opined that the Florida Legislature's use of the word "convicted" in Section 370.092(8)(b), Florida Statutes (1995), was intended to mean: any disposition by the court in a criminal proceeding, other than dismissal, acquittal, or entry of a finding of not guilty. "Conviction" includes a disposition based on a guilty or nolo contendere plea that incorporates adjudication withheld [sic] as part of the disposition or the charges. On August 23, 1996, an informal administrative hearing was held by the Department. At the informal hearing, Mr. Childers admitted that he had violated Article X, Section 16(b)(2), Florida Constitution. Mr. Childers argued, however, that no suspension of his license should be imposed because he had not been "convicted" of such violation. On September 30, 1996, a Notice of Final Order was entered by the Department rejecting Mr. Childers' argument that he had not been "convicted" of any offense as required by Section 370.092(8)(b), Florida Statutes (1995), and suspending his License for ninety days. In entering its Notice of Final Order, the Department gave the following rationale for rejecting Mr. Childers' assertion that he had not been "convicted" of any violation for which his License could be suspended under Section 370.092(8)(b), Florida Statutes (1995): C. The withholding of adjudication of guilt fails to alter the clear and unequivocal sanctions imposed by Section 370.092(8)(b), Florida Statutes. Any person, firm or corporation "convicted" of violation Article X, Section 16(b)(1), Florida Constitution, shall be (emphasis added) subjected to additional administrative and civil penalties listed in Section 370.092(8)9b), Florida Statutes. The intended meaning of the term "convicted" used by the Legislature in Section 370.092(8)(b), Florida Statutes, is clear. In the context of 370.092(8)(b), Florida Statutes, the word "convicted" was selected by the Legislature to indicate a judicial determination of sanctionable behavior, not necessarily the final resolution of any and all criminal proceedings. Mr. Childers appealed the Department's Notice of Final Order to the District Court of Appeal, First District (hereinafter referred to as the "First District Court"). On July 16, 1997, the First District Court entered an opinion reversing the Department's Notice of Final Order. Childers v. Department of Environmental Protection, 696 So. 2d 962 (Fla. 1st DCA 1997). The First District Court concluded that Mr. Childers had not been "convicted" within the "unambiguous meaning," of Section 370.092, Florida Statutes (1995). On October 9, 1997, pursuant to the Mandate of the First District Court, the Department entered an Order adopting the decision of the First District Court and dismissing its complaint letter against Mr. Childers. On October 30, 1997, Mr. Childers filed an Application for Attorney's Fees seeking an award pursuant to Section 57.111, Florida Statutes (1997). At the time Mr. Childers was cited for the violations of Article X, Section 16(b)(2), Florida Constitution, Section 370.092(8)(b), Florida Statutes, required a "conviction" for the Department to take action against a license. This provision, however, had been amended during the 1996 Legislative Session by substituting for the word "convicted" the phrase "receiving any judicial disposition other than acquittal or dismissal." Chapter 96-300, Laws of Florida 1996. This amendment to Section 370.092(8)(b), Florida Statutes, was not effective until January 1, 1997. The First District described the following pertinent history concerning the amendment to Section 370.092(8)(b), Florida Statutes: The Natural Resources Committee of the House of Representatives produced a Final Bill Analysis dated May 16, 1996. Under the heading "Substantive Analysis," it addressed the "Present Situation," reporting that, within months of the passage of the 1995 laws implementing the net ban, "F[lorida]M[arine]P[atrol] officers began to realize there were loopholes in the law." Fla. HR Comm. on Nat. Res., CS for HB817 (1996) Final Staff Analysis (May 16, 1996)(on file with comm.) at 3. One of the "loopholes" identified was that "DEP has encountered certain circuit court judges who, more often than not, have adjudicated without guilt [sic] alleged net-ban violators." Id. In the "Section-By-Section Analysis," the effect of the amendment proposed to section 370.092, Florida Statutes (1995) was described: "Imposes penalties on people . . . who have received any judicial disposition other than acquittal or dismissal, rather than only on those entities which have been convicted of violating the constitutional net ban." Id. At 6 (emphasis supplied). . . . Childers at 965-966. The foregoing legislative history and the amendment to Section 370.092(8)(b), Florida Statutes (1995), were available prior to the date that the Department first proposed to suspend Mr. Childers' License. The Department should have been aware of the foregoing legislative history at all times pertinent to this case. In support of its actions in this matter, the Department has asserted that it had a reasonable basis in fact to suspend Mr. Childers' License because: Mr. Childers admitted that he violated Article X, Section 16(b)(2), Florida Constitution; The disposition sheet from the County Court indicated that the "verdict" was "guilty"; The General Counsel's Office of the Department had opined that the Department's action was appropriate; and The action of the Legislature in amending Section 370.092, Florida Statutes, made the Legislature's intent clear that licenses be suspended even if adjudication is withheld. The Department has asserted that it had a reasonable basis in law to take the action it took with regard to Mr. Childers because: The term "convicted" was not defined by Section 370.l092(8)(b), Florida Statutes (1995), any other provision in Chapter 370, Florida Statutes (1995), or the constitutional amendment it was intended to implement; and Where definitions of "convicted" are provided, whether in other statutes, the Florida Rules of Criminal Procedure, or in Florida appellate court decisions, the definitions conflict. Therefore, the Department was justified in following one line of authority which supported its action.
The Issue The issue for determination is whether Respondent should be suspended and dismissed from employment, as a Microsystems Technician, with Petitioner.
Findings Of Fact No dispute exists that, at all times material hereto, the School Board was a constitutional entity charged with the duty to operate, control and supervise the public schools within the school district of Miami-Dade County, Florida. In November 2001, Mr. Li was employed with the School Board as a Microsystems Technician. No dispute exists that, as a Microsystems Technician, Mr. Li is an educational support employee, and his employment is governed by the collective bargaining agreement between the School Board and AFSCME, hereinafter the AFSCME Contract. In April 2004, Mr. Li was assigned to two worksites, Cypress Creek Elementary School, hereinafter Cypress Creek, and Blue Lakes Elementary School, hereinafter Blue Lakes. At both schools, his responsibilities included installing computers, running the network, maintaining the software for the computers, and training students and teachers on how to use the software. At Cypress Creek, Mr. Li was assigned to work ten (10) days per month. He experienced problems with his attendance immediately at Cypress Creek, resulting in the principal, Faye Haynes, issuing an “Absence From Worksite Directive,” hereinafter AWS Directive, on May 27, 2004, to Mr. Li. The AWS Directive included, among other things, in detail his leave without pay, authorized (LWOA), and leave without pay, unauthorized (LWOU). Further, the AWS Directive advised Mr. Li, among other things, that his absence from his duties adversely impacted the educational and work environment; and directed him, among other things, to be in regular attendance at the school and on time, to report his intent to be absent directly to the principal or assistant principal, and to provide to the principal or assistant principal written documentation, by way of a written medical note from the treating physician, of absences for illness. Additionally, Mr. Li was advised that future absences would be considered LWOU unless and until the documentation was provided. Mr. Li signed the AWS Directive. However, his attendance failed to improve. A second AWS Directive was issued by Principal Haynes to Mr. Li on September 7, 2004, as a result of his being absent on September 2, 2004. Mr. Li signed the second AWS Directive on the same date. The second AWS Directive included the same matters of which he was previously advised and the same directives. Moreover, Mr. Li was advised that his non- compliance with the directives would be considered a violation of professional responsibilities or insubordination. Mr. Li’s absences failed to improve, and his absences adversely affected the worksite at Cypress Creek. Both teachers and students were suffering from the lack of timely computer- associated activities that were dependent upon Mr. Li timely performing his responsibilities. Mr. Li’s attendance was complicated even more on October 26, 2006. He was arrested for burglary, involving a vehicle, and battery. At the time of his arrest, Principal Haynes was not aware that the reason for Mr. Li’s immediate absence was that he was in jail; she was only aware that he had not reported to work at Cypress Creek. Mr. Li testified at hearing that, while he was in jail, he was given one (1) telephone call and that he called his wife. He explained to his wife what had happened and requested her to call Cypress Creek. Further, Mr. Li testified that his wife called Cypress Creek and indicated that he had been arrested. No testimony was presented contradicting the testimony that Mr. Li’s wife had contacted Cypress Creek. His testimony is found to be credible. On November 1, 2006, Principal Haynes issued and mailed to Mr. Li an Employment Intention Memorandum, hereinafter EI Memorandum. The EI Memorandum indicated, among other things, the dates of Mr. Li’s absences; that the absences were unauthorized and warranted dismissal on the grounds of job abandonment; that several options were available (indicating the options); and that an immediate response was requested to any of the options. Principal Haynes was concerned that Mr. Li was in danger of losing his job due to the number of unauthorized absences and, as a result, she included, as one of the options, a form requesting a leave of absence without pay. Mr. Li testified that he did not doubt that Principal Haynes was attempting to help him. On November 3, 2006, after serving ten (10) days, Mr. Li was released from jail. He had missed seven (7) consecutive workdays. Mr. Li reported to work at Blue Lakes, where he was also the Microsystems Technician. However, he was informed by the principal at Blue Lakes that he was required to report to Regional Center V, as an alternate location, a consequence of his arrest. Being at Regional Center V, Mr. Li was not able to perform any duties and responsibilities at either Cypress Creek or Blue Lakes. Regarding the EI Memorandum, Mr. Li testified at hearing that he received the EI Memorandum after he was released from jail, but did not complete the form requesting a leave of absence without pay because he was unsure as to whether he should complete and return it. He was not sure as to whether completing the form would benefit or harm him, so he did not complete it. His testimony is found to be credible. The evidence is clear and convincing that Mr. Li intentionally did not complete the form requesting a leave of absence without pay. Not having the services of Mr. Li adversely impacted Cypress Creek. Principal Haynes needed the computer services for her school, and, to provide the needed services, she was forced to hire another school employee, a Microsystems Technician, on an hourly basis to work in the evenings to perform Mr. Li’s responsibilities. In order to pay for the needed services being provided by another Microsystems Technician, Principal Haynes had to redirect funds from other programs. As a condition of his alternate placement, on November 3, 2006, Mr. Li executed a Terms and Conditions of Administrative Placement at Alternate Location, hereinafter Terms and Conditions, form. Included in the Terms and Conditions was a requirement that he report to his work assignment during his regular duty hours, which were 8:00 a.m. to 4:00 p.m. Monday through Friday; that he report his attendance by signing-in as directed; that, if he was to take leave due to illness or personal reasons, he must notify the person to whom he reports his attendance in the mornings, who was the administrative director, Melanie Fox, Ph.D., or, according to Dr. Fox, to an administrative secretary; and that he must complete and return work assignments in a timely manner. Mr. Li had attendance problems immediately at Regional Center V, and Dr. Fox advised and reminded him that he was able to apply for leave for a medical condition, if he had such a situation. Due to Mr. Li’s absences, while he was assigned to the Regional Center, on January 19, 2007, Dr. Fox issued him a second EI Memorandum, which was his second EI Memorandum in less than three months. The EI Memorandum indicated that Mr. Li was absent from his worksite 34 times, beginning with September 15, 2006, and ending with January 18, 2007. Furthermore, Dr. Fox indicated, among other things, in the EI Memorandum that the absences were unauthorized and warranted dismissal on grounds of abandonment; that he had four options to which she requested his immediate reply, including notifying her of his need for leave and his intended date of return, requesting leave or resigning, using the forms provided; that he had three days in which to reply; that his absences were considered unauthorized until he communicated directly with her; and that his failure to respond would result in termination due to abandonment. Included with the EI Memorandum, per the School Board’s policy, was a Request for Leave for Absence Without Pay form and a Letter of Resignation form, as options for Mr. Li. He did not complete either form. To determine whether Mr. Li’s absences were authorized or unauthorized, Dr. Fox was guided by the terms of the AFSCME Contract. No dispute exists that the AFSCME Contract was applicable and controlling. Dr. Fox determined that, according to the AFSCME Contract, after the covered employee’s sick leave is expended, any subsequent absence becomes unauthorized unless the employee provides a note from an attending physician. As a result, Mr. Li had expended his sick leave and, therefore, his absences were leave without pay, unauthorized, but, when he provided notes from an attending physician, the absences were changed in the payroll reporting system to leave without pay, authorized. Mr. Li returned to work. However, his absences did not cease. As to Mr. Li’s arrest for burglary, involving a vehicle, and battery, on March 6, 2007, he pled nolo contendere to battery; adjudication was withheld; and his sentence included one-year probation, performing community service, and participating in an anger management program. Mr. Li testified at hearing that no burglary was involved, only a fight. His testimony is found to be credible. On May 16, 2007, a conference-for-the-record, hereinafter CFR, was held to address Mr. Li’s attendance problems; violation of School Board Rule 6Gx13-4E1.01, Absences and Leaves; abandonment of position; insubordination; a review of his record; and his future employment status with the School Board. He did not attend the CFR due to being ill, i.e., passing kidney stones and experiencing great pain. A written Summary of the CFR was prepared, and Mr. Li was provided a copy of it. He does not deny that he received a copy of the Summary of the CFR. Included in the Summary of the CFR were Mr. Li’s absences for the 2005-2006 school year and from July 1, 2006 through May 3, 2007. For the 2005-2006 school year, he was absent six (6) sick days, six (6) personal days, nine (9) days LWOA, and one (1) day LWOU, totaling 22 days, excluding vacation days. From July 1, 2006 through May 3, 2007, he was absent two (2) sick days, three (3) personal days, 68 days LWOU, and 37 days LWOA, totaling 110 days, excluding vacation days. A copy of School Board Rules 6Gx13-4E1.01, Absences and Leaves, and 6Gx13-4A-1.21, Responsibilities and Duties, were attached to the Summary of the CFR. Also, included in the Summary of the CFR were directives to Mr. Li concerning his absences, which was his third time he was being issued directives. The directives included being in regular attendance and on time at the worksite; communicating directly with Dr. Fox when he intended to be absent; documenting absences for illness through a written medical note from his treating physicians presented to Dr. Fox upon his return to the worksite, with a failure to do so resulting in the absences being recorded as LWOU; and adhering to School Board rules, in particular 6Gx13-4E-1.01, Absences and Leaves, and 6Gx13-4A-1.21, Responsibilities and Duties. Furthermore, in the Summary of the CFR, Mr. Li was advised, among other things, that the number of absences were deemed excessive; that his absence from work had adversely impacted the educational program and the effective operation of the work unit; that, if he had attended, he would have been provided an opportunity to respond with reasons for his excessive unauthorized absences and insubordination; that noncompliance with the directives would necessitate a review by the Office of Professional Standards, hereinafter OPS; and that a legal review by the School Board attorneys might result in recommended action or disciplinary measures, including dismissal. Even after receiving the Summary of the CFR, Mr. Li’s problem with absences continued. As of June 13, 2007, he accumulated an additional 29 unauthorized absences. Subsequent to the CFR, Principal Haynes recommended the termination of Mr. Li because she determined that she could not depend upon him and that she needed a dependable Microsystems Technician at Cypress Creek. The Regional Superintendent for Region Center V concurred in her recommendation. OPS concurred in the recommendation because it considered Mr. Li’s conduct to violate the AFSCME Contract and the School Board’s rules regarding Responsibilities and Duties, Code of Ethics, and Absences and Leaves. As to the unauthorized absences, Mr. Li’s deposition was taken by the School Board, and, during the deposition, he presented documents purporting to excuse some of the unauthorized absences. Further, at hearing, he presented additional such documents. Mr. Li testified that his personnel file should have contained all of the documents that he had presented; that he requested his physicians to provide the documents to Cypress Creek; that his physicians informed him that they were not required to indicate the specific nature of the illness for which they were treating him but required only to indicate that they were treating him on the dates indicated; and that his physicians forwarded the documents to Cypress Creek, some by fax. The School Board agreed to accept the documents as demonstrating that the absences indicated on the documents should be excused and changed to authorized absences. Even with the changing of the documented absences from unauthorized to authorized, the School Board asserts that the total number of unauthorized absences is 74. The 74 unauthorized absences include 12 days that Mr. Li was in jail and appeared in court, which were brought to the attention of the School Board by Mr. Li. No dispute exists that Mr. Li had exhausted all of his sick and personal leave. Mr. Li does not contest that the total number of unauthorized absences is 74. The evidence demonstrates that Mr. Li had 74 unauthorized absences. However, at hearing, Mr. Li testified that he wants the reason known as to the medical reason for his absence from the worksite. He testified that the reason for the unauthorized absences, excluding the aforementioned 12 days, was that he was suffering from depression, which caused his immune system to weaken, which lead to other health problems, such as being susceptible to viruses and infections. Also, he testified that he was being seen by a psychiatrist. Furthermore, Mr. Li testified that, prior to his arrest, he was participating in the Employee Assistance Program, hereinafter EAP, due to his depression, and was being seen by a counselor; and that he continued in the EAP until his termination. Additionally, Mr. Li testified that he failed to complete the Request for Leave of Absence Without Pay form provided by Dr. Fox on January 19, 2007, because he was unsure as what might happen if he completed it since Dr. Fox had indicated to him that she did not believe that he was ill. Moreover, Mr. Li testified that he was not attempting to dispute the 74 unauthorized absences and to have the unauthorized absences changed to authorized absences, but that he was attempting to demonstrate that he was not a “bad person,” that he was not faking his illness, that the absences were not on purpose, and that he was not insubordinate. The undersigned finds Mr. Li’s testimony to be credible. The undersigned provided Mr. Li with the opportunity to continue the hearing in order for him to have his psychiatrist and counselor testify in this matter; however, Mr. Li decided not to take advantage of a continuance but to proceed with the hearing without the psychiatrist and counselor as witnesses. Even though the undersigned finds Mr. Li’s testimony regarding his depression credible, in particular, as to the effect of his depression on his physical well-being, and even though depression undoubtedly affects one’s mental well- being, including one’s thinking process, no testimony was presented as to what extent Mr. Li’s depression affected his thinking process. The evidence demonstrates that Mr. Li was physically ill during the absences, except for the 12 absences he was in jail and appeared in court. The evidence demonstrates that Mr. Li was not in regular attendance and on time at his worksite. As to the unauthorized absences, the evidence demonstrates that Mr. Li failed to provide documentation, regarding his illness, through the production of written medical notes from his treating physicians. The evidence demonstrates that Mr. Li failed to communicate his unauthorized absences to Principal Hayes or Dr. Fox and that he intentionally failed to communicate his unauthorized absences to them. The evidence fails to demonstrate that Mr. Li refused to request a leave of absence. The evidence demonstrates that he did not request a leave of absence because he was unsure as to whether such a request would benefit or harm him, especially when Dr. Fox informed him that she did not believe that he was ill, but at the same time, providing him with the request. An inference is drawn and a finding of fact is made that Mr. Li’s failure to request a leave of absence was reasonable.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Miami-Dade County School Board enter a final order suspending and dismissing Jorge Li from employment with it. DONE AND ENTERED this 15th day of January 2008, in Tallahassee, Leon County, Florida. S ERROL H. POWELL 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 15th day of January, 2008. COPIES FURNISHED: Janeen L. Richard, Esquire Miami-Dade County School Board 1450 Northeast Second Avenue, Suite 400 Miami, Florida 33132 Jorge Li 11458 Southwest 109th Road, Apt. X Miami, Florida 33176 Dr. Rudolph F. Crew, Superintendent Miami-Dade County School District 1450 Northeast Second Avenue, No. 912 Miami, Florida 33132-1394 Dr. Eric J. Smith, Commissioner Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Deborah K. Kearney, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400
