The Issue Whether Charles Jackson and/or Charles Jackson Architectural Designs (Respondents) committed the offenses alleged in the subject Administrative Complaint, and if so, the penalties that should be imposed.
Findings Of Fact Petitioner, the Department of Business and Professional Regulation, Board of Architecture and Interior Design, is the agency of the State of Florida charged with the duty and responsibility to regulate the practice of architecture pursuant to chapters 20, 455, and 481, Florida Statutes. Respondent, Charles Jackson (Mr. Jackson), has never been licensed or certified as an architect in Florida or any other jurisdiction. Respondent, Charles Jackson Architectural Designs, has never been licensed as an architectural business in Florida or any other jurisdiction. At times relevant to this proceeding, Mr. Jackson did business in Palm Beach County, Florida, as Charles Jackson Architectural Designs.1/ Mr. Jackson also did business as “Charles Jackson Design Construction” and “Charles Jackson Design.” At some time prior to October 8, 2012, Mr. Jackson entered into a contract with the owners of a residence located in Riviera Beach, Florida, to prepare drawings for an addition to the residence. The addition was a simple storage area. Mr. Jackson prepared the drawings, which he dated October 8, 2012. Mr. Jackson gave the drawings to the owners of the residence so they could obtain a building permit. The City of Riviera Beach requires a duly-licensed architect to sign and seal drawings for any addition to a residence before issuing a building permit for the addition.2/ The building department for the City of Riviera Beach rejected Mr. Jackson’s drawings because they were not signed and sealed by a licensed Florida architect. The owners brought the drawings back to Mr. Jackson, and told him that the drawings had been rejected because they were not signed and sealed by an architect. Mr. Jackson did not advise the owners that they should hire an architect to sign and seal the drawings. Instead, Mr. Jackson took it upon himself to get the drawings signed and sealed by a Florida licensed architect named Michael Hall. Michael Hall died on October 15, 2012. When Mr. Jackson returned the drawings to the owners, a seal and signature purporting to be the seal and signature of Michael Hall had been affixed to the drawings. The seal and signature were dated November 5, 2012.3/ The owners thereafter took the drawings to the building department for the City of Riviera Beach to obtain a permit for the addition. The drawings were rejected because the building officials knew that Michael Hall died prior to November 5, 2012, the date he purportedly signed and sealed the drawings. When the owners confronted Mr. Jackson with the news that the permit had been rejected, Mr. Jackson refunded to the owners the sum of $350.00, the amount they had paid him for the drawings. On July 31, 2014, Petitioner entered against Respondents a “Notice and Order to Cease and Desist” which included an order that Mr. Jackson cease and desist doing business as “Charles Jackson Architectural Designs.”
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department of Business and Professional Regulation, Board of Architecture and Interior Design, enter a final order that adopts the Findings of Fact and Conclusions of Law set forth herein. It is FURTHER RECOMMENDED that the final order find Respondent, Charles Jackson, guilty of violating section 481.223(1)(a), Florida Statutes, as alleged in the Administrative Complaint and impose an administrative fine in the amount of $3,000.00 for that violation. It is FURTHER RECOMMENDED that the final order require Respondent, Charles Jackson, to cease and desist doing business as Charles Jackson Architectural Design. It is FURTHER RECOMMENDED that the final order require Charles Jackson to pay the costs of its investigation.4/ DONE AND ENTERED this 8th day of April, 2015, in Tallahassee, Leon County, Florida. S CLAUDE B. ARRINGTON 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 8th day of April, 2015.
The Issue The issue is whether the Department of State has sufficient grounds to take disciplinary action against the licenses issued to Mr. White pursuant to Chapter 493, Florida Statutes.
Findings Of Fact Mr. White held a Class "D" Security Officer License, number D90-03408, issued by the Department of State. Between November 27 and December 1, 1991, Mr. White was employed as a licensed security officer by the Quality Shawnee Hotel in Miami Beach, Florida. The hotel has also been known as the Colony Shawnee Miami Beach Resort and the Quality Resort. Thomas Sanon-Jules, Director of Security for the hotel, was Mr. White's supervisor, and personally trained him on the procedures for logging in and securing lost property found on the hotel property. Mr. Sanon-Jules developed a manual on the procedures for the disposition of lost property and reviewed it with Mr. White prior to November 28, 1991. Mr. White knew that lost property must be taken to the lost and found room and logged in prior to notifying the owner that it has been found. The item must be tagged with a number and, in the case of a wallet, placed in a safe deposit box. Under the hotel's internal policies, after logging an item in, the employee must notify the owner. If the owner wants it returned by mail, the employee must turn it over to the hotel's executive office during working hours to have it mailed. The employee should get a receipt from the executive office at that time. On November 27, 1991, John Herning, an American Airlines pilot, checked into the Quality Shawnee Hotel for one night. Before going out that evening, Mr. Herning placed his wallet behind a ceiling tile for safe keeping. He forgot the wallet when he left the next morning at approximately 5:00 a.m. On the evening of November 29, Mr. Herning called the hotel from his home in Fort Worth, Texas, stating where he had left the wallet, and asking to have the wallet retrieved. He talked to security officer Danny Jones, who indicated that the room was occupied and that Mr. Herning should call back at 7:00 a.m. the next day and ask for Mr. White. The next morning, Mr. Herning called and talked to Mr. White who said he would look for the wallet. He found it and told Mr. Herning that he would mail it that day, a Saturday. Mr. Herning told Mr. White that he could split the forty dollars in the wallet with security officer Danny Jones who had also assisted Mr. Herning. That evening, November 30, the J.C. Penney Department store called Mr. Herning in Fort Worth to tell him that a black male was attempting to use his credit card at their store at the Omni complex at 600 Biscayne Boulevard in downtown Miami. After talking to J.C. Penney, Mr. Herning notified the hotel of the call and also called his credit card companies to cancel his other credit card accounts. Mr. Herning did not authorize anyone to use his credit cards after leaving Miami on November 28, 1991. All of his credit cards were in the wallet when it was eventually returned. After Mr. Herning called the hotel to report the unauthorized use of his credit card, one of the security officers notified Mr. Sanon-Jules of the complaint. Mr. Sanon-Jules directed security officer Jones to look for the wallet at lost and found and in the safe deposit box. He was told that the wallet was not there. Later that night, Mr. Sanon-Jules had the night supervisor check lost and found for the wallet again, without result. The next morning, Mr. Sanon-Jules arrived at the hotel at 5:00 a.m. and waited for Mr. White to check in at 7:00 a.m. When Mr. White arrived, Mr. Sanon-Jules asked him about the wallet and Mr. White told him he had placed it in the safe deposit box. They went to the safe deposit box where Mr. White used his key to open it. There was no wallet in the box or in any of the drawers in the lost and found room. Mr. Sanon-Jules then asked Mr. White to empty his pockets, whereupon Mr. White produced Mr. Herning's wallet. At the time, Mr. White had no explanation for why he was carrying the wallet. Mr. Sanon-Jules checked the contents of the wallet and found a number of credit cards. Mr. Sanon-Jules subsequently went to the J.C. Penney department store at 600 Biscayne Boulevard and viewed a video tape recorded on the department store's security camera on November 30, 1991. The video showed Mr. White at the counter with two other adult males and a very young male child. (Tr. 20-21, 46-49; Pet. Ex. 3). One of the adult males in Mr. White's company attempted to use Mr. Herning's J.C. Penney credit card. The department store employee became suspicious when ringing up the sale. The tape shows that they left the store without completing the purchase. The young boy on the tape had accompanied Mr. White to work at the hotel on several occasions.
Recommendation It is RECOMMENDED that the Department revoke or deny renewal of all licenses held or applied for by Respondent pursuant to Section 493.6118(2), Florida Statutes. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 31st day of March 1993. WILLIAM R. DORSEY, JR. 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 31st day of March 1993. COPIES FURNISHED: Henri C. Cawthon, Esquire Assistant General Counsel Department of State/ Division of Licensing The Capitol, M.S. #4 Tallahassee, Florida 32399-0250 Dewight Whiley White 2845 Northwest 163rd Street Opa Locka, Florida 33054 The Honorable Jim Smith Secretary of State The Capitol Tallahassee, Florida 32399-0250 Phyllis Slater General Counsel Department of State The Capitol, PL 02 Tallahassee, Florida 32399-0250
The Issue The issues are whether Petitioner has proved that he is entitled to two exemptions from statewide environmental resource permitting: the mosquito control activities exemption set forth in Florida Administrative Code Rule 62-340.750 and the seawall construction exemption set forth in section 403.813(1)(i), Florida Statutes (2013).
Findings Of Fact The Request, the Property, and Canal Dredging The Request After filing the Request on September 10, 2013, Petitioner paid the filing fee on October 4, 2013. At this time, Respondent deemed the Request to be complete.3/ In addition to briefly describing the maintenance dredging of the ICW, the Request4/ describes the proposed activities as: Construction of approximately 950 feet of batter pile concrete seawall along [ICW] easement line. See drawing for location. Filling of property to approximate elevation 8.0 with offsite fill. Petitioner has since reduced the length of the proposed seawall from 950 feet to about 656 feet. He also testified that the seawall would require 20-30 feet of supportive fill equal in height to, and landward of, the seawall. The record lacks a drawing locating the proposed seawall, but it contains a diagram of a typical profile of the proposed seawall, which is Respondent Exhibit 23. The cap elevation would be six feet "NGVD." Text accompanying the diagram promises the use of turbidity barriers and best management practices during construction. Finally, the Request describes the following activities in wetlands or other surface waters: Because the wetlands are a result of the Mosquito Control District's previous activities and do not affect any other wetlands or surface waters, would make the entire property effectively upland. Dredging. The spoil material is to be removed and deposited on a self-contained, upland spoil site which will prevent the escape of the spoil material into the waters of the state. Seawall. Construction of seawall will not violate any existing water quality standards, impede navigation, or affect flood control. The Property Petitioner does not own the property to which the Request relates, but has entered into a contract to purchase the property. Among the conditions of the contract is the issuance of permits from various governmental agencies, including Respondent. The property consists of unimproved land on the west bank of the ICW south of Boynton Beach in Palm Beach County. As described in the contract, the property is "Palm Beach County Property Control Numbers 08-43-45-34-01-0030, 08-43-45-34-01- 0040, and 08-43-45-33-00-000-1390. Described as all of lots 3 and 4 of Rousseau's Subdivision, . . . [c]ontaining approximately 7.58 acres."5/ The plat map of Rousseau's Subdivision, which is Respondent Exhibit 21, was originally recorded on June 22, 1901 (1901 plat map),6/ and further describes the eight platted lots on the map as located within the west half of the northwest quarter of Section 34, Township 45 South, Range 43 East, and situated west of the Florida Coast Line Canal and Transportation Company (FCLCTC) canal. Property Control Numbers 08-43-45-34-01-0030 and 08-43- 45-34-01-0040 are lots 3 and 4 on the 1901 plat map, less the easterly 202 feet of both lots, which is encumbered by a right- of-way easement owned by FIND for the ICW.7/ References to the "Property" will include all of lots 3 and 4, not merely the portions of these lots west of the FIND right-of-way easement, even though, for reasons explained in the preceding endnote, the sales contract is for the conveyance of only the unencumbered portion of the Property. References to the Property will also include the site prior to platting in 1901. Property Control Number 08-43-45-33-00-000-1390 is an "access parcel" measuring 30-feet by 180-feet that connects the Property with U.S. Route 1 to the west. References to the Property will not include this access parcel. The eight lots depicted on the 1901 plat map feature roughly equal frontage on the canal. The northern lot line of each lot is longer than the southern lot line of each lot. The northwest corner of the northernmost lot is the northwest corner of the above-mentioned Section 34. As shown on the plat map,8/ the Property's north lot line runs 552.7 feet, and its south lot line runs 450.5 feet, for a total of about 7.1 acres. The north and south lot lines of each of the eight lots terminate 35 feet west of the centerline of the FCLCTC canal, which is depicted as 70 feet wide. Conveyances by reference to the 1901 plat map would thus not grant any interest, by instrument, to the 35 feet west of the centerline of the FCLCTC canal. Canal Dredging The FCLCTC canal was excavated in the 1890s. Consistent with its depiction on the 1901 plat, the design width of the FCLCTC canal was 70 feet, at least in Palm Beach County, according to the legal description of the land acquired for the FCLCTC canal, which is Petitioner Exhibit 3. However, at least in the vicinity of the Property, the FCLCTC canal did not generally achieve its design width. According to Petitioner's geologist and wetlands delineator, Michael Czerwinski, the FCLCTC canal was dredged to form the ICW in the 1940s. This may be true. Pre-dredging surveying and engineering materials, which are discussed immediately below, were prepared in the early 1930s, so the dredging did not occur earlier than the mid 1930s. Other evidence suggests that the initial dredging had taken place by May 1941.9/ Mr. Czerwinski testified that the initial dredging of the ICW out of the FCLCTC canal resulted in a waterway that was 125 feet wide. He also testified that a second dredging of the ICW, also in the 1940s, widened the waterway to 300 feet. This testimony is credited in part. As discussed below, the ICW was initially dredged a little wider than 125 feet, at least at the Property. Later dredging of the ICW produced a 300-foot width in the vicinity of the Property, but not until sometime between 1964 and 2008.10/ At least in the vicinity of the Property, at some point between 1947 and 1964, the ICW was dredged to 200 feet wide. Mr. Czerwinski's testimony can be credited that this intermediate widening took place in the 1940s, although it would have had to have taken place after 1947 due to an aerial photograph described below.11/ A January 1931 survey prepared for FIND, which is Respondent Exhibit 22, shows that the FCLCTC canal was about 40-50 feet wide along the northern three-quarters of the Property, but equaled or slightly exceeded its design width of 70 feet along the southern one-quarter of the Property. The survey indicates that this additional width along the southern one- quarter of the Property was achieved by additional dredging along the east bank of the canal.12/ The 1931 FIND survey locates FIND's 300-foot right-of- way easement,13/ including the above-described 202 feet of this easement encumbering about three acres of the eastern end of the Property. The remaining 28 feet of the 300-foot right-of-way easement14/ encumbers the western end of property along the east bank of the ICW. The east property line of the Property has remained about 656 feet, regardless of whether it was measured along the water's edge prior to the dredging of the ICW or along FIND's right-of-way easement. Obviously, the 202-foot easement reduced the depth of the unencumbered Property to about 350 feet along the north lot line and 248 feet along the south lot line. The record does not contain any as-built drawings of the initial dredging of the ICW. However, in preparation for the excavation, the U.S. Engineer Office prepared and revised typical cross-sections on January 19, 1932, and May 25, 1933, respectively (1932/1933 Proposed ICW Cross-Sections), which is Petitioner Exhibit 9. The 1932/1933 Proposed ICW Cross-Sections details conditions at widely spaced profiles. Profile 1500 is about 1000 feet south of the Property and, as discussed below, characteristic of the conditions at the Property.15/ This profile shows a design width at maximum water depth of about 100 feet and a design width at water's surface of about 160 feet.16/ After accounting for the 70 feet of FCLCTC canal, about 90 feet would have had to have been dredged to achieve a total width of 160 feet. Subsequent aerial photography, as discussed immediately below, shows that all later dredging was located on the west bank of the ICW, so the initial dredging took up the 28 feet of the east bank subject to the FIND right-of-way easement,17/ leaving the remaining 62 feet of width to be dredged out of the Property.18/ This initial dredging of the ICW had taken place by the time of the above-mentioned 1947 aerial photograph, which is Respondent Exhibit 13.l, that shows the width of the ICW at the Property as approximately 150-160 feet. Between 1947 and 1964, FIND widened the ICW at the Property to 200 feet, as reflected by a 1964 aerial photograph, which is Respondent Exhibit 13.p.19/ A comparison of the 1947 and 1964 aerial photographs confirms that the widening to 200 feet was achieved by dredging the ICW's west bank, not east bank. Harmonizing the aerial photographs with Mr. Czerwinski's testimony places the widening to 200 feet in the late 1940s. After the removal of a total of 100 feet of the Property in two widening projects over ten to fifteen years ending in the late 1940s, a final widening project, between 1964 and 2008, removed another 100 feet of the Property, as reflected in 2011 aerial photography, such as Respondent Exhibit 13.r. The cumulative effect of these three widening projects, which removed 200 feet of the Property, reduced the depth of the Property by almost half and brought the canal waters 200 feet closer to what remained of the Property. Depictions of the Property and Surrounding Area A. 1800s The Property has been depicted on maps, charts, surveys, aerial photographs, and hand-drawn diagrams over a period of nearly 170 years. Certain of these depictions facilitate determinations, over time, of the extent to which the Property may have been wetlands or uplands. However, the weight to be assigned to particular depictions depends on a number of factors, including the scale of the depiction and its purpose. The earliest depiction of the Property is a quad sheet prepared in 1845 and revised in 1872 by the U.S. Surveyor General's Office (1845/1872 map), which is Respondent Exhibit 5. Covering all of Township 45 South, Range 43 East, west of the Atlantic Ocean, this map captures 24 sections--or 24 square miles. The scale of the map is quite small; the Property is no larger on this map than the size of one of the letters in "Atlantic Ocean." However, the main purpose of this map is to facilitate surveying, and the map documents the meandering of major waterbodies, the location of uplands in the form of "spruce pine scrub," and the location of wetlands in the forms of "inundated marsh" and "marsh." The 1845/1872 map depicts the southern terminus of Lake Worth about one and one-half miles north of the Property. The three vegetative communities identified in the preceding paragraph are generally depicted in long, north-south bands: the western band is "inundated marsh" (encompassing a small peninsula of "pineland and palmetto" in the southwest corner of the map), the central band is "spruce pine scrub," and the eastern band is "marsh." As reflected better in a blowup of this map, which is Respondent Exhibit 13.d, the boundary between the "spruce pine scrub" and "marsh" bisects the Property, so that the eastern part of the Property is depicted as wetlands, and the western part of the Property is depicted as uplands. The next depiction of the Property is the same 1845 quad sheet overlaid by an 1884 U.S. Coast and Geodetic Survey (USCGS) map (1845/1884 map), which is Respondent Exhibit 29. The scale of this map is the same as the previous one, so it is very small. The main purpose of the 1845/1884 map is the same as the 1845/1872 map; the most visible addition to the older map is the location of the corners and midpoints of surveying sections. But the 1845/1884 map also revises the older map by relocating the boundary between the marsh and the spruce pine scrub in the vicinity of the Property. The newer map moves this boundary several hundred feet to the west, so that the Property now lies entirely within the marsh. It is possible that, in the ensuing 12 years, wetlands spread several hundred feet to the west of where the older map had found them, but the record is silent as to major land alterations or storms during this time period. It is also possible that the older map located the wetlands/uplands boundary too far to the east, and the newer map corrected this error. But it is unlikely that the older map depicted the wetlands/uplands boundary accurately, and the newer map changed the boundary so as to depict it inaccurately. Whether documenting changes on the ground or correcting the work of the older map, the newer map is entitled to greater weight in its depiction of wetlands occupying the entire Property prior to the dredging of the FCLCTC canal. B. 1920s and 1930s The next depiction of the Property derives from aerial photography taken on February 27, 1927, which would be in the dry season. Working from these aerial photographs, in 1930, the USCGS published a vegetative map, which is Petitioner Exhibit 7. Among the purposes of this 1930 map are wetlands/uplands delineations, but this map unfortunately lacks a legend to explain the meaning of the many vegetative communities that it depicts. Additionally, the small scale of the map makes it difficult to read the symbols assigned to the Property.20/ This 1930 map is thus of no use in determining whether wetlands occupied the Property at that time. The next depiction of the Property is the 1932/1933 Proposed ICW Cross-Sections, which has been discussed above in connection with canal dredging. As already noted, the 1932/1933 Proposed ICW Cross-Sections displays numbered profiles of the proposed excavated channel following widening. Less than 200 feet south of the southeast corner of the Property is Profile 1510. As already noted, roughly 1000 feet south of the southeast corner of the Property is Profile 1500. About one-half mile north of the northeast corner of the Property is Profile 1550. Profiles 1500 and 1550 receive more detailed treatments elsewhere in the exhibit. Profile 1500 depicts the material to be excavated on the west side of the ICW as "mud." Profile 1550 depicts the material to be excavated on the west side of the ICW as "mud and sand." Profile 1500 is a better illustration of pre-excavation conditions at the Property's eastern edge partly because Profile 1500 is closer to the Property than Profile 1550. Additionally, another series of 1932 cross-sections, which is the second page of Petitioner Exhibit 9, reveal that the shape of the area to be excavated at Profile 1510, which is immediately south of the southeast corner of the Property, is almost identical to the shape of the area to be excavated at Profile 1500 and substantially different from the shape of the area to be excavated at Profile 1550. This too suggests that Profile 1500 is the better comparable. The notation of mud at Profile 1500 therefore suggests the existence of wet conditions on the eastern end of the Property. A USCGS map published in 1937 depicts the Property based on surveying done in 1930 and 1935. This small-scale map, which is Petitioner Exhibit 11, is a bathymetric chart of interior navigable waters. Referring to the canal by its new designation as the ICW, the 1937 map, which depicts marsh, but not other types of wetlands, does not indicate the presence of marsh on the Property. Because this map is primarily a navigational chart, rather than a map of vegetative communities, it is impossible to assign it much weight in determining whether the Property was occupied by wetlands or uplands at the time. 1940s to Present Maps A USCGS chart published in 1943 of the same area depicted by the 1937 USCGS chart is almost identical to the earlier chart. For the same reasons that applied to the 1937 USCGS chart, the 1943 USCGS chart, which is Petitioner Exhibit 12, is also of little use in determining whether the Property was occupied by wetlands or uplands at the time. The Property is depicted in somewhat larger scale on a USCGS quad map published in 1945, which is Petitioner Exhibit 13. The map, which depicts land cover primarily in terms of whether it is vegetated, indicates that all of the parcels on the west side of the ICW in Section 34 had been cleared of vegetation except for the Property. Although this 1945 quad generally indicates only whether areas are vegetated, it uses two symbols to indicate, in certain areas, the type of vegetation: one symbol indicates marsh and one symbol is unclear, possibly indicating mangrove. The Property bears neither symbol, but this fact is of little importance because the primary purpose of the 1945 quad map was to indicate the vegetated versus cleared areas, not to delineate wetlands.21/ However, the 1945 quad map reliably reports that the Property is entirely below the five-foot contour, which runs in a north-south direction between U.S. Route 1 and the ICW. South of Lake Worth, the ICW occupies a topographic depression between elevations as great as 35 feet west of U.S. Route 1 and spot elevations as great as 10 feet between the ICW and the Atlantic Ocean. Unaffected by dredging, the location of this five-foot contour illustrates the same slough-like feature south of Lake Worth that was depicted on the 1845/1884 map. The Property's location within this long basin is consistent with wet conditions that would support wetlands. 2. Field Notes of County Mosquito Control Department Field notes of the Palm Beach County Mosquito Control Department from the early 1940s to the late 1960s (Field Notes) provide additional information about the Property.22/ Field Notes, which is Respondent Exhibit 8, contains large-scale, hand- drawn diagrams with carefully prepared measurements. The purpose of Field Notes was to document field work done by a crew, but detailed observations were routinely recorded. The oldest notes pertaining to the Property are dated May 6, 1941, which is the end of the dry season. At this time, the parcels abutting the Property to the north and south were plant nurseries and may have been since at least 1930.23/ Respondent Exhibit 8, page 54. (Fifteen years later, Field Notes identifies these nurseries as Held's Nursery to the north and Merkle's Nursery to the south. Id. at 10. For ease of reference, this recommended order will refer to these parcels by these names at this earlier point in time.) As of 1941, Field Notes documents a dike running along the entire canal frontage of Held's Nursery. The dike was four feet tall at the base and six feet tall at the top. Id. at 54- About 470 feet north of the boundary between Held's Nursery and the Property, Field Notes indicates the presence of an existing ditch that was five feet wide and three feet deep; because it had good circulation, no work was done at that time. Id. at 54. Field Notes indicates another ditch with the same dimensions along the boundary between Held's Nursery and the Property; because it had good circulation, no work was done at that time. Id. at 55. The only other notes for Held's Nursery state that workers filled holes throughout the parcel, suggesting that the removal of in-ground nursery stock had left unfilled holes. Id. at 54. For 1941, Field Notes does not indicate any ditches on the Property, but contains two notations: "elderberries & other wild growth" and "fairly high ground." Id. at 55. Elderberries occur on wetlands and uplands, so this observation is not useful. The "fairly high ground" comment is discussed immediately below. Continuing south, for 1941, Field Notes depicts another ditch at the boundary between the Property and Merkle's Nursery. The ditch runs from the canal to a point about 430 feet west of the canal. From west to east, the ditch is three feet wide and one foot deep, then four feet wide and eighteen inches deep, and, in the final 100 feet to the canal edge, four feet wide and three feet deep. The only other note for Merkle's Nursery is that holes were filled. Id. at 56. The diagrams on pages 54-56 are linked by north-south stations located at 100-foot intervals along the canal. These stations are drawn roughly to scale. The diagram on page 56 also contains three east-west stations, each referring to the distance west from the edge of the canal: 125 feet, 367 feet, and 522 feet. These stations are not drawn to scale. The notation of "fairly high ground" spans the stations that are 367 and 522 feet west of the canal; the comment occurs at a point on the diagram that would be about 200 feet south of the north property line. It is not entirely clear whether this comment is placed on the diagram at the location where the high ground was encountered, or whether it was centered in the space on the page on which the comment was written. The lack of east- west scaling is unsettling. However, the notations and observations in Field Notes appear to have been carefully prepared, so it is more likely than not that the "fairly high ground" comment is written where the crew encountered fairly high ground relative to the east-west stations on the adjoining page of Field Notes. Because the east-west stations obviously do not run from the western limit of the FIND right-of-way easement, fixing the location of the "fairly high ground" observation requires knowledge of the width of the canal in May 1941.24/ The diagrams identify the canal as the "East Coast Canal," which is another name for the FCLCTC canal. But this reference does not help determine whether the FCLCTC canal had already been widened into the ICW. This is an obsolete reference; as noted in the 1937 USCGS map four years earlier, the proper name of the canal was the ICW, regardless of whether the initial widening had not yet taken place. There is no doubt that, at all times, proceeding from east to west, an elevation gain occurred at the property line separating the Property from the parcel to the west. The location of the "fairly high ground" comment would be at this property line, if the first 60 feet of the encumbered Property had already been dredged by May 1941.25/ It makes sense for the "fairly high ground" comment to be located where other evidence establishes higher elevations, so it is found that the dredging of the FCLCTC canal into the ICW had taken place by May 1941. In May to July 1956, Field Notes indicates that the County work crew cleared ditches on the Property, Held's Nursery to the north, and Merkle's Nursery to the south. Id. at 10. These notes include a detailed diagram of the network of ditches on the Property and the two nursery parcels. From north to south, there is a 628-foot long east-west ditch on Held's Nursery that appears to be the northerly ditch shown in the above-described May 1941 diagram, but the long east- west ditch at the boundary between Held's Nursery and the Property is not shown in the diagram. The 628-foot long ditch runs from the ICW almost to U.S. Route 1, so it spans the platted lot plus nearly all of the parcel adjoining the platted lot to the west. Near the boundary of Held's Nursery and the Property is a 139-foot east-west ditch that runs toward the ICW from the boundary of the Held's Nursery parcel with the adjoining parcel to the west, but stops at about the mid-point of the Held's Nursery parcel. Three 455-foot long north-south ditches connect the two east-west ditches. The western ditch runs along the property line separating Held's Nursery from the parcel to the west. The central ditch runs about 40 feet to the east of this ditch, and the eastern ditch runs about 105 feet to the east of the center ditch.26/ The eastern ditch is about 300 feet west of the ICW. The sole connection to the ICW is thus provided by the long east-west ditch that appears to have been in place for at least 15 years. Although the diagram does not so indicate, this ditch likely drains west to east into the ICW. This parcel had been used as a plant nursery since at least 1941, and it had been used as a plant nursery or citrus grove since 1930.27/ The land behind the dike was evidently dry enough to grow in-ground nursery stock, which presumably could not survive inundation by tidal waters. Fifteen years later, although the dike is omitted from the diagram and thus may no longer be present, the parcel was still used as a plant nursery, and this use presumably still required drainage into the ICW, rather than flooding from the ICW. The diagram likewise fails to indicate the direction of flow of the three north-south ditches. The only other features on the diagram for Held's Nursery are at the property line dividing Held's Nursery from the Property. From U.S. Route 1 almost to the ICW is a shell road, which likely interrupts drainage, but, at a point just east of the property line dividing Held's Nursery from the parcel to the west, a symbol indicates a culvert, which would have permitted stormwater to pass under the shell road. As confirmed by subsequent aerial photography discussed below,28/ the culvert passed stormwater from Held's Nursery to the Property, which has been vacant since its platting in 1901. The northern half of the Property has an elaborate network of ditches. The only significant east-west ditch runs about 500 feet through the center of the Property, linking the ICW to a point about in the middle of the parcel to the west of the Property; about 186 feet of this ditch is in the parcel to the west. Four north-south ditches drain into this long central ditch. The longest is about 207 feet and runs from the above- mentioned culvert. Eighty-one feet east of this ditch is a 100-foot ditch that terminates south of the shell road dividing Held's Nursery from the Property. Twenty-two feet east of this ditch is a 170-foot ditch that terminates at the shell road, and 22 feet east of this ditch is another 170-foot ditch that also terminates at the shell road. The only ditch in the southern half of the Property is slightly offset from the 207-foot north- south ditch and runs 100 feet along the property line dividing the Property from the parcel to the west. At the property line dividing the Property from Merkle's Nursery is another shell road. Along this boundary, about in the middle, is a pump station on the Property, but it is unconnected to the ditch network, and it is impossible to determine the purpose of the pump. The diagram does not show a culvert in this shell road. The diagram indicates one major east-west ditch on Merkle's Nursery totaling about 450 feet, connecting to the ICW, and terminating near U.S. Route 1. This ditch is in the middle of Merkle's Nursery. Along the north side of Merkle's Nursery is a 190-foot ditch running from the ICW to a point just east of the west property line of the platted lot. Two ditches averaging 110 feet run into the longer east-west ditch; the east ditch terminates at the 190-foot ditch. Field Notes does not reveal who constructed the ditches on the Property between 1941 and 1956. But, as Petitioner contends, it is a fair inference that they were dug by the County work crew. The Property was undeveloped wetlands, so there is little reason for the owner to try to drain the Property. Nor is there any reason for the owner of Held's Nursery to install on the Property a network of ditches downstream of the culvert. The only party with any interest in the drainage in the area was the County in its effort to control mosquitoes by overdraining wet land. But two other contentions of Respondent connected to Field Notes fail. First, as discussed above, Field Notes fails to prove that any portion of the Property was uplands. Second, Field Notes fails to prove that the ditches on the Property converted uplands to wetlands, or that the County constructed and maintained the ditches on the Property to control mosquitoes through flooding or impoundment, rather than drainage of standing water into the ICW. 3. Aerial Photography: 1940s-1960s From the 1940s, aerial photography of the Property became more routine, but problems in resolution sometimes prevent using the aerial photographs to determine the vegetative communities on the Property. Aerial photographs taken in 1940 suggest the presence of herbaceous vegetation throughout the Property with some woody vegetation at the western end of the Property. But the poor resolution of this photography prevents any finding of whether the depicted vegetation was indicative of wetlands or uplands on the Property. In March 1947, an aerial photograph, which is Petitioner Exhibit 18 and Respondent Exhibit 14, provides much better resolution. To the west of the Property is scrubby habitat, which features sandy soil. This area drains across the Property and into the ICW. An herbaceous salt marsh is more clearly visible on the Property. This photograph reveals wetlands on the Property where the Held's Nursery ditch flows through the culvert. The 1947 aerial photograph thus confirms that the Property was receiving runoff from at least two directions: the north and the west. Mr. Czerwinski testified that he found evidence of mangroves starting to take hold of the eastern end of the Property. This testimony is credited, although there is some dispute on this point. There is no dispute that two aerial photographs taken in 1953 reveal that mangroves have established themselves on the eastern half of the Property. The mangroves are dense and appear to be flourishing. By 1964, an aerial photograph shows that the mangroves have extended over the eastern two-thirds of the Property. Current Conditions The Property currently hosts a robust mangrove forest with red mangroves transitioning to black mangroves, progressing from east to west. At low tide, seagrasses emerge, interspersed among the mangroves. Some elderberry occur at the western end of the Property, which is free of nuisance exotic vegetation. The predominant soil is Kesson mucky sand, tidal classification. At low tide, the groundwater, which, rising and falling with the tide, maintains an elevation at least equal to the tidal waters of the nearby ICW and is within 6-8 inches of grade at the western end of the Property and at or above grade over the remainder of the Property. At high tide, the Property is inundated. The ICW is a class III water. According to LIDAR data from 2007-08, the average elevation of the Property is one foot NAVD88. The LIDAR data confirms a vestige of the old central ditch running from near the west property line to the ICW, evidently capturing stormwater from a depression, possibly a small stormwater retention facility, alongside U.S. Route 1. At present, this depression hydrates the mangroves by conveying freshwater from west to east and tidal water from east to west, depending, of course, on the tides and stormwater flows. The LIDAR data also confirms an abrupt loss of elevation just inside the north, west, and south property lines of the Property. Over relatively short distances, elevations drop as much as seven feet as one enters the Property from these adjoining parcels. The historic elevation of the Property is implicitly addressed in a letter sent to Petitioner dated November 20, 2013, from Rod A. Maddox, Chief, Bureau of Survey and Mapping, Division of State Lands. The letter states: "Our records indicate that the [ICW] was dredged from uplands at the subject site. Therefore, we recommend the proprietary requirements that would normally apply to state owned lands not apply to this site." By email dated November 26, 2013, to Petitioner, Chief Maddox clarified that the meaning of "uplands" in his letter is not the meaning assigned to uplands by the regulatory requirements of SWERP. As Chief Maddox used the term, "uplands" means only that the dredged site was above mean high water. Respondent's Geographer IV of its Survey and Mapping Section, Robert Schaffer, testified that the 1932/1933 Proposed ICW Cross-Sections identifies seven elevations for the Property along the west bank.29/ These elevations range from 3.3 feet to 5.3 feet above mean low water. According to the 1945 USCGS quad map, the average tidal range in the area was approximately three feet, so Chief Maddox was right, by the smallest of margins: none of the seven elevations was below mean high water, although the minimum freeboard at the canal's edge at mean high tide was less than four inches. Mr. Schaffer also determined that the average of these seven elevations along the west bank is about the same as the average 2007-08 LIDAR elevation of 1.0 foot NAVD88. Mr. Schaffer roughly averaged the seven elevations at 4.0 feet above mean low water. The actual average calculated by adding the seven values and dividing by 7 is 4.3 feet above mean low water. Mean low water was -1.2 feet NGVD29, so an elevation of 4.0 feet above mean low water would be 2.8 feet NGVD29, and an elevation of 4.3 feet above mean low water would be 3.1 feet NGVD29. In Palm Beach County, NAVD88 is about 1.5 feet lower than NGVD29, so the average of the west bank elevations was about 1.3 feet, according to Mr. Shaffer's average, or 1.6 feet NAVD88, according to the actual average. Thus, in the early 1930s, the west bank was about six inches higher than the average elevation of the entire unencumbered Property in 2007-08. Analysis Mosquito Control Activities Exemption Property Was Not Uplands Prior to Ditching The greater weight of the evidence establishes that the Property was wetlands from the earliest records. Originally a freshwater marsh, probably consisting of sawgrass, the Property evolved into a saltwater marsh due to the dredging of the FCLCTC canal and perhaps the opening of the Boynton Inlet. The opening of the inlet definitely facilitated the transport of the necessary seed material to allow the saltwater marsh to evolve into a mangrove forest. The major sources of hydration before the dredging of the FCLCTC canal were the slough-like depression south of Lake Worth that the Property occupied and stormwater runoff from the west. In the 1940s, the major sources of hydration included stormwater runoff from the west, but also tidal waters diverted by the dike on Held's Nursery and groundwater effects from the removal of 100 feet of the Property and the relocation of now 200-foot wide ICW 100 feet closer to what remained of the Property. By the mid 1950s, but possibly also as of the late 1940s, the major drivers of hydrology included all of those set forth in the preceding sentence, except possibly the dike, and two more: stormwater runoff through the culvert separating Held's Nursery from the Property and the central ditch. Although, as noted above, the effect of the central ditch at present is to convey stormwater from the west and tidal waters from the east, its effect 60 years ago presumably served its intended purpose: overdrain the Property and effectively tend to make it drier. At the very least, though, these supplemental drivers of hydrology dispel any likelihood that, originally wetlands, the Property may have reverted to uplands at some point after the dredging of the FCLCTC canal and prior to the digging of the central ditch. 2. Even if Property Had Been Uplands Prior to Ditching, Petitioner Failed to Prove that Ditching Converted Property to Wetlands Claiming that the Property was uplands, Petitioner argued that the County's mosquito control activities--in the form of building ditches on the Property--converted the uplands to wetlands. The findings that the Property was originally and continuously wetlands dispose of this contention, but, even if Petitioner had proved that the Property was uplands immediately before the construction of the central ditch, he failed to prove that the central ditch, which was the sole connection to the ICW, resulted in the inundation of the Property by tidal waters and the conversion of the Property from uplands to wetlands. In contrast to the wetlands determinations, for which ample data is available and little analysis is necessary, the complexity of hydrological functions and the inattention to these functions in the record preclude any finding as to exactly how the Property may have become wetter over the years. The Property is very wet today, possibly wetter than it has been in the past, but Petitioner has failed to prove that the central ditch is the predominant driver of the hydrology of the Property today or was in the period immediately preceding the arrival of the mangroves on the Property in the late 1940s. Petitioner proved the County dug the ditches on the Property between 1941 and 1956. The mangroves colonized the Property in the late 1940s and early 1950s. Ignoring the possibility that the mangroves preceded the central ditch, Petitioner's proof pretty much stops right here. Petitioner never offered any analysis of how the central ditch could have raised water levels on the Property or extended the periods of relatively high waters on the Property. This would have been a complicated undertaking due to the presence of other drivers of hydrology. Among other things, Petitioner would have had to explain how the central ditch, immediately upon its construction, failed of its intended purpose, which was to overdrain the Property. Originally, the Property was wet due to its location in the long slough south of Lake Worth and stormwater flows from the west. After the dredging of the ICW to a 200-foot width, by the late 1940s, the Property was wet due to the groundwater effect of the removal of 100 feet of the Property and relocation of the canal waters 100 feet closer to the remainder of the unencumbered Property, stormwater flows from the west, and tidal waters diverted by the Held's Nursery dike. By the mid 1950s, the dike may have been removed, but stormwater flows from the west and the groundwater effect of the twice-widened canal continued to hydrate the Property. By this point, and possibly as far back as the late 1940s, two more factors needed to be accounted for: stormwater flows from the north through the culvert and--Petitioner's driver of choice--the central ditch. Today, the vestige of the central ditch appears to perform one of the functions suggested by Petitioner: conveying tidal water onto the Property at high tide. But it appears still capable of conveying stormwater from the north and west across the Property and into the ICW, canal water levels permitting. In doing so, the ditch now may flush the mangroves with cycles of freshwater and saltwater and transport nutrients to the mangroves. But, even today, other major drivers of hydrology are at work. These include stormwater contributions from the west, which now includes great expanses of impervious surface replacing the nurseries that were present decades earlier and an apparent retention facility along U.S. Route 1; the above-described groundwater effects, reinforced further by the widening of the ICW by another 100 feet, all out of the Property; and even the construction of surrounding seawalls, effectively replacing the dike along Held's Nursery 70 years ago. It would have been a daunting task to assign values to these various drivers of hydrology over various points in time; perhaps this is why Petitioner did not undertake it. But ultimately Petitioner fails for two reasons: 1) even if the central ditch were present when the mangroves appeared in the late 1940s and early 1950s, so were many other drivers of hydrology, and there is absolutely no reason to doubt that, initially at least, the central ditch tended to make the Property drier, not wetter; and 2) even today, the central ditch is not the sole or even predominant driver of the hydrology of the Property. 3. Even if Property Had Been Uplands Prior to Ditching and Ditching Had Converted Property to Wetlands, Petitioner Failed to Prove that Ditching Converted Entire Property to Wetlands Petitioner's proof falls short in another important respect. Even if the Property had been uplands up to the point when the County constructed the central ditch and even if the central ditch, alone, introduced tidal waters onto the Property, Petitioner never proved that the tidal waters overtopped the central ditch and other ditches connected to the central ditch by sufficient volumes and for sufficient periods, if not permanently, to convert the entire Property from uplands to wetlands. Absent such proof, the mosquito control activities exemption would extend no farther than the footprint of the ditches--an exemption that would be of no practical use. Petitioner failed to provide detailed evidence concerning the central ditch, such as historic slopes and profiles; tidal flows at the Property; or the relationship between the central ditch and tidal flows. Thus, Petitioner failed to explain the process by which the canal water supposedly escaped the central ditch to inundate the entire Property. The role that Petitioner assigns to the central ditch would necessitate major erosion of the Property. But the evidence of such erosion is completely missing from the record.30/ During a timeframe in which aerial photographs of the Property were becoming more common, no photograph documents the scarification of the Property or the movement of substantial volumes of soil off the Property and into the ICW, both of which would have accompanied the process that Petitioner contends took place. Given the force necessary to transport soil particles in the water column--even the much stronger tidal forces at the Boynton Inlet are unable to move the sediment out of the inlet-- if Petitioner's contention were correct, large deposits of eroded sediments would have piled up in the ICW alongside the Property, eventually shoaling the channel. Yet, no such event ever took place. Seawall Construction Exemption Artificially Created Waterway As stated above, the Property was wetlands prior to the dredging of the FCLCTC canal. Although the eastern end of the Property was above mean high water at the time of the 1932/1933 Proposed ICW Cross-Sections, its lowest frontage elevation was above mean high water by less than four inches, and neither the range of frontage elevations nor the average elevation of the Property precludes the existence of wetlands. As discussed in the Conclusions of Law, because the ICW was dredged from wetlands on the encumbered Property, the ICW at this location is not an "artificially created waterway." If an "artificially created waterway" were more broadly defined to include waterways artificially created out of uplands and artificially created--or altered--out of wetlands, Petitioner still would not qualify for the seawall construction exemption because the greater weight of the evidence establishes that Petitioner has proposed to construct the seawall outside of the ICW. Most likely, Petitioner's proposed seawall would join the ends of the existing seawalls to the north and south of the Property. If so, the seawall would be mostly within the unencumbered Property and, at most, at the southern terminus, on the line dividing the unencumbered Property from the encumbered Property. In the absence of proof that FIND overdredged the ICW past the western limit of its 300-foot right-of-way easement, the proposed seawall would not be "in" the "artificially created waterway" of the ICW.31/ Seeming to endorse this location of the proposed seawall, Petitioner's proposed recommended order states that the proposed seawall would be constructed "along" the ICW. For reasons that are unclear, Respondent has assumed that the construction of the proposed seawall would be "in" the ICW, as revealed by Respondent's October 2013 letter and Respondent's proposed recommended order, which refers to construction of the proposed seawall "in" the ICW. This assumption ignores the fact that a conveyance of the property described in the sales contract would be limited to the unencumbered Property (plus the access parcel). Any proposal to construct the seawall in the ICW would thus require the permission of FIND32/ and the third-party owner of the encumbered Property--a highly contingent prospect that defeats Respondent's assumption that the proposed construction of the seawall would be in the ICW. 2. Water Quality and Flood Control The record is undeveloped as to water quality and flooding impacts. Even if the proposed seawall were located in an artificially created waterway, Petitioner has not provided reasonable assurance that the construction of the seawall would not violate existing water quality standards--specifically, turbidity and dissolved oxygen. Controlling turbidity by trapping sediments and maintaining dissolved oxygen in the water column, the mangroves require tidal flushing, but the seawall would impede tidal waters from inundating the Property. It is Petitioner's responsibility to show how, under these circumstances, the proposed construction of the seawall would not violate existing water quality standards. Consistent with Respondent's refusal to verify a de minimis exemption, it is impossible to infer an insubstantial effect on the mangroves and, thus, water quality by the construction of the seawall and addition of 20-30 feet of supportive fill behind the seawall. Likewise, Petitioner has not provided reasonable assurance that the construction of the seawall would not affect flood control. Probably after the adjoining nurseries were redeveloped to support more intense uses, both parcels received several feet of fill. The record does not reveal the extent to which these adjoining parcels retain their stormwater onsite. The construction of the proposed seawall with 20-30 feet of supportive fill would likely impound any surface waters entering the Property from the north, west, and south, raising a sufficient risk of offsite flooding to require analysis. Again, it is Petitioner's responsibility to show how, under these circumstances, the proposed construction of the seawall would not affect flood control.
Recommendation It is RECOMMENDED that the South Florida Water Management District enter a final order declining Petitioner's request to verify the mosquito control activities exemption and the seawall construction exemption. DONE AND ENTERED this 16th day of May, 2014, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of May, 2014.
Findings Of Fact Early on the morning of February 12, 1980, Detective Edward Hanek of the Miami Police Department arrived at 533 Southwest 12th Avenue, the address of respondent's bar, Rincon de los Recuerdos. On the sidewalk in an alcove in front of the bar lay the bloody corpse of Guillermo Tey. Detective Hanek tried both doorways into the bar from Southwest 12th Avenue but found both outer doors locked. At both doorways, he was able to reach through the iron bars of the outer doors, push open unlocked wooden doors, and see the interior of the bar. Detective Hanek "followed a blood trail leading from the body to the south door" (R. 24) on Southwest 12th Avenue. Another blood trail led away from the bar. A rear entrance to the bar also featured a locked iron outer gate and a wooden door behind it, unlocked. Nahir Gil arrived at the bar in a police car and opened the back door at Detective Hanek's request. Inside were glasses and bottles of beer "that appeared to be left in a hurry." (R. 26). Balls on a pool table and change strewn on the bar had the same Flying Dutchman quality. At the scene of the crime, Mr. Gil told Detective Hanek that he had closed the bar at one o'clock, or ten minutes of, that morning; that he sent about ten customers away when he closed; that he did not know of the deceased; and that he did not know the barmaid Anna's last name or where she lived. Later the same morning, at the Miami Police Station, Detective Hanek interviewed Mr. Gil further and Mr. Gil executed a sworn statement at 6:36 a.m., on February 12, 1980, in which he stated inter alia: that this girlfriend, Melba Bernal, and her sister from Pereira, Columbia, were in the United States without visas, as far as he knew; that he and his brother Manuel owned the bar; that he had spent the day of February 11, 1980, drinking in the bar; that he closed at one instead of three o'clock on the morning of the 12th, because he was drunk, and failed to gather the day's receipts from the cash register for the same reason; that he did not know Guillermo Tey; that he did not know Anna's last name or where she lived; and that he had not seen "anybody lying on the sidewalk with blood coming out." Petitioner's Exhibit No. 2, p. 6. Mr. Gil indicated that his girlfriend had once worked in the bar. He answered, "Yes, sir" to Detective Hanek's question, "What you told me you know, is all you know?" Later on in the day, Mr. Gil told Detective Hanek that he had heard two gunshots and seen a man lying on the sidewalk just before he closed the bar. Through his lawyer, Mr. Gil got Anna's last name, Vasquez, and address to Detective Hanek. The following day, Detective Hanek visited Ms. Vasquez's apartment, only to learn that she had recently moved. Nahir Gil admitted to Detective Hanek that Anna was an illegal alien and admitted to John Clayton, an agent of the United States Border Patrol, that the Bernal sisters had been smuggled into this country. Subsequently, one sister returned to Colombia and the other married Nahir Gil. The parties stipulated that respondent's license, No. 23-00932-2COP, was current at all relevant times; that a certificate of incumbency filed on or about July 7, 1978, reflected that Geoberto Gil owned half of respondent's stock and that Nahir Gil owned the other half; that Geoberto Gil transferred fifty shares, all of his interest in respondent, to Manuel Salvador Gil on April 10, 1979, and resigned as director on the date; and that, as recently as April 10, 1979, Nahir Gil acted as secretary of respondent corporation.
Recommendation Upon consideration of the foregoing, it is recommended that petitioner dismiss the Notice to Show Cause. DONE and ENTERED this 13th day of March, 1981, in Tallahassee, Florida. ROBERT T. BENTON, II, 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 13th day of March 1981. COPIES FURNISHED: Dennis E. LaRosa, Esquire The Johns Building 725 South Bronough Street Tallahassee, Florida 32301 Thomas B. Duff, Esquire 1407 Biscayne Building 19 West Flagler Street Miami, Florida 33130
Conclusions This matter comes before the Agency for Persons with Disabilities (the Agency) for entry of a Final Order based on Petitioner's Motion for Final Order. This case arose out of an Administrative Complaint filed by the Agency charging Respondent Eagles Nest with one count of violating Florida Law and Administrative Code and asking for the revocation of its license. After Respondent requested a hearing, the matter was referred to the Division of Administrative Hearings. On December 6, 2011, the parties entered into a signed Settlement Agreement and on December 8, 2011, the Division relinquished jurisdiction back to the Agency and closed its case file. In its Motion for Final Order, Petitioner asserts that Respondent has failed to comply with the terms of the Settlement Agreement in that it has not relinquished its license as required. Petitioner further asserts that under paragraph 9 of the Settlement Agreement, breach of the Settlement Agreement results in the automatic revocation of Petitioner's license and denial by the Agency of any subsequent license sought by Delores Kramer or any business owned or operated by Dolores Kramer. A copy of Petitioners Motion was served on counsel for Respondent on January 10, 2012, bu Respondent has not filed any response or objection to Petitioner’s Motion. It is hereby found as a Finding of Fact that Respondent has failed to comply with the terms and conditions of the Settlement Agreement that it entered into on Decembe 6, 2011. It is further found as a Conclusion of Law that Respondent's failure to comply triggers the provisions of the Settlement Agreement that call for revocation of APD-11-4871-FO | Filed February 27, 2012 12:52 PM Division of Administrative Hearings Respondent’s license and will result in the denial by the Agency of any future application by Respondent Delores Kramer, or any business owned or operated by Delores Kramer, for a license. Based on the foregoing, it is hereby ORDERED that Respondent's license number 11-12-035 is REVOKED. It is further ORDERED that any future application by Delores Kramer or any business owned or operated by Delores Kramer shall be denied in accordance with the terms of the Settlement Agreement. 9 c | DONE AND ORDERED, the 2/ day of Lb. 2012, in Tallahassee, Leon County, Florida. We4ap i prey Michael P. Hansen, Director Agency for Persons with Disabilities APD-11-4871-FO | 2 RIGHT TO APPEAL A party who is adversely affected by this final order is entitled to judicial review. To initiate judicial review, the party seeking it must file one copy of a “Notice of Appeal’ with the Agency Clerk. The party seeking judicial review must also file another copy of the “Notice of Appeal,” accompanied by the filing fee required by law, with the First District Court of Appeal in Tallahassee, Florida, or with the District Court of Appeal in the district where the party resides. Review proceedings shall be conducted in accordance with Florida Rules of Appellate Procedure. The Notices must be filed within thirty (30) days of the rendition of this final order.’ Information about some sources of possible legal assistance may be found at: hito://apd.myflorida.com/customers/legal/resource-listing. htm. Copies furnished to: APD Area 12 Office Eagles Nest Foundation Delores Kramer 1525 Carr Street Deland, Fl 32720 Claudia Llado, Clerk Jonathan Grabb, Esq. Division of Administrative Hearings Agency for Persons with Disabilities CERTIFICATE OF SERVICE | HEREBY CERTIFY that a copy of this Final Order was provided to the above- named individuals at the listed addresses, by U.S. Mail or electronic mail, this 2) day of E. Lh. , 2012. ane 0 WRAL Percy W. Mallison, Jr., Agency Clerk Agency for Persons with Disabilities 4030 Esplanade Way, Suite 380 Tallahassee, Fl 32399-0950 ‘ The date of the “rendition” of this Order is the date that is stamped on its first page. The Notices of Appeal must be received on or before the thirtieth day after that date. APD-11-4871-FO | 3
The Issue The issue in this case is whether Respondent, Motel 6, discriminated against Petitioner, Emanuel Sessions, a/k/a Emanuel Glenn, by refusing to rent him a room at the Motel 6, Number 0791 (Motel), based on his race, African-American.
Findings Of Fact Petitioner is an African-American male. The Motel is part of a national public lodging establishment chain, which is in the business of renting rooms to consumers. The Motel is located in Orange County, Florida, where the alleged act of discrimination arose. On October 25, 2010, and for six consecutive nights, Petitioner was a guest at the Motel, registered under the name of Emanuel Glenn.1/ There were no allegations of discrimination reported between October 25, 2010, and October 31, 2010.2/ The only allegation of discrimination occurred on November 1, 2010, when Petitioner was denied a room at the Motel. On October 31, 2010, Petitioner secured room 124 at the Motel. This room was on the ground floor, facing the parking lot. During his testimony, Petitioner failed to recollect that he had stayed at the Motel for the five nights prior to October 31, 2010. Petitioner could not recall when he stayed at the Motel, claiming it was over a year ago, and he did not know; yet, he was adamant that, on November 1, 2010, the Motel would not rent him a room. The evidence was overwhelming that Petitioner had stayed at the Motel for six consecutive nights, beginning on October 25, 2010. On October 31, 2010, the Motel's manager-on-duty was Emile Saleeb (Mr. Saleeb).3/ Late on October 31, 2010, Petitioner went to the Motel lobby and complained to Mr. Saleeb about a security guard questioning Petitioner as he sat in his car in the Motel's parking lot. Petitioner acted in an aggressive and offensive manner and used profanity towards Mr. Saleeb while at least one and up to three other Motel guests were present in the lobby. Mr. Saleeb felt Petitioner caused a disturbance in the Motel's lobby, which could be categorized as aggravated misconduct on the part of a Motel guest. Mr. Saleeb had concerns for the safety and welfare of the Motel's guests as well as its employees. The Motel has a policy that anyone causing a disturbance or engaged in aggravated misconduct on the property will be placed on the do not rent (DNR) list.4/ Mr. Saleeb has the authority to place someone on the DNR list for the Motel. Based on his encounter with Petitioner on October 31, 2010, Mr. Saleeb put Petitioner's name on the Motel's DNR list. Mr. Saleeb's testimony was credible. The following evening, on November 1, 2010, Petitioner attempted to rent another room at the Motel. At that time, Petitioner was told he would not be able to rent a room as he had been placed on the Motel's DNR list. No testimony, credible or otherwise, was offered that Petitioner was told that the refusal to rent a room to him was based on his race. Petitioner jumped to the conclusion that he had been discriminated against because of his race. He believed he had been denied a room at the Motel because he is African-American. He filed a complaint with the Commission about the incident. In his complaint, Petitioner said that he "was told that I couldn't rent a room at Motel 6 on November 1, 2010 because of my skin color, and I have proof wich [sic] is my witness that was there with me." However, this complaint information conflicts with the information that Petitioner provided to the Motel's guest relations department on November 2, 2010. In the guest relations contact report, it was recorded that: GST states last night, he tried to c/i to prop & was told by GSR that he cannot rent there. GST sd he asked why & was told it is based on past experience. GST asked GSR to elaborate & GSR said he had no further information. GST sd the last time he was at prop he had a room with his partner. GST sd he went to sit in his car right outside the rm to made a call to get a better signal. While he was sitting in the car, a police officer came up to the car & opened the door & asked him why he was sitting in his car & did he have a room there. GST sd he told the officer that he did have the room right in front of the car & was making a call from the car because there was a better signal. The officer told GST he had to go back inside his room. GST sd other people were outside their rooms. GST sd when he C/O he told GSR about the officer being rude & opening his car door. GST sd he does not understand any of this. GST said there is no reason for him to not be able to rent at property. GST said he was told he cannot rent there last night about 11 p.m. & the man at the F/D was named Nabeel. Petitioner did not present any witnesses to testify despite repeated opportunities to do so. According to Robert Wade (Mr. Wade), the general manager of the Motel, his primary concern is for the safety and welfare of all the guests on his property, as well as for the safety and welfare of his employees. Mr. Wade confirmed that he is in the business of renting rooms in order to make money; the more money the business brings in, the more his bonus (and the bonuses of his employees) will be. Thus, he wants to rent rooms to customers; however, he must be able to maintain the property in a manner that customers will want to stay at the property. Mr. Wade receives a security report every day from the security officer who was on duty the previous night. Based on this security report, Mr. Wade knows if there are broken lights on the property that need to be fixed, parking lot issues to be addressed or other maintenance issues that should be resolved to ensure the property is well maintained. Additionally, he reviews the security report to review any incidents involving Motel guests or other activities. Upon receipt of the security officer's report of October 31, 2010, Mr. Wade became aware of an incident in the parking lot involving Petitioner. Mr. Wade interviewed Mr. Saleeb and the security officer, Willie Wilson, in order to understand the circumstances. A day later, Mr. Wade was contacted by the Motel's guest relations office regarding a complaint that Petitioner had lodged on November 2, 2011. Based on his own investigation into the facts and circumstances regarding Petitioner being placed on the Motel's DNR list, Mr. Wade determined that it was in the best interest of the Motel that Petitioner be on the Motel's DNR list. Mr. Wade's testimony is credible. There are other Motel guests who are on the DNR list for similar and other reasons. Those guests who are put on the Motel's DNR list based on an infraction of a Motel policy are banned from the property for one year. However, guests whose names are provided by law enforcement for the Motel's DNR list are banned for up to three years. Neither of Petitioner's names is currently on the Motel's DNR list. During the hearing as the facts were presented, Petitioner did not appear to grasp the concept that his placement on the DNR list was a result of his encounter with the security officer in the parking lot which resulted in his loud, aggressive, and disruptive behavior in the Motel lobby in front of Mr. Saleeb and other Motel guests. Petitioner had stayed at the Motel for six consecutive nights. Unfortunately on the sixth night, Petitioner engaged in behavior that caused a disturbance, and he was placed on the DNR list. Petitioner contacted the Motel's guest relations department on November 2, 2010, to complain about his inability to rent a room at the Motel on November 1, 2010. During that November 2, 2010, telephone conversation, Petitioner specifically recalled his issue with the Motel security officer. Yet during the hearing, Petitioner evaded questions about any contact with the security officer, claiming he "might have come across a security guard." Petitioner did not answer questions in a concise manner and evaded answering some questions all together. Thus, his testimony is not credible.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Florida Commission on Human Relations dismissing the Petition for Relief filed by Emanuel Sessions in its entirety. DONE AND ENTERED this 16th day of December, 2011, in Tallahassee, Leon County, Florida. S LYNNE A. QUIMBY-PENNOCK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of December, 2011.
Findings Of Fact The Office of the Comptroller, Department of Banking and Finance, Division of Securities and Investor Protection (Petitioner) is authorized and charged with the responsibility to administer and enforce the provisions of Chapter 517, Florida Statutes, and the administrative rules promulgated thereunder. At all times pertinent hereto, First Eagle, Inc. was a foreign corporation with its principal place of business located in Englewood, Colorado, and was registered with Petitioner as a securities broker/dealer in the State of Florida. First Eagle had two branch offices in Florida, one at Boca Raton and the other at Longwood. These two branch offices were supervised by the First Eagle home office. Each branch office had a branch manager. At all times pertinent hereto, Respondent Baum was the branch manager of First Eagle's Boca Raton branch office and Respondent Canouse was the branch manager of its Longwood office. Respondent Baum was registered with Petitioner as an agent with First Eagle between August 13, 1989, and September 4, 1990. At the time of the formal hearing, Respondent Baum was not registered with Petitioner. Respondent Canouse was registered with Petitioner as an agent with First Eagle between March 21, 1989, and May 31, 1990. At the time of the formal hearing, Respondent Canouse was not registered with Petitioner. On January 1, 1990, Rule 3E-600.012, Florida Administrative Code, referred to as Florida's Cold Call Rule, and its federal counterpart went into effect. Both rules pertain to the sale of designated securities (generally referred to as "penny stocks") and both require that certain information be taken from certain customers and that certain disclosures be made to those customers. Both rules require that a determination be made as to the customer's suitability to trade in designated securities, and that a written agreement evidencing the terms and conditions of the trade be received before the transaction is consummated. Florida's Cold Call Rule does not specify what person or officer within the selling organization is to make the suitability determination, nor does it set forth the criteria by which the determination is to be made. The following is required by the Rule 3E-600.012(5), Florida Administrative Code, before any dealer or associated person may sell or effect the purchase of the type transactions pertinent to this proceeding: (5) It shall be unlawful and a violation of Section 517.301(1), F.S. for any dealer or associated person to sell any equity security or to effect the purchase of such security unless ... prior to the transaction the seller has approved the customer's account for such transaction in accordance with the procedures set forth in subparagraph (5)(b) and has received from the customer a written agreement to the transaction setting forth the identity and quantity of the securities covered by this paragraph. * * * (b) In order to approve a customer's account for any transaction covered by this section, the seller shall: Obtain information from the customer concerning the customer's financial situation, investment experience, and investment objectives; Reasonably determine, based upon the information required in subparagraph (5)(b), and upon any other information known by the seller that the transaction in the security covered by paragraph (5) is suitable for the customer and that the customer (or the customer's independent adviser in the transaction) has sufficient knowledge and experience in financial matters that the customer (or the customer's independent adviser in the transaction) may reasonably be expected to be capable of evaluating the risks of the transaction covered by this section. Deliver to the customer a written statement setting forth: the basis on which the seller made the determination required by subparagraph (5)(b)2.; stating in highlighted format that it is unlawful for the seller to effect a transaction in such security unless the seller has received, prior to the transaction, a written agreement to the transaction from the customer; stating in highlighted format immediately preceding the customer signature line that the seller is required by law to provide the customer with the written statement and that the customer should not sign and return the written statement to the seller if it does not accurately reflect the customer's financial situation, investment experience, and investment objectives; and Obtain from the customer a manually signed and dated copy of the written statement required by subparagraph (5)(b)3. Failure to comply with Florida's Cold Call Rule is, pursuant to Rule 3E-600.012(5), Florida Administrative Code, a violation of Section 517.301(1), Florida Statutes. 3/ The suitability form and the procedures to be followed by First Eagle offices in attempting to comply with the Florida and federal Cold Call Rules were prepared at the corporate level. Respondent Baum was not an officer of First Eagle, and he had no control or authority over policies or procedures adopted at the corporate level. Respondent Canouse was not an officer of First Eagle, and he had no control or authority over policies or procedures adopted at the corporate level. Neither Respondent Baum or Respondent Canouse participated in developing the forms and the procedures used by First Eagle to comply with Florida's Cold Call Rule. Robert Valerius was the corporate officer at the home office of First Eagle who had the responsibility for ensuring that the Boca Raton and the Longwood branch offices complied with Florida's Cold Call Rule. The suitability form used by First Eagle and its branch offices requested that the customer give information by checking the appropriate response and provided, in pertinent part, as follows: If the information below is true and correct, First Eagle, Inc. deems you suitable to purchase designated securities. INVESTMENT OBJECTIVES: Income Growth Safety of Principal Speculation Tax exempt income Other PREVIOUS FINANCIAL EXPERIENCE: Yes No Name of broker/dealer Type of experience FINANCIAL SITUATION: Estimated annual income Estimated net worth I have sufficient knowledge and experience to evaluate the risk in purchasing designated securities. I am purchasing approximately shares of stock, ( ) Common, ( ) Units, ( ) Warrants. Both the Florida Cold Call Rule and its federal counterpart were enacted to protect investors and to prevent fraud that could be occasioned because of the high risks associated with dealing in these type transactions and because of the limited information about these type securities available to investors. The testimony of William F. Reilly, Jr., clearly establishes that the Petitioner considers a branch manager responsible for ensuring that transactions occurring under his supervision in the branch office comply with Florida's Cold Call Rule, as well as all other Florida laws and rules pertaining to the buying and selling of securities. Mr. Reilly testified that Petitioner relies on Article III, Section 27 of the Rules of Fair Practice adopted by the National Association of Securities Dealers (NASD) that regulate the conduct of its members, 4/ as its authority for imposing this responsibility on branch managers. Petitioner has pointed to no rule or statute that impose this duty on a branch manager. The duties and responsibilities separately imposed by First Eagle on Respondent Baum and Respondent Canouse as to the Florida Cold Call Rule were not established. 5/ The documentation required by Florida's Cold Call Rule must be obtained prior to the sale. Similarly, the suitability determination required by Florida's Cold Call Rule must be made prior to the sale. The form adopted by First Eagle and used by the Boca Raton branch office and the Longwood branch office did not provide for an independent suitability determination that the individual customer could appropriately deal in designated securities. Instead, the form permitted the customer to make his or her own determination. On March 19, 1990, a surprise examination was made by Petitioner at First Eagle's Boca Raton office. This examination was conducted by Jerome Jordan, an experienced investigator employed by Petitioner. On March 22, 1990, an unannounced examination was made by Petitioner at First Eagle's Longwood office. This examination was conducted by Michael Blaker, an experienced investigator employed by Petitioner. Both examinations were conducted in cooperation with other regulatory agencies as part of a nationwide investigation to determine the level of compliance with the SEC Cold Call Rule and Florida's counterpart. Between January 1, 1990, and March 19, 1990, persons working in the Boca Raton office under Respondent Baum's supervision offered for sale, sold, and effected the purchase of designated securities to individual customers in 18 transactions prior to obtaining the documentation required by the Cold Call Rule and without making a proper suitability determination. Respondent Baum caused order tickets to be forwarded to First Eagle headquarters, which was a necessary step in the completion of the purchase of these designated securities. There was no evidence that a suitability determination was made for these transactions as required by Florida's Cold Call Rule by Mr. Baum, by Mr. Valerius, or by any other person associated with First Eagle. Between January 1, 1990, and March 22, 1990, persons working in the Longwood office under Respondent Canouse's supervision offered for sale, sold, and effected the purchase of designated securities to individual customers in 26 transactions prior to obtaining the documentation required by the Cold Call Rule and without making a proper suitability determination. Respondent Canouse caused order tickets to be forwarded to First Eagle headquarters, which was a necessary step in the completion of the purchase of these designated securities. There was no evidence that a suitability determination was made for these transactions as required by Florida's Cold Call Rule by Mr. Canouse, by Mr. Valerius, or by any other person associated with First Eagle.
Conclusions Having ruled on all the exceptions filed by the parties, and having reviewed the complete record of this proceeding and all Exhibits thereto, it is accordingly ORDERED: The Hearing Officer's Findings of Fact and Conclusions of Law are adopted except as modified or rejected herein; The Respondents William J. Baum and Joseph C. Canouse are hereby ordered to cease and desist from violating the provisions of Rule 3E-600.012(5), Florida Administrative Code; That Respondents William J. Baum and Joseph C. Canouse are herein REPRIMANDED for their violations of Rule 3E-600.12(5), Florida Administrative Code; DONE and ORDERED this 24th day of June, 1992. GERALD LEWIS, as Comptroller and Head of the Department of Banking and Finance, Division of Securities COPIES FURNISHED: Don Saxon, Director Division Securities and Investor Protection R. Beth Atchision Assistant General Counsel
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered which finds that Respondent Baum and Respondent Canouse violated the provisions of Rule 3E-600.012(5)(b), Florida Administrative Code, and which issues a letter of reprimand to each of them for such violation. DONE AND ORDERED this 26th day of March, 1992, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of March, 1992.
