The Issue Section 321.051, Florida Statutes authorizes the creation of a system for utilizing qualified wrecker operators to remove wrecked, disabled, or abandoned vehicles. The Department of Highway Safety and Motor Vehicles has created a rotation system in which wrecker operators within designated zones are called on a rotating basis to respond to Florida Highway Patrol (FHP) calls. This rule challenge attacks the "place of business" rule as promulgated in Rule 15B-9.003(2), Florida Administrative Code and the non-rule policy interpreting the "place of business" requirement of the duly promulgated rule, on the basis that they are invalid exercises of delegated legislative authority and are arbitrary, capricious, and violative of constitutional equal protection with respect to these Petitioners, Murphy's and Lyons. With regard to the non- rule policy, it is also attacked because it has not been adopted pursuant to Section 120.54, Florida Statutes. BACKGROUND AND PROCEDURE The parties stipulated that there would be a unified record; that is, all evidence and testimony would be applicable to the Administrative Complaint proceeding and to the rule challenge proceeding. Oral testimony was received from Lt. Col. Carmody, FHP; Lt. Wessels, FHP; Howard Kauff, Harold Murphy, and Donald Lyons. DHSMV's Exhibits 2-9 were admitted. DHSMV withdrew its proposed Exhibit 1. Murphy's and Lyons' Exhibits 1-4 were admitted in evidence. A transcript of proceedings was provided and the parties have submitted proposed findings of fact and conclusions of law, the proposed findings of fact of which have been ruled upon in the appendix hereto pursuant to Section 120.59(2), Florida Statutes.
Findings Of Fact The parties do not dispute that DHSMV's grant of authority stems from Section 321.051, Florida Statutes (1987) which in its entirety provides as follows: 321.051 A wrecker operator system for removal of wrecked, disabled, or abandoned vehicles.-- The Division of Florida Highway Patrol of the Department of Highway Safety and Motor Vehi- cles is authorized to establish within areas designated by the Patrol a system utilizing qualified, reputable wrecker operators for removal of wrecked or disabled vehicles from an accident scene or for removal of abandoned vehicles, in the event that the owner or operator is incapacitated or unavailable or leaves the procurement of wrecker service to the officer at the scene. All reputable wrecker operators shall be eligible for use in the system provided their equipment and dri- vers meet recognized safety qualifications and mechanical standards set by rules of the Division of Florida Highway Patrol for the size of vehicle it is designed to handle. Duly promulgated Rule 15B-9.003(2), Florida Administrative Code, which has been challenged in this proceeding, provide: To be eligible for approval to tow in a particular zone, the wrecker operator's place of business must be located in that zone, except that if there are no qualified opera- tors in a particular zone, the Division Director or his designee may designate qualified out of zone wrecker operators to be called in that zone. Some other subparagraphs of Rule 15B-9.003 which were duly promulgated and which have not been challenged in this proceeding are: ... Wrecker operators shall have one day and one night telephone number ... Wrecker operators shall be on call twenty-four hours a day, seven days a week. Out-of-zone wrecker requests are permitted in the event of an emergency or the absence of a wrecker of proper classification within the accident or removal zone. The "specific authority" listed in the Florida Administrative Code for this rule is Section 321.051, Florida Statutes. The "law implemented" is Sections 321.051 and 321.05(1), Florida Statutes. Duly promulgated and also unchallenged Rule 15B-9.004, Florida Administrative Code provides in pertinent part: (1) The wrecker operator shall respond to all requests for service made through the Florida Highway Patrol duty officer within a reasonable time under the existing conditions and circumstances. If response cannot be made within a reasonable time, the wrecker operator shall notify the Florida Highway Patrol duty officer representative of the estimated time of delay and reasons therefore and the duty officer, if he determines that the delay is unreasonable, may cancel the request for service and use the services of another participating wrecker operator. * * * (4) When a vehicle is released at the scene by the investigating trooper or representative of the division, the wrecker operator shall tow to any location the owner requests within the limits of the zone. The "specific authority" listed in the Florida Administrative Code for this rule is Section 321.051, Florida Statutes. The "law implemented" is Section 321.051 and 321.05(1), Florida Statutes. The non-rule policy complained of has been reduced to writing by the Florida Highway Patrol (FHP) in the Administrative Complaints against these Petitioners, and interprets the term "place of business" as provided by challenged Rule 15B-9.003(2), Florida Administrative Code to mean: A business establishment which meets the following criteria: There must be a sign on the building that identifies it to the general public as a wrecker establishment; There must be office space; They must have personnel on duty at least from 9:00 a.m. to 4:00 p.m., Monday- Friday. There must be a phone at the place of business; Tow trucks must be stationed at the place of business; The tow trucks must have the zone address and phone numbers on them. Petitioners are both engaged in the business of removing wrecked, disabled, stolen or abandoned motor vehicles on Florida highways. Pursuant to Section 321.051, Florida Statutes, Petitioners are eligible for, and participate in, the system established by the DHSMV for utilizing qualified, reputable wrecker operators for removal of wrecked or disabled vehicles from accident scenes or the removal of abandoned vehicles when the owner or operator is incapacitated, unavailable, or leaves the procurement of wrecker service to the officer at the scene (hereafter referred to as "FHP wrecker rotation system"). Petitioners are each charged in an Administrative Complaint indicating that the Respondent intends to remove Petitioners from the FHP wrecker rotation system for alleged failure, among other offenses, to comply with the "place of business" requirement of Rule 15B-9.003(2), Florida Administrative Code, and the unpromulgated "policy" interpreting the term, "place of business" as used in that rule. Petitioners received such notice by hand delivery of the respective Administrative Complaints dated July 22, 1987, bearing case numbers 87-02-FHP and 87-04-FHP now, DOAH Case Nos. 87-3962 and 87-4011, respectively. Those Administrative Complaints are the subject of the Section 120.57(1), Florida Statutes hearing consolidated with this rule challenge. The FHP wrecker rotation system includes designated zones and qualified wrecker operators within those zones. When a wrecker is needed to respond to an accident or to a motorist, FHP calls the wrecker at the top of the list and then rotates this wrecker down to the bottom of the list. By rotating each wrecker on the rotation list following dispatch by FHP, each participating wrecker service is afforded an equal opportunity to service a call. See unchallenged Rule 15B-9.003(3), Florida Administrative Code. Presently, FHP maintains more than two hundred zones statewide. The purpose of the zone system is to provide adequate service levels to the motoring public. The wrecker's response time to a accident scene or to a motorist in need is a primary consideration of FHP. Actual designation of a zone's boundaries is left up to each respective local FHP troop commander, subject to Division Review. See unchallenged Rule 15B-9.003(1), Florida Administrative Code. Designations are within county borders and do not overlap county borders. FHP has designated the size of a zone according to the types of roadways, the number of businesses, and also the weather conditions to anticipate response times within the zones. In Palm Beach County, FHP designated six zones; twenty-two wrecker businesses have qualified to participate as rotation wreckers. These wrecker companies vary according to their size and operation; qualified wrecker operators include companies with as few as one or two wreckers to as many as thirty trucks. Murphy's Towing, Lyons' Auto Body, and Kauff's Towing are among those currently operating in Palm Beach County in one or more zones of the FHP wrecker rotation system. Petitioner Murphy's Towing has participated in the wrecker FHP rotation system for eight years. Murphy's Towing maintains approximately thirty trucks and operates in four zones in Palm Beach County. It maintains storage areas in each zone. As a result of its fleet of wreckers, Murphy's is able to use a roving patrol operation. When a call is received by Murphy's Towing from FHP, a central dispatcher operating 24 hours per day assigns a Murphy's truck which is patrolling in an assigned zone to respond to the call. In individual instances, this system may actually cut or increase response time within zones from what it might be if a truck were dispatched each time from a stationary place of business within the zone. Presently, wrecker services in Palm Beach County will dispatch the closest vehicle, regardless of the address of the wrecker truck or the location of the wrecker, even across zone lines. Petitioner Lyons' Auto Body, Inc., has participated in the FHP wrecker rotation system for twenty years. Lyons' Auto Body, Inc. maintains seventeen trucks and operates in three zones in Palm Beach County. Lyons' Auto Body, Inc. also uses a central dispatch operation similar to that employed by Murphy's Towing. Until FHP promulgated rules which took effect January 22, 1986, including the challenged Rule 15B-9.003(2), Florida Administrative Code, the general operation of the wrecker rotation system was governed by written guidelines and policies established by the local troop commanders, but these written guidelines apparently never embraced the term "place of business" nor defined it. (TR-67-69,102). However, by unwritten policy, troop commanders were responsible for enforcing the location of a wrecker company's actual place of business and storage lot within the zone in which he operated. For thirty-two years, Lt. Col. Carmody, now Deputy Director of FHP, understood the unwritten policy to be that a place of business was required for each zone in which an operator operated, i.e., was listed for rotation. Palm Beach County FHP had represented orally to Mr. Kauff for at least nineteen years that he must have a place of business in each zone in which he operated and that "place of business" meant the facility where the wreckers were dispatched, personnel were assigned, phone calls were received, and vehicles were stored after towing. Murphy's and Lyons' principals deny ever receiving such oral information from FHP prior to the current litigation. As Deputy Director of the Florida Highway Patrol, Lt. Col. John W. Carmody is responsible for all field operations and for determining the policy for the patrol. In addition, Lt. Col. Carmody supervises the troops and reviews reports with regard to the wrecker rotation system that come to his attention. In 1982, Lt. Col. Carmody was assigned responsibility by the Director of the Florida Highway Patrol to promulgate rules for administering the FHP wrecker rotation system. Among other rules, he was responsible for drafting Rule 15B- 9.003(2). In so doing, he participated in public hearings, researched other Florida rules currently in force and criteria from other states. At formal hearing, Lt. Col. Carmody demonstrated no analogies or similarities between the challenged rule or the acknowledged non-rule policy and any other agency's or jurisdiction's rules or statutes, but neither did Petitioners, who bear the burden of proof, demonstrate any dissimilarity. The relationship of the challenged rule and policy to other FHP rules also promulgated January 22, 1986, is noted throughout this Order. The unwritten place of business policy was carried forward into the administrative rules promulgated January 22, 1986. The purpose of Rule 15B- 9.003(2) was to assure timely response by wrecker operators to telephone calls from FHP in the interest of the safety and convenience of the public. As the author of the rule, Lt. Col. Carmody was primarily concerned with providing for a reasonable response time to the scene of an accident, reducing traffic disruption at the accident scene, and allowing owners to recover their vehicles or personal property within the zone without undue delay. In addition, it was felt that requiring the business to be located within the zone it served would facilitate the inspection of wreckers by FHP. In promulgating the rule, Lt. Col. Carmody retained the place of business requirement due to the agency's favorable experience with its use in implementing the zone system over thirty- two years. At the time of the promulgation of Rule 15-9.003(2), Florida Administrative Code, in January, 1986, "place of business," as the term is used in that rule, was not defined under Chapter 321, Florida Statutes or Chapter 15- 9, Florida Administrative Code. Because Lt. Col. Carmody believed "place of business" was already defined by common sense and thirty-two years of common FHP interpretation so as to already include a sign, office space, personnel on location in the zone, wreckers on location in the zone, and zone addresses and phone numbers painted on each wrecker, Lt. Col. Carmody did not feel that it was necessary to promulgate an additional rule defining "place of business." Instead, Lt. Col. Carmody gave his "common sense" definition over the phone when occasional inquiries were made. In February of 1986, Lt. Ernest Wessels, newly promoted to the post of District Lieutenant of FHP Troop L, Palm Beach County, and newly in charge of Troop L's wrecker rotation system, became aware that several wrecker services on the local list had failed to letter their vehicles with zone address and phone number and that some were operating in multiple zones. In March, 1986, he met with those he thought were all the wreckers and advised them of the requirement that signs be posted on their trucks; however it is not clear that Murphy's or Lyons had any representative at that meeting or whether the sign requirement discussed had to do with the wrecker rotation system or had to do with the Section 715.07(2)(a)7, Florida Statutes, sign requirement for trucks towing from private property (TR-173). Through the chain of command, Wessels requested by a May 16, 1986 memorandum, a definition of "place of business" and instructions on how to deal with specific presumed offenders against the new "place of business" rule, 15B-9.003(2). One presumed offender indicated in that correspondence is Murphy's. Contrary to Lt. Col. Carmody's assumption in 1986 and his testimony at formal hearing, this correspondence does not indicate that any firm agency policy was known throughout FHP at that time as to how the term "place of business", as used in the new rule, was to be defined or interpreted. Otherwise, Lt. Wessels would not have had to ask for clarification. Carmody never saw Wessels' correspondence but sent oral instructions on how to deal with one business about which Wessels had inquired. That business was not owned by either Lyons or Murphy's. At that time, no specific overall criteria were set forth by Lt. Col. Carmody either orally or in writing with regard to defining "place of business" as used in the rule. By letter dated January 19, 1987, Howard Kauff, Chairman of the Board of Palm Beach Services, Inc., d/b/a, Kauff's Towing in three FHP zones in Palm Beach County requested of FHP the definition of "place of business." His letter set out six criteria stating what he understood to be the definition of "place of business." Lt. Col. Carmody responded to Howard Kauff by memorandum dated February 5, 1987. Carmody sent a copy of that memorandum to Inspector William A. Clark, Bureau Chief in charge of Troop L and to Major William R. Driggers, Troop Commander, Troop L, for the purpose of enforcing Rule 15B-9.003(2) and correcting alleged violations, but he intended for the six criteria identified in his memorandum to have statewide effect. The six non-rule policy criteria incidental to Rule 15B-9.003(2), which were identified by Lt. Col. Carmody in his memorandum to Howard Kauff, and circulated to all of Troop L, are set out in Finding of Fact 4 supra. The non-rule policy in Carmody's memorandum, which for the first time interprets, in writing, the term, "place of business" as used in the rule, virtually adopts the criteria suggested in Mr. Kauff's letter, with only two exceptions. Some of Kauff's suggestions were similar also to Lt. Wessels' earlier suggestions, specifically, name and address on a building, a building manned during normal business hours, and not including lease storage. Lt. Col. Carmody did not disseminate a similar memorandum to all troop commanders throughout the State of Florida until January 8, 1988. He did circulate such a memorandum on that date, but only after his deposition had been taken in the instant case and its companion Administrative Complaint cases. At the time Lt. Col. Carmody corresponded with Howard Kauff on February 5, 1987, Palm Beach County was the only area, to his knowledge, which had experienced problems with the "place of business" interpretation because of the use of multiple zone wreckers. Lt. Col. Carmody had no knowledge of similar problems in any other area of the state at that time. Testimony of Carmody and Wessels at formal hearing confirmed this to also currently be the case. Specifically, there is affirmative evidence that FHP has experienced no similar use of wreckers in multiple zones in the Fort Myers area and no requests for interpretation of the rule from that area of the state or any other. Carmody's January 8, 1988 memorandum was intended to insure uniform application of the six "place of business" criteria which Carmody had previously assumed where generally known and applied throughout FHP. The January 8, 1988 statewide memorandum contained some further refinements and embellishments of the language contained in the earlier memorandum to Kauff and Troop L in Palm Beach County, but the only substantive changes were that for the fifth criterion, the wrecker operator was required to "maintain at least one tow truck at the place of business" and for the sixth criterion, the zone address and phone numbers must be "clearly visible to the public." The 1988 memorandum also contained the further directive that: I recommend that you correspond with each wrecker operator to give the wrecker service notice that the above criteria must be met for the wrecker to comply with the requirements of Rule 15B-9.003(2). Subsequent inspections by FHP personnel of wrecker service shall require compliance with these criteria. Violations shall be noted and the wrecker service given an opportunity to correct any deficiency. If the wrecker operator fails to correct any violation after notice by FHP personnel, Order to Show Cause should be issued to the wrecker service advising that noncompliance will result in the removal of the wrecker service from the rotation list. Following the issuance of the Order to Show Cause, the Office of General Counsel should be advised to take action to remove the wrecker service from the rotation list if the wrecker service has failed to comply with the place of business criteria. [Emphasis supplied, Exhibit P-4.] The non-rule policy appears then to have evolved at least by that point in time to clearly include written warnings prior to enforcing the criteria at a subsequent inspection. The parties have, however, stipulated that as to the six enumerated criteria, the language employed in February 1987, not January 1988, is the non-rule policy FHP is enforcing and intends to enforce. Other evidence suggests that it was always the Patrol's practice that warnings precede an Order to Show Cause. No studies or any other form of field research was conducted as to the necessity or propriety of the non-rule policy. Prior to Lt. Col. Carmody's response to Mr. Kauff's letter, no written document existed requiring the six "place of business" criteria of the non-rule policy. The non-rule policy is admittedly not related to reputability, mechanical standards, or safety qualifications set by the FHP for the size of the vehicle the wrecker is intended to handle. However, the agency's primary purpose behind the place of business non-rule policy, as is its purpose for the published "place of business" rule itself, is to insure prompt response time, which Lt. Col. Carmody and Lt. Wessels view as impacting on overall traffic safety. Specifically, the concerns of FHP are that without a sign on the place of business, the wrecker operator is difficult to locate. Lt. Wessels' personal experience in being unable to locate certain operators during his subsequent investigation in preparation for the Administrative Complaint proceedings demonstrates this concern is valid. (See Finding of Fact 26) A sign assists the public in locating the wrecker service for retrieval of towed vehicles or personal property. It assists in accident investigation and reconstruction by providing quick access to the towed vehicle by insurance investigators/appraisers and by FHP. The office space requirement, the requirement of a telephone on the premises, and the requirement of the presence of office personnel during reasonably specified business hours encourages wrecker services to serve the public by receiving phone calls, permitting payment of towing bills or securing the release of vehicles or personal property, and assists in dispatching wreckers in timely response to FHP rotation calls made by telephone. It was established that in Palm Beach County, at least, FHP rotation calls are, in fact, made by telephone. It is noted that these foregoing criteria relating to telephone contact are also consistent with unchallenged Rule 15B-9.003(8) and (9) and that the hours of 9:00 a.m. to 4:00 p.m. are considerably less for office personnel than the 24 hours per day "on call" status specified in Subparagraph (9). These foregoing requirements help to insure a reasonable response time, as does the requirement that the wrecker be stationed at the place of business within the zone. The requirement that the wrecker be stationed at the place of business within the zone also facilitates timely inspections of each vehicle by the FHP. Painting the name, address, and telephone number on each truck fosters accountability of the wrecker operators, insures the reasonable response time due to their presence within the zone, and it may be inferred from all other evidence that it discourages vehicle equipment from being moved from truck to truck. It is further noted that the truck sign requirement is also consistent with Section 715.07(2)(a)7, Florida Statutes, regulating the towing of vehicles from private property. From FHP's perspective, a reasonable response time is a public safety qualification, although it is admittedly not a qualification geared to the size of the vehicles to be towed. Petitioners assert that Rule 15B-9.004(1), providing that an operator will lose a call if a reasonable response time is not evident, is sufficient to ensure reasonable response by wrecker operators and renders both the challenged rule and non-rule policy redundant and unnecessary because Rule 15B-9.007(1) provides for removal from the wrecker rotation list for failure to comply with any other rule. FHP maintains that although FHP is encountering only sporadic problems in Palm Beach County with wrecker response time under the current operation of Rule 15B-9.003(2), without a place of business requirement, wreckers would be encouraged to race from one zone to another to avoid violating Rule 15B-9.004, and the public would thereby be endangered by traffic hazards created by wreckers hurriedly responding to a call. Wrecker services are reluctant to turn down a rotation call. Murphy's, for instance, charges up to twice as much for an FHP list tow as for other tows. If a wrecker does not respond to a call from FHP, substantial revenues may be lost. Lt. Col. Carmody and Lt. Wessels opined that absence of an enforceable "place of business" rule would largely obliterate the statutory areas/zones concept altogether. See Section 321.051, Florida Statutes, supra. Eliminating the place of business requirement would cause significant operational problems for FHP. Timely response by wreckers could not be effectively enforced on the authority of Rule 15B-9.004 alone. If a wrecker were sent from one zone into another and the wrecker were delayed, an excuse given to the Patrol, such as weather or traffic congestion could never be verified. Eliminating the place of business requirement would allow wreckers to cross zones so that timely response would have to be judged on a case by case basis. In view of the difficulty of judging the reasonableness of each response by a wrecker and problems incurred in locating the business for the purpose of inspecting the wreckers or releasing the vehicle or personal property to the motorist, eliminating the place of business requirement would create what Lt. Col. Carmody described as "an administrative nightmare for FHP." It is found that this is a fair assessment of the situation, despite Lt. Wessels' testimony that he knew of no specific facts showing that the public has yet been adversely affected in response time or retrieval of vehicles by the method in which Murphy's and Lyons' operate their businesses. Upon receiving Lt. Col. Carmody's response of February 5, 1987, Howard Kauff wrote Captain Hardin of Troop L, asking for removal of several wrecker operators, among them, Murphy's and Lyons, whom Kauff had identified as allegedly failing to comply with the six "place of business" criteria specified by Lt. Col. Carmody. Lt. Wessels subsequently conducted an investigation to determine if any of the wrecker services identified by Howard Kauff were in fact in violation of Rule 15B-9.003(2), as interpreted by Lt. Col. Carmody's memorandum of February 5, 1987. For varied reasons, including being unable to locate some satellite business addresses, Lt. Wessels concluded that eight companies did not comply with the criteria and recommended their removal from the appropriate rotation list. Petitioners Murphy's Towing and Lyons Auto Body, Inc. were included in the eight wrecker services identified by Lt. Wessels. Following Lt. Wessels' investigation, FHP issued to the eight wrecker companies Orders to Show Cause why they should not be removed from the appropriate rotation list. Three of the wrecker services complied with the "place of business" requirement. Wessels recommended that the remaining five, which included both Petitioners Murphy's and Lyons be removed. Pursuant to Wessels' recommendations, the Department issued Administrative Complaints against the five wrecker operators. Three wrecker operators were removed from the respective lists--two voluntarily and one by Order of the DHSMV. Murphy's has participated in the wrecker rotation system for eight years without any complaint, citation, or criticism for untimely response. Its main place of business and wreckers have been inspected each of the years immediately prior to service of the Order to Show Cause without any FHP comment on its failure to comply with the "place of business" rule or non-rule policy, despite Lt. Wessels' being aware of Murphy's multi-zone operation as early as May 16, 1986. The July 22, 1987, Administrative Complaints against the Petitioners enunciate only the non-rule policy as it had evolved up to February 5, 1987 and as set out in Finding of Fact 4 supra., not as it had evolved as of the January 8, 1988 statewide memorandum described in Finding of Fact 20 supra. Lyons has participated in the wrecker rotation system for twenty years without any FHP concerns over untimely response. Its history of successful yearly inspections and no FHP comment concerning the "place of business" rule and non- rule policy has been identical to Murphy's for the last three years immediately preceding the Order to Show Cause. Murphy's and Lyons are two of Kauff's largest competitors. Of the ten multi-zone wrecker operators in Palm Beach County, only Mr. Kauff and one other met the criteria suggested by Kauff's letter and enforced by non-rule policy prior to the Orders to Show Cause. See Finding of Fact 27. In January, 1988, FHP learned that Kauff's Towing did not maintain office personnel at its business location in Lake Worth, Zone 4 from 9:00 a.m. to 4:00 p.m., Monday through Friday. Kauff was verbally advised by FHP of the noncompliance. This notice was followed by written confirmation on January 20, 1988 and February 10, 1988. In response to this notice by FHP, Howard Kauff directed his terminal manager to provide personnel at the location during the required time period. Kauff was advised that noncompliance with the criteria would result in removal of Kauff's from the rotation list in Zone 4, Palm Beach County. At formal hearing, Lt. Col. Carmody stated that his memoranda did not address whether outside or inside storage must be available in a zone. In his opinion, FHP could not regulate that aspect due to prior Attorney General Opinion 85-60. (See the Conclusions of Law supra.) He opined that a wrecker operator using a central dispatch may be sufficient although the criteria he seeks to enforce requires a phone at each place of business. Lt. Wessels essentially concurred. Lt. Wessels was unsure how response time would be adversely affected if a truck were maintained in the assigned zone but there was not a building located in the assigned zone or if a tow truck were not physically located at the building location designated as a place of business in the zone but was either patrolling in the zone or parked elsewhere in the zone. Lt. Wessels was unable to testify whether ownership or rental of a building by an operator had significance with regard to the "place of business" rule or the six non-rule policy criteria. Lt. Wessels would accept, within the six criteria, an operator's use of a storage lot maintained by the lot's owner who was not an employee of the wrecker operator. However, it was not demonstrated that Lt. Wessels is in a policy making position for the agency, and his testimony as to the foregoing matters at best demonstrates some further confusion as to how the six interpretative non-rule policy criteria are to be applied on a case by case basis. It does not demonstrate that those six criteria have been applied to Petitioners in any unequal fashion, merely that application of the six criteria is best made on a case by case basis. In the course of discovery, Respondent agency denied the following Request for Admission, "2. Admit that the interpretation of the place of business requirement has not been equally applied to all wrecker operators in the State of Florida." The evidence as a whole does not demonstrate such unequal application of the promulgated rule or the non-rule policy to Petitioners in this cause, so as to invalidate either the rule or the non-rule policy upon that ground. Apparently, as of the date of formal hearing, both rule and non-rule policy are being applied evenhandedly in Palm Beach County where violations have been documented. The testimony of Lt. Col. Carmody and Lt. Wessels demonstrates that no reports of violation have been made from other counties. Petitioners did nothing to refute this testimony nor did they provide any evidence of multiple zone operators in other counties or zones outside of Palm Beach County who were systematically permitted to evade the rule and/or non-rule policy.
The Issue By its Administrative Complaint filed on January 15, 1985, the Department of Professional Regulation charged Respondent with violations of Section 489.129(1)(h)(k) and (m) Florida Statutes, relating to diversion of funds, abandonment of a construction project and gross negligence, incompetency or misconduct. The issue in this proceeding is whether any violation occurred and, if so, what disciplinary action should be taken. The Respondent generally denies the charges. At the hearing, the Petitioner presented two witnesses: Don Riordan, the home-owner; and Stephen Douglas Gates, an employee of Brooks Glass Company who did an estimate of cost of completion for the project. Four Petitioner's exhibits were admitted without objection: a check for payment by Don Riordan to A1 Ruocco, the Brooks Glass estimate, letter from William Bambach to A1 Ruocco and letter from Bob Bambach to Donald Riordan. A fifth exhibit was withdrawn. The Respondent testified on his own behalf and presented no other witnesses. His eight exhibits included the contract and a series of letters between himself and Robert Bambach. At the outset of the hearing, Petitioner moved for leave to file the testimony of Robert Bambach at a later date, due to unsuccessful attempts to serve a subpoena. The Respondent objected and the motion was denied. Petitioner waited until two days before the hearing to attempt to serve the prospective witness even though the hearing had been scheduled since June and the location of the hearing had been established for two weeks. Petitioner filed its Proposed Recommended Order on November 1, 1985; none was filed by Respondent. The proposed findings of fact have been primarily adopted herein but are addressed more specifically in Appendix A, attached to this order.
Findings Of Fact The facts in this case are virtually uncontroverted, with the exception of the months and sequences of some events. At all times material to the Administrative Complaint, Respondent was a registered building contractor holding license number RB0030112, which license qualified River's Edge Construction Company, Inc., Melbourne, Florida. On March 11, 1983 a contract was entered between Albert Ruocco, President, River's Edge Construction Co., Inc. ("Ruocco") and Don Riordan, Jr., ("Riordan") to enclose a balcony with bronze awning windows and bronze tinted glass at Riordan's townhouse residence in Melbourne Beach, Florida. Ruocco and Riordan knew each other socially as Ruocco was a neighbor of Riordan's parents. Ruocco was recommended for the job by Riordan's parents. On March 31, 1983, Riorden paid Ruocco $1300.00 or the $1853.00 contract price. Riordan testified that Ruocco was doing him a favor because it was repair work and the principal amount of money was being paid up front to avoid a cash-flow problem on materials. (T-18). The idea was to get the work done as soon as possible. (T-16). Sometime around May or June 1983, the construction started with removal of existing screening and the installation of an aluminum kick plate and posts to hold the awning window frames. Sometime later the windows were put in for the first time. The actual work on the project was done by a Mr. Bambach, rather than Ruocco. What followed the first installation was a series of misadventures culminating in a lawsuit by Riordan and an $800.00 civil judgment against Ruocco. The work was never completed. The first windows installed were clear glass rather than tinted bronze. Riordan complained to Ruocco and the windows were removed within twenty-four hours. The windows were installed again, this time with film rather than tinted glass and Riordan called Ruocco the next day. Again the windows were removed immediately. Some time passed (by now it was early August) and bronze-tinted windows were installed. However, after a rain storm it became apparent that the installation was faulty, as the structure leaked. The metal strips had been damaged from the several removals. Riordan complained the third time and the windows were removed a third time. They were never replaced. Throughout this period Riordan was dealing with Ruocco, with whom he had the contract and Ruocco was dealing with Bambach, to whom he had given $800.00 as partial payment for the work. Relations between the individuals deteriorated as months passed and the windows were still not finally installed. Riordan called Ruocco about getting the work done and was told that Ruacco was having trouble with his worker. By the end of 1983 Riordan's attorney called Ruocco and said that the money had to be refunded. In the meantime, a stand-off had developed between Ruocco and Bambach, with Ruocco insisting that the work be completed prior to final payment and Bambach insisting that he be paid prior to re- installation of the windows. Bambach had taken the windows to a glass company to be fixed. Bambach alleged in his correspondence that Ruocco did not have the money to pay him, while Ruocco alleged that he tried to meet Bambach to give him the money but Bambach didn't show up. Ruocco testified that he possibly could have installed the windows himself but was trying to get Bambach to complete the job. (T-57). He further testified that he had two other persons look at the job but they wouldn't touch someone else's work. (T-58). Sometime in early 1984 Ruocco was made to understand that Riordan was not interested in waiting any longer for the project to be finished and wanted his money back.
Recommendation On the basis of the foregoing, I recommend that the Respondent be found guilty of misconduct as provided in Subsection 439.129(1)(m) Florida Statutes, and be reprimanded in accordance with Subsection 489.129(1) Florida Statutes. DONE and ORDERED this 12th day of November, 1985, in Tallahassee, Florida. MARY CLARK, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of November, 1985. APPENDIX In accordance with Section 120.59(2) Florida Statutes, the following are recommended rulings on proposed findings of facts submitted by Petitioner in this case. The numbered paragraphs below conform to the paragraphs proposed by Petitioner. These findings are incorporated in Recommended Order, paragraph 1. These findings are incorporated in Recommended Order, paragraphs 2 and 6. These finding are incorporated in Recommended Order, paragraph 3. These findings are incorporated in Recommended Order, paragraph 5. These findings are incorporated in Recommended Order, paragraph 5. These findings are incorporated in Recommended Order, paragraph 5. These findings are incorporated in Recommended Order, paragraph 7. The findings related to the estimate of Brooks Glass Company are irrelevant. The estimate was done approximately one and a half years after the contract was entered between Riordan and Ruocco. The witness from Brooks Glass who testified about the estimate could not relate the quality of Brooks' windows to those intended by Ruocco for the project. (T. 41-43). To the extent that these findings are proposed to show the extent to which the project was left uncompleted, the fact that the windows were never re- installed was admitted by Ruocco and is reflected in Recommended Order paragraphs 4 and 5. These findings are incorporated in Recommended Order paragraphs 7 and 8. COPIES FURNISHED: Fred Roche, Seeretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Salvatore A. Carpino, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Douglas Beason, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Mr. Albert J. Ruocco 604 Citrus Court Melbourne, Florida 32951
Findings Of Fact On February 10, 1988 Harry B. Williams made application to the Department of Natural Resources for permission to construct a single-family dwelling with appurtenant structures at 2831 Ponte Verda Boulevard South, South Ponte Verda Beach, Florida. The permit sought was a coastal construction control line permit which would allow construction seaward of that line in the direction of the Atlantic Ocean. A copy of that permit application may be found as Department's Exhibit Number 2. Associated with the permit application was a description of the plans related to the dwelling and other structures. This application was received by the Department February 11, 1988. Following a review of the permit application the Department deemed it complete as of February 22, 1988. A site inspection was made of the property and a report was prepared by an employee with the Department, a Mr. Partel. The report may be found as Department's Exhibit Number 4, which includes photographs of the prospective building site, together with the surrounding property to include dwellings to the north and south of the lot where the Williams home would be built. As commented on by Mr. Partel the applicant had intended at that time to construct a single-family dwelling a maximum of 75 feet seaward of the coastal construction control line. Although this evaluator, Mr. Partel, felt that the applicant had requested the right to construct a dwelling which was in line with existing construction, he felt that it could be moved further landward and that it could be limited in deck size and that a cantilevened form of construction was preferable to the concrete called for in the plans set out in the application information. It was also suggested that the sea oats that were in the way of the construction should be relocated seaward on a dune face slope where a denuded area is found. In this connection, the Department is empowered to make suggestions to the applicant concerning the minimization of the adverse impacts on the beach-dune system. Following the site visit of February 26, 1988 the Department wrote the applicant on March 11, 1988 and indicated concerns about the proximity of the dwelling to the crest of the dune. A copy of this correspondence may be found as Department's Exhibit Number 5. In the correspondence the Department asked the applicant to move the proposed dwelling 10 feet landward and that the 10 foot wide concrete patio, on the seaward side, be modified to a 10 foot wide wooden deck. The letter told the applicant that the approval would be conditioned on the sea oats and other dune grasses that would be disturbed by the proposed structures being replanted seaward of the project in the denuded areas of the dune. The applicant agreed to these changes. The relocation of the structure 10 feet landward took it away from the beach- dune system. The modified site plan that was brought about by the suggested changes is found Department's Exhibit Number 6, a copy of that amended site plan. With the relocation the construction would be 66 feet seaward of the coastal construction control line. An aerial photograph of the site location reference the basic design of the dwelling and the proximity to the relevant or existing coastal construction control line is found as Department's Exhibit Number 3. In responding to the suggestions to the change in location the modified site plan which moved the dwelling 10 feet landward was received by the Department on August 1, 1988. Under this arrangement the applicant had agreed to waive the requirements of Section 120.60, Florida Statutes pertaining to the obligation by the Department to review and decide its action of grant or denial within 90 days of date of receipt of the application. With the changes being made to the location of the proposed dwelling and associated structures and the type of construction materials used in the patio on the seaward side, together with the relocation of the plant life, the impact on the beach-dune system and adjacent property is acceptable. There is no adverse impact on the beach-dune system or on the adjacent properties. The location of the proposed dwelling and its associated structures as it relates to the 30-year erosion projection under the terms of Section 161.053, Florida Statutes, in this instance, shows that the dwelling would be approximately 55 feet landward of the 30-year erosion projection and not at risk. Calculations related to this finding may be found within Department's Exhibit Number 7. The existing coastal construction control line dates from January 28, 1988. Although the original application referred to the previous line of 1978 in describing the site plan and survey, the reason for this was that the site plan and survey were prepared prior to the establishment of the January 28, 1988 line, as allowed. In the course of the hearing appropriate reference was made to the January 28, 1988 line as it relates to the anticipated location of the dwelling and other structures as modified at the instigation of the Department. As contemplated by Section 161.053(5)(f), the Department required the applicant to provide mitigation of the- effects of the construction as a condition to a grant of the permit. Those permit conditions may be found in the Department's Exhibit Number 8, a copy of a proposed final order. Included within those would be the requirements for erection of a temporary construction fence on the site to protect existing native dune vegetation from the impacts of that construction, in addition to the requirement of the dune vegetation relocation. This would involve the irrigation and application of fertilizer to those plants with the expectation that a certain percentage would survive over time as described in this special condition. This project will not pose a hazard to the sea turtle and its hatchlings and habitat for the sea turtles and hatchlings. Ms. Butler, Petitioner in this cause, has a beach home which is north of the Williams property separated by a 10 foot easement between those properties. In mid July, 1988 Ms. Butler offered a written statement in opposition to the placement and size of the proposed dwelling together with other remarks and asked that the Department provide her information and documents pertaining to the application under the authority of Chapter 119, Florida Statutes. On August 10, 1988 the Department dispatched a letter of inquiry to surrounding property owners to include Ms. Butler and solicited remarks concerning the Williams application to be provided on or about August 20, 1988. Ms. Butler had received certain documents from the Department concerning the application sometime in the middle of August 1988. On August 18, 1988 Butler made known her objection to the project on the grounds that the concerns about the 30-year erosion line and the size and placement of the dwelling. On September 2, 1988 the Department informed Ms. Butler of the intent to grant the permit to Mr. Williams. A copy of that correspondence may be found as Petitioner's Exhibit Number 5. This led to a timely request for hearing by Ms. Butler stating her opposition to this project. The request was received in accordance with the Department's advice that the request must be filed by September 26, 1988. Based upon the prehearing conference and the discussion of those issues which would be allowed for consideration as stated in the request for hearing and the statement of particulars that attend the request for hearing, commented on by the hearing officer at the commencement of the final hearing, and found within the transcript and further stated in the issues portion to this Recommended Order, this case has been carried forward. The presentation made by the Petitioner, after the Department and applicant had offered their cases, was through her testimony and that of employees of the Department together with exhibits she offered. The testimony of the Department employees concerned the procedural techniques that the agency pursued in reviewing the application at issue. Ms. Butler described her concern for her property, and the area between her property and the Williams property. This is the 10 foot easement area which is sparsely vegetated and low. As a consequence she was concerned that her property might be destroyed with the advent of the Williams construction. She has no expertise in her own right nor did she present expert opinion from other witnesses which would tend to bear out her concern. She also expressed the concern that the Williams home, in its dimensions, was too large and that it should be relocated an additional 10 feet back from the adjusted placement following the Department's criticism of the original application. In effect, she would have the house placed 20 feet away from the sea as compared to the original site plan submitted with the application on February 10, 1988. Again, there is no competent evidence presented which would support her theory that this further relocation was needed. Her expression of concern for the sea turtles and their hatchlings and habitat was not well founded. Turtles are known to nest on the sandy flat beach area and the construction of the Williams property will not interfere with that area adjacent to the ocean.
Recommendation Based upon a consideration of the facts and the conclusions of law reached, it is RECOMMENDED: That the Department enter a Final Order which grants a coastal construction control line permit to Harry B. Williams, Jr., based upon his modified plan required by the Department and upon the special permit conditions announced in the proposed final order, a copy of which is found as Department's Exhibit Number 8. DONE and ENTERED this 27th day of April, 1989, in Tallahassee, Leon County, Florida. CHARLES C. ADAMS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of April, 1989.
The Issue The issues are whether Respondents engaged in unauthorized construction on their property in St. Johns County (County) without a permit; whether they should remove wooden shore-normal retaining walls and concrete sidewalks from an area seaward of the coastal construction control line (CCCL); whether they should restore any disturbed areas; and whether they should pay a $1,000.00 administrative fine.
Findings Of Fact Edith Pepper and Lyle Spencer are the owners of property located at 3100 Coastal Highway (also known as U.S. Highway A1A), St. Augustine, Florida. Although Ms. Pepper is named as the respondent in the enforcement action initiated by the Department, as owners of the property, both she and her husband are responsible for complying with Department rules and governing statutes.1 The Department is the regulatory agency charged with the duty of permitting and enforcing construction activities seaward of the CCCL. There are existing residences on both the north and south sides of Respondents' property. The parcel south of the subject property is owned by Lori T. Nichols and her brother, while the parcel on the north side is owned by Dr. Kenneth Reinhold. A small, one-story coquina house constructed in 1935 sits on the western side of Respondents' property facing the Coastal Highway and was occupied by Respondents for an undisclosed period of time after they purchased the property. In response to a CCCL application filed by Ms. Pepper, on November 20, 2002, the Department issued Permit No. SJ-844 to Ms. Pepper authorizing the construction of a large, 3-story single-family residence and deck, other structural activity, excavation, and placement of approximately 1,900 cubic yards of fill seaward of the CCCL. See Department Exhibit 1. When completed, the new home will be more than 8,000 square feet and sit on the eastern side of the parcel facing the Atlantic Ocean. The large amount of fill placed on the construction site resulted in raising the elevation of Respondents' property to between two and four feet above their neighbors' adjoining lots. Permit No. SJ-844 contains a detailed description of the location, dimensions, and structural activities for the project, including a requirement that it have "[d]rainage swales on the north and south sides of the [new] dwelling." Id. Another authorized activity was the construction of a "concrete driveway 120 feet in the shore-normal direction by 12 feet in the shore-parallel direction [to] be located a maximum of 54 feet seaward of the control line with control joints on 5-foot centers each way." Id. Special Permit Condition 4 further required that "[a]ll rubble and debris resulting from this construction shall be removed to a location landward of the [CCCL]." Id. Photographs received in evidence show that construction on the residence is now substantially completed. However, due to zoning code issues, a stop work notice was placed on the property by the County in 2008, and a Certificate of Occupancy has never been issued. On March 21, 2006, Ms. Pepper submitted a request to the Department to modify Permit No. SJ-844 and authorize the construction of a swimming pool, pool deck, and dune walkover seaward of the CCCL. The Final Order indicates that the application to modify the permit is now complete, but Ms. Pepper has waived the requirement that the Department take action on her request within 90 days after the application is deemed to be complete. Therefore, the modification has never been approved. On February 5, 2008, an Environmental Specialist in the District Office, Trey Hatch, conducted a routine inspection of the site and observed the unauthorized construction of wood retaining walls on the north and south property lines, the demolition and removal of a "derelict" septic tank and drain field seaward of maximum construction limits, and the storage of construction debris seaward of the maximum construction limits. See Department Exhibit 2. These activities were performed without Department approval. Mr. Hatch spoke with Mr. Spencer and advised him that any work beyond the scope of his permit required Department approval, and that the observed activities may be a violation of his permit. On February 20, 2008, the Department issued a Warning Letter to Ms. Pepper advising her that the activities observed by Mr. Hatch appeared to be in violation of her permit and section 161.053(2)(a). See Department Exhibit 3. After receiving a telephone call from "a citizen," on April 28, 2008, Mr. Hatch conducted a follow-up inspection of Respondents' property. He observed the construction of wood retaining walls along the north and south property lines; retaining walls still in place; the demolition and removal of a derelict septic tank and drainfield seaward of maximum construction limits; grading seaward of the new dwelling and creation of a 24' by 30' swale with berm sidewalls (which he believed might be for an above-ground swimming pool); and storage of building materials and debris seaward of maximum construction limits. See Department Exhibit 4. Mr. Hatch's report noted that "debris [observed during the February 5, 2008, inspection] has been removed." Id. During the inspection, Mr. Spencer advised Mr. Hatch that he was doing "perc tests," and not installing a swimming pool. On May 5, 2008, the Department issued a Notice of Violation/Cease and Desist Unauthorized Activities Seaward of the [CCCL] (Notice). See Department Exhibit 5. The Notice stated that the "violation consists of excavation, grading and placement of fill material seaward of the [CCCL] without benefit of a permit from the Department." Id. The Notice required Respondents to cease all unauthorized activities seaward of the CCCL and to respond to the Notice within ten days of receipt. Whether a response was filed is not of record. On May 12, 2008, Mr. Hatch conducted another on-site inspection of Respondents' property and observed that the wood retaining walls were still in place, and that Respondents had extended the retaining wall on the south side of the property to the western end of the existing wall. The violations observed on the April 28, 2008, inspection persisted. He also observed that the County had placed a stop work notice on the property. A Violation Report summarizing these activities was prepared by Mr. Hatch. See Department Exhibit 6. On June 6, 2008, the Department issued a letter advising Ms. Pepper that violations were occurring on her property; that Respondents' request filed on March 18, 2008, to "hold the file in abeyance" for 60 days pending the filing of an after-the-fact permit application that would authorize the retaining walls had expired; and that recently constructed concrete sidewalks on the property were not authorized under her permit. See Department Exhibit 7. The letter allowed Respondents an additional 21 days in which to file an after-the- fact application for both unauthorized activities; otherwise, it warned that an enforcement action would be initiated. After Respondents built the retaining walls, Dr. Reinhold, whose residence adjoins Respondents' property to the north, was forced to place two-by-fours against his fence because Respondents' retaining walls and fill were causing his fence to "bow" out. He also noted that fill is creeping under the fence and flowing onto his yard. Because of concerns that stormwater would now be forced onto his property, in the summer of 2008 he engaged the services of a professional engineer "to evaluate the conditions of [his] property . . . as it relates to problems with ongoing, adjacent construction [on Respondents' property]." Department Exhibit 10. The engineer's report indicated that there were no swales on Respondents' property to direct runoff to the front or rear yards; that the retaining walls were not stabilized; that in the event of a storm surge of ocean water, the fill and unauthorized sidewalks would have the potential of pushing more ocean water onto the adjoining properties; and that Respondents' deviation from permit requirements created a "very serious" situation. Id. These conclusions were not disputed by Respondents. Ms. Nichols, who owns the property to the south, stated that Respondents' retaining walls were leaning onto her property and there were gaps in the wall, which allowed run-off onto her property. Photographs received in evidence confirmed these concerns. See Department Exhibit 11. On June 5, 2009, the Department received an after-the- fact application for a CCCL permit from Ms. Pepper. However, the application was deemed to be incomplete in a number of respects, including a failure to attach a letter from the County indicating that all local zoning and setback requirements had been satisfied. See Department Exhibit 8. On May 10, 2010, the Department issued a Final Order advising Ms. Pepper that Respondents had initiated construction of wooden shore-normal retaining walls on their north and south property lines and concrete sidewalks on the sides of the existing single-family dwelling seaward of the CCCL without a Department permit. At hearing, Mr. Spencer did not dispute the accuracy of these charges. As mitigating circumstances, Mr. Spencer noted that he is currently in litigation with the County seeking to obtain approval of his site plan so that a letter indicating compliance with local zoning requirements can be filed with the Department. Until he secures a letter, the after-the-fact application cannot be completed. See Fla. Admin. Code R. 62B-33.008(3)(d). He indicated that a hearing in the circuit court case was scheduled on February 11, 2011, but the outcome of that matter is not of record. In a letter dated April 15, 2010, the County advised Respondents that their new home "contravenes local zoning regulations," but there are options available that would allow construction to proceed. See Department Exhibit 12. In order to complete construction of their new home, Respondents must agree to one of the following changes: removal of the one-story coquina residence; a reduction in the size of the guest house, private garage, or accessory family unit; or filing an application for a zoning variance to the front yard setback requirements for the one-story coquina residence in conjunction with one of the three reduction options described above. In addition, they must prepare and file a lot grading plan demonstrating that any fill added will not direct water to adjoining properties or block natural water flow from adjacent properties. Id. Until these steps are taken, the County will not provide a letter to Respondents confirming that the proposed activity does not contravene local zoning and setback requirements. Even though Permit No. SJ-844 required that drainage swales be constructed on both sides of the parcel, they were not built because Mr. Spencer concluded they would not work and, if installed, they would result in flooding on his property. After considering several alternatives, such as vertical landscaping and limerock, he decided that a small retaining wall would work best. However, this decision was the result of his own calculations and was not based on advice from a professional engineer. He also stated that he was advised by his engineer that no permit was required for retaining walls. More likely than not, however, the engineer was referring to requirements for a local building permit, and not a Department CCCL permit. Because of the engineer's advice, Mr. Spencer stated that he did not know he needed Department approval for the retaining walls. Mr. Spencer further noted that he was required to follow structural guidelines established by the Federal Emergency Management Agency (FEMA) and to place concrete slabs (sidewalks) on the sides of his house to help stabilize and support the second and third floors of the home in the event of a large storm event. Mr. Spencer stated that he has reduced the amount of fill authorized by the permit by 25 percent, and by installing sidewalks in lieu of a 120-foot driveway, he has used 1,200 cubic yards less concrete than is otherwise authorized. Even if the corrective action is taken, he opined that a large storm event will "wash away" his neighbors' homes, whose construction predates the new FEMA guidelines. Mr. Spencer acknowledged that he can easily remove the retaining walls, but if he does so, there will be nothing to prevent runoff from his higher elevated property onto the adjoining parcels. Finally, he expressed a willingness to comply with the permit conditions, but at the same time says he wants the Department to provide "a solution" to all of the objections to the project. Given the foregoing circumstances, the Department's proposed corrective action is deemed to be reasonable, and Respondents should remove the unauthorized retaining walls and concrete sidewalks and restore all disturbed areas.
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 sustaining the charges in its Final Order. Respondents shall remove the unauthorized wooden shore-normal retaining walls and concrete sidewalks from the area seaward of the CCCL and restore any areas disturbed during the removal process within 30 days after a final order is entered in this matter. Further, Respondents shall pay a $1,000.00 administrative fine within the same time period. The check shall be mailed to Administrative Enforcement Section, Ecosystem Management and Restoration Trust Fund, Attention: Jim Martinello, 3900 Commonwealth Boulevard, Tallahassee, Florida 32399-3000. The check should be payable to the Ecosystem Management and Restoration Trust Fund and include reference to file number VSJ 08-03 and OGC No. 10-1480. DONE AND ENTERED this 4th day of March, 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 4th day of March, 2011.
Findings Of Fact During the applicable time period, the Respondent was a certified building contractor in the state of Florida and held license number CB C026049. On or about January 6, 1986, the Respondent was hired by West Coast Remodeling & Construction Company. The Respondent was hired as an employee to supervise a building project based on a contract between West Coast and Clarence Harrod for the building of a quadriplex in Rotunda West, Florida. On January 17, 1986, the Respondent applied for a building permit for the Harrod project. The Respondent represented on the permit that he was the builder on the project instead of West Coast, who had the written contract with Harrod. Neither of the principals in West Coast, Gunnar Jacobsen or Gerald Hanley, held a building contractor's license and a licensed contractor was necessary to obtain the permit for the project. After the application for the permit was completed, but before the building permit was issued, the Respondent received a document from West Coast evidencing that the Harrod contract was assigned to him as an individual. At the time the Charlotte County Building Permit was actually issued, the Respondent was the assignee of the Harrod contract. Although the assignment was in effect on January 22, 1986, West Coast continued to receive the funds from Mr. Clarence Harrod, who was not notified of the assignment of the contract. The Respondent either allowed or acquiesced in the continued management of the project and the building funds by West Coast until April 15, 1986. Sometime between January 17, 1986, and January 31, 1986, the Respondent became a shareholder in West Coast. By April of 1986, the Respondent was a corporate officer and had a one-third interest in the corporation. The corporation had three shareholders: the Respondent, Gunnar Jacobsen, and Gerald Hanley. Although all three men were corporate officers, the Respondent was to supervise new construction projects, Jacobsen was to handle administrative affairs and solicit new work, and Hanley was to supervise the remodeling jobs obtained by Jacobsen. In April of 1986, the Respondent determined that there were insufficient funds in the corporate accounts to complete the Harrod project if overhead costs were not reduced immediately. This insight was acquired by the Respondent around the same time the following events occurred: A. Mr. Harrod complained in early April that the job was taking too long. The project was still in the framing stage, and Mr. Harrod was asked for $15,000 of the $25,184.44 draw which was set aside in the contract for the drywall phase of the project. B. Smaller projects that West Coast had in progress, such as three concrete jobs, were found to be unprofitable by the principals in the company. C. Jacobsen was complaining to the Respondent and Hanley, the other two corporate officers, that framing costs were too high on the Harrod project. D. The Respondent and Hanley had decided, between themselves, that Jacobsen was not earning his salary with the corporation because he was not acquiring the new remodeling jobs for the company that he was supposed to under their business arrangements. On April 15, 1986, Hanley and the Respondent locked Jacobsen out of the corporate offices and removed all the money in the corporate accounts, including the money involved in the Harrod project. On April 22, 1986, an agreement was signed by Jacobsen, Hanley, and Respondent which dissolved their business relationships. Pursuant to the agreement, the Respondent resigned his position as an officer in West Coast and assigned his stock in the corporation to Jacobsen. The Respondent and Hanley were also required to make an accounting of the corporate funds removed from the corporate accounts on April 15, 1986. The agreement does not reveal whether the Harrod project was to remain with West Coast or the Respondent. However, the project did remain with West Coast, and the Respondent contacted the Charlotte County Building Department to remove his name from the building permit effective 8:00 a.m., April 23, 1986. When the business relationship between the corporate principals was dissolving in April, the Respondent had contact with Mr. Clarence Harrod. He did not tell the owner about the assignment of the contract to him on January 22, 1986, nor did he advise the owner of the cost overruns which he now asserts were a reason for his resignation from the corporation. The documents attached to the April 22, 1986, agreement reveal that the Respondent was aware of the need for two releases of lien totalling $40,185 on the Harrod project at the time he left the corporation and allowed the corporation to take back and continue with the Harrod project. The Respondent appears to have commingled corporate funds with the Harrod project funds when the funds were under his and Hanley's joint control. During the seven days the Respondent and Hanley had joint control of the $11,611.88 seized from West Coast, the Respondent was paid $2,026.30 and Hanley was paid $2,633. On April 22, 1986, $5,281.97 was returned to West Coast with a list of acknowledged outstanding bills totalling $1,711.17. During the period of time between the assignment of the Harrod project to the Respondent on January 22, 1986, and the takeover of the project by West Coast on April 22, 1986, the Respondent accepted his legal responsibilities as a licensed contractor only on the occasions where it best served his most immediate personal interests.
The Issue In this disciplinary proceeding, the issues are whether Respondent, a licensed contractor, failed timely to renew the certificate of authority issued to his qualified business entity; failed to include, in a construction contract, the required notice regarding consumer rights under the recovery fund; abandoned a construction project; or committed any of these offenses, as alleged by Petitioner in its Administrative Complaint. If Petitioner proves one or more of the alleged violations, then an additional question will arise, namely whether penalties should be imposed on Respondent.
Findings Of Fact The Parties Respondent Vic George ("George") is a certified general contractor and a certified roofing contractor. As a licensee in these fields, George is subject to the regulatory jurisdiction of the Construction Industry Licensing Board ("Board"). Petitioner Department of Business and Professional Regulation ("Department") has jurisdiction over disciplinary proceedings for the Board. At the Board's direction, the Department is authorized to prosecute administrative complaints against licensees within the Board's jurisdiction. George's Businesses At times material to this action, George carried out the business of a contractor through, and was the qualifying agent of, a company known as South Florida Remodeling and Building Corporation ("S.F. Remodeling"). At other times material to this action, George carried out the business of a contractor through, and was the qualifying agent of, a company known as One Stop Remodeling and Building Corporation ("One Stop"). One Stop was a successor to S. F. Remodeling. The Department issued an initial certificate of authority to One Stop that, effective August 31, 2001, permitted the company lawfully to engage in the business of contracting for two years. One Stop failed timely to renew its certificate before the expiration date of August 31, 2003. In a Final Order Approving Settlement Stipulation entered on February 18, 2004, the Board disciplined George for, among other things, the failure of One Stop timely to renew its certificate of authority.iii The Board suspended George's contracting licenses indefinitely but stayed the suspension for 90 days to allow George to furnish evidence that corrective actions had been taken, which actions were to include the renewal of One Stop's certificate. Had George failed to provide such evidence, the stay would have been lifted and his licenses immediately suspended. George's licenses were not suspended in consequence of the Final Order just described. It is thus reasonable to infer, and is hereby found, that George satisfied the all of the conditions (including the renewal of One Stop's certificate) for preventing the suspension from taking effect. That being the case, One Stop's certificate was renewed before mid-May 2004.iv In light of the foregoing findings, the Department failed to prove by clear and convincing evidence its allegation that One Stop's certificate was delinquent until October 2004. The Hazard Project Anthony Hazard ("Hazard") is an insurance agent who sells property and casualty insurance in Miami-Dade County. Some time before September 2000, a man named Rick Nelson bought insurance through Hazard's insurance agency, and he and Hazard developed a friendly relationship. Mr. Nelson was an employee and officer of S.F. Remodeling, for whom he was a construction supervisor. As Mr. Nelson and Hazard got to know one another, they realized that each could be a source of business referrals for the other. In fact, Mr. Nelson did direct some persons in need of insurance to Hazard, and Hazard recommended Mr. Nelson to some persons in need of a contractor. It was natural, therefore, that when Hazard and his wife decided in the year 2000 to add an enclosed patio to their house, Hazard turned to Mr. Nelson for assistance. Mr. Nelson told Hazard that S.F. Remodeling could do the job. In a written price quote dated September 29, 2000, and delivered to Hazard on or about that date, Mr. Nelson, on behalf of his employer, represented that S.F. Remodeling could build an enclosed patio for the Hazards at a total cost of $9,938. The Hazards agreed to this proposal, and work preliminary to construction, such as the preparation of the architectural plans, commenced forthwith. The plans were drawn by Curtis Williams, a draftsman who worked for an architect named Charles Mitchell.v In the course of obtaining the local building official's approval of the plans, it was learned that the project as originally contemplated would need to be modified to comply with the zoning laws. The necessary design changes would increase the cost of construction slightly. Thus, effective November 21, 2000, the Hazards and S.F. Remodeling entered into a one-page agreement pursuant to which the contractor promised to build the Hazards an enclosed patio for $10,100. The contract did not contain an explanation of the owners' rights under the Florida Homeowners' Construction Recovery Fund, which was known at the time as the Construction Industries Recovery Fund. (Hereafter the referenced fund will be called the "Recovery Fund.") The agreement was a sweetheart deal for the Hazards. In an arms-length transaction, the project likely would have cost between $16,000 and $18,000. S.F. Remodeling agreed to do the work for little or no profit in the hope (and with the expectation) that Hazard would continue referring potential customers to Mr. Nelson. The building permit was issued on November 30, 2000, and S.F. Remodeling promptly began work at the jobsite. From then until at least February 14, 2001, work progressed at a reasonable pace. The contractor demolished and removed the existing slab, installed a new footing, poured a new slab, and framed the tie beam. Along the way, in the ordinary course of construction, local building officials inspected and approved the foundation and the new slab. One unforeseen development, however, had caused friction between the Hazards and the contractor. Beneath the existing concrete slab had been found another slab whose removal had entailed unanticipated expenses for excavation work and fill material. Mr. Nelson had asked Hazard to cover some or all of these costs, but Hazard had refused. Because the contract price left no room for error, it had become apparent within a short time after breaking ground that S.F. Remodeling would lose money on the project. Yet another unforeseen occurrence brought the work to a halt. At a routine inspection of the project on March 16, 2001, the local building official refused to approve the tie beam. He determined that the architect's plans, which had been approved prior to issuance of the building permit, were deficient for failure to depict how the tie beam would connect to the existing structure; hence, the plans would need to be revised and approved before construction could continue. Without delay, Mr. Nelson called Mr. Williams and explained the situation to the draftsman, who agreed to revise the plans. Not long thereafter, Mr. Nelson brought the job copy of the plans to Mr. Williams. Mr. Williams did, in fact, make the necessary changes to the plans. It is not clear, however, when exactly this work was completed. All that can be found with certainty on the existing record is that Hazard picked up a copy of the revised plans from Mr. Williams in December 2002, nearly two years after work on the project had stopped as of March 16, 2001. The Department urges the undersigned to infer that the reason for the delay was the contractor's failure——in breach of the contract——to pay the draftsman for revising the plans. The undersigned declines to draw this inference, however, because the evidence on the point is conflicting and ambiguous; the undersigned, ultimately, is just not convinced that this was the reason.vi At bottom, the cause or causes of the delay were not proved clearly and convincingly. (The person most likely to have personal knowledge regarding what happened——Mr. Williams—— was not called to testify, nor was anyone else from the architect's office, leaving a gaping hole in the record.) The undersigned therefore cannot make any inculpatory findings pinning the blame for the delay on S.F. Remodeling or its agents. In aid of its proof of the serious allegation that S.F. Remodeling or its successor One Stopvii abandoned the Hazard project, the Department relies upon a statutory provision under which the fact-finder is permitted to presume abandonment if it is shown that the contractor failed to perform work without just cause for 90 consecutive days. The Department's reliance on this statutory presumption is misplaced, however, because the Department did not prove, by the required quantum of evidence, that S.F. Remodeling failed to work without just cause for 90 days, a basic fact upon which the presumption must rest. The fact is, on March 16, 2001, S.F. Remodeling had just cause to cease working, for the simple reason that, as of that date, the contractor could not legally work on the project until such time as the architect had amended the plans and obtained approval thereof from the local building official. The Department's theory is that it took too long to attend to this situation, which might be true, and that S.F. Remodeling was at fault for the delay, which is possible, too; yet neither proposition was proved clearly and convincingly.viii To explain, there is no convincing evidence in the record as to the reasonable period of time for the preparation and approval of amended plans in the ordinary course of business, nor is there any proof regarding the steps that a reasonable contractor should take under such circumstances to expedite the process.ix In other words, there is no convincing evidence of applicable standards of conduct against which to measure this contractor's performance. In the absence of such evidence, the undersigned cannot, consistent with the rule of law, simply apply standards of his own devising, based on his personal preferences concerning how contractors should perform, no matter how sensible or wise those personal standards might be. In the absence of legal standards, the undersigned must withhold judgment, rather than render a personal one. It is therefore impossible, based on the evidence in the record, for the undersigned to fix the point in time, if there were one, when just cause no longer existed for S.F. Remodeling not to be working on the Hazard project. Without that reference point, it cannot be determined whether the contractor failed to perform work without just cause for 90 consecutive days. Thus, the undersigned cannot presume abandonment. Moreover, even if the Department had proved that S.F. Remodeling breached a legal or contractual duty to cause the revised plans to be prepared and approved sooner than these events actually occurred, the question at hand is not whether the contractor breached the contract or was negligent; the question is whether the contractor abandoned the project——i.e. quit the job with the intention never to resume working toward its completion. Simply put, the contractor's failure to prevent unreasonable delay in the work, if there were such a failure, would not, without more than was proved here, manifest the requisite intention never to complete the project. On November 4, 2002, Hazard signed a consumer complaint against S.F. Remodeling, which he then filed with the Miami-Dade County Building Code Compliance Office. In his complaint, Hazard accused the contractor of failing to complete the job and refusing to contact him about it. After investigating the matter, local officials referred Hazard's complaint to the Department, giving rise to the instant proceeding. Some time after bringing his consumer complaint, Hazard hired another contractor, Edwards Construction, Inc. ("Edwards"), to complete the project.x Edwards obtained a permit for the project in April 2003 and began working several months later, taking about four months to finish the job. A final inspection approving the project was had on November 7, 2003. All told, the Hazards invested $23,216.69 in their new patio. This grand total, however, included some extras (a concrete pad for parking a boat, a sidewalk, and some steps) that S.F. Remodeling had not been under contract to build. Breaking down the total amount paid, the Hazards incurred $9,419.73 in expenses while S.F. Remodeling was on the job, and $13,796.96 when Edwards was doing the work. On September 29, 2004, the Department issued a three- count Administrative Complaint against George. As of May 19, 2005, the Department had expended a total of $596.20 in investigative and prosecutorial costs, excluding attorney's fees. The Charges In Count I of its Administrative Complaint, the Department alleged that S.F. Remodeling had failed to include in its contract with the Hazards a statement explaining the consumers' rights under the Recovery Fund, as required by Section 489.1425, Florida Statutes. It is the Department's position that George, as the company's qualifying agent, is subject to discipline for this oversight pursuant to Section 489.129(1)(i), which makes it an offense materially to disobey any statutory provision or order of the Board. In Count II, the Department charged George separately under Section 489.129(1)(i), asserting that he, as qualifying agent, had failed to obey a statutory provision, namely Section 489.119(2)(d), which requires that a corporate contractor's certificate of authority must be renewed every two years. As the basis for this charge, the Department alleged that One Stop's certificate had expired on August 31, 2003, and not been renewed until October 2004. In Count III, the Department accused George of having abandoned a construction project, which is a disciplinable offense under Section 489.129(1)(j), Florida Statutes. In support of this Count, the Department, as mentioned, has relied upon an evidentiary device that permits the fact-finder to presume abandonment upon proof that the contractor failed to perform work without just cause for 90 consecutive days. Ultimate Factual Determinations Because the contract between S.F. Remodeling and the Hazards did not, in fact, include the statutorily required notice regarding the Recovery Fund, George, in his capacity as qualifying agent, is guilty of failing to obey a statutory provision, as charged in Count I. There is no dispute that One Stop's certificate of authority lapsed as of August 31, 2003. Indeed, the Board disciplined George for the oversight, entering a final order on February 18, 2004, with which he timely complied. As a result of this previous discipline, One Stop's certificate was renewed and the matter concluded. The Board cannot lawfully punish George twice for the same offense. Thus, George is not guilty of the offense charged in Count II of the Administrative Complaint. The undersigned is not convinced that S.F. Remodeling abandoned the Hazard project. At most it might be inferred that, after the local building inspector stopped the job due to faulty architectural plans——a problem not of the contractor's making——S.F. Remodeling, being in no hurry to resume working on a money-losing project, took a laissez-faire approach to the ensuing delay. But the Department did not prove "strategic sloth" by clear and convincing evidence, and such would not constitute abandonment even if it had. The evidence leaves open the reasonable possibility that S.F. Remodeling intended and expected to finish the job someday, even if it hoped that day would not come soon.xi Consequently, George is not guilty of the charge set forth in Count III of the Administrative Complaint.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission enter a final order (a) finding George not guilty of the offenses charged in Counts II and III of the Administrative Complaint; (b) finding George guilty of the offense charge in Count I thereof; (c) imposing a fine of $1,000 for the notice violation, which is a repeat offense; and (d) assessing investigative and prosecutorial costs in the amount of $596.20. DONE AND ENTERED this 31st day of October, 2005, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.stae.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of October, 2005.
