Findings Of Fact On an application received by the Respondent on September 5, 1979, the Petitioner, Community Medical Transporters, Inc. (CMT), applied for a temporary non-emergency medical transportation license. CMT indicated that it proposed covering the Broward County area and had three vehicles available. The application was denied on September 21, 1979, by Respondent for the reasons already set out above. CMT was recently incorporated in September, 1979, and has not operated a non-emergency medical transportation service in Broward County or any place else. While at present and at the time of the denial there are no medical transportation services in Broward County providing exclusively non-emergency service, there are at least four HRS licensed ambulance services which provide both emergency and non-emergency service in the area. In addition, there are several transportation services licensed by the Public Service Commission under Chapter 323, Florida Statutes, providing non-emergency service in Broward County. CMT does not hold a certificate of public convenience and necessity from the Broward County Commission. Respondent has no rules which define what statutes the public interest, safety, or convenience and the Department's witness was unable to define what the terms meant except to say that they meant holding a certificate of public convenience and necessity from the appropriate county commission.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That the application of Community Medical Transporters, Inc., for a non- emergency medical transportation services license be DENIED BUT WITHOUT PREJUDICE to an application for a permanent license. DONE and ENTERED this 28th day of December, 1979, in Tallahassee, Florida. MICHAEL P. DODSON Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: S. Steven Craycraft Community Medical Transporters, Inc. 5270 N.W. 15th Street Margate, Florida 33063 Harold Braynon, Esquire District X Counsel Department of HRS 201 West Broward Boulevard Fort Lauderdale, Florida 33301 =================================================================
The Issue The issue for determination is whether Petitioner satisfies the eligibility requirements in Subsection 121.081(1)(f), Florida Statutes (2005), to purchase past service credit in the Florida Retirement System (FRS).
Findings Of Fact Petitioner was employed as a State Certified Paramedic by Harbor City Volunteer Ambulance Squad, Inc. (HCVAS), in Brevard County, Florida, from sometime in December 1976 through September 30, 1999. From October 1, 1999, through the date of the formal hearing, Petitioner was employed as a county employee in an identical capacity with Brevard County Fire Rescue (BCFR). Petitioner's employment with HCVAS and BCFR was continuous, with no break in service. Petitioner performed identical services with HCVAS and BCFR and had identical duties and responsibilities. At BCFR, Petitioner received credit for 80 percent of the seniority and leave accrued while Petitioner was employed with HCVAS. From sometime in October 1992 through September 30, 1999, HCVAS furnished emergency and non-emergency ambulance service in an area the parties refer to as the central part of Brevard County, Florida, that is legally described in Petitioner's Exhibit A (the service area). HCVAS furnished ambulance service pursuant to a contract with the Brevard County Board of County Commissioners (the County). HCVAS was an independent contractor with the exclusive right to provide ambulance service in the service area. The County, rather than HCVAS, provided emergency ambulance service for that part of the County outside the service area. A company identified in the record as Coastal Health Services provided non-emergency ambulance service outside the service area. HCVAS was an "employing entity which was not an employer under the [FRS]," within the meaning of Subsection 121.081(1)(f), Florida Statutes (2005). HCVAS was a private, non-profit company rather than a government entity. However, employees of HCVAS were not volunteers, but were full-time employees of HCVAS. HCVAS paid its employees, including Petitioner, from funds received from the County. The County retained exclusive control of communication and dispatching of emergency calls for the entire County, including the service area. The County required HCVAS to maintain communication equipment that was compatible with the central communication system. On October 1, 1999, the County effected an "assumption of functions or activities" from HCVAS within the meaning of Subsection 121.081(1)(f), Florida Statutes (2005). The County allowed the contract with HCVAS to expire on September 30, 1999. On April 13, 1999, the County authorized BCFR to provide emergency ambulance service to the service area previously served by HCVAS. The County also authorized the county manager to purchase rescue units and equipment and required the county manager to give first priority to units and equipment of HCVAS. Eligibility for HCVAS employees such as Petitioner to participate in the FRS arose through the assumption of HCVAS functions by the County. The County did not employ HCVAS employees, including Petitioner, as a result of competitive selection. The primary conditions of employment for HCVAS employees such as Petitioner were that each HCVAS employee must apply for employment with the County no later than May 29, 1999; possess a valid Florida driver's license; and pass a criminal background check. The County directed its Public Safety Department (Department) to give special consideration to HCVAS employees, including Petitioner, by hiring as many HCVAS employees as possible. Applications for employment from the general public were to be accepted only if employment positions remained unfilled after placing all qualified HCVAS employees in available positions. Approximately 95 HCVAS employees, including Petitioner, applied for employment with the County. The County employed approximately 90 of the 95 applicants. The five applicants who were not employed were rejected because the applicants either did not possess a valid Florida driver's license or did not pass the criminal background screening. Rejection of an applicant required approval of two supervisors. On October 1, 1999, the County recognized past service with HCVAS by new employees such as Petitioner. The County credited each new employee with seniority, annual leave, and sick leave based on a contractual formula negotiated with the labor union equal to 80 percent of seniority, annual leave, and sick leave earned while employed by HCVAS. On October 1, 1999, former HCVAS employees employed by the County, including Petitioner, became entitled to participate in the FRS system through the "assumption of functions or activities" by the County from HCVAS "which was not an employer under the system" within the meaning of Subsection 121.021(1)(f), Florida Statutes (2005). On the same date, Petitioner became a member of the special risk class of FRS and is "entitled to receive past-service credit . . . for the time" Petitioner "was an employee of [HCVAS] . . . the "other employing entity." On November 6, 2003, Petitioner applied to purchase credit in the FRS for his past service with HCVAS. On December 23, 2003, Respondent denied Petitioner's request on the ground that a "merger, transfer or consolidation" of functions between units of government did not occur. On January 8, 2004, Petitioner provided Respondent with a written reply. The reply explained that the application to purchase credit for past service was based on the County's assumption of functions or services by an employing entity that was not an employer under the FRS and not on a merger, transfer, or consolidation of functions between units of government. By letters dated April 16 and May 25, 2004, Respondent issued written statements of proposed Final Agency Action. On April 16, 2004, Respondent based its proposed agency action on the express ground that a "merger, transfer or consolidation" had not occurred when the County undertook emergency ambulance service in the service area. On May 25, 2004, Respondent added the additional ground that an assumption of functions did not occur between governmental units because HCVAS was a "not-for- profit corporation" and not a "unit of government."
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a final order granting Petitioner's application to purchase credit in the FRS for past service with HCVAS. DONE AND ENTERED this 31st day of January, 2006, in Tallahassee, Leon County, Florida. S DANIEL MANRY 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 31st day of January, 2006. COPIES FURNISHED: Robert B. Button, Esquire Department of Management Services Division of Retirement 4050 Esplanade Way, Suite 160 Tallahassee, Florida 32399-0950 Adrienne E. Trent, Esquire Allen & Trent, P.A. 700 North Wickham Road, Suite 107 Melbourne, Florida 32935 Alberto Dominguez, General Counsel Department of Management Services Post Office Box 9000 Tallahassee, Florida 32399-9000 Sarabeth Snuggs, Director Division of Retirement Department of Management Services Post Office Box 9000 Tallahassee, Florida 32399-9000
Conclusions There is competent substantial evidence to support a conclusion that Miami-Dade County owed a duty of care that was breached when its bus driver ran a red traffic signal, directly and proximately causing the Claimant’s permanent and severe injuries. ATTORNEY’S FEES AND LOBBYIST’S FEES: In compliance with Section 768.28(8), Florida Statutes, but not with Section 3 of this claim bill, Claimant’s attorney has submitted a closing statement affirming that the attorney’s fees are 25 percent of the amount of the award, and that the lobbyists' fees are an additional 6 percent. The Claimants have entered into an agreement to pay costs that was approved by the guardian and the court. Costs are expected to range between $25,783.29, the amount as of January 15, 2007, to $75,783.29 by the end of the claim bill process. LEGISLATIVE HISTORY: This is the first time that a claim bill has been filed to compensate Schneidine Theogene. RECOMMENDATIONS: For the reasons set forth in this report, I recommend that Senate Bill 56 (2008) be reported FAVORABLY. Respectfully submitted, cc: Senator Dave Aronberg Representative Carlos Lopez-Cantera Faye Blanton, Secretary of the Senate Eleanor M. Hunter Senate Special Master House Committee on Constitution and Civil Law Mark Kruse, House Special Master Counsel of Record
Findings Of Fact There are no issues of material fact in dispute. Respondent, Department of Children and Families (Department), pursuant to section 394.9151, Florida Statutes (2018),1/ has contracted with a private entity, Wellpath, LLC (Wellpath), to use and operate a facility, Florida Civil Commitment Center (FCCC), to comply with the requirements of chapter 394, part V (entitled “Involuntary Civil Commitment of Sexually Violent Predators”). Petitioners are persons subject to chapter 394, part V, and are confined in the FCCC. Petitioners allege that the FCCC Resident Handbook and internal memorandum are unpromulgated rules which are imposed on FCCC residents, and that the same are an improper exercise of delegated legislative authority as de facto agency rules that have not been adopted pursuant to the rulemaking procedures of section 120.54(1)(a), Florida Statutes.
Findings Of Fact Background The Florida School for the Deaf and Blind (School) is a residential school, located in St. Augustine, Florida, which serves a student body consisting of sensory impaired students ranging from 3 to 21 years of age. These students are hearing impaired, vision impaired or students who have such impairment(s) in addition to other disabilities. The student population of the School comes from throughout Florida. Prior to 1991, dormitories at the School operated on a seven day per week basis during the school year. Since the school is a residence school, when its dormitories are closed, students who reside throughout the state must be transported to their homes and returned when the dormitories reopen. Prior to 1991, the transportation required for students to and from their homes was limited to the beginning and end of the school year and for approximately six or seven times during the school year for holidays and vacations. Bus transportation for students of the School can present significant problems and potential problems. In addition to problem areas normally encountered when transporting children long distances, the pick up and delivery of disabled students must be carefully coordinated with parents and guardians because these students cannot be simply picked up and deposited at predetermined bus stops. The School must be sensitive to the special needs of their students when contracting for bus services. In addition to other criteria, the School must require that bus drivers employed by prospective bidders be well experienced, knowledgable of the routes, dependable, and demonstrate appropriate temperament. In addition, it is especially important to the School that buses providing transport be well maintained not only for safety but for dependability. Delays in transportation present serious coordination problems for the School. The Previous Bid Protest: Bid X Petitioner has alleged that a collusive relationship exists between the School and the Intervenor, Florida Trails, Inc., d/b/a Annett Bus Lines (Annett). Petitioner alleges that Annett and the Respondent conspired to eliminate the Petitioner as a qualified bidder by including two specifications in ITB 91-20. These specifications are worded as follows: CONTRACTOR EXPERIENCE: It is required that each bidder (contractor) submitting a BID provide written proof of a minimum of five (5) years experience in the bus transportation service industry with at least three (3) of those years in bus charter services. Adequate written proof shall include but not be limited to: copies of letters of reference; copies of corporate records; tax bills; copies of state licenses. Respondent's, Exhibit 1. Bus Features: Contractor shall certify in writing that all buses offered within the terms of the contract will have operating HVAC systems, restrooms, and a full complement of luggage compartments. Contractor should further certify that all bus restrooms will be equipped with inside/outside door locks, wash basins or sanitizing material for personal use, air conditioning and lighting. The Contractor should also certify in the BID that all contract buses will be equipped with cellular phones for FSDB staff use en route. It shall be certified within the BID that buses offered for contractual services shall hold a "satisfactory" rating from the United States Department of Transportation. Copies of such U.S. DOT certifications shall be included in the Bid. Respondent's Exhibit 1 (emphasis supplied). Petitioner alleges that the "collusive relationship" between Annett and the School began during a prior contractual relationship between those parties. By way of background, Annett was awarded a contract to provide bus transportation for students of the School in July of 1990. This contract provided that Annett would transport students of the School at the beginning and end of the school year and for six or seven specified holiday weekends during the school year. In the fall of 1990 the School was required to absorb budget cuts and, as a consequence, made the decision to close dormitories on weekends. This decision created the need for additional student transportation during the school year that the School had not anticipated at the time of the original bid and contract award. When the School made the decision to close its dormitories on weekends, it determined that a new bid process was necessary in order to award an additional contract to provide for the added transportation necessitated by the increase in closing of the dorms. This invitation to bid (ITB) was designated "bid X". At the time the School issued the ITB for bid X, Annett took the position that the original contract covered all transportation for the entire school year, including the unanticipated additional trips which were necessitated by the closing of the School dorms on weekends. Petitioner, Golden Isles of Florida, Inc., (Golden Isles) was the apparent successful bidder during the bid process relating to bid X. Annett filed a bid protest in which Annett essentially challenged the specifications of bid X. Annett's protest challenging the bid X specifications was dismissed as untimely. The dispute between Annett and the School, regarding whether its pre- existing contract to provide transportation for students covered the added weekend trips, was not resolved in the untimely protest to the specifications of bid X. In its untimely protest to bid X, Annett filed a document which included the following language: The bidder 'Golden Isles' has changed names in the last year; until approximately a year ago, the company was Golden Isles Coaches, Inc., a Georgia Corporation with IMC-MC 157480; now, the company is Golden Isles Coaches of Florida, a Florida Corporation with ICC-MC 157480; Golden Isles Coaches does not have a satisfactory rating with the U.S. D.O.T. (emphasis in the original) As part of its protest to "bid X," Annett also submitted a document in which Annett represented that it was the only bidder who held a "satisfactory" rating from the United States Department of Transportation (U.S. D.O.T.). This document further asserts that the U.S. D.O.T. satisfactory rating "is required [in order for a motor carrier] to be considered for Government business," and "is required before a company can be considered for U.S. military movements." During the time pending resolution of Annett's protest to the bid X specifications, Annett provided the added weekend transportation contemplated by bid X and received added compensation for such transportation. Approximately six days after Annett filed its protest to "bid X," Eric Annett, President of Annett, met with John Thorpe, purchasing agent for the School. The only purpose of this meeting was to discuss whether the protest to bid X could be resolved. In March of 1991, both Eric Annett and Mr. Thorpe attended a meeting at the Board of Trustees for the School, called to take final agency action regarding the Annett protest to bid X. Other than the meetings described above, Mr. Annett and Mr. Thorpe did not meet in person during the time period pertinent to Petitioner's allegation of "collusion." Mr. Annett and Mr. Thorpe had several telephone conversations during the time periods pertinent to Petitioner's allegations. During these telephone conversations there was no discussion regarding any future invitations to bid to be issued by the School. Mr. Annett and Mr. Thorpe have not discussed whether the School intended to use any prior suggestions regarding future bid specifications that Annett may have made. Petitioner has failed to prove that Mr. Annett ever discussed the five year experience requirement at issue in this case with Mr. Thorpe or with any other representative of the School prior to the preparation of ITB 91-20. Prior to the preparation of ITB 91-20, Mr. Annett did send a copy of a letter written by Annett's insurance carrier to the business manager of the School. This letter described the importance of a U.S. D.O.T. satisfactory safety rating. It is more likely than not that the idea for inclusion of the requirement of a U.S. D.O.T. satisfactory rating in the specifications of ITB 91-20 originated with the prior suggestions, comments, and correspondence from Annett to the School. Petitioner has failed to prove, however, that any improper or collusive relationship exists or ever existed between Annett or any of its representatives and any representative of the School. Petitioner has also failed to prove that any specification contained in ITB 91-20 was adopted for the specific purpose of disqualifying the Petitioner as a potential responsive bidder. The specification in ITB 91-20 which requires a U.S. D.O.T. satisfactory rating encompasses standards similar to those covered elsewhere in the ITB. For instance, a separate provision in the ITB requires that the bidder certify that contract drivers are properly licensed, trained and supervised and requires certification that the bidder maintains the U.S. D.O.T. required written drug policy for drivers. Respondent established, however, that the U.S. D.O.T. rating requirement provides a mechanism for independent verification of standards where the other specifications rely substantially on representations made by the bidder. The above-described overlap in specifications does not render any provision of the ITB redundant, unreasonable, arbitrary or capricious. Petitioner has failed to prove that the inclusion of the five year experience requirement in the disputed bid specifications resulted from any action or influence of Annett or any representative of Annett. Petitioner also failed to establish on the record in this case that the experience requirement does, in fact, disqualify Petitioner as a responsive bidder to ITB 91-20. The United States Department of Transportation Satisfactory Rating The U.S. D.O.T. satisfactory rating is based on the degree of compliance with U.S. D.O.T. safety fitness standards that a motor carrier demonstrates. To meet the safety fitness standard, the carrier must show that it has adequate safety management controls in place which function effectively to ensure acceptable safety requirements in order to reduce risks associated with specific problem areas which include: (a) commercial driver's license standards violations; (b) inadequate levels of financial responsibility; (c) the use of unqualified drivers; (d) improper use and driving of motor vehicles; (e) unsafe vehicles operating on the highways; (f) nonreporting of accidents; (g) the use of fatigued drivers; and (h) inadequate inspection, repair, and maintenance of vehicles. 45 CFR Part 385.5. Factors considered in determining a motor carrier's qualification for a satisfactory safety rating from the U.S. D.O.T. include; (a) adequacy of management controls; (b) frequency and severity of regulatory violations; (c) frequency and severity of driver/vehicle regulatory violations (identified in roadside inspections); (d) number and frequency of out-of-service driver/vehicle violations; (e) increase or decrease in similar types of regulatory violations discovered during safety or compliance reviews; (f) frequency of accidents; and (g) the number and severity of violations of state safety rules, regulations, standards, and orders applicable to commercial motor vehicles and motor carrier safety that are compatible with Federal rules, regulations and standards. 45 CFR Part 385.7. As a general proposition, the D.O.T. cannot give an intrastate carrier a safety rating. U.S. D.O.T. jurisdiction over an intrastate carrier is limited to such carriers involved in transporting hazardous materials. Therefore, otherwise qualified intrastate carriers who might wish to respond to ITB 91-20 would be disqualified because such carriers do not have, and cannot obtain, the required U.S. D.O.T. rating. The process for obtaining and maintaining a satisfactory safety rating from the U.S. D.O.T. primarily involves the auditing of records maintained by the motor carrier in question. These audit inspections are conducted by special agents employed by the U.S. D.O.T. Once a motor carrier submits a written request to the U.S. D.O.T. to be inspected for the purpose of obtaining a satisfactory safety rating, the carrier will, in most cases, be inspected for that purpose within approximately six months. Prior to the change in its corporate ownership, Petitioner had the U.S. D.O.T. satisfactory rating which is required in the specifications of ITB 91-20. The Petitioner does not now have the required satisfactory rating. Frank O'Neil, an employee of Petitioner, testified that the Petitioner meets the requirements for a U.S. D.O.T. satisfactory rating and that Petitioner applied for a satisfactory rating in June 1991. Mr. O'Neil's testimony in this regard is credible and is accepted. The representatives of the School involved in preparing the specifications for the disputed ITB included the Director of Student Life, the Transportation Director, the person in charge of information systems, the Purchasing Agent and the Business Manager. The Purchasing Agent (Mr. John Thorpe) and the Business Manager (Mr. Fred Lesswing) testified at the final hearing in this cause. There is no testimony from the other members of the ITB preparations group on the record in this proceeding. 1/ The requirement that a responsive bidder to ITB 91-20 possess a U.S. D.O.T. satisfactory safety rating provides the School with assurance that the bidder is in compliance with legitimate and important safety regulations. Through the U.S. D.O.T. inspection program, this assurance is provided to the School from an objective and independent source. The Petitioner has failed to prove that the action of the School, in including the requirement that bidders responding to ITB 91-20 possess the U.S. D.O.T. satisfactory rating, was either arbitrary or capricious, or that the inclusion of this bid specification undermines the integrity of the public agency procurement process. The Experience Requirement Prior to the preparation of the ITB challenged in this case, the School experienced a bid process in which it was determined that the lowest bidder had little experience and that such experience was limited to transporting tourists on short trips in a small and concentrated area of central Florida. This situation and other problems with prior bidders prompted representatives of the School to attempt to rewrite the bid specifications for ITB 91-20 so as to strengthen and clarify the experience requirement. Petitioner has established that reasonable persons might differ as to the clarity and meaning of the wording of the experience requirement in the disputed ITB. Reasonable persons might also differ with respect to the extent of experience which should be required of a responsive bidder in this case. However, Petitioner failed to prove that the experience requirement is arbitrary and capricious or that the requirements undermine the integrity of the competitive bidding process.
Recommendation Based on the foregoing, it is RECOMMENDED that the Respondent enter a Final Order dismissing Petitioner's protest to Respondent's Invitation Bid No. 91-20. DONE and ENTERED this 8th day of August, 1991, in Tallahassee, Florida. JAMES W. YORK, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of August, 1991.
Conclusions An Administrative Law Judge of the Division of Administrative Hearings has entered an Order Closing File in this proceeding. A copy of the Order is attached hereto as Exhibit A.
Other Judicial Opinions REVIEW OF THIS FINAL ORDER PURSUANT TO SECTION 120.68, FLORIDA STATUTES, AND FLORIDA RULES OF APPELLATE PROCEDURE 9.030(b)(1)(C) AND 9.110. TO INITIATE AN APPEAL OF THIS ORDER, A NOTICE OF APPEAL MUST BE FILED WITH THE DEPARTMENT'S AGENCY CLERK, 2555 SHUMARD OAK BOULEVARD, TALLAHASSEE, FLORIDA 32399-2100, WITHIN 30 DAYS OF THE DAY THIS ORDER IS FILED WITH THE AGENCY CLERK. THE NOTICE OF APPEAL MUST BE SUBSTANTIALLY IN THE FORM PRESCRIBED BY FLORIDA RULE OF APPELLATE PROCEDURE 9.900(a). A COPY OF THE NOTICE OF APPEAL MUST BE FILED WITH THE APPROPRIATE DISTRICT COURT OF APPEAL AND MUST BE ACCOMPANIED BY THE FILING FEE SPECIFIED IN SECTION 35.22(3), FLORIDA STATUTES. YOU WAIVE YOUR RIGHT TO JUDICIAL REVIEW IF THE NOTICE OF APPEAL IS NOT TIMELY FILED WITH THE AGENCY CLERK AND THE APPROPRIATE DISTRICT COURT OF APPEAL. MEDIATION UNDER SECTION 120.573, FLA. STAT., IS NOT AVAILABLE WITH RESPECT TO THE ISSUES RESOLVED BY THIS ORDER. Jul 28 2009 10:37 a7/2e/28e89 18:28 B589222679 DCA LEGAL PAGE @4/ae FINAL ORDER NO. DGA09-GM-266 CERTIFICATE OF FILING AND SERVICE LHEREBY CERTIFY that the original of the foregoing has been filed with the undersigned Agency Clerk of the Department of Community Affairs, and that true and correct Waite have been furnished to the persons listed below in the manner described, on this ay of July, 2009. a Zp 2 Paula Ford fency Clerk Florida Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100 U. §. Mail: Jerry Coleman, Esq- Jerry Coleman, PI. 201 Front Street, Suite 203 Key West, Florida 33041 Derek V. Howard, Esq. Monroe County Attorney's Office 1111 12" Street, Suite 408 Key West, Florida 33040 Barton W. Smith, Esq. Barton Smith, P.L. 309 Whitehcad Street Key West, Florida 33040 Richard E. Grosso, Esq. Everglades Law Center, Inc. 3305 College Avenue Fort Lauderdale, Florida 33314 Robert N. Hartsell, Esq. Everglades Law Center, Inc. 818 U.S. Highway 1, Ste. 8 North Palm Beach, Florida 33408-3857 Sherry A. Spiers, Esq. Robert C. Apgar, Esq. Greenberg Traurig, P.A. 101 East College Avenue Tallahassee, Florida 32301 Jul 28 2009 10:37 a7/2e/28e89 18:28 B589222679 DCA LEGAL PAGE @5/@8 FINAL ORDER NO. DCA09-GM-266 Richard Barfield, Esq. Navy Office of the General Counsel Naval Facilities Engineering Command Southeast United States Navy Box 30, Building 903 Jacksonville, Florida 32212-0102 Hand Delivery: Richard E. Shine, Esquire L. Mary Thomas, Esquire Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100 Jul 28 2009 10:37 a7/2e/28e89 18:28 B589222679 DCA LEGAL PAGE 86/88 STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS DEPARTMENT OF COMMUNITY AFFAIRS, Petitioner, and PROTECT KEY WEST AND THE FLORIDA KEYS, INC., d/b/a LAST STAND AND THE DEPARTMENT OF THE NAVY, Intervenor, vs. Case No. 08-2035GM MONROE COUNTY, Respondent , and ROBBIE”"S SAFE HARBOR MARINE ENTERPRISES, INC.; SAFE HARBOUR PROPERTIES, LLC; AND KW RESORT UTILITIES CORP., Intervenor.
The Issue Whether or not, between the periods of January 1976 and August 1977, the licensees or their agents, servants or employees allowed the license premises to be kept, set up, maintained or operated for the purpose of prostitution, in violation of Section 509.032(1), Florida Statutes, and Section 796.07, Florida Statutes. Whether or not, between the periods of January 1976 and August 1977, Ulysses Brown, the licensee and/or operator of the licensed premises had been convicted of letting the premises for prostitution and keeping a disorderly place, thereby violating Section 509.261(4)(a), Florida Statutes.
Findings Of Fact At all times material to the notice to show cause, Alma Mae Young and Ulysses Brown were the holder of license No. 23-7079H held with the Petitioner, State of Florida, Department of Business Regulation, Division of Hotels and Restaurants. This license was held to do business as Young's Rooming House, located at 7000 N.W. 21st Avenue, Miami, Florida. The facts in this case show that on October 23, 1976, Officer Otis Chambers, of the Dade County Public Safety Department, Dade County, Florida, went to the licensed premises known as Young's Rooming House located at 7000 N.W. 21st Avenue, Miami, Florida. At that time, Officer Chambers was operating in the capacity of an undercover plainclothes officer investigating vice matters. He was in the company of a prostitute and when he approached the desk in the licensed premises, he spoke with the licensee, Ulysses Brown. In the conversation with Mr. Brown, he identified the woman in his company as being a prostitute, as shown by the remarks to Brown, and Brown acknowledged this information and rented a room to the officer. Subsequent to the events that transpired in the conversation between Officer Chambers and the licensee Brown, Brown was arrested and charged with violations of Section 796.06, Florida Statutes, which pertains to renting space for prostitution and with a violation of Section 796.07(2)(c), Florida Statutes, which is an allegation of receiving, offering or agreeing to receive, any person into any place, structure, building or conveyance with the purpose of prostitution or permitting any person to remain in those locales for such purpose. The licensee was found guilty of both offenses and placed on a period of probation for six months. Evidence of this finding by the Court may be seen as Exhibit No. 4 admitted into evidence. It was also shown in the course of the hearing that a number of complaints have been made by neighbors who live in the area of the licensed premises, to the effect that the licensed premises was a place in which prostitution was occurring; The comment was also made by these individuals that men and women were seen in the licensed premises who were not wearing clothes. The opinions were testified to by Officer John Wilson of the Dade County Public Safety Department who had spoken with a number of the residents of the area where the licensed premises is located. Although Ulysses Brown has claimed that he is no longer involved with the licensed premises, a recent inspection by Agent John H. McKinnon of the Division of Hotels and Restaurants reveals that Ulysses Brown is still working in the licensed premises. According to Brown, and in keeping with what the agent actually observed about the licensee's intention, Brown is to work and take care of the licensed premises and Young is to be the owner. Based upon the facts as reported, the Petitioner has brought two charges in the notice to show cause. The first charge alleges that between the periods of January 1976 and August 1977, the licensees, their agents, servants or employees, allowed the premises to be kept, set up, maintained or operated for the purpose of prostitution, in violation of Section 509.032(1), Florida Statutes, and Section 796.07, Florida Statutes. Section 509.032, Florida Statutes, states the duties of the Petitioner in the following language: 509.32 Duties.- (1) GENERAL.- The division shall carry out and execute all of the provisions of this chapter and all other laws now in force or which may hereafter be enacted relating to the inspection or regulation of public lodging and public food service establishments for the purpose of safe- guarding the public health, safety, and welfare. The division shall be responsible for ascertaining that no establishment licensed by it shall engage in any misleading advertising or unethical practices as defined by this chapter and all other laws now in force or which may hereafter be enacted. The division shall keep accurate account of all expenses arising out of the performance of its duties shall file monthly itemized statements of such ex- penses with the Department of Banking and Finance together with an account of all fees collected under the provisions of this chapter. A reading of this paragraph of this section leads to the conclusion that its purposes are to create the authority in the Petitioner to implement regulations to enforce the provisions of the overall Chapter 409, Florida Statutes. It is not read to be a substantive law which would empower the Petitioner to take action based upon the language of that section per se. Therefore, an violation of Section 796.07, Florida Statutes, would not promote the right to take action against the licensees under Section 509.032, Florida Statutes. The second count in the notice to show cause pertains to an allegation that between the periods of January 1976 and August 1977, the licensees and/or the operator, and in this instance that person is Ulysses Brown, has been convicted for letting the premises for prostitution and keeping a disorderly place which is in violation of Section 509.261(4)(a), Florida Statutes. That provision of the statutes reads as follows: 509.261 Revocation or suspension of licenses; fines; procedure.- (4)(a) Any person interested in the operation of any such establishment, whether owner or operator, has been convicted, within the last past 5 years in this state or any other state or the United States of soliciting for prostitution, pandering, letting premises for prostitution, keeping a disorderly place, illegally dealing in narcotics, or any other crime involving moral turpitude. The term "convicted" shall include an adjudication of guilt on a plea of guilty or nolo contendere or the forfeiture of a bond when charged with a crime. As stated before, Ulysses Brown, one of the licensees, was found guilty of Sections 796.06 and 796.07(2)(c), Florida Statutes. Those violations were established through an entry of the judgment finding the licensee guilty on January 20, 1977. That finding was reached within five years of the date of the action for suspension or revocation. This finding by the Court, coupled with the continued involvement by Ulysses Brown in the operation of the licensed premises and the background problems which have been prevalent in the licensed premises, would justify action being taken against both licensees, to-wit, Alma Mae Young and Ulysses Brown. The action spoken of was the right of action under Section 509.261(4)(a), Florida Statutes, and is the right of direct action against Ulysses Brown and a right of indirect action against Alma Mae Young for her knowledge, negligence or lack of due diligence in the operation of the licensed premises.
Recommendation It is recommended that the license held by the Respondents Alma Mae Young and Ulysses Brown to trade as Young's Rooming House located at 7000 N.W. 21st Avenue, Miami, Florida, license No. 23-7079H be revoked. DONE and ENTERED this 12th day of April, 1978, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Lawrence D. Winson, Esquire Department of Business Regulation 725 South Bronough Johns Building Tallahassee, Florida 32304 Alma Mae Young Ulysses Brown Youngs Rooming House 7000 N.W. 21st Avenue Miami, Florida
