The Issue The issue for determination in this case is whether Petitioner is entitled to a Captive Wildlife Game Farm License from the Florida Fish and Wildlife Conservation Commission (“FWC”).
Findings Of Fact The Parties Petitioner, Carla SantAngelo, is a natural person who resides at 5260 Bluff Hammock Road, Lorida, Highlands County, Florida. FWC was created pursuant to Article IV, section 9 of the Florida Constitution, to “exercise the regulatory and executive powers of the state with respect to wild animal life and fresh water aquatic life.” FWC has exclusive jurisdiction to regulate the possession, sale, and display of captive wildlife in Florida. The Application Petitioner’s application lists the location of the proposed game farm as 5260 Bluff Hammock Road, Lorida, which is also her residential address. Petitioner proposed to rear, possess, exhibit, and sell fallow deer, sika deer, axis deer and blackbuck antelope, all of which are designated by the FWC as Class II Wildlife. Florida Administrative Code Rule 68A-6.0022(5) establishes the criteria for obtaining a permit to possess Class II wildlife. It provides in pertinent part: Age Requirement: Applicants to possess Class I or Class II wildlife shall be at least 18 years of age. Applicants shall not have been convicted of any violation of captive wildlife regulations or venomous reptile or reptile of concern regulations involving unsafe housing of wildlife or that could potentially endanger the public; any violation involving the illegal commercialization of wildlife; any violation involving cruelty to animals; or any violation involving importation of wildlife within three (3) years of the date of application. * * * (d) Experience and examination requirements for Class II permits: 1. Applicants may qualify for a permit for Class II wildlife by documenting one year of experience (to consist of no less than 1000 hours) as defined in subparagraphs 68A- 6.0022(5)(c)1.-4., F.A.C. It was stipulated by the parties that Petitioner satisfied the requirements in rule 68A-6.0022(5). In its letter of denial, the reason given by FWC for denying Petitioner’s application was “FWC has reason to believe you were operating the illegal game farm with your husband.” Petitioner’s husband, Daniel SantAngelo, is the president of Okeechobee Outfitters. He was charged and convicted of operating a game farm at 5260 Bluff Hammock Road without a license. The date of his conviction is not in the record, but is likely sometime in 2015. Okeechobee Outfitters was not charged or convicted of operating a game farm without a license. Petitioner was formerly the vice president, director, secretary, and treasurer of Okeechobee Outfitters. Her corporate functions included disbursing checks on behalf of the corporation, acting as secretary, cooking, answering phone calls, answering e-mails, cleaning, paying electric bills, and booking hunts. FWC asserted that Petitioner’s position and activities with the corporation were tantamount to her personal possession of Class II wildlife without a permit. Daniel SantAngelo owns the property located at 5260 Bluff Hammock Road. Okeechobee Outfitters owns property at 5229 Bluff Hammock Road, Highlands County, Florida, and a site located at Brighton Seminole Indian Reservation, Okeechobee County, Florida. Petitioner has no ownership interest in any property owned by Okeechobee Outfitters. Petitioner is not a shareholder of Okeechobee Outfitters.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Florida Fish and Wildlife Conservation Commission issue the Captive Wildlife Game Farm License to Petitioner. DONE AND ENTERED this 30th day of June, 2016, in Tallahassee, Leon County, Florida. S BRAM D. E. CANTER 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 30th day of June, 2016. COPIES FURNISHED: Raymond M. Masciarella II, Esquire Raymond Masciarella II, P.A. Summit Building, Suite 340 840 U.S. Highway 1 North Palm Beach, Florida 33408 (eServed) Tracey Scott Hartman, Esquire Florida Fish and Wildlife Conservation Commission 620 South Meridian Street Tallahassee, Florida 32399-1600 (eServed) Eugene Nichols “Nick” Wiley II, Executive Director Florida Fish and Wildlife Conservation Commission 620 South Meridian Street Tallahassee, Florida 32399-1600 (eServed) Harold G. “Bud” Vielhauer, General Counsel Florida Fish and Wildlife Conservation Commission 620 South Meridian Street Tallahassee, Florida 32399-1600 (eServed)
Findings Of Fact Rex Oil Company of Florida, through its lessee, operates Rex Service Station No. 51 at 700 West Church Street, Orlando, Florida. Rex Oil Company has agreed to accept responsibility for the selling of any mislabeled gasoline as might be determined in this proceeding. The service station has been operating for approximately seventeen years. Rex Oil Company of Florida has not previously been found guilty of selling any mislabeled gasoline. On or about August 10, 1981, one of the Department's petroleum inspectors performed a routine inspection of Rex Service Station No. 51. The inspector took appropriate samples of gasoline that was being offered for sale at the station. The samples were numbered and forwarded to the Department's laboratory in Tallahassee. One of the samples taken was of gasoline being offered at the station as "Rex Premium." The pump from which the premium gasoline was dispensed had the required notice on it identifying the gasoline as having an anti-knock index or octane rating of 93.0. Rex Oil Company had filed the appropriate application of registration of gasoline with the Department on June 14, 1978, designating its "Rex Premium" as having an anti-knock index or octane rating of 93.0. Personnel at the Department's laboratory performed appropriate tests on the samples taken from Rex Service Station No. 51 and determined that the anti- knock index of the "Rex Premium" gasoline was 90.6, which is well below the posted and registered rating of the gasoline. The Department promptly issued a "stop-sale" notice. Rex Oil Company posted a $1,000 bond with the Department so that the gasoline could be dispensed after the proper anti-knock index was posted on the pump. Rex Oil Company then posted its gasoline as having an anti- knock index of 91.0, and registered its gasoline in that manner with the Department on August 20, 1981. Premium gasoline was being dispensed at Rex Service Station No. 51 with an octane rating of lower than the posted and registered rating since approximately 1978. It appears that the gasoline was improperly posted and registered during a time when gasoline supplies were low and confusion was common in the industry. Furthermore, the President of Rex Oil Company was ill at the time that the gasoline was improperly posted and registered. The company's President has typically been responsible for maintaining appropriate registrations, and his absence caused additional confusion within the company. It is apparent that the mislabeling and misrepresentation was not done with the intention of defrauding any customers, but the gasoline was dispensed for a considerable period of time in such a manner that customers could have been misled as to the quality of the product that they were purchasing.
The Issue The purpose of this hearing is to determine whether Permit No. LSNR-15-00004, for the removal of inactive burrowing owl nests, should be issued as proposed by the Florida Fish and Wildlife Conservation Commission (Commission).
Findings Of Fact Petitioner, Lise Bauman was, at all times pertinent to this proceeding, a resident of Marco Island. She is employed in the tourism industry as a bartender on a dinner cruise boat. Respondent Marco River Marina/Rose Marina, owns and operates a marina on Marco Island, Florida, which includes a dry-storage boat facility. The marina is located at 951 Bald Eagle Drive, Marco Island, Florida. A vacant lot at 865 Magnolia Court, Marco Island, Florida, is contiguous to the marina. Both parcels are under common ownership. The Florida Fish and Wildlife Conservation Commission is an agency of the state, created pursuant to Article IV, section 9 of the Florida Constitution, to “exercise the regulatory and executive powers of the state with respect to wild animal life and fresh water aquatic life.” The burrowing owl (Athene cunicularia) has been designated by the Commission as a species of special concern. The burrowing owl is not a federally-designated endangered or threatened species. Burrowing owls are, as their name implies, ground- nesting owls that excavate burrows in open, vacant areas. Burrows can extend up to eight feet in length. Most burrows have a single entrance/exit. Burrowing owls range throughout all 67 Florida counties. Their numbers have dwindled in the Panhandle and North Central Florida regions, and their population remains heaviest in South Florida. On Marco Island, rights-of-way, parks, and vacant lots provide habitat for nesting owls. As vacant lots are constructed upon, habitat options on Marco Island are reduced. Nonetheless, despite significant construction and development on Marco Island over the past 15 years, active owl burrows on Marco Island have increased in number during that period from roughly 30 to between 100 and 150. The increase is largely the result of compliance with Commission conservation rules, education of property owners and developers, and identification and marking of burrow sites to protect from inadvertent destruction. Burrowing owls are quick to relocate if their burrows are disturbed or become unsuitable. If there are suitable nesting sites nearby -- generally any open, treeless area with well-drained soils -- burrowing owls will not hesitate to move and construct new burrows. The normal breeding season for burrowing owls in the area runs from February 15 through July 10, although weather and other conditions may result in breeding before or after the normal season. However, Ms. Richie, who had surveyed burrowing owl sites on Marco Island for the previous 15 years, never observed owl chicks or fledglings in the months of December or January. In order to give burrowing owls that are displaced as the result of a “take” permit time to relocate, permitting is typically done before breeding season starts. Nonetheless, the Commission typically requires applicants to provide a report from an environmental consultant to confirm the status of burrows on a parcel slated for development. If the report reveals that burrows contain active nests, the proposed activities will not be permitted. The parcel at 865 Magnolia Court was, at the time the Permit application was filed, an undeveloped grass lot. It was mowed regularly, and had no mid-story vegetation. The soil on the property is regarded as disturbed or urban soil. Burrowing owls were present at 865 Magnolia Court for the last nine years. The lot had two burrowing owl burrow areas which had been individually marked by placing PVC pipes at the corners, with nylon cords to “enclose” each protected area. Each of the marked areas contained two burrows in close proximity. Thus, although there were two defined areas, there were four individual burrows. Rose Marina is engaged in a marina renovation project, part of which involves the reconstruction of its dry-storage building at 951 Bald Eagle Drive. During the period of renovation, boats stored in the dry-storage building will have to be temporarily stored at a different location. In order for Rose Marina to maintain its customers and earn income to remain in business, the boats must be stored on its property, rather than sent to other facilities or locations. It was determined that the most appropriate place for the temporary boat storage was the contiguous lot at 865 Magnolia Court. Prior to making application for the Permit, Mr. High contacted Ms. Richie to discuss the owl burrows on the 865 Magnolia Court lot. Ms. Richie was familiar with the burrows on the property, having originally marked them nine years previously. She is well aware of the physical features and animal behaviors that are indicative of an active nesting burrow. As part of their initial discussion, Mr. High and Ms. Richie discussed the possibility of altering the proposed boat storage area to avoid the burrows. However, due to the massive nature of the project and the location of the burrows in the center of the property, avoidance was determined to be impractical. Ms. Richie inspected the property on November 5, 2014, to assess whether the burrows were active or inactive. She knew from her regular monitoring of the property that the burrows had not been used for nesting during the 2013 and 2014 breeding seasons. At the time of Ms. Richie’s inspection, the burrow areas were inhabited by a single adult owl. The owl exhibited no breeding behavior. Male owls will “decorate” the mound of a burrow with feathers, vegetation, bits of trash, and other materials designed to attract the attention of females interested in courtship, and offer some degree of camouflage for an active nesting burrow. The single owl on the property had not decorated the burrows to suggest that they were active. When nests are active, male owls will spread their wings and offer vocal protestations if approached. The owl at 865 Magnolia Court exhibited no such behavior. Paired owls usually sit together. Even if a female owl is on a nest in an active burrow, she will frequently peek out to see what is occurring. Ms. Richie saw no evidence of another owl at the burrow areas. As a result of her inspection, Ms. Richie provided Rose Marine with a short report, which included her conclusion that “this burrow, under State definitions is considered ‘inactive.’” The on-line application for the Permit was submitted on November 6, 2014. The application identified the applicant as Marco River Marina. The project address was given as 951 Bald Eagle Drive, Marco Island, Florida, which is that of the marina itself. However, the application provided the project’s township/section/range, latitude and longitude coordinates, and Collier County parcel ID number. Those identifying numbers describe the parcel at 865 Magnolia Court. Given the fact that 951 Bald Eagle Drive and 865 Magnolia Court are contiguous lots, many, including Ms. Richie, regard them as a single parcel and refer to them collectively as Rose Marina. The application for the Permit included a ground-level photograph of the property, and an aerial photograph of the property with depictions of the burrow areas to be affected and the proposed gravel path designed to serve the boat storage area. Furthermore, Ms. Richie’s report was clear as to location of the burrow areas proposed for removal. Thus, the Commission understood which parcel was the subject of the authorization. Although the application incorrectly gave the project street address as 951 Bald Eagle Drive, instead of 865 Magnolia Court, there was no evidence that anyone was confused as to the location of the burrows to be affected. Thus, the street address error in the Permit is of no substantive effect and does not form a basis for denial. The property contained two marked and staked owl burrow areas, each of which contained two burrows. Nonetheless, the Permit authorized the destruction of the “[t]wo (2) inactive burrowing owl nest burrow(s).” The on-line application form has no field for identifying the number of burrows, but required only information as to the number of adult birds, eggs, and flightless chicks. Rose Marina’s information as to those application fields was accurate. The application included a map which depicted the burrow areas in the correct location. Having a single reference point is not uncommon for burrow areas with more than one burrow. In that regard, when mapping burrows for the City of Marco Island, Ms. Richie would “just put one dot for one burrow area.” The application included a high-quality color photograph of the two marked and staked burrow areas, and a marked aerial photograph of the parcel that accurately depicted the areas. Ms. Richie’s report noted the existence of four individual burrows, only two of which she described as well maintained. The error in the Permit as to the number of burrows appears to be one of a misunderstanding of the distinction between the burrows and the burrow areas. There was clearly no intent to mislead the Commission or anyone else as to the number of burrows on the property. Given that all of the burrows were inactive, whether the number of affected burrows was two or four would not have made a difference in the Commission’s decision to issue the Permit. Thus, the error in the Permit as to the number of burrows is of no substantive effect and does not form a basis for denial. The Permit described the inactive burrow destruction as being done in association with “seawall renovations,” rather than for a gravel path and boat storage. The error was a scrivener’s error on the part of the Commission. The application and supporting documentation, including the aerial photograph and emails from Mr. High to the Commission’s protected species permitting office, clearly described the project as a temporary boat storage lot. Upon becoming aware of the scrivener’s error, and weeks before the filing of the petition, Ms. Williams struck the term “seawall renovations,” and re-issued the Permit with the following errata: “FWC oversight; approved activity was construction of gravel walkway for temporary storage of boats. Angela Williams 2/17/2015.” The error had no effect on the issuance of the Permit. Thus, the error in the uncorrected Permit as to the nature of the project is of no substantive effect, and does not form a basis for denial. Ms. Richie monitored the 865 Magnolia Court burrows on a weekly basis from her November 2014, inspection through January 2015. She observed no physical or behavioral evidence of active nesting, saw nothing to suggest that the burrows contained eggs or flightless young, and was confident that only a single adult owl inhabited the two burrow areas. As a result, she concluded that the burrows remained inactive up through the date of their destruction. Her testimony was persuasive, and is credited. The Permit was issued and became effective on January 9, 2015. The destruction of the burrows was done on January 15 and 16, 2015. The act was accomplished by means of a hand shovel. Mr. High indicated that the excavation was done slowly and carefully so as to minimize the risk if an owl was in any of the burrows. No owls, nests, or eggs were encountered in the burrows. Rose Marina personnel fashioned a wooden rod with a cloth duct-taped to the end to probe the burrow before digging down with a shovel, and to flush owls away from the site while the excavation was ongoing. That method was determined to limit the potential for injury to any owls. No owls were encountered in the burrows. At no time during the process of excavation did an owl retreat into a burrow. Thus, there was no need to insert a burrow scope or flexible tubing into the burrow to flush an owl from the burrow. After the completion of the burrow removal, a fence was constructed around the perimeter of the area used to store boats, and the gravel driveway through the middle of the area was put in. The gravel driveway covers the area previously occupied by the burrows. At the conclusion of the marina renovation activities, the lot at 865 Magnolia Court will be restored to its previous condition. The preponderance of the competent, substantial evidence presented at the hearing provides reasonable assurance that the activities authorized by the Permit will have no impact on the owl that was present at the burrow areas in November 2014, and will not be detrimental to the survival potential of the species. Petitioner observed the permitted activity at some unspecified time after its commencement. On February 9, 2015, after having made a request for public records, Petitioner received a copy of the Permit. The Permit included a notice of rights which provided, among other information, that “[a] person seeking a hearing on FWC’s action shall file a petition for hearing with the agency within 21 days of receipt of written notice of the decision.” Petitioner’s petition was dated March 1, 2015. The date of its receipt by the Commission is unknown, since it bears no form of date-stamp or acknowledgement, nor is there competent, substantial, non- hearsay evidence in the record to establish the date of receipt. Being employed in the tourism industry, Petitioner understands that tourists enjoy seeing and photographing burrowing owls, which enhances Marco Island’s reputation as a desirable destination. Petitioner’s interest in the burrowing owls is related to her desire to ensure that tourists continue to come to Marco Island, thus sustaining her livelihood. Petitioner expressed no more than a general “interest in wildlife,” and engaged in no activities designed to protect or perpetuate the burrowing owl species. Petitioner raised issues regarding approval by the City of Marco Island of a temporary-use permit for Rose Marina to use the vacant lot at 865 Magnolia Court for boat storage. There was no dispute that the City approved the temporary-use permit, with the dispute being whether the burrow removal under the Commission Permit was done prior to the City’s approval of 865 Magnolia Court as a boat storage area. Approval by the City is not a condition for issuance of the Permit and is not before the undersigned for disposition. Thus, the City of Marco Island temporary-use permit is not relevant to this proceeding.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED that the Florida Fish and Wildlife Conservation Commission enter a final order approving the issuance of Permit No. LSNR-15-00004 to Respondent, Marco River Marina/Rose Marina. DONE AND ENTERED this 16th day of October, 2015, in Tallahassee, Leon County, Florida. S E. GARY EARLY 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 16th day of October, 2015. COPIES FURNISHED: Ryan Smith Osborne, Esquire Florida Fish and Wildlife Conservation Commission 620 South Meridian Street Tallahassee, Florida 32399-1600 (eServed) Lise Jay Bauman Unit V-8 167 North Collier Boulevard Marco Island, Florida 34145 (eServed) Daniel High 951 Bald Eagle Drive Marco Island, Florida 34145 Eugene Wiley II, Executive Director Florida Fish and Wildlife Conservation Commission Farris Bryant Building 620 South Meridian Street Tallahassee, Florida 32399-1600 (eServed) Harold G. Vielhauer, General Counsel Florida Fish and Wildlife Conservation Commission Bryant Building 620 South Meridian Street Tallahassee, Florida 32399-1050 (eServed)
The Issue The issue for disposition in this case is whether proposed Florida Administrative Code Rule 61D-6.0052 (Proposed Rule) is an invalid exercise of delegated legislative authority as defined in section 120.52(8), Florida Statutes.
Findings Of Fact Petitioner is a Florida for-profit corporation operating at the Palm Beach Kennel Club (PBKC) in West Palm Beach, Florida. Petitioner’s members are owners of greyhounds that are raced at the PBKC. Of the 12 greyhound kennels that operate at PBKC, nine are current members of Petitioner. Petitioner’s members each hold licenses issued by the Division pursuant to chapter 550, Florida Statutes. Some of the PBKC kennel owners are themselves licensed greyhound trainers, and some employ licensed trainers. Petitioner’s Articles of Incorporation establish its purposes as including the promotion of “the welfare and care of greyhounds, . . . including, but not limited to, . . . promoting fair regulatory treatment of the greyhound industry.” The Division is the state agency charged with regulating pari-mutuel wagering activities in Florida pursuant to chapter 550. The Proposed Rule The full text of the Proposed Rule is as follows: 61D-6.0052 Procedures for Collecting Samples from Racing Greyhounds Designating Greyhounds for Sampling: Any greyhound the judges, division, track veterinarian, or authorized division representatives designate, shall be sent immediately prior to the race to the detention enclosure for examination by an authorized representative of the division for the taking of urine and/or other such samples as shall be directed for the monitoring and detection of both permissible and impermissible substances. When possible, a sample should be collected from two (2) greyhounds per race. When possible, greyhounds from more than one participating kennel should be sampled per performance. Additional greyhounds may also be sampled if designated by the judges, division, track veterinarian, or authorized division representatives. Collection of Samples: Urine and/or other samples shall be collected by an authorized representative of the division in an unused sample container supplied by the division, or its agent. Authorized representatives of the division shall wear unused gloves supplied by the division, or its agent, during sample collection until the sample container is sealed with its lid. Authorized representatives of the division shall use a sample card with a unique identifier to record the date of sample collection and the identification tattoo, microchip or name of the greyhound sampled or attempted to be sampled. The owner, trainer of record, or other authorized person is permitted to witness when the sample is collected from their greyhound. Failure of an owner, trainer of record or other authorized person to witness and/or sign the sample card shall not preclude the division from proceeding with sample analysis. Sealing and Labeling of Samples: As soon as possible after a sample is collected, the sample container shall be sealed with its lid. The sample container shall be labeled with the sample card’s unique identifier. Evidence tape shall be placed over both the sample container and lid on at least two sides. The authorized representative of the division that sealed the sample container shall initial the evidence tape on the sample container. Storing and Shipping of Samples: The samples shall be stored in a lockable freezer or container in a restricted area accessible by only authorized representatives of the division until the time of shipment. Upon the completion of packing the samples for shipment, the shipping container shall be locked. All appropriate forms for shipment shall be completed and included with the shipment to ensure correct delivery and identification of the contents. The samples shall be shipped to the laboratory under contract with the division for testing of the samples via the laboratory’s contracted common carrier. Authority of the Division: The division investigator or other authorized representative is authorized to confiscate any legend or proprietary drugs, medications, unlabeled medication, medication with altered labels, medicinal compounds (natural or synthetic) or other materials which are found on the grounds of greyhound race tracks and kennel compounds or in the possession of any person participating in or connected with greyhound racing, including veterinarians and trainers, and which are suspected of containing improper legend or proprietary drugs, medications, medicinal compounds (natural or synthetic) or other materials which are illegal or impermissible under these rules. Such legend or proprietary drugs, medications, unlabeled medication, medication with altered labels, medicinal compounds (natural or synthetic) or other materials shall be delivered to the laboratory under contract with the division for analysis. The division is authorized to confiscate any evidence that an illegal or impermissible legend or proprietary drug, medication, or medicinal compound (natural or synthetic) may have been administered to a racing animal. It is a violation of these rules for a licensee to threaten to interfere, actually interfere or prevent the taking of urine, blood, saliva or other samples authorized by Chapter 550, F.S. For such a violation, the division may impose any disciplinary penalties authorized by Chapter 550, F.S., or the rules promulgated thereunder. Rulemaking Authority 120.80(4)(a), 550.0251(3), 550.2415(12), (13) FS. Law Implemented 120.80(4)(a), 550.0251, 550.1155, 550.2415 FS. History–New . Issues for Disposition Section 120.56(2)(a) provides that “the agency has the burden to prove by a preponderance of the evidence that the proposed rule is not an invalid exercise of delegated legislative authority as to the objections raised.” The “objections raised” as identified in the Joint Pre- hearing Stipulation are those that remain for disposition in this proceeding, with issues not preserved having been waived. See Palm Beach Polo Holdings, Inc. v. Broward Marine, Inc., 174 So. 3d 1037 (Fla. 4th DCA 2015). As set forth in the recitation of “Petitioner’s Position,” the following issues are at issue: The proposed rule refers to urine and/or other samples in its text, yet only contains procedures for urine collection; The proposed rule fails to adequately detail necessary chain of custody procedures for sampling racing greyhounds; The proposed rule ignores basic scientific principles as to contamination; The proposed rule ignores basic scientific principles as to the timing of sampling; The proposed rule ignores basic scientific principles as to the temperature of a sample; The proposed rule fails to provide trainers and owners of an opportunity to witness their greyhounds' sampling; The proposed rule grants too much discretion to Respondent; Respondent failed to follow the applicable rulemaking procedures set forth in chapter 120; The proposed rule does not limit its application to urine; Stipulated Facts The following facts were stipulated by the parties: It is possible that a racing greyhound could become exposed to environmental substances during the time between the trainer relinquishing it at the track and the sampling. The reason that racing greyhounds are tattooed is for identification purposes. It is important to prevent contamination of a racing greyhound's sample. It is important to preserve the integrity of a racing greyhound's sample. The Proposed Rule does not require racing greyhound samples to be stored frozen. However, subsection (4)(a) of the Proposed Rule requires that the samples are stored in a lockable freezer or container. The Proposed Rule does not require that the racing greyhound samples be kept refrigerated. However, subsection (4)(a) of the Proposed Rule requires that samples be stored in a lockable freezer or container. The Proposed Rule does not contain any provisions for the drawing of blood, "other specimens," or other fluids from the racing greyhound. The Proposed Rule does not describe how all the individuals involved in the chain of custody of a racing greyhound sample record their involvement. The Proposed Rule contains a section entitled "Sealing and Labeling of Samples." The Proposed Rule does not describe the chain of custody for the taking of "other specimens" from the racing greyhound. The Proposed Rule does not describe the chain of custody procedures associated with materials confiscated under paragraph five of the Proposed Rule. Respondent published its Notice of Development of Rulemaking for Proposed Rule 61D-6.0052, F.A.C. (Notice of Development), on January 22, 2018. Respondent published its Notice of Proposed Rule 61D- 6.0052, F.A.C. (Notice of Proposed Rule), on January 29, 2018. Respondent's Notice of Proposed Rule 61D-6.0052, F.A.C., indicated it was approved by the agency head, Jonathan Zachem, on January 26, 2018, a mere [four] days after publication of Respondent's Notice of Development of Rulemaking for Proposed Rule 61D-6.0052, F.A.C. On February 6, 2018, a rule development workshop was requested for Proposed Rule 61D-6.0052, F.A.C. Respondent did not hold a rule development workshop for Proposed Rule 61D-6.0052, F.A.C. Respondent did not provide an explanation in writing as to why a workshop was unnecessary for Proposed Rule 61D-6.0052, F.A.C., other than Bryan A. Barber's letter of February 13, 2018. Facts Adduced at Hearing The purpose and effect of the Notice of Development was “to further clarify and describe the procedures performed by the Division in collecting samples from greyhounds and to create a rule specific to the greyhound sample collection. The Notice of Proposed Rule did not contain a statement of estimated regulatory costs imposed on small businesses. On February 6, 2018, Petitioner, through its representative, sent a letter to the Division requesting a rule development workshop. On February 13, 2018, the Division noted that the “rule development phase” ended with the publication of the Notice of Proposed Rule, and the request for a workshop was, therefore, untimely. There is no evidence that anyone provided the Division with information regarding a statement of estimated regulatory costs, or provided the Division with a proposal for a lower cost regulatory alternative. No one requested that a public hearing be held on the Proposed Rule. Racing greyhounds are delivered to the track by their owners or trainers prior to the commencement of their race card. Greyhounds racing during the matinee card are delivered at one time, and greyhounds racing during the evening card are delivered at a later time. The greyhounds are all weighed in about 60 to 90 minutes prior to the first race, regardless of the race in which a particular greyhound is scheduled to appear. After weigh-in, the greyhounds are handed over to the “lead-outs,” who are track employees, and taken to the ginny pit. Each greyhound is then placed in a numbered cage designating its race and position, and held there until its race is scheduled to commence. From the time an animal is given over to the lead-outs until its race is over, they are out of the control and sight of the owners and trainers. For greyhounds racing in the last race of a card, that period can be well in excess of four hours. Prior to each race, the race judge, Division, track veterinarian, or “authorized division representative” designates the greyhounds to be tested for that race. The process was not described, other than as described in the rule that “[w]hen possible, a sample should be collected from two (2) greyhounds per race. When possible, greyhounds from more than one participating kennel should be sampled per performance.” Mr. Ehrhardt testified that “ideally it’s blind and that you just pick one at random,” and that dogs from separate kennels be selected “to ensure that no one is singled out.” However, the Proposed Rule contains no criteria for the selection of an animal other than its being in the race. Even a requirement that the selection be random, and a mandatory selection of different kennels be made “when possible,” is sufficient to preclude an unfettered exercise of discretion in the selection of the greyhound. As it is, the selection of both dogs and kennels is completely within the discretion of the Division. Upon selection, the greyhounds are led to an open area to relieve themselves. At the Orange Park Kennel Club, the area is a restricted access grass and sand area surrounded by a chain link fence. There was no evidence as to other tracks, but there is little to suggest that the areas at other tracks are dissimilar. The process of collecting the sample involves watching the dog for a sign that it is ready to urinate, and then holding a plastic cup at the end of a stick, an “armed doohickey” as described by Mr. Ehrhardt, under the dog until it produces a sample. The sampler wears fresh gloves and uses an unused cup. When the sample is collected, the sampler places the lid on the container, labels the container, and places evidence tape “over both the sample container and lid on at least two sides.” After the sample cup is capped, labeled, and sealed, it is placed in a “lockable freezer or container in a restricted area.” Mr. Ehrhardt indicated that it was the Division’s intent that the freezer or container should be locked at all times that it is not being accessed to place samples in it, and that it should not be left unlocked. However, the plain language of the rule suggests otherwise. The lockable container is to be in a restricted area, but is only required to be locked “[u]pon completion of the packing of the samples for shipment.” Dr. Tobin testified that samples must be kept frozen or, at a minimum, refrigerated. Mr. Ehrhardt testified that once a sample is collected, it goes “straight to the freezer,” suggesting that freezing is the preferred method of storage. Failure to do so can result in degradation of the sample, bacterial growth, and, in certain cases, breakdown of substances into metabolites that would more closely mimic a prohibited substance in a dog’s urine. Petitioner argued that the timing of the sampling is problematic for another reason, other than the holding period for the greyhounds. Many owners and trainers have more than one dog racing during a card. The ginny pit and the finish line are at different ends of the track. Therefore, a trainer or owner may be collecting their dog(s) at the conclusion of a race at the same time the pre-race sample is being taken for the next race, making observation of the sampling difficult from a practical perspective. However, both Mr. Agganis and Mr. Chin acknowledged that there was nothing to directly prevent an owner or trainer from observing the sampling. Furthermore, there is nothing to prevent the owner or trainer, or even Petitioner’s members collectively, from having an employee or agent witness the sampling on their behalf, since the rule allows “[t]he owner, trainer of record, or other authorized person” to witness the sampling. In no fewer than 10 places in the Proposed Rule, actions are authorized to be taken by an “authorized representative” of the Division, or an “other authorized person.” The Proposed Rule does not identify who those representatives or persons might be, or how they may come to be authorized. Mr. Ehrhardt testified that the purpose of the less definitive description was “to figure out a way to make the rule flexible,” to meet the possibility that a “job title is going to change.” During Mr. Ehrhardt’s visit to the Orange Park greyhound racing facility, he was allowed into the restricted ginny pit area by “authorized personnel from the division,” who he described as “veterinarian assistants, chief inspector, investigators, people like that.” Petitioner objected to the lack of specificity because it provided no assurances that these individuals are competent, or held to any particular standard.
The Issue Should Petitioner impose discipline against Respondent's Pari-Mutuel Wagering Occupational License, and other relief for alleged violation of Section 550.2415(1)(a), Florida Statutes (2005)?
Findings Of Fact Between May 24, 2005 and June 18, 2005, Respondent held a Pari-Mutuel Wagering Occupational License, number 1102016- 1021, issued by Petitioner. On May 25, 2005, Respondent was the trainer of record of a racing greyhound named "Lips Are Sealed." On May 25, 2005, "Lips Are Sealed" was entered, and finished first (1st), in the second (2nd) race of the performance at Pensacola Greyhound Track. Immediately following the second (2nd) race of the performance at Pensacola Greyhound Track on May 25, 2005, urine sample number 129287 was collected from "Lips Are Sealed." The University of Florida Racing Laboratory tested urine sample number 129287 and found it to contain Benzoylecgonine (a metabolite of Cocaine), and/or a derivative thereof. Benzoylecgonine (a metabolite of Cocaine), and/or a derivative thereof, is an impermissible substance, that was carried in the body of "Lips Are Sealed" while participating in the second (2nd) race of the performance at Pensacola Greyhound Track on May 25, 2005. On June 1, 2005, Respondent was the trainer of record of a racing greyhound named "Red Eyed Fever." On June 1, 2005, "Red Eyed Fever" was entered, and finished first (1st), in the fourth (4th) race of the performance at Pensacola Greyhound Track. Immediately following the fourth (4th) race of the performance at Pensacola Greyhound Track on June 1, 2005, urine sample number 129348 was collected from "Red Eyed Fever." The University of Florida Racing Laboratory tested urine sample number 129348 and found it to contain Benzoylecgonine (a metabolite of Cocaine), and/or a derivative thereof. Benzoylecgonine (a metabolite of Cocaine), and/or a derivative thereof, is an impermissible substance, that was carried in the body of "Red Eyed Fever" while participating in the fourth (4th) race of the performance at Pensacola Greyhound Track on June 1, 2005. On June 16, 2005, Respondent was the trainer of record of a racing greyhound named "Stubborn Kind." On June 16, 2005, "Stubborn Kind" was entered, and finished first (1st), in the first (1st) race of the performance at Pensacola Greyhound Track. Immediately after the first (1st) face of the performance at Pensacola Greyhound Track on June 16, 2005, urine sample number 129469 was collected from "Stubborn Kind." The University of Florida Racing Laboratory tested urine sample number 129469 and found it to contain Benzoylecgonine (a metabolite of Cocaine), and/or a derivative thereof. Benzoylecgonine (a metabolite of Cocaine), and/or a derivative thereof, is an impermissible substance, that was carried in the body of "Stubborn Kind" while participating in the first (1st) race of the performance at Pensacola Greyhound Track on June 16, 2005. On June 17, 2005, Respondent was the trainer of record of a racing greyhound named "Drinktil Hescute." On June 17, 2005, "Drinktil Hescute" was entered, and finished first (1st), in the fifth (5th) race of the performance at Pensacola Greyhound Track. Immediately following the fifth (5th) race of the performance at Pensacola Greyhound track on June 17, 2005, urine sample number 129479 was collected from "Drinktil Hescute." The University of Florida Racing Laboratory tested urine sample number 129479 and found it to contain Benzoylecgonine (a metabolite of Cocaine), and/or a derivative thereof. Benzoylecgonine (a metabolite of Cocaine), and/or a derivative thereof, is an impermissible substance, that was carried in the body of "Drinktill Hescute" while participating in the fifth (5th) race of the performance at Pensacola Greyhound Track on June 17, 2005.
Recommendation Upon consideration of the facts found and the conclusions of law reached, it is RECOMMENDED: That a final order be entered revoking the occupational license held by Respondent, imposing a $5,000.00 fine and requiring the return of the race purses. DONE AND ENTERED this 27th day of June, 2006, in Tallahassee, Leon County, Florida. S CHARLES C. ADAMS 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 27th day of June, 2005. COPIES FURNISHED: Stefan Thomas Hoffer, Esquire Department of Business and Professional Regulation Division of Pari-Mutuel Wagering 1940 North Monroe Street Tallahassee, Florida 32399-2202 Thomas M. Dudley, Sr. 327 Northeast 434 Street Old Town, Florida 32680 David J. Roberts, Director Division of Pari-Mutuel Wagering Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 Josefina Tamayo, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202
The Issue The issue in this case is whether Respondent, while serving as Secretary of the Department of Juvenile Justice (DJJ), violated section 112.313(6), Florida Statutes (2007-2009),1/ by incurring excessive travel costs between St. Petersburg and Tallahassee, Florida, after receiving reasonable notice and admonition from the Governor's administration that the travel was excessive.
Findings Of Fact Mr. Peterman served as the Secretary of DJJ from February 17, 2008, until January 5, 2011. Prior to his appointment as Secretary of DJJ, Mr. Peterman served as a member of the Florida House of Representatives. During his appointment, Mr. Peterman maintained his primary residence in St. Petersburg, Florida, where his family resided, and he was the pastor of The Rock of Jesus Missionary Baptist Church. As pastor, Mr. Peterman was responsible for the general oversight of the church, preaching, counseling and ministering to the members of the church, and performing marriages, funerals, and other duties. In addition to his residence in St. Petersburg, Mr. Peterman maintained a separate residence in Tallahassee, Florida. As Secretary of DJJ, Mr. Peterman had an office in St. Petersburg (the Wildwood office) and an office in Tallahassee (the Tallahassee office). The Tallahassee office was considered headquarters for Mr. Peterman. Ms. Brown, his assistant, worked in the Wildwood office, and her duties included setting appointments for Mr. Peterman, scheduling, and maintaining Mr. Peterman's calendar. Mr. Peterman had a staff person in Tallahassee with similar duties. Mr. Peterman treated the Wildwood office as a satellite office for the Secretary of DJJ. He felt that he had the approval of the Governor's office to use such an arrangement; however, neither the Governor's Chief of Staff nor the Deputy Chief of Staff assigned to DJJ was aware of any approval by the Governor's office for a satellite. Both would have been aware if such approval had been given. As Secretary of DJJ, Mr. Peterman was assigned a fleet automobile and a gas card. Mr. Peterman was responsible for filling out the travel logs, which would show the date of the trip, the destination, mileage, and fuel charges. Driving a fleet car would be cheaper than flying. At the time Mr. Peterman was appointed as Secretary of DJJ, Mr. Eikenberg was the Governor's Chief of Staff. There were three Deputy Chiefs of Staff, who reported to Mr. Eikenberg. Each Deputy Chief of Staff was responsible for a portion of the agencies that reported to the Governor. Each Deputy Chief of Staff would monitor the actions of his or her assigned agencies and report to the Chief of Staff concerning those agencies. As Deputy Chief of Staff, Judge Rowe was assigned DJJ. While Judge Rowe was Deputy Chief of Staff, she counseled Mr. Peterman at least four or five times on his travel. She had concerns about his flying to St. Petersburg and the failure of his calendar to reflect a direct agency purpose on his frequent trips to St. Petersburg. Judge Rowe advised Mr. Peterman to use the most economical means of transportation when traveling to St. Petersburg, which was by automobile, and to make sure that his calendar reflected the activities in which he was engaged related to DJJ business. Mr. Peterman appeared to understand what Judge Rowe was conveying to him; however, Judge Rowe did not see any noticeable change in the pattern of his behavior. Judge Rowe left the Governor's office in August 2009. Mr. Peterman appointed Bonnie Roberts (Ms. Roberts) as the Chief of Staff of DJJ. She served in that position until March 2009. As Chief of Staff of DJJ, she acted as a liaison between the Deputy Chief of Staff of the Governor's Office and DJJ. She was responsible for the administrative functions at DJJ. In August 2008, Ms. Roberts along with the other senior management staff participated in a retreat in order to develop a policy for DJJ regarding restricting travel due to budgetary concerns. One of the issues discussed was that travel needed to be "mission critical." On January 29, 2009, Mr. Peterman issued a memorandum to the executive leadership team of DJJ concerning mission critical travel. The memorandum provided that all travel vouchers must contain an explanation describing how the travel activity was critical to the agency's mission. It further provided: Mission critical travel is considered necessary to perform job functions that if not conducted would have an adverse impact to the health, welfare, and safety of the youth in the Department's care and would interfere in the Department's ability to carry out its mission. Every effort must be made to ensure that travel: Is planned to maximize resources; Limits the need for overnight travel; Is necessary and appropriate with the needs of the position and job functions; and Utilizes teleconferencing and video conferencing technologies to the extent possible. On February 10, 2009, Mr. Peterman sent another memorandum revising the January 29, 2009, memorandum. The new memorandum identified mission critical travel and the approval process to be used for reimbursement for travel expenses. The new memorandum incorporated the definition of mission critical travel quoted above and also required that requests for reimbursement had to explain why the business for which the travel expense was incurred could not have been conducted by electronic means. Ms. Roberts became concerned about Mr. Peterman's travel between Tallahassee and the St. Petersburg-Tampa area. She discussed the issue with Judge Rowe, who told Ms. Roberts to counsel Mr. Peterman concerning his travel, particularly his air travel between Tallahassee and the St. Petersburg-Tampa area. She talked with Mr. Peterman and reminded him that he needed to restrict his air travel and take a car when traveling to and from the St. Petersburg-Tampa area. She advised Mr. Peterman that his frequent trips to St. Petersburg were causing low morale, because other employees' travel was being restricted. When Ms. Roberts resigned as Chief of Staff of DJJ, she was replaced by Kelly Layman (Ms. Layman). Ms. Roberts told Ms. Layman that Mr. Peterman's travel was an issue of concern with the Governor's office. Ms. Layman also became concerned about Mr. Peterman's frequent trips to St. Petersburg. His absences from Tallahassee were perceived by senior staff as a lack of leadership, thereby causing low morale. Ms. Layman also counseled Mr. Peterman concerning his travel to and from St. Petersburg. Mr. Peterman's mode of travel was switched primarily to automobile, but the frequency of travel did not diminish. Ms. Brown was responsible for keeping Mr. Peterman's calendar concerning his activities in the Wildwood office. The calendar reflected appointments or meetings in the St. Petersburg-Tampa area during the following days in 2008: April 24, May 23, June 6, June 13, June 27, August 7, August 14, September 18, September 25, October 17, October 30, December 4, and December 11. The calendar showed meetings and appointments in the St. Petersburg-Tampa area during the following days in 2009: January 15, January 29, February 2, February 6, February 13, March 13, March 19, March 26, May 18, June 2, August 6, August 31, September 9, September 10, September 11, September 23, September 25, September 28, October 1, October 13, October 16, November 6, November 9, November 10, November 13, November 18, December 4, December 11, and December 18. DATE TRAVEL[3/] MODE PURPOSE COST 2-18-08 TP-TL CAR R FIRST DAY ON JOB $29.24 2-20-08 TL-TP AIR TO JJ FOUNDATION $555.00 2-21-08 TP-TL AIR FROM JJ FOUNDATION 2-26-08 TP-TL AIR ADOLESCENCE CONFERENCE $245.50 2-29-08 TL-TP AIR "STATE BUSINESS" $560.00 The following is a summary of Mr. Peterman's state- paid travels between Tallahassee and the St. Petersburg-Tampa area during the years 2008 and 2009 based on the travel records that were admitted in evidence: 3-3-08 TP-TL AIR $560.00 3-6-08 TL-TP AIR DJJ WILDWOOD OFFICE $248.50 3-24-08 TL-SP CAR 3-27-08 TL-SP CAR 3-31-08 SP-TL CAR 4-23-08 TL-TP AIR BLUE COMMITTEE ROLL-OUT $469.00 FALKENBERG VISIT T.V. INTERVIEW 4-28-08 TP-TL AIR RETURN TO HEADQUARTERS 5-2-08 TL-TP AIR "AIRPORT DESTINATION" $469.00 5-4-08 TL-SP CAR 5-5-08 SP-TL CAR RETURN TO HEADQUARTERS 5-12-08 TL-SP CAR 5-14-08 SP-TL CAR 5-14-08 TL-TP AIR WORK IN DISTRICT OFFICE $221.50 5-19-08 TL-SP CAR 5-20-08 TL-TP AIR WORK IN DISTRICT OFFICE $234.50 5-21-08 SP-TL CAR 5-27-08 TP-TL AIR RETURN TO HEADQUARTERS $234.50 6-9-08 TP-TL R.CAR RETURN TO HEADQUARTERS $86.68 6-23-08 TL-TP R.CAR RETURN TO HEADQUARTERS $109.09 7-30-08 TP-TL AIR RETURN $248.50 8-7-08 TL-TP AIR MEETING AT DIST OFFICE $269.50 8-19-08 TP-TL AIR RETURN TO HEADQUARTERS $269.50 8-22-08 TL-TP AIR WORK IN WILDWOOD OFFICE $702.00 8-25-08 TP-TL AIR RETURN TO TALLAHASSEE 8-26-08 TL-TP AIR WORK IN WILDWOOD OFFICE $630.00 9-2-08 TP-TL AIR RETURN TO HEADQUARTERS 9-9-08 TP-TL AIR RETURN TO HEADQUARTERS $721.00 9-11-08 TL-TP AIR WORK IN WILDWOOD OFFICE 9-17-08 TL-TP AIR WORK IN WILDWOOD OFFICE $668.00 9-22-08 TP-TL AIR RETURN TO HEADQUARTERS 9-29-08 TP-TL AIR RETURN TO HEADQUARTERS $407.50 9-30-08 TL-TP AIR WORK IN WILDWOOD OFFICE 10-8-08 TL-TP AIR WORK IN WILDWOOD OFFICE $551.98 10-14-08 TP-TL AIR RETURN TO HEADQUARTERS 10-15-08 TL-TP AIR WORK IN WILDWOOD $240.50 10-20-08 TP-TL AIR RETURN TO HEADQUARTERS $269.50 10-29-08 TL-TP AIR WORK AT WILDWOOD $271.50 11-5-08 TP-TL AIR RETURN TO HEADQUARTERS $482.00 11-7-08 TL-TP AIR WORK AT WILDWOOD 11-18-08 TP-TL AIR RETURN TO HEADQUARTERS $550.98 11-19-08 TL-TP AIR WORK AT WILDWOOD 12-11-08 TL-TP AIR WORK AT WILDWOOD $531.00 12-15-08 TP-TL AIR RETURN TO HEADQUARTERS 12-17-08 TL-TP AIR WORK AT WILDWOOD $647.00 12-29-08 TP-TL AIR RETURN TO HEADQUARTERS 1-7-09 TP-TL AIR WORK AT WILDWOOD $572.19 1-13-09 TP-TL AIR RETURN TO HEADQUARTERS 1-14-09 TL-TP AIR WORK AT WILDWOOD $621.19 1-15-09 TP-TL AIR RETURN TO HEADQUARTERS 1-16-09 TL-TP AIR WORK AT WILDWOOD $289.59 1-26-09 TP-TL AIR RETURN TO HEADQUARTERS $511.19 1-27-09 TL-TP AIR SITE VISIT AVON PARK $147.00 2-3-09 TP-TL AIR RETURN TO HEADQUARTERS $237.01 2-6-09 TP-TL AIR WORK AT WILDWOOD $200.60 2-16-09 TP-TL AIR RETURN TO HEADQUARTERS $200.59 2-20-09 TL-TP AIR ATTEND CONFERNECE IN TP $531.19 2-24-09 TP-TL AIR RETURN TO HEADQUARTERS 3-16-09 TP-TL AIR RETURN TO HEADQUARTERS $266.60 3-25-09 TL-TP AIR WORK IN WILDWOOD $481.69 3-30-09 TP-TL AIR RETURN TO HEADQUARTERS 4-16-09 TL-TP AIR HDQTRS TO DISTRICT OFFICE $556.19 4-21-09 TP-TL AIR RETURN TO HEADQUARTERS 4-24-09 TL-TP AIR $294.60 5-1-09 TL-TP AIR TL TO DISTRICT OFFICE $269.60 5-7-09 SP-TL CAR 5-7-09 TL-TP AIR TL TO DISTRICT OFFICE $269.60 5-12-09 TP-TL AIR TO HEADQUARTERS $511.19 5-14-09 TL-TP AIR TO DISTRICT 5-26-09 TP-TL CAR TO TALLY 5-27-09 TL-SP CAR 6-9-09 SP-TL CAR 6-12-09 TL-SP CAR 6-16-09 SP-TL CAR 6-18-09 TL-SP CAR 6-24-09 SP-TL CAR 7-2-09 TL-SP CAR 7-7-09 SP-TL CAR 7-28-09 TP-TL AIR $286.60 7-30-09 TL-TP AIR $266.60 8-10-09 TP-TL CAR 8-14-09 TL-TP CAR 8-21-09 TL-TP AIR $269.60 9-1-09 SP-TL CAR 9-3-09 TL-SP CAR 9-21-09 TP-TL AIR $439.19 9-29-09 SP-TL CAR 9-30-09 TL-SP CAR 10-6-09 SP-TL CAR R HOME TO HEADQUARTERS 10-7-09 TL-SP CAR HOME TO DISTRICT OFFICE 10-14-09 TP-TL AIR $295.60 10-15-09 TL-TP AIR $269.60 10-23-09 TL-SP CAR 11-18-09 TP-TL AIR 11-19-09 TL-TP AIR 11-23-09 SP-TL CAR 12-1-09 SP-TL CAR 12-3-09 TL-SP CAR 12-8-09 SP-TL CAR 12-10-09 TL-SP CAR 12-15-09 SP-TL CAR 12-17-09 TL-SP CAR 12-29-09 SP-TL CAR $511.20[4/] For the months of February through April 2008, July through December 2008, and January through April 2009, there are gaps in the daily vehicle usage log so that the purpose of all the trips taken cannot be ascertained from the records. Based on the mileage that was recorded, some of the trips were not local trips. In some months, there is no mileage recorded except at the beginning and the end of the month, but the difference in the mileage shows that travel did occur in that month. Because of the poor record keeping, the travel records do not account for some travel; yet, there had to have been travel between Tallahassee and the St. Petersburg-Tampa area. For instance, Mr. Peterman's records show a trip from Tampa to Tallahassee on February 24, 2009, and the next trip does not occur until March 7, 2009, when he traveled from Tampa to Miami. There is no explanation of how he got to Tampa from Tallahassee. In March 2008, his records show that he traveled from Tallahassee to Tampa by air on March 6, from Tallahassee to St. Petersburg by car on March 24, and from Tallahassee to St. Petersburg by car on March 27. Because of the gaps in the car travel records, it is impossible to tell how he got to Tallahassee after his March 6 travel to Tampa and his March 24 travel to St. Petersburg. On February 29, 2008, a Friday, Mr. Peterman traveled from Tallahassee to Tampa, arriving in Tampa after 5:00 p.m. He traveled back to Tallahassee on Monday, March 3, 2008, arriving at 7:55 a.m. The airfare was $560.00. The stated purpose was "State Business," with no further elaboration. There was nothing on Mr. Peterman's calendar that showed state business was being conducted. Since Mr. Peterman arrived after the close of business on Friday and returned before the beginning of the business day on Monday, the trip was not for state business and was for the purpose of Mr. Peterman returning to his primary residence. On Friday, May 2, 2008, Mr. Peterman flew from Tallahassee to Tampa, arriving at 7:25 p.m. The purpose of the trip was designated as "Airport Destination." The vehicle travel log shows that he traveled by car from Tallahassee to St. Petersburg on Sunday, May 4, 2008. On Monday, May 5, 2008, he flew back to Tallahassee, leaving at 10:25 a.m. and arriving at 11:20 a.m. The cost of the round-trip ticket was $469.00, and the cost of parking was $36.00. On his voucher for reimbursement, Mr. Peterman stated that he worked in the St. Petersburg office. Given the time that it would take to get from St. Petersburg to Tampa to catch a 10:25 a.m. flight, there would be no time to work in the Wildwood office, and the calendar showed no work. It is not understandable why the travel records also show a car trip to St. Petersburg on May 4, 2008, but whether Mr. Peterman went by airplane or automobile, the trip was not for state business and was for the purpose of Mr. Peterman returning to his primary residence. On Friday, August 22, 2008, Mr. Peterman flew from Tallahassee to Tampa, arriving at 3:50 p.m. The cost of the airline ticket was $702.00, and the cost of parking was $36.00. On Monday, August 25, 2008, Mr. Peterman flew back to Tallahassee, arriving at 12:12 a.m. His calendar did not reflect that he did any business at the Wildwood office from August 22 to 25, 2008. The purpose of the trip was to return to his primary residence. On August 26, 2008, Mr. Peterman returned to Tampa, arriving at 3:50 p.m. He stated in his travel voucher request that the purpose was to work in the Wildwood office. His calendar did not reflect any work performed in St. Petersburg on August 26, 2008. On January 13, 2009, Mr. Peterman flew from Tampa to Tallahassee, and flew back from Tallahassee to Tampa on January 14, 2009. The following day, January 15, 2009, Mr. Peterman flew from Tampa to Tallahassee and returned to Tampa by air on January 16, 2009. His calendar showed that he had two appointments at the Wildwood office on January 15, 2009. On March 28, 2009, a Saturday, Mr. Peterman flew from Miami to Tampa rather than to Tallahassee. He took a 7:00 a.m. flight on Monday, March 30, 2009, to Tallahassee. The trip to Tampa from Miami was to return to his primary residence as evidenced by his early morning flight to Tallahassee on March 30, 2009. Thus, the flight to Tallahassee would not have been incurred except for his desire to spend the weekend at his St. Petersburg home. On Saturday, September 19, 2009, Mr. Peterman, flew from Miami to Tampa, rather than fly to Tallahassee. On Monday, September 21, 2009, Mr. Peterman took a 10:05 a.m. flight to Tallahassee, and returned to Tampa on a 6:15 a.m. flight. It can only be concluded that Mr. Peterman flew to Tampa on September 19, 2009, in order to return to his primary residence and not for state business based on his morning flight to Tallahassee on September 21, 2009. Thus, the cost of the flight to Tallahassee would not have been incurred except for his desire to spend the weekend at his St. Petersburg home. Mr. Peterman claimed that while he was at the Wildwood office that he met with children and parents of children concerning the care provided by DJJ, met with staff in the various facilities in the middle region of Florida, and talked with persons waiting in the lobby of his office. However, Mr. Peterman's calendar does not account for a large amount of the time that he purportedly spent at the Wildwood office, and his testimony was vague, characterized by generalities rather than in specifics. The evidence established that Mr. Peterman made a concerted effort to make sure that he spent his weekends in St. Petersburg where he had his primary residence and was pastor of a church.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Ethics enter a final order and public report finding that Mr. Peterman violated section 112.313(6) and recommending a civil penalty of $5,000.00 together with a public censure and reprimand. DONE AND ENTERED this 30th day of December, 2011, in Tallahassee, Leon County, Florida. S SUSAN BELYEU KIRKLAND 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 30th day of December, 2011.
The Issue The issues are as follows: Is the Respondent liable to the Petitioner for $140.00 for 3,500 pounds of unacceptable potatoes on Load number 15? Is the Respondent liable to the Petitioner for $1,792.00 for Load number 16? Does the contractual agreement provide for FOB payment or payment based upon delivered weight? Can the Respondent "back charge" the Petitioner for $964.06 freight charges, $60.00 for dumping charges, and $33.40 for U.S. Department of Agriculture inspection costs?
Findings Of Fact The Petitioner, Lee A. Maltby and Sons, Inc., doing business as Poa-Boy Farms, is a producer of agricultural products in Florida. The Respondent, Kenneth Rose Company, Inc., is a licensed dealer in agricultural products, pursuant to Chapter 604, Florida Statutes. The Respondent was bonded, pursuant to Chapter 604, Florida Statutes, as such a Florida dealer during the period of time between January 24, 1978 and May 23, 1978. On or about January 24, 1978, the Petitioner, as seller, and the Respondent, as buyer, entered into an executory contract for the Petitioner to deliver "10,000 CWT of chipping potatoes, 85 percent or better US. number 1," at $4.00 FOB. As to terms, the contract designated "usual." As to special terms, the contract stated "Potatoes will be paid on the basis of delivered weight as evidenced by a certified weight ticket prepared at the time and place of delivery." Shipment was "May, 1978 (Last week of April if possible)." On or about the same day, the Respondent entered into an executory contract with Cloud Produce, Inc. for the same shipment, excluding the "special terms." Undisputed testimony was that the price was at a rate of $.10 CWTFOB. Cloud Produce, Inc. was a corporation authorized to do business in the State of Florida as a dealer in agricultural products under Chapter 604, Florida Statutes. Cloud Produce, Inc. agreed to deliver the chipping potatoes to Frito- Lay, Inc., a corporation with a potato chip manufacturing plant in Louisville, Kentucky. The Respondent also contracted with Montgomery and Rose, Inc., a Florida corporation authorized to do business under the laws of the State of Florida as a truck broker, to transport the potatoes to Louisville, Kentucky. The broker contracted with an independent trucking firm known as "R & L" to transport and deliver the potatoes to Frito-Lay in Louisville, Kentucky. The potatoes designated as Load number 15 were delivered to Frito-Lay in Louisville, Kentucky, on May 18, 1978. There was no report to Petitioner that there was a problem with said load, and there was no USDA inspection made. Evidence submitted showed that 3,500 of the 43,620 pounds of potatoes contracted to be delivered were dumped. The potatoes designated as Load number 16 were loaded on an R & L truck late Friday, May 19, 1978. The R & L truck was weighed in Hastings, Florida, on May 19, 1978, passed a Florida inspection station on May 20, 1978, and arrived at the Frito-Lay plant in Louisville, Kentucky, at approximately 7:00 a.m. on May 23, 1978. The load of potatoes was rejected by Frito-Lay "due to wet breakdown." The report of Frito-Lay stated that the potatoes were in a very poor condition with rot from 30 to 80 percent. Frito-Lay ordered the R & L trucking company to remove the load from the Frito-Lay property due to its offensive odor. The Petitioner and the Respondent discussed the problem on May 23, 1978. The Petitioner requested that the Respondent re-route the potatoes to Muncie, Indiana. The Respondent was not able to get this instruction through to the trucking company before the load was dumped, and within hours, it informed the Petitioner that the potatoes were no good, that the expense was prohibitive, and that the potatoes had already been dumped. Part of the problem was the demand by Frito-Lay that the load be removed quickly because of the odor and leakage at the plant in Louisville, Kentucky, which adjoined a baseball field. The USDA Inspection Office was closed when called on May 23, 1978, but it inspected the load on May 24, 1978 and reported "Condition: Soft rot 90 percent, slimy soft rot, mostly in advanced, some in early stages. Remainder stock: Firm." The following transpired: The United States Department of Agriculture charged an inspection fee of $33.40 for its inspection of the potatoes on May 24, 1978. The USDA billed Frito-Lay, Frito-Lay billed Cloud Produce, Inc., and Cloud Produce, Inc. billed the Respondent for the inspection fee. R & L trucking company paid $60.00 for unloading the potatoes, Montgomery and Rose, Inc. paid R & L $60.00 for such unloading, plus $964.06 for hauling the potatoes to Louisville, Kentucky, and the Respondent paid this amount to Montgomery and Rose, Inc. The Respondent then "back charged" the Petitioner for the following: $140.00 for the load designated number 15; $1,792.00 for the value of the potatoes on Load number 16; $964.06 for freight charges; $60.00 dumping charges; and $33.40 inspection. These charges totaled $2,989.46, and this amount of money was retained by the Respondent as a set-off from the entire contract between the parties, which included Loan number 22, with which there was no problem. By letter to the Respondent dated July 25, 1978, the Petitioner demanded the money that is the subject of this hearing. The Petitioner stated that he did not believe that Load number 16 was his produce inasmuch as he had had no other complaints as to his produce from other receivers before or after said load. No evidence was introduced to substantiate the position of the Petitioner, and substantial evidence was introduced that Load number 16 was, in fact, the load that was ultimately dumped. The Petitioner presented a witness who testified that Montgomery and Rose, Inc. had salvaged a portion of Load number 16 after it was dumped. The Petitioner felt that it was unfair that one firm had made a profit from the Petitioner's loss. Montgomery and Rose, Inc. was not joined as a party. The Respondent presented undisputed testimony that it is customary to "charge back" a broker and a producer where the produce does not meet specifications. There was no evidence presented that the Petitioner was not familiar with the custom of the trade or the laws and regulations of the Perishable Agricultural Commodities Act, or that the Petitioner had reason to believe that it would not be liable for freight and brokerage charges if the potatoes were not sold. The contract between the parties merely stated that terms were "usual." The usual charges on such a transaction include USDA inspection fees, if needed, and freight and brokerages charges.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the State of Florida, Department of Agriculture and Consumer Services, uphold the claim of the Petitioner against Respondent in the amount of $140.00 deducted for the price of potatoes delivered designated as Load number 15. It is further RECOMMENDED that a Final Order be entered discharging the Respondent and its surety from any further liability. DONE and ENTERED this 8th day of June, 1979, in Tallahassee, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of June, 1979. COPIES FURNISHED: Ronald E. Clark, Esquire P.O. Drawer V Palatka, FL 32077 Alan B. Fields, Jr., Esquire P.O. Drawer F Palatka, FL 32077 Robert A. Chastain, Esquire Department of Agriculture and Consumer Services Room 530, Carlton Building Tallahassee, FL 32301
The Issue Whether the Department of Transportation's decision to award the contract contemplated in its Invitation to Bid ITB-DOT-06/07- 9025-GB (Purchase of Radio Equipment) is contrary to the agency's governing statutes, the agency's rules or policies, or the proposal specifications.
Findings Of Fact On September 28, 2006, the Department issued the Invitation to Bid, ITB-DOT 06/07-9025-GB (ITB) for the purchase of radio equipment. The ITB contemplated that one five-year contract would be awarded. The ITB reserved to the Department the right to accept or reject any and all bids, and reserved the right to make an award without further discussion of the bids submitted. The ITB reserved to the Department the right to reject any response not in compliance with the requirements of the ITB. The Bid Sheet of the ITB stated: NOTE: In submitting a response, the bidder acknowledges they have read and agree to the solicitation terms and conditions and their submission is made in conformance with those terms and conditions. ACKNOWLEDGMENT: I certify that I read and agree to abide by all terms and conditions of this solicitation and that I am authorized to sign for the bidder. I certify that the response submitted is made in conformance with all requirements of the solicitation. Likewise, the Special Conditions of the ITB provided in pertinent part: ADDITIONAL TERMS AND CONDITIONS No conditions may be applied to any respect of the ITB by the prospective bidder. Any conditions placed on any aspect of the prospective bidder may result in the bid being rejected as a conditional bid (see "RESPONSIVENESS OF BIDS"). DO NOT WRITE IN CHANGES ON ANY ITB SHEET. The only recognized changes to the ITB prior to bid opening will be a written addenda issued by the Department. RESPONSIVENESS OF BIDS Bids will not be considered if not received by the Department on or before the date and time specified as the due date for submission. All bids must be typed or printed in ink. A responsive bid is an offer to provide the items specified in this Invitation to Bid in accordance with all requirements of this Invitation to Bid. Bids found to be non-responsive will not be considered. Bids may be rejected if found to be irregular or not in conformance with the specifications and instructions herein contained. A bid may be found to be irregular or non-responsive by reasons that include, but are not limited to, failure to utilize or complete prescribed forms, modifying the bid specifications, submitting conditional bids or incomplete bids, submitting indefinite or ambiguous bids, or executing forms or the bid sheet with improper and/or undated signatures. Other conditions which may cause rejection of bids include evidence of collusion among bidders, obvious lack of experience or expertise to provide the required items, and failure to perform or meet financial obligations on previous contracts. * * * 23) PRODUCT REQUIREMENTS/SPECIFICATIONS Items furnished shall be standard products of the manufacturer or their suppliers, shall be new, unused, clean, and free from any defects or features affecting appearance, serviceability, or the safety of the user in normal intended use. Any deviation from specifications indicated herein must be clearly pointed out; otherwise, it will be considered that items offered are in strict compliance with these specifications, and successful bidder will be held responsible therefore. Deviations must be explained in detail on separate attached sheet(s). * * * 32) WARRANTY A warranty is required on all items purchased against defective materials, workmanship, and failure to perform in accordance with required industry performance criteria, for a period of not less than two (2) years from the date of acceptance by the purchaser. Any deviation from the criteria must be documented in the bid response or the above statement shall prevail. The State of Florida PUR 1001 (General Instructions to Respondents) was also included in the ITB. The General Instructions to Respondents specified that all responses to the ITB are subject to the following sections of the ITB, which, in case of conflict, shall have the following order of precedence: 1) Technical Specifications; 2) Special Conditions; Instructions to Respondents (PUR 1001); 4) General Conditions (PUR 1001), and 5) Introductory Materials. Section 9 of the General Instructions provides in pertinent part: Respondent's Representation and Authorization. In submitting a response, each respondent understands, represents, and acknowledges the following (if the respondent cannot so certify to any of the following, the respondent shall submit with its response a written explanation of why it cannot do so). * * * The product offered by the respondent will conform to the specifications without exception. The respondent has read and understands the Contract terms and conditions, and the submission is made in conformance with those terms and conditions. The ITB specifications also included information about what must be included in the bid to be considered responsive: This specification includes required equipment that the vendor shall provide to be compliant with the bid. This specification also includes non-required equipment that FDOT considers important but not critical to obtaining a successful bid. Vendors can elect to bid on any or all of these non-required equipment items. Bidding on non- required items does not affect the bid evaluation process however the Vendor will be held to the contract requirements and technical specifications for all bid products. All required and non-required equipment items are identified in the specification compliance matrix at the end of this technical specification. Required Equipment. The vendor shall supply all of the required types of equipment. There is also optional equipment that is required though it may not be procured with each order. An example of such a required, optional piece of equipment is the mobile radio dual control head. Non-Required Equipment. To ensure a successful bidding process FDOT has identified radio equipment that they consider important but not critical to the success of this contract. This equipment is fully specified in this document and if a vendor elects to bid any non-required equipment item, they must comply with the associated specifications. An example of such a non-required piece of equipment is the low-band VHF portable radio. Specifications 4.2.1.22.1 (with respect to portable radios) and 4.3.1.22.1 (with respect to mobile radios) both included the requirement that "[t]he last channel selected shall appear as the selected channel after the radio is turned back on. The last selected scan mode shall also reinitiate after the radio is turned back on." With respect to warranties, the specifications provided: VENDOR WARRANTY Parts and Labor Warranty. The vendor shall warranty all parts and accessories against defects in materials and workmanship while under normal use and service by FDOT personnel. Parts shall include but not be limited to all products, all product subsystem LLRUs disassembled by trained FDOT maintenance personnel, and all product accessories. The vendor labor necessary to diagnose and repair a defect shall be provided by the vendor at no cost to FDOT. Defective parts may be repaired by the vendor or replaced with new parts. The vendor shall also be responsible for return shipping costs to FDOT of a repaired or replaced part. 2.2 Warranty Period. Parts and Labor. With the exception of portable battery power ratings, the vendor shall warranty all parts and labor for 5 years. Portable Radio Battery Power Rating. The vendor shall warranty parts and labor associated with the portable radio power rating for 18 months. If during this 18 month period the battery power rating falls below 80% of the specified battery power rating the battery shall be replaced with a new battery. No bidder challenged the specifications contained in the ITB. On November 8, 2006, Vertex Standard submitted its response to the ITB. Four other vendors submitted proposals, including Midland. Four of the responding bidders, including Vertex Standard, were found to be non-responsive in part because they did not bid on all of the required items identified in the RFP. Midland's proposal contained a signed copy of the Bid Sheet referenced in paragraph 4, acknowledging the solicitation terms and certifying that its proposal is made in conformance with all requirements of the solicitation. However, Midland's proposal also contained a page entitled "Midland Radio Corporation Exceptions to Technical Requirements for Florida Department of Transportation Purchase of Radio Equipment ITB-DOT-06/07-9025-GB." On this page, Midland indicated that it "takes exceptions to the following Technical Requirements" of the ITB: Exception to 4.2.1.22.1 Midland Radio Corporation Model 80- 125/425 Portable Radios return to the programmed scan mode after On/Off/On Cycle. Exception to 4.2.4.5 Midland Corporation Model 81-391 Smart Rapid Charger meets Technical requirements for 4.2.4.5.1, 4.2.4.5.2, 4.2.4.5.3, and 4.2.4.5.4. Analyzer Functions is under review for a possible future function. Exception to 4.3.1.22.1 Midland Radio Corporation Titan Series Mobile Radios return to programmed scan mode after On/Off/On cycle. Exception to 8.2 Midland Radio Corporation warrants our Base Tech Base/Repeater stations for a period of five (5) years from date of purchase against defects in material and workmanship. Midland Radio Corporation warrants or [sic] Titan mobile radio, and our Midland portable radio products for a period of three years from date of purchase against defects in material workmanship. On the page following the "Exceptions," was a Warranty Certificate for Midland's equipment. The Warranty Certificate stated that all mobiles, portables and Titan Vehicular Repeaters were warranted for a period of three years. Base-Tech II Base/Repeater Stations were warranted for five years. With respect to accessories, Midland's Warranty Certificate stated that rechargeable batteries would be warrantied for 18 months; battery chargers for 1 year; and all other accessories for 120 days. Vertex Standard did not take exception to the five-year warranty requirement. Representatives from Vertex Standard were required to check with officials at their headquarters overseas in order to bid on a project requiring a five-year warranty. While Vertex Standard's representative indicated that there was additional cost to the company in providing a five-year warranty, the company decided to absorb the cost of the additional two years. No specific dollar amount attributable to the additional warranty period was identified. The responses to the ITB were reviewed by an evaluation committee comprised of Randy Pierce, Roger Madden and Brian Kopp. These three gentleman were also instrumental in developing the ITB in the first place. The evaluation committee members independently reviewed the responses submitted by the vendors and met collectively to compare the individual scores. Randy Pierce, who was the primary author of the ITB, determined that the five-year warranty specification was an error on his part that should have been addressed before the ITB was finalized. The committee members looked at the industry standard for warranties and determined that most failures occur in the first year and that the industry standard for warranties was two to three years. Similarly the requirement that radios return to the last channel selected had been included in the specifications because a prior vendor had included this option on equipment the Department now owned. The committee members determined that this requirement was a minor issue that would not affect the overall function and performance of the radio equipment, but could be addressed through training. On November 20, 2006, a Radio Bid Evaluation Response Justification Attachment (Justification Attachment) was prepared by Randy Pierce, Roger Madden and Brian Kopp. In this document, the evaluation team members reported that four vendors, including Vertex Standard, failed to comply with Specification Section 3.3 requiring the vendor to bid all required types of equipment. Based on this failure, all four were disqualified. The Justification Attachment also indicated that these four vendors were also non-compliant with several technical specifications in the ITB. The Committee determined that Midland Radio was the only vendor that bid on all required products. The Justification Statement stated in pertinent part: Midland, the fifth and remaining vendor bid all required products. Midland took exception to the following: Midland took exception to Specification Sections 4.2.1.22.1 and 4.3.1.22.1 regarding the start-up configuration of Portable and Mobile Radios. FDOT has reviewed the exceptions and agree [sic] to them. Midland took exception to Specification Sections 4.2.4.5 regarding the portable radio smart charger. This charger is not a required product and FDOT will therefore not award this item. Midland took exception to Specification Section 8.2 regarding the Warranty Period for Portable and Mobile Radios. The specified warranty period is five years, however Midland has bid a 3 year warranty period for Portable and Mobile Radios. FDOT has determined that the 3 year warranty period offered by Midland meets or exceeds the current industry standards. Therefore, FDOT agrees to the exception. With the agreed to exceptions Midland is the only compliant bidder and therefore they are selected. On November 27, 2006, the Department posted its notice of intent to award the contract to Midland. On November 30, 2006, Vertex Standard filed its Notice of Intent to Protest the intended award. On December 11, 2006, Vertex filed its Petition requesting a hearing pursuant to Section 120.57(1), Florida Statutes.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That a final order be entered dismissing Vertex Standard's petition. DONE AND ENTERED this 30th day of April, 2007, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON 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 30th day of April, 2007. COPIES FURNISHED: C. Denise Johnson, Esquire Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0450 Michael P. Donaldson, Esquire Daniel Hernandez, Esquire Carlton Fields, P.A. 215 South Monroe Street, Suite 500 Post Office Drawer 190 Tallahassee, Florida 32302-0190 Stacy M. Schwartz, Esquire Eric D. Isicoff, Esquire Isicoff, Ragatz & Koenigsberg 1200 Brickell Avenue, Suite 1900 Miami, Florida 33131 Alexis M. Yarbrough, Esquire Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0450 Stephanie Kopelousos, Interim Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street, Mail Station 57 Tallahassee, Florida 32399-0450
The Issue The issue is whether to approve Coyote Land Company, Inc.'s (Coyote's) applications for renewal permits to continue construction and operation of two construction and demolition debris facilities and one solid waste processing facility located in Santa Rosa County, Walton County, and Bay County, respectively.
Findings Of Fact The Parties Coyote is a for-profit corporation registered to conduct business in the State of Florida. W. Todd Schweizer is the president of the corporation. Coyote owns and operates Coyote Navarre, Coyote West, and Coyote Disposal, which are seeking permit renewals. It also owns and operates a solid waste management facility known as Coyote East in Freeport, Walton County, which is now, along with two other Coyote facilities, the subject of an enforcement action in circuit court. See Department Ex. 20. However, Coyote East is not a party to this proceeding. (That facility's permit expires on March 4, 2013.) The Department is an administrative agency of the State which administers and enforces chapters 376 and 403, Florida Statutes (2010), and Florida Administrative Code title 62. Coyote Navarre The evidence indicates that the Coyote Navarre facility has a long history of not complying with Department regulations and orders. In September 2001, Coyote filed an application to transfer an existing permit for a construction and demolition debris disposal facility located at 3201 Five Forks Road, approximately 3.3 miles north of the U.S. Highway 98 and State Road 87 intersection, in Navarre, Santa Rosa County to an entity known as Coyote Navarre. The application was approved, with a permit expiration date of May 4, 2003. To address ground contamination at the facility, in November 2001, Coyote submitted to the Department a Contamination Assessment Plan. In May 2003, Coyote submitted a renewal permit application, which was approved on December 17, 2004. See Department Ex. 1. The new permit had a renewal date of December 17, 2009. Id. In September 2006, Coyote submitted a Site Assessment Report (SAR) to the Department that assessed benzene, arsenic, aluminum, iron, sulfate, and total dissolved solids (TDS) found in groundwater compliance monitoring wells at Coyote Navarrre in concentrations above allowable groundwater standards. The Department reviewed the SAR and advised Coyote by letter dated October 31, 2006, that the SAR was incomplete. In January 2007, Coyote notified adjacent property owners that groundwater contamination had reached beyond the property boundaries of its facility. During the years 2008 and 2009, Coyote did not submit groundwater monitoring results for the facility to the Department. The Department sent Coyote a renewal permit reminder letter on July 9, 2009. The letter reminded Coyote that the application must be submitted on or before October 18, 2009, to be considered timely and sufficient. Coyote eventually submitted an application on December 11, 2009. See Department Ex. 8. The application was deemed incomplete and a request for additional information was sent to Coyote. See Department Ex. 9. Coyote did not provide a response to the Department before the permit expired on December 17, 2009. On April 2, 2010, the Department issued its notice of intent to deny Coyote's permit renewal application. See Department Ex. 10. Besides the application being incomplete and untimely, the Department determined that based upon prior conduct by the applicant, Coyote is an "irresponsible applicant" within the meaning of rule 62-701.320(3). Id. Paragraph (3)(a) of the rule provides that an applicant is "irresponsible" if it "was subject to a state or federal notice of violation, judicial action, or criminal prosecution for activities that constitute violations of Chapter 403, F.S., or the rules promulgated thereunder, and could have prevented the violation through reasonable compliance with Department rules." If an applicant is deemed to be irresponsible, the rule provides that in determining whether an applicant has given reasonable assurances that Department standards will be met, the Department may also consider "repeated violations of applicable statutes, rules, orders, or permit conditions caused by a permit applicant after October 1988 relating to the operation of any solid waste management facility in this state." Fla. Admin. Code R. 62- 701.320(3). On December 9, 2010, the Department sent Coyote a letter informing it to cease and desist operations at Coyote Navarre because the facility's permit had expired. See Department Ex. 11. Because Coyote has continued to operate the facility without a permit, the Department has filed a complaint in circuit court. The outcome of that action is unknown. Besides the foregoing civil action, the Department filed a complaint against Coyote in circuit court on April 8, 2008, alleging that the facility had violated chapter 403 and rule chapters 62-210, 62-296, and 62-701 by causing pollution and failing to control objectionable odors at the facility. See Department Ex. 2. This case was later settled through a Stipulated Order approved by the Court on August 25, 2009, which required Coyote to install an air monitoring device at Coyote Navarre and provide the Department with air monitoring results. See Department Ex. 4. The results were submitted to the Department for the months of October, November, and December 2010. Another circuit court action was filed against Coyote in June 2009 alleging that the facility was causing groundwater contamination, that it failed to submit groundwater monitoring results, and that it failed to assess groundwater contamination or complete a SAR. See Department Ex. 5. A Consent Final Judgment was executed by the parties and approved by the Court on March 30, 2010. See Department Ex. 6. However, as of the date of the hearing, Coyote had failed to submit a SAR Addendum within 270 days of the entry of the judgment, as required by the Consent Final Judgment. Although given an opportunity to do so, Coyote presented no evidence at hearing in support of its application or to respond to the Department's reasons for denying the application. Coyote West Like Coyote Nararre, the documentary evidence indicates that the Coyote West construction and demolition debris disposal facility on Hatcher Cemetery Road, south of State Road 20, near Freeport, Walton County, has a history of not complying with Department regulations and orders. In 2002, Coyote filed an application for the transfer of an existing permit to an entity to be known as Coyote West. The Department approved the transfer of the permit, with an expiration date of February 19, 2004. Coyote West did not submit a permit renewal application and the permit expired in 2004. In April 2005, Coyote West submitted a new permit application, which was approved in October 2005. See Department Ex. 12. That permit had an expiration date of October 21, 2010. In November 2005, routine groundwater sampling at the facility indicated the presence of aluminum, iron, and sulfate in concentrations above groundwater standards. Coyote submitted a SAR to the Department in December 2006 and a SAR Addendum in April 2007. Although the Department advised Coyote in October 2007 that the SAR Addendum was incomplete, as of October 2010, Coyote had still not provided the requested information. See Department Ex. 21. Also, during 2008 and 2009, Coyote did not file groundwater monitoring results for the Coyote West facility. On April 28, 2010, the Department sent Coyote a renewal permit reminder letter, which reminded Coyote that its permit renewal application must be filed on or before August 22, 2010, in order to be considered timely. See Department Ex. 14. An application was filed by Coyote on August 20, 2010. See Department Ex. 16. On September 17, 2010, the Department issued its notice of intent to deny the application on the ground Coyote's prior conduct rendered it an irresponsible applicant as defined in rule 62-701.320(3). See Department Ex. 18. Although given an opportunity to do so, Coyote submitted no evidence at hearing in support of the application for renewal of the permit or to respond to the Department's reason for denying the application. Coyote Disposal In February 2002, Coyote filed an application with the Department seeking to transfer an existing permit for a solid waste processing facility located at 2101 East 9th Street, Panama City, to an entity to be known as Coyote Disposal. The application for a transfer of the permit was approved, with the permit having an expiration date of September 1, 2003. In August 2003, Coyote submitted a renewal permit application to the Department, which approved the application with a new permit expiration date of October 21, 2010. See Department Ex. 13. Coyote's January 2006 Semi-Annual Water Quality Report reflected aluminum, arsenic, iron, sulfate, and TDS in compliance monitoring wells at levels well above the allowable groundwater standards. After the Department confirmed these findings in September 2006, Coyote submitted a SAR in March 2008. The Department sent Coyote letters on May 20, 2008, and October 17, 2008, informing Coyote that the March 2008 SAR was incomplete. See Department Ex. 22. Coyote has never responded to these letters. On April 28, 2010, the Department sent Coyote a renewal permit reminder letter advising that an application must be submitted by August 22, 2010, in order to be considered timely. See Department Ex. 15. On August 20, 2010, Coyote filed its permit renewal application for Coyote Disposal. See Department Ex. 17. On September 17, 2010, the Department issued its intent to deny the application on the ground that Coyote's prior conduct rendered it an irresponsible applicant within the meaning of rule 62-701.320(3). See Department Ex. 19. Although given an opportunity to do so, Coyote presented no evidence at hearing in support of the application for renewal of the permit or to respond to the Department's reason for denying the application.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection enter a final order denying the applications of Coyote Land Company, Inc., for renewal of permits 0005651-005-SO (Coyote Navarre), 0002039-005-SO (Coyote West), and 0007948-006-SO (Coyote Disposal). DONE AND ENTERED this 26th day of April, 2011, in Tallahassee, Leon County, Florida. S D. R. ALEXANDER 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 26th day of April, 2011. COPIES FURNISHED: Lea Crandall, Clerk Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 Herschel T. Vinyard, Jr., Secretary Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 Thomas M. Beason, General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 W. Todd Schweizer, President Coyote Land Company, Inc. 4 Laguna Drive, Suite 201 Fort Walton Beach, Florida 32548-3600 Rhonda L. Moore, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000
The Issue Whether Respondent committed the violations alleged in the Administrative Complaint and, if so, what penalty should be imposed.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: At all times material to the instant case, Respondent operated the House of India (Restaurant), an eating establishment located in Coral Gables, Florida. Respondent is now, and was at times material to the instant case, the holder of a license issued by Petitioner (license number 2313769) authorizing it to operate the Restaurant as a public food service establishment. On the morning of September 28, 2006, Douglas Morgadanes, a Sanitation and Safety Specialist with Petitioner, conducted an inspection of the premises of the Restaurant. His inspection revealed, among other things, that there were, what he believed to be, "rodent droppings" present in the Restaurant, creating "an unsanitary condition [that] could lead to food borne illnesses" if the food served to patrons became contaminated with these droppings. Before leaving the establishment, Mr. Morgadanes advised Respondent that this "unsanitary condition" had to be corrected within 24 hours. The Restaurant closed immediately following the inspection and an extensive cleanup operation was undertaken. In addition, Respondent had "[its] pest control company," Rentokil Pest Control (Rentokil), come to the Restaurant during or around the early morning hours of September 29, 2006, to perform "follow-up" rodent control services. (Rentokil had just made a "routine service" call to the Restaurant on September 27, 2006.) Mr. Morgadanes conducted a "callback" inspection of the Restaurant on September 29, 2006. His inspection revealed that, notwithstanding Respondent's cleanup and rodent control efforts, there were, what appeared to him to be, rodent droppings4 in an unused attic area above, and "a little bit to the side" of, the Restaurant's kitchen. Respondent was unable to produce for Mr. Morgadanes during the "callback" inspection documentation reflecting that Rentokil had been to the Restaurant to provide rodent control services. Respondent subsequently sent such documentation to Mr. Morgadanes' office by facsimile transmission. The documentation for the September 29, 2006, service call (9/29 Documentation) contained the following entries under "Service Performed by Rentokil" and "Cooperation Requested from Customer": Service Performed by Rentokil: Inspected and service[d] facility for pest[s]. Found no activity. Put out glue in kitchen underneath kitchen sink around hole near the back door. Cooperation Requested from Customer: Proofing Adequate? ? Yes ? No Please fix hole underneath sink to prevent rodent harborage. Sanitation Needed? ? Yes ? No Please clean dishwashing station. These entries on the 9/29 Documentation clearly and convincingly establish that, although Respondent had done cleanup work and retained the services of Rentokil in an effort to minimize the presence of rodents in the Restaurant, it had not eliminated harborage conditions on the premises.5 After receiving the documentation from Respondent, Petitioner issued the Administrative Complaint that is the subject of the instant controversy. This was the second time in less than a year that Petitioner had charged Respondent with violating Section 6-301.14 of the Food Code. A prior charge (filed in DBPR Case No. 2005064978) had been disposed of by stipulation, the terms of which were "adopted and incorporated" in a Final Order issued by Petitioner on January 12, 2006. There was no admission or finding of guilt. The "stipulated disposition" of the charge was Respondent's payment of a fine of $500.00 and attending a hospitality education program.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that Petitioner issue a final order finding that Respondent committed the violations alleged in the Administrative Complaint and disciplining Respondent therefor by imposing a fine of $1,000.00 and directing that Respondent attend, at its own expense, a hospitality education program. DONE AND ENTERED this 22nd day of August, 2007, in Tallahassee, Leon County, Florida. S STUART M. LERNER 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 22nd day of August, 2007.
