Findings Of Fact Petitioner River Trails is the developer of a condominium community in Palm Beach County known as River Walk. River Walk is contiguous to and immediately adjacent to 2600 feet of South Florida Water Management District (hereinafter "SFWMD") property bordering Canal C-18 in Palm Beach County. The right- of-way adjacent to C-18 as well as the bottom of C-18 is owned by SFWMD. C-18 is not in an area designated as Outstanding Florida Waters. As required by Section 403.813(2), Florida Statutes, River Trails sought and obtained on January 12, 1984, a permit from the SFWMD to construct a dock and boat ramp in Canal C-18. The permit conveyed no property rights to River Trails. On October 12, 1984, River Trails asked DER to confirm that River Trails' proposed boat ramp qualified for an exemption pursuant to Section 403.813(2)(c), Florida Statutes. By letter dated December 20, 1984, DER informed River Trails that the proposed boat ramp did qualify for the exemption and, therefore did not require any permit from DER. On October 18, 1984, River Trails asked DER to confirm that River Trails' proposed dock of 1,000 square feet or less qualified for an exemption from DER's permitting authority pursuant to Section 403.813(2)(b), Florida Statutes. However, on November 30, 1984, DER informed River Trails that its proposed dock did not qualify for the exemption because there was already an existing dock on SFWMD property on Canal C-18. As authority for its position, DER cited the following sentence in DER Rule 17-4.04(9)(c), Florida Administrative Code: "A private dock is a single pier at a parcel of property." On the 2600 feet of SFWMD-owned right-of-way contiguous to River Trails, there are presently no docks. On SFWMD-owned right-of-way east of River Trails, between River Trails and the southwest fork of the Loxahatchee River, there are two docks approximately 300 feet apart located in front of single-family residences. DER contends all contiguous property owned by an individual, group or entity, including a water management district, constitutes a "parcel of property" and accordingly does not recognize River Trails' claim to an exemption because of the existence of these docks. Prior to River Trails' request that DER confirm River Trails' right to an exemption, DER had not interpreted water management district-owned right-of-ways to be a "parcel of property" within the meaning of Rule 17- 4.04(9)(c). In the past, the SFWMD has permitted numerous docks of less than 1,000 square feet on SFWMD-owned right- of-ways. Copies of these permits were routinely forwarded to DER. While these docks were and are on right-of-ways which DER now defines as a "parcel" within the meaning of Rule 17-4.04(9)(c), DER has not required permits for these docks. The DER employees who interpret the rule in question as part of their duties and whose depositions were introduced at hearing do not agree on the configuration which constitutes a single pier, on the degree of ownership or control required over a parcel of property by an applicant for an exemption, or on the definition of a parcel of property. DER has failed to adequately explain its deviation from past agency practice in interpreting SFWMD right-of- way as a parcel of property. But for DER's new interpretation of the term "parcel of property" found in Rule 17-4.04(9)(c), Florida Administrative Code, River Trails' proposed dock meets the statutory and rule requirements for an exemption from obtaining a permit from DER.
The Issue Whether a consumptive use permit for the quantities of water requested in the application should be granted.
Findings Of Fact Application 7500137 seeks an average daily withdrawal of 2.4 million gallons of water with maximum daily withdrawal not more than 2.88 million gallons from an existing well in order to process phosphate and reclaim land. This is an existing use for mining operations located southwest of Lakeland, Florida, on land consisting of 1531 acres. Notice was published in a newspaper of general circulation, to wit: The Lakeland Ledger, on November 11 & 18, 1975, pursuant to Section 373.146, Florida Statutes. The application and affidavit of publication were admitted into evidence without objection as Composite Exhibit 1, together with correspondence from James R. Brown, Vice President, Dagus Engineers, Inc., dated November 19, 1975 to the Southwest Florida Water Management District. No objections were received by the Water Management District as to the application. Mr. George Szell, hydrologist of the Water Management District testified that the application met the conditions for a consumptive use permit as set forth in Chapter 16J-2.11, Florida Administrative Code, except that the quantity of water requested to be withdrawn is 41.06 per cent over the maximum average daily withdrawal permitted under the water crop theory as set forth in Section 16J-2.11(3), F.A.C. However, the Water Management District witness recommended waiver of that provision since the mining operations will be concluded in several years and thereafter the water table and hydrologic conditions will return to normal. The Water District staff recommended approval of the application with the condition that a meter be installed on the well and that the applicant be required to take monthly readings thereof and submit quarterly reports of the readings to the District. The applicant's representative agreed to these conditions at the hearing.
Recommendation It is recommended that Application No. 7500137 submitted by Poseidon Mines, Inc., for a consumptive water use permit be granted on the condition that a meter be installed on the applicant's well and that monthly readings be taken and submitted quarterly by the applicant to the Southwest Florida Water Management District. It is further recommended that the Board of Governors of the Southwest Florida Water Management District, pursuant to Rule 16J-2.11(5), for good cause, grant an exception to the provisions of Rule 16J-2.11(3), as being consistent with the public interest. DONE and ENTERED this 19th day of January, 1976, in Tallahassee, Florida. THOMAS C. OLDHAM Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: J.T. Ahern, Staff Attorney Southwest Florida Water Management District P.O. Box 457 Brooksville, Florida 33512 Poseidon Mines, Inc. P.O. Box 5172 Bartow, Florida
The Issue Whether Florida Administrative Code Rules 61G15- 21.009(1)(b) and (3) and 61G15-20.0015(3) are invalid exercises of delegated legislative authority.
Findings Of Fact Based on the stipulated facts submitted by the parties and on the entire record of this proceeding, the following findings of fact are made: The Department of Business and Professional Regulation, Board of Professional Engineers ("Board") is the state agency responsible for the licensure and regulation of professional engineers in Florida. §§ 471.007, 471.008, 471.013, and 471.031, Fla. Stat. (2005).1 Mr. Hursh is an individual who applied for licensure by endorsement with the Board to be licensed as a professional engineer. Mr. Hursh is licensed in another state, so he applied for licensure by endorsement pursuant to Section 471.015(3)(b), Florida Statutes. Mr. Hursh failed to pass the required Principles and Practice Examination, provided by the National Council of Examiners for Engineers and Surveyors ("NCEES") five times since October 1, 1992, in an effort to become licensed as an engineer in Florida. In April 2004, Mr. Hursh passed the NCEES examination in Delaware, met Delaware's other licensing criteria, and, on July 14, 2004, was issued a license to practice engineering by the State of Delaware. In August 2004, Mr. Hursh filed his application for licensure by endorsement with the State of Florida and subsequently provided all supporting documentation as requested by the Board, including a Verification of Licensure from the Delaware Association of Professional Engineers. Mr. Hursh did not provide a copy of the Delaware licensing requirements. On January 19, 2005, the Application Committee of the Board denied Mr. Hursh's application, citing as the reason "5 time failure - need 12 hrs. of courses prior to endorsement." Delaware's licensing criteria was never reviewed by the Board to determine if the Delaware licensing criteria was substantially the same as Florida's licensing criteria. On February 10, 2005, the Board filed a Notice of Denial of Mr. Hursh's application for licensure by endorsement, citing as the basis for the denial that Mr. Hursh had failed the examination five times and needed to meet the additional college credit requirements of Section 471.013, Florida Statutes, and Florida Administrative Code Rule 61G15.21.007.
The Issue Whether the South Florida Water Management District’s (“District”) intended award of a contract for aerial spraying services, granular application services, and aerial transport services, to Coastal Air Services, Inc. (“Coastal”), is contrary to the District’s governing statutes, rules, policies, or the bid specifications; and, if so, whether the decision was clearly erroneous, contrary to competition, arbitrary, or capricious.
Findings Of Fact The Parties The District is an independent taxing authority created pursuant to section 373.069, Florida Statutes, with the authority to contract with private entities to maintain real property controlled by the District. See § 373.1401, Fla. Stat. HAI is a Florida corporation duly authorized to do business in the State of Florida with a business address of 1090 Airglades Boulevard in Clewiston, Florida. Coastal is a Florida corporation duly authorized to do business in the State of Florida with a business address of 7424 Coastal Drive in Panama City, Florida. The RFB On February 7, 2018, the District issued the RFB, soliciting bids for qualified respondents to provide the following: [F]urnish all labor, equipment, perform data entry and perform all operations for spraying of aquatic, ditchbank and invasive vegetation by helicopter and provide aerial flight services for site inspection and plant surveys. Both HAI and Coastal submitted timely bids, which the District deemed responsive and responsible under the terms of the RFB. The District deemed Coastal the lowest responsive and responsible bidder for aerial spraying, granular application, and aerial transport services. The District deemed HAI the lowest responsive and responsible bidder for spot spraying services. On May 11, 2018, the District posted its Notice of Intent to Award the respective contracts to Coastal and HAI. HAI challenges the award to Coastal because it is not a responsible bidder under the terms of the RFB. HAI’s challenge focuses on two items required to document the bidder’s responsibility to perform the requested services. First, the RFB requires the bidder to provide at least two helicopters certified pursuant to 14 CFR Part 133, Rotocraft External-Load Operations; and 14 CFR Part 137, Agricultural Aircraft Operations (Part 137 Certificate). Second, the RFB requires the bidder to demonstrate its ability to obtain required insurance coverage. Part 137 Certificate HAI contends that Coastal’s bid does not meet the responsibility provisions of the RFB because it did not include sufficient Part 137 Certificates for its subcontractor, HMC Helicopters (“HMC”). HAI contends the Part 137 Certificates are required to expressly state that aircraft are certified to dispense economic poisons. Petitioner’s argument fails for three reasons. First, the RFB does not require the bidder’s Part 137 Certificate to expressly endorse aircraft to dispense economic poisons.3/ Second, assuming the express endorsement was required, the requirement does not apply to HMC. The RFB defines the term “Bidder” and “Respondent” as “[a]ll contractors, consultants, organizations, firms or other entities submitting a Response to this RFB as a prime contractor.” (emphasis added). In its bid, Coastal is listed as the prime contractor, and HMC as a subcontractor. The RFB requires each Respondent to list at least two aircraft which are Part 133 and 137 certified. The requirement applies to Coastal as the primary contractor, not to its subcontractor. Coastal’s bid listed five aircraft with both Part 133 and 137 Certificates, actually exceeding the requirement for two such certified aircraft. Third, assuming an express endorsement for dispensing economic poisons was required, and that the requirement applied to HMC, HMC’s Part 137 Certificate documents HMC’s authority to dispense economic poisons. Pursuant to 14 CFR 137.3, “Agricultural aircraft operation” is defined as follows: [T]he operation of an aircraft for the purpose of (1) dispensing any economic poison, (2) dispensing any other substance intended for plant nourishment, soil treatment, propagation of plant life, or pest control, or (3) engaging in dispending activities directly affecting agriculture, horticulture, or forest preservation, but not including the dispensing of live insects. To obtain a Part 137 Certificate, the operator must pass a knowledge and skills test, which includes the safe handling of economic poisons and disposal of used containers for those poisons; the general effects of those poisons on plants, animals, and persons and precautions to be observed in using those poisons; as well as the primary symptoms of poisoning in persons, appropriate emergency measures in the case of poisoning, and the location of poison control centers. See 14 CFR § 137.19. However, if the operator applies for a Part 137 Certificate which prohibits dispensing of economic poisons, the applicant is not required to demonstrate the knowledge and skills listed above. See Id. HMCs’ certificates do not contain an express prohibition against dispensing economic poisons. The authorization for HMC’s aircraft to dispense economic poisons is inherent in its Part 137 Certificate. Coastal’s bid meets the solicitation requirement for at least two aircraft with Part 137 Certificates. Insurance Requirements The RFB requires each Respondent to “provide evidence of the ability to obtain appropriate insurance coverage.” Respondents may meet the insurability requirement by having their insurance agent either (1) complete and sign an insurance certificate which meets all of the requirements of Exhibit H to the RFB; or (2) issue a letter on the insurance agency’s letterhead stating that the Respondent qualifies for the required insurance coverage levels and that an insurance certificate meeting the District’s requirements will be submitted prior to the execution of the contract. In response to this requirement, Coastal submitted a letter from Sterlingrisk Aviation, dated March 6, 2018, stating, “All required coverage amounts are available to Coastal Air Service, Inc. to fulfill the requirements of this contract.” In the Re: line, the letter refers to the specific RFB at issue in this case. Coastal also submitted a certificate of insurance from Sterlingrisk Aviation demonstrating the levels of insurance coverage in effect at the time the bid was submitted, although the coverages are less than the amounts required under the RFB.4/ HAI takes issue with Coastal’s evidence of ability to obtain the required coverage because the letter from Sterlingrisk does not state “an insurance certificate reflecting the required coverage will be provided prior to the contract execution.” Based on the totality of the evidence, the undersigned infers that Sterlingrisk’s letter omits the language that a certificate “will be provided” prior to contract execution, because Sterlingrisk will issue an insurance certificate only when Coastal applies, and pays the premium, for the increased coverage limitations. The letter from Sterlingrisk substantially complies with the insurance requirements of the RFB, and constitutes competent, substantial evidence of Coastal’s ability to obtain the required insurance coverage. HAI introduced no evidence that Coastal obtained an economic advantage over HAI by failing to include language from its insurance agent that “an insurance certificate reflecting the required coverage will be provided prior to the contract execution.” Instead, HAI argued that by failing to enforce that provision of the RFB, the District cannot ensure the winning bidder will be responsible to undertake the contract. HAI argued that the District’s failure to adhere to this RFB requirement may create inefficiencies that “would result in the event that Coastal were unable to obtain the required insurance coverage” before execution of the contract. Coastal’s bid documents its eligibility for insurance coverage in the amounts required by the RFB. If Coastal does not provide said certificates, it will not be qualified for final execution or issuance of the contract.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Southwest Florida Water Management District enter a final order dismissing Helicopter Applicator, Inc.’s Petition. DONE AND ENTERED this 15th day of November, 2018, in Tallahassee, Leon County, Florida. S SUZANNE VAN WYK 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 15th day of November, 2018.
Findings Of Fact Pal-Mar has filed application No. 29454 pursuant to Chapter 373, Florida Statutes, requesting approval for a surface water management system known as Phase III of Pal-Mar Water Management District, to serve approximately 3,600 acres of residential land in Martin County, Florida. The project discharges to C-44, the St. Lucie canal. SFWMD's staff report recommends approval be granted for the proposed water management system based on considerations of water quality, rates of discharge, environmental impact and flood protection. Approval is subject to certain conditions which are not material to the instant cause. As background material to the staff report, the staff makes reference to the U.S. Army Corps of Engineers report entitled "Survey-Review Report of Central and Southern Florida Flood Control Project, Martin County," dated September 22, 1967. The Corps of Engineers' report was not used in the decision-making process but rather was included in the staff report to provide a comprehensive overview. Whether the Corps of Engineers' plans were ever implemented would not affect the recommendations of the staff. The land in question is currently zoned "IZ" (interim zoning) according to Martin County's zoning regulations. In this category, if the neighborhood is predominantly one classification of usage, then the zoning director is to be governed by the regulations for that class of usage in determining the standard zoning regulations to be applied to the interim zoning district. If no trend of development has been established in the neighborhood, the minimum standards of the R2 single family zoning district are to be complied with. Rule 16K-4.035, Florida Administrative Code, entitled Basis of Review of Applications for Construction of Works, provides in Section (2) that all applications such as the instant one shall be reviewed in accordance with the provisions of the district's "Basis Of Review For Construction Of Surface Water Management Systems Serving Projects With Two Or More Acres Of Impervious Area Within The South Florida Water Management District - December, 1977." The Basis of Review provides in Part VI that before an application will be considered for the issuance of a permit, the proposed land use must be "compatible with the applicable zoning for the area." The evidence indicates that the land in question has a history of agricultural use. However, the evidence also discloses that far from being a trend towards agricultural use there is a trend away from it. A major portion of the neighboring lands will be devoted to Phases I, II, IV and V, of the Pal-Mar Water Management District. According to Florida Land Sales Board registrations, the land in question is subdivided into one-half acre, one acre, 1.4 acre and two acre lots. The average project density is one lot per acre. In addition, there is some mobile home usage within neighboring areas. If there is a trend, it is toward R2 zoning type usage. SFWMD's staff concluded that the proposed land use was compatible with the applicable zoning for the area. Martin County has failed to establish that such compatibility does not exist. In the Redraft of Order Permitting Change of Plan of Reclamation and Change of Name dated November 4, 1969, the Honorable C. Pfeiffer Trowbridge, Circuit Court Judge of the Nineteenth Judicial Circuit in and for Martin County, observes that the Petitioner in that case (herein Pal-Mar) "permanently and irrevocably withdrew its application to drain into the St. Lucie canal thereby removing all reasons for objections" to the proceedings in Circuit Court. However, there is no evidence to indicate that there exists a prohibition against drainage into the St. Lucie canal or that Judge Trowbridge's order is intended to preclude approval of Pal-Mar's present application.
The Issue The issue to be determined is whether Petitioner Cargor Partners VIII – Long Bar Pointe, LLLP (“Cargor”) is entitled to an award of attorney’s fees pursuant to section 57.105, Florida Statutes (2017).
Findings Of Fact Notice On February 17, 2017, the attorney for Cargor sent Joseph McClash a letter on law firm stationary. In the first paragraph of the letter it states, “Please allow this letter to serve as notice of Cargor’s intent to seek relief pursuant to Section 57.105, Florida Statutes (the “Statute”) against you, individually as qualified representative, and the named Petitioner.” Cargor sent an email to McClash on February 28, 2017, reminding McClash that “the 57.105 deadline is March 10, 2017.” McClash referred to a motion for attorney’s fees that he received on or about March 13, 2017, but the motion was not shown to the Administrative Law Judge nor introduced into evidence. On April 5, 2017, the same day that McClash voluntarily dismissed the petition for hearing in DOAH Case No. 17-0655, Cargor filed with DOAH its motion for attorney’s fees under section 57.105. Contested Claims The renewal of a FDOW is governed by section 373.421(2), Florida Statutes, which states in relevant part that the FDOW shall be renewed “as long as physical conditions on the property have not changed, other than changes which have been authorized by a permit pursuant to this part, so as to alter the boundaries of surface waters or wetlands.” If the boundaries of wetlands or other surface waters have been altered without a permit, the FDOW cannot be renewed and an application for a new FDOW is required. The SWFWMD reviewer explained in a letter requesting additional information from Cargor: Please be advised that letters of exemption do not qualify as permits issued under Part IV of chapter 373, F.S. and therefore if work has been done on the site that has altered the wetlands or other surface water boundaries in association with a letter of exemption, a new formal determination application will be required. McClash claims Cargor did not qualify for the renewal of its FDOW because Cargor altered the boundaries of surface waters or wetlands on its property after the 2011 FDOW was issued and the some of the alterations were made pursuant to letter of exemption. In its February 17, 2017, letter to McClash, Cargor set forth six grounds for Cargor’s contention that McClash’s petition for hearing should be withdrawn. The first three grounds were described in Cargor’s letter as follows: The Formal Determination of Wetlands and Other Surface Waters, dated December 28, 2016, which is the subject of this Proceeding, does not authorize any construction activity. Consequently, no standing to challenge is or could be properly presented. There is no injury in fact and no one is in immediate danger of a direct injury from the issuance of the Formal Determination of Wetlands and Other Surface Waters, dated December 28, 2016, as of the date and time of filing the Petition in this Proceeding. Consequently, no standing to challenge is or could be properly presented. The Formal Determination of Wetlands and Other Surface Waters, dated December 28, 2016, is not a permit, license, or authorization. Consequently, no standing to challenge is or could be properly presented by an association. These were issues of law and they were decided against Cargor in an Order dated February 28, 2017. The fourth and fifth grounds described in Cargor’s letter involve the central issue in the case: Changes in the land have been previously authorized by the Southwest Florida Water Management District (“SWFWMD”) pursuant to existing and final permits including (i) SWFWMD ERP No. 43040157.001, dated August 6, 2014, (ii) SWFWMD CONCEPTUAL ERP No. 49040157.002, dated September 4, 2015, (iii) SWFWMD ERP No. 4304157.003, dated March 31, 2016, and (iv) SWFWMD Notice of Qualification for Permanent Farming Exemption, dated August 30, 2016. Changes in the land are authorized by the identified permits and authorizations. All changes in the land have occurred pursuant to the identified permits and authorizations. Allegations to the contrary are simply false and are not supported by material facts. In 2015, Cargor was issued a “Conceptual ERP” permit, which describes, among other things, planned modifications to some agricultural ditches. However, the conceptual permit does not allow the commencement of construction activities. On August 30, 2016, SWFWMD issued to Cargo a Permanent Farming Exemption, pursuant to section 373.406(13), which authorized Cargor to excavate three agricultural ponds in uplands. In its application for the exemption, Cargor also proposed to modify some agricultural ditches. On March 31, 2017, SWFWMD issued Cargor an ERP Individual Construction Major Modification, which, among other things, authorized work in ditches. This permit was issued just before McClash’s voluntary dismissal and, therefore, could not have authorized the changes on Cargor’s property that McClash described in the petition for hearing. Before filing his petition, McClash consulted with a wetland scientist, Clark Hull, about the merits of McClash’s proposed challenge to the FDOW renewal. Hull gave McClash an affirmative response, but his input was speculative because it was based on assumptions and representations that Hull had not investigated. McClash consulted with another wetland scientist, Pamela Fetterman, who conducted an “aerial, desktop review of publically available Geographic Information Systems (GIS) data.” Fetterman described her initial review as an evaluation of potential undelineated wetlands and other surface waters. The Administrative Law Judge ruled that the delineation approved by the 2011 FDOW became final and could not be challenged by McClash. McClash then asked Fetterman to review changes in physical conditions on the property that occurred after the FDOW was issued. Fetterman produced a report (McClash Exhibit R-6), in which she opined that the changes to physical conditions on Cargor’s property “have a high likelihood of affecting the previously delineated landward extent of wetlands and other surface waters.” She stated further: [C]hanges in physical conditions of the property took place prior to issuance of the [FDOW renewal] as purported “exempt agricultural activities”, and include ditch dredging alterations to delineated other surface waters. . . . A Permanent Farming Request for Exemption Confirmation letter was applied for on August 23, 2016 for construction of these ponds and modification of existing ditches, some of which were determined to be jurisdictional other surface waters by the subsequently re-issued [FDOW]. At the final hearing on fees, neither McClash nor Cargor made clear to the Administrative Law Judge: (1) the physical changes to the property that were alleged to be authorized by permit, (2) the physical changes that were alleged to be authorized by exemption, or (3) any physical changes that were alleged to be unauthorized. The sixth ground described in Cargor’s letter is as follows: The picture attached to the Petition as set forth in Paragraph 9, and the stop work allegation set forth in Paragraph 10 are irrelevant and have no factual relationship to any issue in the proceeding. Since any changes in the land have occurred pursuant to identified permits and authorizations, the allegations are simply false and/or intentionally misleading. It is not a basis for an award of attorney’s fees under section 57.105 that an irrelevant photograph was included in a petition for hearing. Moreover, the aerial photograph in McClash’s petition was relevant in this case because it showed the physical conditions of Cargor’s property. In the petition, McClash states that Manatee County issued a stop work order on November 16, 2016, for construction activities commenced on Cargor’s property without a County- approved erosion control plan. This allegation also pertained to physical changes to the property. All evidence about physical changes was relevant in determining whether Cargor was entitled to renewal of the FDOW. Fees Cargor claims fees based on 48.4 hours of attorney time (Edward Vogler) at an hourly rate of $410, and 3.6 hours of attorney time (Kimberly Ashton) at an hourly rate of $385, for a total of $21,230.00. The fees Cargor is seeking include the hours spent on legal issues raised by Cargor that were rejected by the Administrative Law Judge. These fees amount to at least $1,025. See Cargor Exhibit 1, Invoice entries for February 20, 2017. Cargor’s attorney testified that the fees are reasonable. Cargor did not call an expert witness to corroborate the reasonableness of the hourly rate and the reasonableness of the hours expended.
Findings Of Fact Petitioner, Frank A. Caluwe, Jr., was employed on a noncontractual basis by Respondent, South Florida Water Management District, during the period from April 8, 1974 through August 4, 1982. From August, 1981 until his termination, Caluwe held the position of water management engineer III. At all times relevant hereto, Richard A. Rogers, director of the Resource Control Department, was overall supervisor or department head. Charles Alan Hall served as his direct, day-to-day supervisor. Petitioner transferred into the Resource Control Department in 1977. He was eventually promoted to a supervising professional engineer I class in 1979 by Rogers and Hall. Caluwe's job evaluations received in evidence as Petitioner's Exhibit 17 reflected outstanding and excellent ratings and included such glowing descriptions of his work performance as "excellent" and "well organized", and as having "a very good handle on all phases of the work". He received an excellent rating from Rogers and Hall as late as November, 1981. Rogers first began experiencing what he described as "difficulties" with Caluwe around 1980 when Caluwe went to lunch with several of his subordinates and did not return to work the rest of the afternoon. He did not take leave for his absence. Although Rogers claimed the employees were on a "drinking spree," this was not confirmed. Caluwe did not receive any disciplinary action for this "incident", although several months later Hall expressed displeasure with his absence. There was no evidence that any of the other employees in the group received any type of oral or written disciplinary action for their absences. Several other "problems" occurred during his employment tenure including unsuccessful attempts in 1980 to utilize law books at the agency's law library for personal use, admonishments for having too many incoming personal calls on his telephone during office hours and discussing nonworking matters with other employees, "negative" comments to two subordinates during a 1981 intra-agency election, and an alleged failure to return a long-distance telephone call to someone seeking information. However, no formal disciplinary action was taken against Petitioner for any of these actions, and his personnel file reflects no written comments. He also sued the agency twice, once in 1977 over an insurance claim, and a second time in 1980 concerning a cash award he claimed was due for making a suggestion. However, this action did not result in any written or oral warnings from his superiors. In May, 1981, Hall, Rogers and Caluwe met to discuss a transfer from a supervisory position (supervisor of water permit section) to a water management engineer III, which was a staff position. Although Caluwe admitted he was "burned out" in his supervisory role, he protested being demoted to a staff position and requested he be given an engineer IV slot. Notwithstanding his request he was demoted to the lower position. On March 17, 1982, an annual agency meeting was held at which time the agency executive director spoke to all employees. Prior to that time an undated memorandum was posted on the agency's bulletin board "urging" all employees to attend. Another memorandum dated March 1, 1982, which rescheduled the meeting to another date, simply advised members of Caluwe's department when the talk was to be held, but made no mention regarding attendance. Caluwe did not attend the meeting because he did not consider it to be mandatory. He based this conclusion upon the fact that the memorandum urged vis a vis required attendance, and because other employees had missed the meeting in prior years. He conceded, however, that it was "implied" from the memorandum that he attend the meeting. Respondent construed the memorandum to mean that attendance was compulsory, and that "everybody (was) expected to attend." Whether this specific meaning was ever conveyed to all employees, including Caluwe, before the meeting was not disclosed. During the annual agency meeting Caluwe remained working in his office. While there, an unidentified member of the public approached a temporary receptionist seeking information concerning a problem. The receptionist in turn went to Caluwe seeking his aid in responding to the inquiry. Caluwe responded, "I don't know. That's not my job. Pat Gleason's group handles that." Out of "curiosity", the receptionist reported his comments to a department head, who in turn told Rogers. Neither the receptionist nor the member of the public were identified, and neither appeared and testified at the final hearing. Whether or not the receptionist suffered "abuse" as a result of this as the agency claims was not confirmed. Rogers, Hall and Caluwe met on March 18 concerning his absence from the annual meeting and the "incident" with the receptionist. On March 22 Caluwe was given a written warning and assigned 25 disciplinary points for being guilty of a Category 2e offense under the agency's Corrective Action-Procedure Index and Corrective Action-Policy. The Index and Policy "defines appropriate corrective actions for resolving performance problems and violations of rules of conduct" by agency employees. In short, it represents the agency's written code of conduct for employees. A 2e offense is defined therein as a "(f)ailure to follow authorized instructions." In conjunction with the written warning, Caluwe was also given a memorandum prepared by Rogers on March 19 which explained in greater detail the conduct that precipitated the disciplinary action. In the memorandum Rogers referred to a number of things which prompted the disciplinary action, including the "incident" with the receptionist, the missed meeting, and Caluwe's apparent use of the telephone for personal use during the meeting as reported by the temporary receptionist. However, since the 25 points were given to Caluwe for failing to follow authorized instructions, it is found that disciplinary action was taken because he failed to attend the annual meeting. On March 29, 1982, Caluwe wrote a fourteen-page letter to Rogers giving his version of what occurred on March 17, and explaining in great detail other "incidents" that had occurred during the preceding eighteen months, Attached to the letter were 23 exhibits. Among other things, Caluwe accused Hall and Rogers of "improper conduct and abuse of authority" in handling the other incidents that had previously arisen. He also criticized their ability to manage and communicate with employees. The letter indicated that copies of the same were being mailed to each member of the agency's governing board, its Executive Director, Deputy Director, and Records Clerk, and an outside attorney. Rogers accepted the letter as merely being a response to his memorandum of March Caluwe was not disciplined for this action. On March 31, 1982 Caluwe wrote a two-page letter to the members of the governing board of the agency and enclosed his March 29 letter and exhibits previously sent to Rogers. In his March 31 letter, Caluwe stated, among other things, that management "occupie(d) a position of trust", that it had "breached this trust", that it "rule(d) by intimidation and fear and not in the spirit of cooperation", and urged the board members to conduct an independent investigation of his "allegations". A copy of this letter was also furnished an outside attorney. On May 13, 1982 Caluwe sent another letter to the members of the governing board in which he inquired as to the status of the investigation he had called for in his letter of March 31. Caluwe also raised allegations concerning the agency's general counsel, and claimed the general counsel had "used sick leave for purposes other than for which it was intended (and) falsified his bi-weekly time reports and received pay and benefits for periods he was absent from work", and that the problem was created because his leave slips had been approved by the agency's deputy executive director. That complaint is now the subject of a Florida Commission on Ethics proceeding. Caluwe had previously brought this subject to Rogers' attention sometime in 1980. There was no evidence his to the reaction, if any, by the members of the governing board to this letter or the one previously sent on March 31. Caluwe did not furnish his supervisors a copy of the letter but did copy the records clerk of the agency. Neither Rogers nor the agency personnel director received copies of the same until late July, 1982. In June, 1982 Caluwe contacted reporter for the Miami Herald to disclose the fact that the chairman of the agency's governing board had been involved in selling insurance to the board. On June 22, 1982 outside counsel for the agency wrote the agency's personnel director telling him, among other things, that it would call the director the next day concerning Caluwe and provide him "with language to be included in a letter of termination." It also referred to a need to review in detail "SFWMD's termination, grievance, and personnel policies to make sure that Caluwe's discharge, and the procedures used to implement the discharge, comport with due process." At this point, then, the agency had decided to terminate Caluwe. On July 21, 1982 Caluwe again wrote a letter to the members of the governing board. The text of the letter is set out below: To members of the Governing Board of the South Florida Water Management District: You are to be congratulated for your unity in not addressing controversial topics. It's an unfortunate situation when special interests are put ahead of the public trust that has been vested in you. The only reasonable conclusion that I can reach is that you condone poor management and theft. Perhaps some of you have committed acts similar to these and that's why you cannot afford to get involved. Well you are involved! It's satisfying to note the courts have held directors personally liable in civil actions and that penalties are not limited to compensatory damages but that punitive damages can be assessed. It's also interesting to note that you may be found culpably negligent in permitting acts like these to occur. Since you have been unwilling to do your own house cleaning, I have decided to help you in this matter. I think it would be an excellent idea if the citizens of South Florida had an opportunity to see how the South Florida Water Management District has acted in favoring special interests. When this happens you will not honestly be able to say, "we didn't know". One member of the Board responded by letter dated July 23, 1982 that she considered it inappropriate for Caluwe to write directly to board members and instructed him to use channels that were provided for handling complaints. She added that Caluwe's letter struck her as being "offensive". The letter made no direct reference to Rogers and Hall, and they were not furnished a copy. However, on July 26 Rogers was given a copy of the letter. On July 30, 1982 Rogers sent Caluwe a memorandum in which he informed Petitioner that his employment was being terminated at 5:00 p.m. on August 4, 1982, and not to report to work after July 30. In brief, the reasons given for Caluwe's termination were (a) his "uncooperativeness shown a co-worker" on March 19, and his "failure to respond to a request for information from a member of the public", which collectively constituted a 2e offense for which he was previously assigned 25 points on March 19, 1982; (b) his letter to Rogers on March 29, 1982 which alleged poor management, illegal activity and unfair treatment to Caluwe, and which "personally attacked and insulted Charles Hall and (Rogers)"; (c) his letter of July 21 to the board which contained "inflammatory, threatening, and abusive language" and which constituted Category 2h and 3a offenses for which he received 75 points in total, and an additional 25 points which was given for the same letter by virtue of Caluwe's "failure to follow promulgated grievance and complaint procedures'; 3/ (d) the accumulation of a total of 125 points since March 19 which was in violation of Section E.1.d. of the Corrective Action Policy; and (e) "actions" which interfered with Rogers' ability to maintain internal discipline", made it impossible to work with (Caluwe)", made it "impossible to transfer (him) to a different Department", which "interfered with (his) performance of assigned duties", and which showed a "tendency on (his) part to make untrue and misleading statements." A Category 2h offense is defined in the Policy-Index as the "(u)se of abusive language to a co-worker" while a Category 3a offense is defined as the "(u)se of abusive or threatening language to the public, or use of threatening language to a co-worker." Category 2e offenses carry the imposition of 25 points for each violation. Fifty points are assigned for a violation of a Category 3 offense. Section E.1.d, of the Policy-Index provides that "(a) total of 100 points in effect may be cause for termination." The Policy-Index requires that "(c)orrective action shall be taken as soon as possible, but not more than five working days from the time the supervisor becomes aware of the incident." The memorandum of July 30, 1982 was followed by a letter to Caluwe on August 5 from Rogers which confirmed that his employment had been terminated. The letter also instructed Caluwe on the time limitations for filing a request for an administrative hearing. Thereafter, a timely request for a hearing was filed. The agency adopted an "Employee grievance Procedure" on July 15, 1977. Its purpose was to allow all employees the opportunity to quickly and fairly resolve a grievance." The Procedure provides a specified procedure for hearing and resolving various types of complaints from employees, including a hearing by an Employee Relations Committee (ERC), a further review by the unit manager or department director, a second hearing by a Grievance Review Board, and a final decision by the agency's executive director. According to the agency's personnel director, the agency has fired employees in one of two ways in the past: (a) when the employe has accumulated more than 100 disciplinary points under the Policy-Index, and (b) when the employee has committed certain acts, irrespective of the Policy-Index. Thus, it contends the agency may, at its discretion, determine whether to terminate an employee by assessing points under the Policy-Index or by merely giving notice to the employee even though he has accumulated no points under its written code of conduct. Even though an employee has accumulated over 100 points, the agency may not necessarily fire an employee. For example, on one occasion an employee accumulated 135 points but was not fired. In the case at bar, the agency considered Caluwe's 125 points to be incidental to his termination, and viewed his supervisor's inability to work with him, his letter writing activities and prior "incidents" to be the major concern and basis for the termination. Whether the District had a policy of terminating an employee whenever his actions made it impossible to transfer him to another department or whenever a supervisor could not work with an employee was not disclosed. It was also not disclosed whether all employees, including Caluwe, were aware of such policies, and the ramification for violating the same. There was no evidence as to the reason for such policies, the types of proscribed conduct within each policy, and the authority for adopting the same. Caluwe blamed his firing primarily on the fact that he had prompted an investigation of the agency's general counsel, who was a long-time District employee. He acknowledged he failed to use the Employee Grievance Procedure when he wrote directly to the members of the governing board, but claimed the ERC was ineffective in dealing with management problems. Caluwe did not dispute that he missed the annual meeting, and wrote the letters in question; however, he contends they do not justify the disciplinary action imposed by the District.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that all charges against Petitioner be dismissed except for one Category 2e offense for which 25 points should be imposed. It is further RECOMMENDED that Petitioner be reinstated in the position of water management engineer III retroactive to August 4, 1982 and that he be given full back pay between that date and the date of reinstatement. DONE and RECOMMENDED this 8th day of June, 1983 in Tallahassee, Florida. DONALD R. ALEXANDER 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 8th day of June, 1983.
The Issue The preliminary issue in this case is whether the South Florida Water Management District (District) has jurisdiction over the Petition for Formal Administrative Hearing (Petition) filed by the Save the Manatee Club (Club)--i.e., whether the Petition was timely or, if not, if the District has jurisdiction under principles of equitable tolling or excusable neglect.
Findings Of Fact On October 11, 1999, Hidden Harbor filed with the District an application for an Environmental Resource Permit (ERP) to construct and operate a surface water management system serving a proposed residential development in Lee County, Florida. In January 2001, the Club sent an email to the Florida Wildlife Conservation Commission (FWCC) stating that it was concerned about Hidden Harbor's Application No. 991011- 13, as it might impact an area the Club would like to see as a manatee sanctuary, and was requesting copies of all FWCC documents relating to the permit. FWCC forwarded a copy of this email to the District on January 19, 2001. At the time, the Club's internet website gave the address of its main office in Maitland, Florida, as the Club's official mailing address. On April 9, 2001, the Club opened a Southwest Florida regional satellite office in Estero, Florida, and installed Laura Combs as Regional Coordinator in charge of that office. Responsibility for monitoring the Hidden Harbor application was delegated to Combs and the satellite office. Nonetheless, the Club's website continued to give the address of its main office in Maitland, Florida, as the Club's official mailing address. Combs's prior work experience with the Club was as assistant director of governmental relations in Tallahassee, Florida. In that position, she tracked legislation and actions of the Governor and Cabinet that were of interest to the Club. She had no role in the filing of petitions for administrative hearings on actions of governmental agencies. Combs's education included a bachelor's degree in English and a master's degree in urban and regional planning. She did not have specific legal education in the filing of petitions for administrative hearings on actions of state governmental agencies. On May 30, 2001, the District mailed to the Club at its Maitland office address a letter enclosing the "District's staff report covering the [Hidden Harbor] permit application [No. 991011-13]" and notifying the Club that the "recommendations as stated in the staff report [to grant the attached draft permit] will be presented to our Governing Board for consideration on June 14, 2001." The Club also was advised: Should you wish to object to the staff recommendation or file a petition, please provide written objections, petitions and/or waivers (refer to the attached "Notice of Rights") to [the District's deputy clerk]. The "Notice of Rights" addresses the procedures to be followed if you desire a public hearing or other review of the proposed agency action. You are advised, however, to be prepared to defend your position regarding the permit application when it is considered by the Governing Board for final agency action, even if you agree with the staff recommendation, as the Governing Board may take final agency action which differs materially from the proposed agency action. The Notice of Rights stated that it was intended to conform to the requirement of Section 120.569(1), Florida Statutes, to "inform the recipient of any administrative hearing or judicial review that is available under this section [120.569(1)], s. 120.57 or s. 120.68." It cautioned: Please note that this Notice of Rights is not intended to provide legal advice. Not all the legal proceedings detailed below may be an applicable or appropriate remedy. You may wish to consult an attorney regarding your legal rights. The Notice of Rights included a section entitled "Petition for Administrative Proceedings," which stated in pertinent part: A person whose substantial interests are affected by the South Florida Water Management District's (SFWMD) action has the right to request an administrative hearing on that action. The affected person may request either a formal or an informal hearing, as set forth below. A point of entry into administrative proceedings is governed by Rules 28-106.111 and 40E-1.511, Fla. Admin. Code, (also published as an exception to the Uniform Rules of Procedure as Rule 40E-0.109), as set forth below . . .. Formal Administrative Hearing: If a genuine issue(s) of material fact is in dispute, the affected person seeking a formal hearing on a SFWMD decision which does or may determine their substantial interests shall file a petition for hearing pursuant to Sections 120.569 and 120.57(1), Fla. Stat. or for mediation pursuant to Section 120.573, Fla. Stat. within 21 days . . . of either written notice through mail or posting or publication of notice that the SFWMD has or intends to take final agency action. Pertinent to this case, the Notice of Rights included a verbatim reproduction of Florida Administrative Code Rule 28- 106.201, addressing required contents of a petition to initiate proceedings involving disputed issues of material fact. Rules 28-106.111, 40E-1.5111, and 40E-0.109 were not reproduced in the Notice of Rights. It is not clear from the evidence when the letter dated May 30, 2001, with attachments (the Notice Correspondence), was received in the Club's Maitland office. It was not date-stamped, as time-sensitive correspondence normally would be. Apparently, it was decided to forward the Notice Correspondence to the new satellite office in Estero for handling. Combs received the forwarded Notice Correspondence in early June 2001. This was the "first time [Combs] had been through this type of process." Combs reviewed the Notice Correspondence, eventually focusing on paragraph 1.a. of the "Petition for Administrative Proceedings" section of the Notice of Rights. She did not read any of the cited statutes and rules except for the rules reproduced verbatim as part of the Notice of Rights. Combs made conflicting statements regarding her understanding of the District's administrative process. However, it appears that she understood that the Club could file a petition within 21 days of receipt of the Notice Correspondence, or within 21 days of the "final" action of the District's Governing Board. She testified that, because the Notice Correspondence did not bear a date-stamp, it was unclear when the first 21-day time period began or ended; as a result, she decided to wait until the District's Governing Board took "final" action and file a petition within the second 21-day time period. Combs appeared at the meeting of the District's Governing Board on June 14, 2001, and spoke in opposition to issuance of the draft permit. Notwithstanding the Club's opposition, the Governing Board decided to issue the draft permit. Combs does not have authority to file petitions for administrative hearings on District actions. She consulted with her supervisor, Patricia Thompson, and they made a recommendation to the Club's governing board, which has ultimate authority to file petitions. Prior to Combs's involvement in the Hidden Harbor application, the Club had staff legal counsel, who could be consulted with respect to the filing of petitions and would advise the Club's governing board. However, the Club did not have staff legal counsel at the time of Combs's involvement and through the time of filing of this petition. (The Club now again has staff legal counsel.) Neither Combs nor Thompson saw any need to consult an attorney. It is not clear when the recommendation of Combs and Thompson was presented to the Club's governing board or when the Club's governing board made its decision to file the Petition. Neither Thompson nor any member of the Club's governing board (nor anyone else who may have participated in the decision to file the Petition) testified. Several (according to Combs, approximately 12) times after the District's Governing Board's meeting on June 14, 2001, Combs telephoned the District's offices to obtain a copy of the District's Governing Board's "final" action when it was reduced to writing. It is not clear from the evidence why several telephone calls were required. Eventually, on June 26, 2001, Combs received a copy of the permit issued to Hidden Harbor; there was no Notice of Rights attached. On July 17, 2001, the Club filed its Petition challenging the permit issued to Hidden Harbor. In the meantime, Hidden Harbor had obtained a final development order from Lee County in reliance on the Club's failure to petition for an administrative hearing. The Club is not a newcomer to Florida's administrative process. It can be officially recognized that the Club has participated in numerous proceedings before DOAH. At least one of those cases involved issues similar to those presented for determination in this case. See Conclusion of Law 32, infra.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the South Florida Water Management District enter a final order dismissing the Petition. DONE AND ENTERED this 6th day of December, 2001, in Tallahassee, Leon County, Florida. _________________________________ J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 6th day of December, 2001. COPIES FURNISHED: Cindy L. Bartin, Esquire Post Office Box 861118 St. Augustine, Florida 32086 Martha M. Collins, Esquire 233 3rd Street North, Suite 100 St. Petersburg, Florida 33701 Keith W. Rizzardi, Esquire South Florida Water Management District 3301 Gun Club Road West Palm Beach, Florida 33406-3089 Frank R. Finch, Executive Director South Florida Water Management District Post Office Box 24680 West Palm Beach, Florida 33416-4680
