The Issue Whether Respondent is, for purposes of Chapter 760, Florida Statutes, an "employee" of Petitioner. Whether Respondent has committed an unlawful employment practice against Petitioner by failure to hire him on the basis of race, to wit: African-American.
Findings Of Fact Petitioner is an African-American male. At all times material, he was employed as a member of the Flagler County, Florida, Sheriff's Department. In 2001, he had worked for the Sheriff's Department in some capacity for twenty years and had held the rank of sergeant for twelve years. In June 2001, he was a Sheriff's Department patrol sergeant. As such, he supervised Sheriff's Department officers on patrol. Respondent City of Bunnell is a municipality located in Flagler County, Florida. It is governed by a five-person City Commission, including its mayor. At all times material, the Commissioners were Mayor King and Commissioners Fell, Henry, Edmonson, and Marquis. Herein, Petitioner asserts that Respondent City discriminated against him due to his race because he was not appointed to the position of Acting Police Chief of the City of Bunnell, pursuant to an interlocal agreement the City never entered-into with the Sheriff's Department In early 2001, the City's full-time Police Chief resigned, and the City began to advertise for a full-time replacement. Petitioner lived in Bunnell, and was aware of the open position of full-time City Police Chief, but he elected not to apply. One reason for his decision not to apply was that he had twice applied unsuccessfully in the mid-1990's. Another reason was that by 2001, Petitioner was set in his career path with the Flagler County Sheriff and with his accruing State retirement benefits. Employment with the City would not have continued to accrue him State retirement benefits. At all times material, all of the City police officers were Caucasian. While seeking a full-time Police Chief, the City kept the City Police Department functioning by relying on a series of "Acting Police Chiefs"; Police Corporal Harrison; and Donna Kearney, Administrative Assistant to the City Manager. At all times material, Corporal Harrison was supervisor for the City Police Department's "road patrol." Donna Kearney had handled some clerical and scheduling functions of the City Police Department since the City had been seeking a full-time Chief of Police, but she was not a police officer. She also has never been certified as a law enforcement officer by the Florida Department of Law Enforcement. At all times material, James Manfre was the elected Sheriff of Flagler County. He had assumed that office on January 2, 2001. The Sheriff is a constitutional officer and the chief law enforcement officer of Flagler County. Sheriff Manfre is Caucasian. His main offices are not in Bunnell, Florida. The Bunnell City Police Chief was restricted in what she/he could do. She/he had to have City Manager approval to hire, to promote, or to reprimand police officers. The Bunnell City Police, including the Police Chief, were expected to work out of City property, the Police Department, located in Bunnell. Despite a series of "Acting" Chiefs of Police who served while the City advertised the full-time position, by June 2001, the efficiency of the City Police Department had been suffering for some time. City police officers' morale was low, and their attitudes were bad. Citizens were complaining about their frequency of patrols and general inefficiency. The Saturday before the June 19, 2001, City Commission Meeting, Acting Chief of Police John Ashton quit as Chief and returned to regular duty as a Bunnell City Police Sergeant. This apparently was due to a salary dispute with the City. On June 19, 2001, the City Commission met to discuss Acting Chief/Sergeant Ashton's compensation. Present at the June 19, 2001, City Commission Meeting were Mayor King (gender and race not of record); and Commissioners Fell (male Caucasian), Henry (female African- American), and Edmonson (male Caucasian). Commissioner Marquis was absent. Commissioner Edmonson was a former City Police Chief who had been fired several years previously for making a racist comment against African-Americans. At the June 19, 2001, City Commission meeting, Mayor King and Commissioner Fell took a moment to cite the City Police Department for doing a good job. Corporal Harrison also spoke to the Commission. Prior to June 19, 2001, the City had approached Sheriff Manfre about the Sheriff's Office taking over the City police functions until the City could hire a full-time police chief. Sheriff Manfre attended the June 19, 2001, City Commission meeting and made a presentation concerning having the Sheriff's Department supervise the City Police Department's road patrol for a period of 90 days to allow time for the City to find and hire its own permanent Police Chief. After the Sheriff's presentation, Commissioner Fell moved a vote, which was seconded by Commissioner Henry.1/ The Motion failed to get a majority. After further discussion, there was a motion to reconsider. Ultimately, a motion to start negotiating the proposed interlocal agreement was passed unanimously by Commissioners King, Fell, Henry, and Edmonson.2/ Negotiations between the Sheriff and the City ensued, and the Sheriff's attorney drafted a proposed interlocal agreement. On June 22, 2001, another City Commission meeting was held. At that time, only three City Commissioners were present: King, Fell, and Henry. Edmonson and Marquis were absent. Thus, there was no quorum to conduct business. Nonetheless, Sheriff Manfre spoke before the Commission, as did several members of the public and Corporal Harrison. Another Commission meeting was scheduled for June 25, 2001, to, among other things, vote on whether or not to approve the proposed interlocal agreement. Upon the hopeful predictions of his attorney and his own optimism because the City had initially approached him, Sheriff Manfre signed the proposed draft of the interlocal agreement on June 22, 2001, and wrote in that the agreement was to be effective as of June 22, 2001. That draft was never approved by the City Commission or signed by anyone on behalf of the City. Paragraph 2 of the proposed interlocal agreement provided, in part, "This Agreement shall be interpreted and administered in such a manner that it will not constitute a transfer, merger, or consolidation as those terms are used in the Constitution of the State of Florida or in any statute of the State of Florida." There was no clear consensus among the witnesses who testified about whether the language of the proposed agreement was designed to provide the City with an interim police chief or with a supervisor of its road patrol, a position already occupied by Corporal Harrison. The Sheriff testified that he had in mind to detail Petitioner to the City Police Department position, whatever that position was, and that he had spoken to Petitioner about it. The Sheriff's intent was based on Petitioner's rank; capabilities; and familiarity with City issues, due to Petitioner's residency in Bunnell. The Sheriff envisioned Petitioner operating out of the City Police Department; having daily interaction with the City police officers; and dictating to/directing the City police officers. Petitioner never read the proposed interlocal agreement, yet he "knew" that, under it, he would be supervising road officers, and he assumed that if the proposed interlocal agreement went through, he would become the City Police Chief. The proposed interlocal agreement also is not clear as to whether the Sheriff was to provide an interim police chief or a supervisor of the City's road patrol. Paragraph 4 of the proposed interlocal agreement set forth the services to be provided by the Sheriff. Specifically, the Sheriff would "provide supervision for all necessary and appropriate law enforcement services in and for the CITY." Paragraph 4 also provided that a "command officer" would be assigned as "supervisor" of the City's patrol deputies. Paragraph 12 of the proposed interlocal agreement provided, in pertinent part: PERSONNEL: The SHERIFF shall have authority for the hiring, training, assignment, discipline and dismissal of all law enforcement personnel subject to his supervision under this Agreement. The SHERIFF shall also be legally responsible for the action of law enforcement personnel performing services under this Agreement in accordance with law. Any employee of the SHERIFF is not for any purpose whatsoever, an agent, employee, or legal representative of the City and are in no way authorized to make any contract, agreement or representation on behalf of the CITY or to create any obligation on behalf of the CITY. (Emphasis supplied) The Sheriff's unilateral hiring and disciplining authority in paragraph 12 of the proposed interlocal agreement would have been a departure from City Manager authority in that regard. (See Finding of Fact 11). Paragraph 9 of the proposed Agreement specifically designated the Sheriff as an "independent contractor." In addition to the foregoing explicit language contained in the draft proposal at paragraph 2 (see Finding of Fact 23) and paragraph 9, Sheriff Manfre's testimony supports the concept that the Sheriff would have continued to be Petitioner's employer, whatever Petitioner's title, if the proposed interlocal agreement had been approved by the City Commission. The Sheriff was clear that at all times the supervising officer he would designate under the agreement would remain an employee of the Sheriff's Department, even while carrying out duties for the City. Paragraph 18 of the proposed agreement granted the Sheriff "authority to expend funds from the existing Bunnell Police Department budget" to operate the City Police Department under the Sheriff's supervision. Despite some contrary language, one could reasonably interpret the proposed agreement to delegate to the Sheriff decisions on how much and for what purposes City money would be spent on City law enforcement. Paragraph 17 of the proposed interlocal agreement provided that the agreement would terminate after 90 days from its effective date, unless both parties agreed to review it. Also, either party could terminate the agreement prior to the end of its term upon 30 days' written notice. Paragraph 17 also reserved to the City the right to require the Sheriff to transfer and replace any personnel, who, in the sole determination of the City, failed to perform consistent with City standards. This paragraph would seem to have permitted the City unilateral removable rights over whomever the Sheriff could appoint under the interlocal agreement. On June 25, 2001, the City Commission met and again discussed the proposed interlocal agreement. Commissioners King, Fell, Henry, and Edmonson were present. Marquis was again absent. Several members of the public spoke on the issue of whether the agreement should be approved. Among others, Donna Kearney spoke against what she saw as "the Sheriff's proposal," because she interpreted the proposed agreement as duplicating the position of "road supervisor," which was already filled by Corporal Harrison of the City Police Department, and because she felt a permanent police chief was needed. Delories Hall, an African-American citizen, spoke in support of the proposed agreement because she felt her neighborhood, which is predominantly African-American, was poorly protected by the City Police. Corporal Harrison spoke again at the June 25, 2001, meeting. Although the content of his comments is not of record, it may be presumed, from the evidence as a whole, that he opposed the interlocal agreement. On June 25, 2001, some City Police Officers spoke to the Commissioners, generally opposing the agreement between the City and the Sheriff. They felt their professional performance had recently improved and that they should be given another chance to correct the problems that had led to the proposal of the interlocal agreement. After the public discussion closed on June 25, 2001, Commissioner Henry made a motion to accept the proposed interlocal agreement, with several revisions. Commissioner Edmonson seconded Commissioner Henry's motion.3/ The vote resulted in King and Henry supporting the proposed agreement, with revisions, and Commissioners Fell and Edmonson opposing the proposed agreement, even if revised. As a result of the "two- to-two" vote, the motion did not pass, and the proposed agreement which had previously been signed by the Sheriff, never took effect. The record herein does not explain how the proposed revisions were to be presented to the Sheriff by the City Commission. The exact revisions proposed by the Commission are not of record. They were not interlineated over the Sheriff's signature on the two copies of his proposed draft of the interlocal agreement which are in evidence, nor did witnesses seem clear whether there ever were any written proposed revisions. Finally, the Commission's Minutes in evidence do not reflect the proposed revisions. Commissioner Fell testified, without refutation, as to several reasons he had ultimately voted against the proposed agreement in any form. None of his reasons addressed race. Most of his concerns were financially based, but he also worried that the Sheriff was making a "power play." From Mr. Fell's point of view, if the proposed interlocal agreement were approved, the Sheriff would be supervising law enforcement throughout the entire county, and through similar interlocal agreements, would be supervising law enforcement in all but two cities within the county. Although the City of Bunnell had problems with its police department, Mr. Fell wanted to give the local police officers another chance. He expressed confidence in Corporal Harrison. Commissioner Edmonson testified that on June 25, 2001, he voted against the proposed agreement because several City police officers, including Corporal Harrison, had spoken to him before the Commission meeting and asked that he give them one more chance to operate without outside help, and that he had told them he would vote them another chance, but it would be their last chance. The Sheriff's attorney advised the Sheriff of the negative June 25, 2001, Commission vote by phone on June 25, 2001. The Sheriff, in turn, placed a phone call to his friend, Commissioner Edmonson. Commissioner Edmonson and Sheriff Manfre spoke by cell phone while the Sheriff was driving on the Florida Turnpike. Their respective versions of this bad connection and frequently distracted conversation are very different. According to the Sheriff, Edmonson told him that Edmonson had "heard" that some of the City police officers would not report to an African-American. However, even Sheriff Manfre conceded that Edmonson did not say this knowledge motivated Edmonson's vote against the proposed interlocal agreement. Commissioner Edmonson denied the statement attributed to him by Sheriff Manfre. He claimed to have stated to the Sheriff that some City police officers had a problem with Petitioner, personally, and that the Sheriff needed to check into that problem. Edmonson further testified that when the Sheriff asked if the problem was because Petitioner was African- American, he, Edmonson, had denied that race was the issue, and the Sheriff hung-up. On this point, Commissioner Edmonson is the more credible witness. Commissioner Edmonson further testified that if the Sheriff had not terminated their cell phone conversation when he did, Edmonson would have explained to the Sheriff that the City police officers had told Edmonson they were upset over an incident several weeks prior to June 25, 2001, when Petitioner, acting for the Sheriff's Office, had released an individual in City Police Department custody. Because Petitioner denied that any such release of an arrestee by Petitioner ever occurred, and because there was no explanation how, without an interlocal agreement in force, Petitioner would have had any authority to release a City arrestee, it has not been proven that such an incident occurred. However, there was no evidence to refute Edmonson's testimony that this story had been told him by police officers and no evidence that race, rather than Petitioner's personality or an interlocal power struggle, influenced Edmonson's vote on June 25, 2001. Finally, paragraph 17 of the proposed agreement (see Findings of Fact 33-34) would have given the City a unilateral right to require transfer of anyone assigned by the Sheriff pursuant to the interlocal agreement, and even to terminate the agreement, itself, upon 30 days notice. Such an options suggest that if race had been an issue, it could have been addressed at any time later. A few days after June 25, 2001, the Sheriff issued a press release denouncing the City Commission vote as "racist." Much public uproar ensued. Then the Sheriff appeared at an NAACP meeting with Commissioner Edmonson "to heal" the situation created by his press release. There were no further negotiations on an interlocal agreement. Corporal Harrison next served as interim City Police Chief. In either August or September 2001, the City finally hired a full-time Police Chief. The hiree was Caucasian. Apparently urged on by the Sheriff's public stance, Petitioner filed a Charge of Discrimination with the Commission on or about March 1, 2002. Therein, Petitioner named the "Flagler County Sheriff's Office" as the offending employer or governmental agency. However, on April 5, 2002, Petitioner amended his Charge to reflect that the employer or governmental agency involved was the City of Bunnell. No evidence was presented as to any damages Petitioner incurred due to the tied vote of the City Commission on June 25, 2001. There was no evidence Petitioner would have been paid more money or would have received greater fringe benefits if he had been appointed by the Sheriff to serve the City in any capacity under the proposed agreement. There was no evidence Petitioner did not continue to receive his regular compensation and benefits from the Sheriff after the City rejected the proposed agreement. Petitioner has prayed for attorney's fees, but by agreement, the parties have deferred that issue until the merits of the case are determined by the final order.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Charge of Discrimination and the Petition for Relief for lack of jurisdiction. DONE AND ENTERED this 7th day of June, 2004, in Tallahassee, Leon County, Florida. S ELLA JANE P. DAVIS 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 7th day of June, 2004.
The Issue Whether Petitioner is entitled to licensure as a Class "D" Security Officer.
Findings Of Fact Respondent is the agency of the State of Florida responsible for the administration of Chapter 493, Florida Statutes, including the licensure of Class "D" Security Officers. Petitioner applied for licensure as a Class "D" Security Officer. Pending the processing of that application, Petitioner became employed as a security guard for approximately five months. By letter dated February 21, 1996, Petitioner was notified by Respondent that his application for a Class "D" license was, subject to his due process rights, going to be denied based on his conviction of battery in St. Lucie County in September 1993. Respondent asserted that the conviction was of a crime directly related to the business for which the license is sought within the meaning of Section 493.6118(1)(c), Florida Statutes. Respondent also asserted that the facts relating to that conviction establish that Petitioner had committed an act of violence or used force on another person which was not for the lawful protection of himself or another within the meaning of Section 493.6118(1)(j), Florida Statutes. On September 14, 1993, Petitioner was convicted by a jury of a misdemeanor count of battery. The victim of the battery was Thomas Coburn. Petitioner was adjudicated guilty and sentenced to 15 days in the county jail, one year probation, and 50 hours of community service. At all times pertinent to this proceeding, Thomas Coburn was employed by the City of Port St. Lucie, Florida, as a city code enforcement officer. The code enforcement division is administered by the City of Port St. Lucie Police Department. Mr. Coburn was not a sworn law enforcement officer. On Sunday, May 16, 1993, Mr. Coburn was acting in his official capacity as a city code enforcement officer. He was wearing a badge, name plate, and collar pins with the initials P.S.L. He was in an official uniform that had patches with the inscription "Port St. Lucie, Fla. Police." He was driving a marked vehicle that reflected he was with the city code enforcement department. Shortly after noon on May 16, 1993, Mr. Coburn went to the personal residence of the Petitioner for the purpose of serving upon Petitioner a notice to appear pertaining to several alleged code violations. Petitioner was home with his wife, his teenage stepson, and his five year old son. When Mr. Coburn arrived, Petitioner was about to begin a barbecue. When the stepson came to the door in response to Mr. Coburn knock on the door, Mr. Coburn asked to speak to Petitioner. The teenage stepson went inside to get the Petitioner. Mr. Coburn did not see the stepson or another member of Petitioner's family after the Petitioner came to the door. When Petitioner came to the door, Mr. Coburn identified himself as a code enforcement officer and told Petitioner he was there to deliver the notice to appear. Mr. Coburn's vehicle was parked on the street so that Petitioner could see the markings on the vehicle. Petitioner became irate and shouted profanities at Mr. Coburn. Petitioner told Mr. Coburn that he could not serve official papers on a Sunday and ordered him off his property. There is a conflict in the evidence as to what next occurred. Petitioner testified that Mr. Coburn bumped him in the chest as the two of them argued. Mr. Coburn testified that he backed away from Petitioner and began to leave the premises. The more credible version of the events is that given by Mr. Coburn. Consequently, it is found that there was no physical contact initiated by Mr. Coburn. As he was backing away and preparing to leave the premises, Mr. Coburn placed the notice to appear on the barbecue grill that was in the area where the two men were standing. After he placed the notice to appear on the barbecue grill, Mr. Coburn turned to walk away. Petitioner then kicked Mr. Coburn in the buttocks. It was Petitioner's act of kicking Mr. Coburn that resulted in his subsequent arrest and conviction. There was no one else in the area around Petitioner's front door at the time of this incident. There was insufficient evidence to establish that Petitioner was acting in defense of himself or of others when he kicked Mr. Coburn. Petitioner has not been convicted of any other crime. At the times pertinent to this proceeding, Petitioner was an approved process server within the Nineteenth Judicial Circuit of Florida. Petitioner worked as a security guard for the five months preceding the denial of his application. There were no incidents of violence during that five month period.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Respondent enter a final order that adopts the findings of fact and conclusions of law contained herein. It is further recommended that the final order deny Petitioner's application for a Class "D" license. DONE AND ENTERED this 11th day of October, 1996, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 11th day of October, 1996. COPIES FURNISHED: Michele Guy, Esquire Department of State, Division of Licensing The Capitol, Mail Station No. 4 Tallahassee, Florida 32399-0250 Edward B. Galante, Esquire 789 South Federal Highway, No. 103 Stuart, Florida 34994 Honorable Sandra B. Mortham Secretary of State The Capitol Tallahassee, Florida 32399-0250 Don Bell, General Counsel Department of State The Capitol, Plaza Level 02 Tallahassee, Florida 32399-0250
The Issue This matter concerns the issue of whether the Respondents' public lodging establishment license numbers 27-01381H and 27-01382H should be suspended four allowing the premises of the Coachman's Inn and the Coachman's Inn Annex to be used for prostitution On December 20, 1982, the Director of the Division of Hotels and Restaurants entered an emergency order of suspension of the public lodging establishment, license numbers 27-01382H and 27-01381H, and caused this emergency order to be personally served upon the Respondents. Simultaneous with the emergency order of suspension, the Director caused to be served upon the Respondents a notice to show cause as to why the above-referenced licenses should not be suspended or revoked for the reasons set forth in the notice to show cause. The notice to show cause specifically alleged: On or before and subsequent to November 1, 1982, to the date of this Notice, investigation has revealed that the Coachman's Inn has been established, continued and maintained as a premises or place which tends to annoy the com- munity, injure the health of the com- munity, or injure the morals and manners of the people of the community, as a premises or place of prostitution, assigna- tion, lewdness, or place or building where A any law of the state is violated contrary to F.S. 823.05 and F.S. 509.032(1) and F.S. 509.261. Since on and before November 1, 1980 and subsequent thereto the date of this Notice, investigation has revealed that the Coachman's Inn has been maintained and operated as a place for the purpose of lewdness, assignation, or prostitu- tion or a house of ill fame in violation of F.S. 796.01, F.S. 796.07, F.S. 509.032 (1) and F.S. 509.261. The Respondent was advised of his right to request a formal hearing and having filed a timely request, a formal hearing was held in this matter on December 29, 1982, at the Regional Service Center, Pensacola, Florida. The Division of Hotels and Restaurants called as witnesses, Mr. Brian Barton, a police officer for the City of Pensacola assigned to the Major Crimes Division, Vice and Intelligence. The Division also called Mr. Paul Silivos, the owner of a restaurant called Skopelo's which is located across the street from the Coachman's Inn and also called Mr. John W. Peaden, an investigator for the State Attorney for the First Judicial Circuit and assigned to the Fort Walton Beach office. The last witness called by the Division was Mr. William Snow, also of the Pensacola Police Department. The Respondent called as its witness Mr. Thomas Pelt, the previous owner of the Coachman's Inn; Mrs. Patel, the wife of the present owner; Ronald J. Stafford, a realtor in the Pensacola area; and Mr. Arvin Patel, the Respondent. In rebuttal, the Division called Mr. Steven Paul Bolyard, an investigator with the State Attorney's office of the First Judicial Circuit and assigned to the Escambia County office. Petitioner offered as exhibits a drawing of the Coachman's Inn which was admitted-as Exhibit No. 1; an order of temporary injunction dated November 24, 1982, which was admitted as Petitioner's Exhibit No. 2; and two (2) newspapers published in the Pensacola area which were marked as Petitioner's Exhibit No. 3, but not accepted into evidence. The Respondent offered six (6) exhibits consisting of: Exhibit No. 1, the sales agreement for the purchase of the Coachman's Inn; Exhibit No. 2, a promissory note executed in connection with the purchase of the Coachman's Inn; Exhibit No. 3, a bill of sale for the purchase of personal property; Exhibit No. 4, a security agreement executed in connection with the purchase of the Coachman's Inn; Exhibit No. 5, the registration cards for the Coachman's Inn and Annex since April, 1981; and Exhibit No. 6, the 1980 tax return for the Coachman's Inn. All six (6) of the exhibits offered by the Respondent were admitted into evidence without objection from the Petitioner. Counsel for both Petitioner and Respondent have submitted proposed findings of fact for consideration by the Hearing Officer. To the extent that such findings of fact were not adopted in the Recommended Order, they were rejected as being irrelevant to the issues In this cause, or as not having been supported by the evidence.
Findings Of Fact The Present owner of the Coachman's Inn purchased the Coachman's Inn in April, 1981. The motel was purchased for a price of $625,000.00, with $100,000.00 of that amount being paid in cash by the present owner at or before closing. Since the purchase of the motel, the owner has made approximately $25,000.00 worth of improvements to the motel. These improvements consist of new carpet and bedding. The Coachman's Inn and Annex are located at 1801 West Cervantes Street in Pensacola, Escambia County, Florida. The motel consists of one main area adjacent to the motel office and an annex located to the west of the main area. The motel has sixty-six (66) rooms of varying sizes and prices. The motel is bordered on the west by a liquor store and across the street by a restaurant. The Coachman's Inn is located in an area which has had ongoing problems with prostitution since at least 1979. Numerous known prostitutes have operated primarily in the area in and around the Coachman's Inn and the liquor store located to the west of the Coachman's Inn. During 1982, known prostitutes were observed on numerous occasions flagging down and waving to passing motorists from the balconies and parking lot of the Coachman's Inn. Specifically, since July of 1982, police officers of the Pensacola Police Department and Investigators of the State Attorney's office observed on numerous occasions know prostitutes operating on the premises of the Coachman's Inn. They would stand in the parking lot area of the Coachman's Inn and in front of the rooms or on the balconies of the Coachman's Inn and flag down passing traffic. In July of 1982, Officer Brian Barton of the Pensacola Police Department spoke with Mr. Patel about the prostitutes and informed him that he was going to have to do something to prevent his premises from being utilized for the purposes of prostitution. He was advised at that time that his license would be in jeopardy if he did not take proper steps to eliminate the prostitution. At that time Mr. Patel acknowledged that he was aware of the prostitution problem and that the individuals who were engaged in prostitution were in fact guests in his motel. Since July of 1982, Mr. Barton has made spot checks on a weekly basis and during August and September had ongoing investigations involving the Coachman's Inn. Following his July conversation with Mr. Patel he observed no efforts on the part of the management to stop prostitution. He also observed no decrease in the prostitution activities taking place on the premises of the Coachman's Inn. The previous owner, Mr. Thomas Pelt, had problems with prostitutes operating in and around the Coachman's Inn from the time he purchased the motel in January, 1978. At the time he sold the motel to the Respondent, he informed him of the various problems he had had with Prostitution. In his first year of operation, Mr. Pelt estimated that he made at least two hundred (200) calls to the Pensacola Police Department and many times was required to make several calls in a single day in order to have the police come out and remove prostitutes from the premises of the Coachman's Inn. During that same time period he hired, for several months, a part-time security guard who was an off- duty Pensacola police officer. The security guard was allowed to wear his Pensacola police uniform and was very effective in finally helping to eliminate the prostitutes from operating on the premises of the Coachman's Inn. Mr. Pelt, as a result of his efforts, was successful in ridding the Coachman's Inn of Prostitutes operating on the premises. On September 15, 1982, Officer Barton, while working a vice operation with two (2) other officers in the area of the Coachman's Inn, was approached by a white female named Betty Salter in the parking lot area of the Coachman's Inn. This contact took place in area adjacent to Room 159 of the motel. Following a short conversation, Officer Barton was invited by Betty Salter and another white female into a room of the motel where he was solicited for prostitution. He then placed Betty Salter under arrest. On November 6, 192, Mr. Barton accompanied Officers William Snow and Perry Osborne in a vice operation in the area of the Coachman's Inn. Officer Snow's vehicle was wired with a recording device. As Officer Snow passed the Coachman's Inn he was flagged down by a female impersonator named Chris Cambria. Officer Snow pulled into the parking lot of the Coachman's Inn where he was approached by Chris Cambria and invited into a room of the motel. The room was located in the center of the horseshoe shaped area in the eastern portion of the motel. Once in the room, Officer Snow was solicited for sexual acts for pay by Chris Cambria. Mr. Cambria was then placed under arrest. At the time that Officer Snow was originally flagged down by Chris Cambria, Mr. Cambria was standing in the doorway of Room 269 which is the room located in the center of the horseshoe area to the east of the office. On November 9, 1982, Mr. John W. Peaden, an investigator with the State Attorney's Office for the First Judicial Circuit, conducted an undercover investigation at the Coachman's Inn. Prior to going to the premises of the Coachman's Inn, Mr. Peaden was briefed and shown photographs of known prostitutes in the area. Upon arriving there he saw several known prostitutes in the Darking lot and on the balconies of the Coachman's Inn. On the night of November 9, Mr. Peaden checked in as a guest. Mr. Patel and a lady who appeared to be his wife were in the lobby at the time that Mr. Peaden checked in. From the lobby, Mr. Peaden observed several known prostitutes on the premises of the Coachman's Inn. After leaving the lobby, Mr. Peaden was approached by a black female who asked if he wanted some company for the night. She followed him to the door of his room and as he opened the door, she pushed her way into the room. After entering the room, she made offers of sexual acts for pay. Prices were quoted by her and agreed upon by Mr. Peaden. Mr. Peaden then left the premises of the Coachman's Inn. When he returned to the Coachman's Inn, he spoke with Mr. Patel who told him to stay away from the black prostitutes because they were bad. Mr. Peaden then asked him about the white prostitutes and their availability. While Mr. Peaden was talking with Mr. Patel in the lobby, a white female and known prostitute named Brenda Howard came into the lobby and appeared to be disoriented and spaced out. She went up to Mr. Patel and asked for a room. At that moment Mr. Patel looked at Mr. Peaden and nodded to Mr. Peaden in a way that appeared to Mr. Peaden to suggest that this was a young lady who was available for prostitution. Mr. Patel gave the young lady Room 213 which is right next door to Room 214 which had been assigned to Mr. Peaden. The young lady wrote only her name on the card and Mr. Patel, as he pulled the card away, said that was enough. Mr. Peaden was charged approximately eighteen dollars ($18.00) for his room and Brenda Howard was charged just over twenty dollars (- $20.00) for her room. In Composite Exhibit 5, there is a registration card dated November 9, 1982, for a Brenda Howard who was assigned to Room 213 and with incomplete information on the card. After Brenda Howard left the lobby, Mr. Peaden asked Patel how he could make contact with her and Mr. Patel said she is in Room 213 and he could call her on the motel phone. Mr. Peaden returned to his room and attempted to call the young lady in Room 213 but received no answer. He then returned to the lobby of the Coachman's Inn where he contacted Mr. Patel again and informed him that he was unable to get in touch with Brenda Howard. Mr. Patel then tried to call her from the lobby but also received no answer. Mr. Peaden then asked Mr. Patel if she was okay and if there were any problems with diseases. Mr. Patel responded "no"' and said "she will be all right tomorrow, come back then." Mr. Peaden then left the premises of the Coachman's Inn. On November 10, 1982, Mr. Peaden returned to the Coachman's Inn and again observed known prostitutes on the premises of the Inn. Mr. Peaden was again solicited for sexual acts for pay by a black female L. T. Manuel. Through L. T. Manuel, Mr. Peaden also contacted Brenda Howard at Room 201 and made arrangements for Brenda Howard and several other women to provide sexual acts for pay for that night. Later in the evening of November 10, 1982, Mr. Peaden and an Officer West were approached by two (2) known prostitutes, Pat Smith and Rosa Robinson, in the parking lot of the Coachman's Inn. They offered to perform sexual acts for pay for Mr. Peaden, Officer West, and two (2) other undercover officers. It was agreed that the two (2) women would obtain two (2) other prostitutes to also perform sexual acts for the four (4) investigators. Pat Smith and Rosa Robinson returned with two (2) other women and at that time each woman was paid twenty- five dollars ($25.00) each with marked money for the sexual acts to be performed. After the money was exchanged, the four (4) women were arrested. On December 8, 1982, Officer Brian Barton observed Phyllis Ford, a known prostitute, talking to a gentleman in a black cadillac in the Coachman's Inn parking lot. She directed him to the area of Room 240 where Chris Cambria was waiting. Room 240 is in clear view of the Coachman's Inn lobby and office and Mr. Patel was in the lobby. After spotting one (1) of the undercover officers, Chris Cambria left the area of Room 240, proceeded to the lobby and was observed talking and laughing with Mr. Patel. On December 13, Mr. Peaden went with an Officer Jack Kliger to the Coachman's Inn. Upon arriving at the Inn, he again observed known prostitutes in the area. He specifically observed Phyllis Ford in the eastern most area of the Coachman's Inn and Murray Anne Hill walking down the street and into the parking lot of the western annex building of the Coachman's Inn. Both Phyllis Ford and Murray Anne Hill are known prostitutes. He observed Phyllis Ford walk out of Room 260 toward the lobby of the motel. Mr. Peaden then pulled into the parking lot in the area of Room 260. At that time Phyllis Ford was standing at the door of Room 260 and came to the passenger door of his car. She engaged him in conversation and then solicited sexual acts for pay. A price was agreed upon and Mr. Peaden asked her to get into the car to leave the area and she said no, "If you want it, you've got to come into my room." Mr. Peaden then left the area to set up a plan for arrest and upon returning to the Coachman's Inn observed Phyllis Ford in the window of Room 260. She came out of the room and saw Officer West and recognized him and then tried to go back into the room. She was then placed under arrest by Mr. Peaden. The prostitution on the premises of the Coachman's Inn was "wide open" and overt. As late as December 13, known prostitutes were still operating on the premises of the Coachman's Inn in an open and overt manner. The young ladies who were operating as prostitutes in and around the Coachman's Inn were generally dressed in a casual manner and the clothes they wore were not provocative. Room 214, Room 201 and Room 260 were rooms which were not visible from the office of the Coachman's Inn. As a part of the November 9 and 10 investigation by Mr. Peaden and the other officers, seven (7) persons were arrested. These people included Jacqueline Blount, Patricia Smith, L. T. Manuel, Brenda Sue Howard, Rosa Hawkins, Rosa Robinson, and Mr.. Patel, the owner. On November 24, 1952, Circuit Judge Joseph Q. Tarbuck entered an order of temporary injunction. That injunction provided in relevant part: The Court being advised that the parties have stipulated to entry of the below temporary injunction enjoining the defendant or agents from knowingly, intentionally or negligently allowing acts of prostitution, assignation, lewdness and violance on the premises of the Coachman's Inn, 1801 Nest Cervantes Street, Pensacola. Escambia County, Florida. It is therefore, ordered that the defendant and his agents are hereby temporarily enjoined from maintaining a nuisance on the premises of said Coachman's Inn and, further, that the defendant and his agents shall refrain from allowing acts of prostitution, assignation, lewdness or violance on said premises either knowingly, intentionally or negligently, either through lack of ability or diligent effort. Following the entry of the temporary injunction, Mr. Patel and his wife claimed that they began a policy of not allowing prostitutes to register in the motel and on four (4) or five (5) occasions, called the police and complained. On at least one (1) occasion, which was witnessed by Mr. Thomas Pelt, Mr. Patel went out into the parking lot and asked a known prostitute to leave the premises. There was no other evidence presented as to steps taken by Mr. Patel in eliminating the prostitution problem following the entry of the temporary injunction on November 24. Known prostitutes continued to operate on the premises of the Coachman's Inn after November 24, 1982. The Respondent, Mr. Arvin Patel, has a substantial investment in the Coachman's Inn and will offer severe financial losses if he is unable to continue operating the motel. Mr. Patel testified that it was his plan to make some additional improvements and attempt to sell the motel by June 1, 1983, if he were allowed to reopen. The Previous owner would be adversely impacted by Mr. Patel's inability to make the four thousand dollar ($4,000.00) per month mortgage payment to the previous owner. During 1982, MT. Paul Silivos, owner of Skopelo's Restaurant had complaints from customers regarding the prostitution at the Coachman's Inn. He observed no visible prostitution when the Coachman's Inn was owned by Mr. Felt, but described the prostitution at the Coachman's Inn during 1982, as "wide open twenty-four (24) hours a day." All of the witnesses who testified for the Petitioner, described the prostitution at the Coachman's Inn as wide open and overt. This was not denied by Mr. Patel nor did he disagree with the descriptions of these witnesses. The Respondent, Arvin Patel, was aware prior to November, 1982, that Helen Merriweather was operating as a prostitute in and about the premises of the Coachman's Inn. In approximately April, 1982, Mr. Patel claimed that he had stopped renting a room to her. Mr. Patel was aware that Rosa Robinson, Murray Anne Hill, Chris Cambria, and L. T. Manuel a/k/a Tonya Tripp were prostitutes operating on and around the premises of the Coachman's Inn. This was revealed by Mr. Patel's claim that he had attempted to stop renting to these individuals at varying times during 1982 because of their prostitution activities. On December 18, 1982, Chris Cambria was observed by Officer Barton. Chris Cambria was picked up by a white male in a pickup truck and they then drove to Room 240 of the Coachman's Inn. At the time Mr. Patel was in the parking lot of the Coachman's Inn and had a clear, unobstructed view of Room 240.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That public lodging establishment license numbers 27-01382H and 27-01381H be suspended for a period of sixty (60) days. IT IS FURTHER RECOMMENDED: That the suspension be lifted prior to the end of the sixty-day Period, upon the Division of Hotels and restaurants being assured that adequate and reasonable steps have. been taken to prevent the use of the premises of the Coachman's Inn for the purpose of prostitution, DONE and ENTERED this 19th day of January, 1983, in Tallahassee, Florida. MARVIN E. CHAVIS, 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 19th day of January, 1983. COPIES FURNISHED: Harold F.X. Purnell, Esquire General Counsel January, Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 William J. Green, Esquire GREEN, DEES and FRANCE 418 North Palafox Street Post Office Box 12602 Pensacola, Florida 32574 Gary R. Rutledge, Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Sherman S. Winn, Director Division of Hotels and Restaurants Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF BUSINESS REGULATION DIVISION OF HOTELS AND RESTAURANTS STATE OF FLORIDA, DEPARTMENT OF BUSINESS REGULATION, DIVISION OF HOTELS AND RESTAURANT, Petitioner, vs. CASE NO. 82-3467 H & R NOS. 27-01381H ARVIN JARAM and JAIRAM ISHWARLEL 27-01382H d/b/a COACHMAN'S INN and COACHMAN'S INN ANNEX, Respondent. /
The Issue The issue is whether Petitioners are entitled to an award of attorneys’ fees and costs pursuant to section 57.111, Florida Statutes (2017).1/ Petitioners are entitled to such an award if: Petitioners were the prevailing parties in a previous administrative proceeding initiated by the Department of Transportation (“the Department”); (b) the Department’s actions were not substantially justified; and (c) no special circumstances exist that would make an award of fees and costs unjust.
Findings Of Fact The following Findings of Fact are based on the oral and documentary evidence adduced at the final hearing, matters subject to official recognition, and the entire record in this proceeding: The Parties The Department is the state agency responsible for coordinating the planning of a safe, viable, and balanced state transportation system that serves all regions of Florida. § 334.044(1), Fla. Stat. As part of its duties, the Department regulates “[v]ehicular access and connections to or from the State Highway System . . . in order to protect the public health, safety, and welfare.” § 335.182(1), Fla. Stat. Crum’s Service is owned by Ronald Crum and has been in operation for over 50 years. It is located in Panacea, Florida, adjacent to State Road 30/61 (“Highway 98”). Crum’s Service has less than 10 employees, and Mr. Crum’s net worth is less than two million dollars. Coastal Restaurant is owned by Rita Sadler and has been in her family since the 1950s. It is next to Crum’s Service and is also adjacent to Highway 98. Coastal Restaurant has approximately seven full-time employees, and Ms. Sadler’s net worth does not exceed two million dollars. Kelli Boxberger operates The Funky Fiddler located on Highway 98 in Panacea. The Funky Fiddler has been in operation since the 1950s. Driveway connections on state roads must be permitted or grandfathered. § 335.1825, Fla. Stat.; Fla. Admin. Code R. 14-96.011(3)(a). Because Petitioners’ driveways were in place before 1988, they are grandfathered. § 335.187(1), Fla. Stat. Facts Specific to the Instant Case On April 7, 2014, the Wakulla County Board of Commissioners voted unanimously to support the design and construction of sidewalks and multiuse paved paths. In order to further that effort, Wakulla County requested that the Department fund sidewalk construction from Piney Street to Jer Be Lou Boulevard in Panacea. The proposed sidewalk was intended to address safety concerns associated with people walking along Highway 98. The Department funded the sidewalk project and incorporated it into a separate project to resurface a seven mile portion of Highway 98 running through Wakulla County. The sidewalk project required the Department to evaluate whether existing driveways along Highway 98 needed to be modified for pedestrian safety. If the Department determined that particular driveways needed to be modified, then it sent written notification to the property owners. On August 4, 2017, the Department issued letters to Mr. Crum, Ms. Sadler, and the Boxbergers referencing work on the portion of Highway 98 running from the Franklin County line to Boykin Road in Wakulla County. The letters stated the following: While developing the above-referenced project, [the Department] is required to evaluate existing driveway access connections and modify those which will create a traffic operations or safety problem. As part of this project, sidewalk will be constructed between Piney Street and Dickson Bay Road. The existing driveways adjacent to the proposed construction work for this project also required evaluation for safety of pedestrians. The Department has completed this evaluation and is notifying you of its proposed action with this Notice of Intent to Modify Driveway Connection(s). The letters then state that “[p]ursuant to Sections 334.044(14) and 335.182, Florida Statutes, the Department is initiating action to alter the existing connection of your property to [Highway 98] as identified on the enclosed “DRIVEWAY DETAIL.” In other words, the Department was providing notice that it intended to install a sidewalk in front of Crum’s Service and Coastal Restaurant. The proposed sidewalks would have modified the driveways onto the properties, but would not have closed them. The Department’s proposed modification to the Boxberger property involved a 39-foot wide driveway connection and a sidewalk on either side of the driveway. All of the Department’s proposed modifications pertained to land completely within the Department’s right-of- way. The Department’s August 4, 2017, letters closed by advising Mr. Crum, Ms. Sadler, and the Boxbergers that they had 21 days to request a formal administrative hearing if they disagreed with the Department’s proposed action. Mr. Crum was concerned that the proposed sidewalk would “totally annihilate” his business. Many of his customers use cars or trucks to tow boats. According to Mr. Crum, the Department’s proposal would have resulted in there being insufficient space in his parking lot for vehicles towing boats. Ms. Sadler was concerned that the proposed sidewalk would destroy the parking spaces in front of her restaurant. On August 17, 2017, staff members from the Florida House and Senate organized a constituent meeting at a local restaurant to hear concerns about the resurfacing project. Mr. Crum, Ms. Sadler, a handful of constituents, two legislative staff members, and Reid Carter Johnson, a government affairs liaison from the Department, attended the meeting. Business owners told Mr. Johnson that the proposed sidewalk would impair access between their property and Highway 98. Mr. Johnson told those present that the Department’s engineers would confer with anyone who had concerns about the proposed sidewalk.2/ On approximately August 18, 2017, Mr. Crum and Ms. Sadler hired Ronald A. Mowrey, Esquire, to represent them in this matter. On August 23, 2017, Crum’s Service and Coastal Restaurant filed petitions seeking to challenge the Department’s proposed action through formal administrative hearings. Engineers from the Department conducted a site visit with Mr. Crum, Ms. Sadler, and their attorney on August 29, 2017, at Crum’s Service and Coastal Restaurant. After listening to Mr. Crum and Ms. Sadler’s concerns, the engineers stated that they would review all of the information. Engineers from the Department also met with Ms. Boxberger on August 29, 2017, in order to conduct a site visit pertaining to the location of The Funky Fiddler. At that time, Ms. Boxberger had not retained counsel. Ms. Boxberger was concerned that the Department’s proposed modification would prevent her from displaying merchandise in front of her store on the Department’s right-of- way. She was also concerned that the Department’s proposal would deprive her business of three parking spaces. On September 18, 2017, Ms. Boxberger filed a petition to challenge the Department’s proposed action through a formal administrative hearing. Petitioners did not hear from the Department again until the Department issued each of them an “Amended Notice of Intent to Modify Driveway Connections(s)” (“the Amended Notice(s)”), on November 20, 2017. The Amended Notices stated that: [P]ursuant to Sections 334.044(14), 335.182 and 335.187, Florida Statutes, as well as Rules 14-96.011 and 14-96.015 Florida Administrative Code, the Department has reviewed the existing connection of your property to [Highway 98]. Subsequent to the initial Notice of Intent to Modify Driveway Connections, the Department met with you on- site on August 29, 2017 and engaged in other coordination efforts with your representative to consider information, documents, reports and alternative solutions. After taking into consideration the concerns expressed in these discussions, the Department has amended its plans as detailed in “EXHIBIT A”. The Amended Notices indicated that the Department decided against placing a sidewalk in front of Crum’s Service and Coastal Restaurant.3/ The Department’s Amended Notice to Ms. Boxberger clarified the substance of the Department’s proposed action but set forth no material changes. The Amended Notices to all three Petitioners stated that they could request a formal administrative hearing if they disagreed with the proposed action set forth in the Amended Notices. Mr. Crum and Ms. Sadler were satisfied and did not challenge the Department’s proposed action. As a result, the Department issued Final Orders dismissing the petitions filed by Mr. Crum and Ms. Sadler. As of August 31, 2017, the Department had not disposed of the petition filed by Ms. Boxberger.
The Issue The issue in this case is whether the discipline imposed on Respondent, John Enrico (“Enrico”), by Petitioner, City of Cape Coral (the “City”), was appropriate.
Findings Of Fact Based upon the oral testimony and other evidence presented at final hearing, the following findings of fact were made: The City has the authority to monitor and regulate its employees in accordance with the laws and rules of the State of Florida, the City Charter, and ordinances and rules promulgated thereto. Enrico is employed by the City as an instrumentation supervisor in the Water Reclamation Division of the City’s Utilities Department. He has been employed for an indeterminate number of years, but is a “director level” employee.1/ The City suspended Enrico for one week without pay pursuant to the City of Cape Coral Code of Ordinances, Article III, Division 7, entitled Discipline of Regular Employees. (Pertinent sections of the Code of Ordinances are set forth in the Conclusions of Law, below.) The alleged violation was primarily based on an email Enrico sent on June 7, 2012. The June 7 email was sent to Jeff Pearson and copied to Brian Fenske. The June 7 email states in its substantive body: Jeff and Brian, As a courtesy, I am affording both of you a small glimpse into a potential future. If you decide to discipline me regarding my communications outside of this department, please find below what is just the beginning of the resistance you will meet in public forums and otherwise. As a friend, not as a contemporary [sic], I strongly advise you both not to pursue your current course of action, as it would be embarrassing and detrimental to the cities [sic] interests. Please feel free to call me and discuss the matter. Distinct Regards, There was other information attached to the June 7 email, including some narrative by Enrico concerning his rationale for sending an earlier email, excerpts from OSHA regulations and the City Code, and other legal information about quasi-judicial matters, freedom of speech, and the International Covenant on Civil and Political Rights. It is not clear whether the additional information was supposed to be support for Enrico’s actions, or a description of the “resistance” the email recipients could expect to meet in the future if they decided to discipline Enrico. In order to better understand the June 7 email, some discussion of the background leading up to the email is necessary. Early in calendar year 2012, the City began looking at a product called Multitrode. The product was to be used within the City’s sewage system to, inter alia, control, monitor, or report data regarding usage. The system would have an impact on the equipment and services overseen by Enrico. Enrico was directed by Fenske to install the program via email dated May 18, 2012. Enrico was apparently leaving for a two-week vacation just hours after he received the email. He attempted unsuccessfully to contact his superiors to express some concerns he had about how the Multitrode was going to be implemented. Enrico felt that the system had some potential to do harm to the water reclamation system if installed or used incorrectly. He was not able to reach his superiors. Failing to reach his superiors, Enrico sent an email dated May 23, 2012, to Jody Sorrels, a civil engineer employed by the City.2/ The email was copied to Jeff Pearson, Brian Fenske, Dennis Morgan, Oliver Clark, Michael Hines, and Margaret Krym (the City Manager). Except for Krym, all of the recipients of the email were within Enrico’s chain of command in his area of employment. Krym was intentionally copied on the email by Enrico because he wanted someone outside his chain of command to know about his concerns. The Utilities Department did not report directly to the City Manager. Enrico had been disciplined previously for violating the chain of command protocols. The May 23 email contained Enrico’s reasons for why he did not think the Multitrode should be implemented. He did not believe the program was appropriate or the best use of the City’s money. He was concerned that if implemented improperly, it might even cause significant problems for the wastewater system. The email suggests that it is in response to an earlier telephone conversation between Enrico and Sorrels. Enrico’s supervisors were concerned that Enrico had intentionally chosen to copy the City Manager on the May 23 email. Inasmuch as Krym was not within Enrico’s chain of command and had no direct connection to the utilities department, the supervisors felt like Enrico was again attempting to circumvent protocol and create dissension within the City. As a result, the supervisors began to discuss what sort of discipline should be imposed against Enrico for sending the May 23 email. After various discussions between Enrico and his supervisors, cooler heads prevailed. A meeting was held on June 19, 2012, wherein Enrico retreated from his stance and acknowledged the impropriety of sending an email to the City Manager concerning issues outside her area of concern. During his testimony at final hearing, Enrico denied that he had acknowledged it was wrong to copy Krym on the email. The most persuasive evidence is that he did acknowledge his error. At the conclusion of the June 19 meeting, the participants shook hands and it was decided that no discipline would be imposed against Enrico. Enrico’s acknowledgement of his error was a key reason for his superiors’ decision not to impose discipline. However, before the June 19 meeting, Enrico issued the June 7 email. That email followed a June 6, 2012, email, wherein Enrico notified Jeff Pearson that he needed to talk to Pearson concerning the Multitrode program. The June 6 email ended with Enrico stating, “I need a response (phone call) from you by 9AM EST today to discuss the matter, or I may be forced to escalate the issue appropriately.” The June 7 email appears to be the escalation he warned Pearson about. The June 6 email references “Mr. Sorrels [sic] unwarranted and unprofessional email response.” Sorrels had sent an email to Enrico concerning Enrico’s May 23 email. Sorrels’ email included the statement, “I have neither the time nor inclination to entertain an email chain concerning your [Enrico’s] metathesiophobia or ideophobia.” Metathesiophobia is the fear of moving or making changes. The origin of the word meta is Greek (meaning to change), thes is Latin (meaning setting) and phobia is Greek (meaning fear). Ideophobia is an anxiety disorder characterized by the irrational fear or distrust of ideas or reason. Enrico denied being afflicted with either condition. On June 5, 2012, Enrico had responded to Sorrels, copying Pearson and Fenske on an email accusing Sorrels of libel and defamation. Enrico’s email said that Sorrels’ failure to verbally apologize and write a retraction of his statements by June 8 would result in Enrico referring the matter to the city attorney and his own attorneys to seek unspecified damages. This exchange was followed by the aforementioned June 6 and June 7 emails. The June 7 email was apparently the last straw for Enrico’s supervisors and they decided to impose discipline against him. After discussions with the human resources department and city attorney, the city manager approved a one-week suspension without pay as the appropriate sanction. Enrico denies the June 7 email was intended as a threat, but that is how it was perceived by his superiors. The language in the email about the “beginning of the resistance you will meet,” and telling his superiors that “I strongly advise you not to pursue your current course of action” are both, however, certainly threatening in nature. Though, Enrico said that he did not threaten physical harm, thus there was no threat at all, his testimony is not persuasive. In defense of his actions, Enrico claims the City violated his free speech rights under the United States Constitution, his fair labor practices rights under the State Fair Labor Law, and his rights under the Florida Whistleblower’s Act, among other things. None of those defenses are germane to the issue in this proceeding, nor does DOAH have jurisdiction over those laws. It is clear Enrico knows his area of employment and may have some legitimate concerns about the Multitrode system that was implemented. He may have personal feelings about the fiscal propriety of the City’s use of the Multitrode system. Enrico may not particularly like his superiors. However, those feelings do not justify the use of threats.
The Issue The issue at the hearing was whether proposed sign locations located in Holmes County 5,000 feet West of State Road 79 on the South side of Interstate 10 and 7500 feet East of State Road 79 on the North side of Iterstate 10 should be permitted. 1/
Findings Of Fact Petitioner applied to Respondent for permits on two proposed sign locations in Holmes County, Florida. The locations were 5,000 feet West of State Road 79 on the South side of Interstate 10 and 7500 feet East of State Road 79 on the North side of Interstate 10. Both locations are in areas which are zoned commercial and otherwise meet the Department's requirements for spacing, etc. The area in question was zoned commercial in 1988 when the County adopted Ordinance Number 88-02 as a comprehensive zoning plan. The relevant commercial area parallels Interstate 10, Highway 90 and State Road 79 in which many commercial activities are presently located. The portions paralleling Interstate 10 West of State Road 79 are located on the North side of I-10 and run west, terminating at County Road 173. The portions paralleling I-10 East of State Road 79 are located on the North and South sides of I-10 and run east for over two miles. While some may disagree that the areas designated for commercial or industrial use will develop those uses in the future, it is clear that commercial or industrial development is a reasonable use of this land for comprehensive zoning purposes and neither the physical dimensions nor configurations of the area prevent or prohibit such use. Prior to the enactment of Ordinance 88-02, Holmes County held several public hearings and worked with a company which is an expert in land use planning in developing this ordinance. The ordinance considers all reasonable land uses and encompasses all unincorporated areas of the County. The ordinance is consistent with the County's comprehensive plan and with the purposes of the ordinance stated therein. The Ordinance does not permit lesser uses of the commercial or industrial areas. Commercial or industrial use is the only use allowed in the commercial and industrial areas. Neither variance or special exceptions are required for a commercial or industrial use of those areas. The ordinance is clearly comprehensive zoning and was not adopted by the County for the primary purpose to permit signs. Numerous other signs within this same area have been permitted by DOT since the adoption of Ordinance 88-02.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Transportation enter a Final Order permitting signs located in Holmes County 5,000 feet West of State Road 79 on the South side of Interstate 10 and 7500 feet East of State Road 79 on the North side of Interstate 10. DONE and ENTERED this 18th day of July, 1989, in Tallahassee, Florida. DIANE CLEAVINGER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Filed with the Clerk of the Division of Administrative Hearings this 18th day of July, 1989.
The Issue The issue before the Florida Land and Water Adjudicatory Commission (“Commission”) in this proceeding is whether to grant the Petition of the Rivers Edge Community Development District and the Main Street Community Development District (“Petition”), to merge the boundaries of the Rivers Edge Community Development District (“Rivers Edge”) and the Main Street Community Development District (“Main Street”) (collectively, the “Districts” or “Petitioners”). Under Section 190.005(1)(d), Florida Statutes, the local public hearing was conducted for the purpose of taking testimony and public comment and receiving exhibits. This Report of the public hearing and the hearing record is made for the consideration of the Commission in its determination whether to adopt a rule to merge the Districts’ boundaries.
Findings Of Fact By letter dated August 20, 1987, the County requested that DOT reclassify various roads within the county from county jurisdiction to the state highway system. The request was filed under Rule 14-12.016, Florida Administrative Code. On October 21, 1988 DOT advised the County by letter that the County's request to "add 17 miles to the State Highway System in Broward County" had been denied on the ground the proposed routes did not meet DOT's road classification criteria. In its petition, the County maintains that the subject roads meet all functional classification criteria for inclusion in the state highway system as established in Section 335.04, Florida Statutes and Rule 14-12.016. The County alleges further that DOT's decision "affects the County's duty to maintain and oversee the subject roads, unfairly burdening the County with the maintenance of roads which meet the criteria for inclusion in the State Highway System."
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the motion to dismiss the petition is hereby GRANTED, with prejudice, and that a Final Order be entered dismissing the same. DONE and ENTERED this 28th day of February, 1989, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER 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 28th day of February, 1989. COPIES FURNISHED: Barbara A. Hall, Esquire 115 South Andrews Avenue Suite 423 Fort Lauderdale, Florida 33301 Charles G. Gardner, Esquire Haydon Burns Building, M.S. 58 Tallahassee, Florida 32399-0458 Kaye N. Henderson, Secretary Department of Transportation Haydon Burns Building Tallahassee, Florida 32399-0450
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: The segment of road in question is located entirely within the City of Leesburg, Florida. The segment in question, Main Street, begins at a junction of CR 468 and SR 44 and heads in an easterly direction, is intersected about midpoint by SR 25 (US 27), then continues easterly to a junction with SR 44 on the east edge of the city, a distance of 3.670 miles. SR 25 in the urban limits of the city and where it is intersected by Main Street is classified as an urban principal arterial. SR 44 at the western and eastern terminus of Main Street is classified as an urban minor arterial. The Respondent evaluated the entire length of Main Street (3.670 miles) as one segment rather than two segments, one east of SR 25 and one west of SR 25. Main Street is bounded by SR 44, a road of higher classification than the present classification of Main Street, an urban collector, and of equal classification to the proposed classification of Main Street, a minor arterial. The traffic flow on Main Street is a continuous flow and is not significantly interrupted by the intersection of SR 25. Before evaluating Main Street under the criteria of a minor arterial the Respondent, using a method similar to the method for minor arterial classification but designed for urban collector classification, evaluated Main Street as an urban collector and calculated a System Attribute Score (SAS) of 90 which indicated a higher classification. This calculation resulted in Main Street being evaluated as a minor arterial. Respondent, in determining the functional classification of Main Street, utilized the criteria set out in Rule 14-12.015, Florida Administrative Code and scored Main Street on 5 attributes: (1) Average Daily Traffic (ADT), minimum 4,000; (2) Speed (lowest posted), minimum 35 mph; (3) Traffic Signals, minimum 3; (4) Street Length, minimum 3.5 miles; and (5) Lanes, minimum 3, with each attribute receiving a score of 1 if it met the minimum level set forth in Rule 14-12.015, Table Number 3, Florida Administrative Code. For the ADT attribute, Respondent utilized an ADT figure of 8,581, an average of 3 figures furnished verbally to the Respondent by the City Engineer. These ADT figures were not collected in accordance with Rule 14-12.017, Florida Administrative Code, as required by Rule 14-12.015(1)(b), Florida Administrative Code nor certified as required by that same rule. The Respondent was not certain of when, where or how the ADT figures furnished by the City Engineer were obtained, but the Respondent was of the opinion that the figures were obtained from a segment of Main Street east of SR 25, mainly in the heart of the City of Leesburg, Florida. The Respondent did not collect Average Daily Traffic (ADT) figures for Main Street. The Respondent used 40 miles per hour (mph) for speed attribute, but the lowest posted speed on Main Street was less than 35 mph. For the traffic signal attribute, the Respondent used 4 but there was credible evidence that 6 traffic signals were located on the 3.670 miles of Main Street. The Respondent used 2 lanes for the lanes attribute and there was no dispute as to the number of lanes. For the length attribute, the Respondent used 3.670 miles and there was no dispute as to the length. The Respondent assigned a score of 1 to each of the attributes, with the exception of lanes which was assigned a score of zero, for a total score of 4 which when multiplied by the system element coefficient of 15, found in Part II-Small Urban Area System Elements and Coefficients, Table 4, Arterial to Arterial, as required by Rule 14-12.015(3), Florida Administrative Code, equals a SAS of 60. However, since the Respondent relied on invalid ADT figures and on incorrect speed limit the correct SAS would be 30 which required the Respondent to classify Main Street as a minor arterial. In 1982, the City of Leesburg, Florida contemplated an urban renewal project which would involve Main Street and therefore requested the Respondent to reroute that segment of SR 44 within the city (what is currently known as Main Street was then SR 44) so that Main Street could become a city street. Public hearings were held on the rerouting of SR 44 and there were no objections. However, before rerouting SR 44 the Respondent required the Petitioner to pass a resolution stating that it did not object to the rerouting or to removing those segments of CR 468 and CR 33 involved in the rerouting from the County Road System and transferring those segments of CR 468 and CR 33 to the State Road System. The resolution was adopted by the county, but there was no indication, other than that Main Street would become a city street, that the County was acting on a representation by the Respondent that Main Street would always remain classified as a city street and under the jurisdiction of the City of Leesburg. Although the Petitioner expended funds on CR 468 and CR 33 prior to transferring them to the State Road System, there was no evidence that the Respondent required this expenditure prior to the transfer of the roads or that because of this expenditure, or for any other reason, the Respondent represented to the Petitioner that Main Street would always remain classified a city street and under the jurisdiction of the City of Leesburg. There was no evidence that the Petitioner relied on Main Street being transferred to the jurisdiction of the City of Leesburg to make any expenditure of funds for the improvement of CR 468 and CR 33 or for the expenditure any other funds. Main Street does not meet the minimum attribute level for classifications as an urban principal arterial in a small urban area.
Recommendation Based upon the Findings of Fact, Conclusions of Law, the evidence in the record and the candor and demeanor of the witnesses, it is, RECOMMENDED that Respondent, Florida Department of Transportation enter a Final Order assigning jurisdiction over Main Street in Leesburg, Florida beginning at a junction of CR 468 and SR 44 and moving in an easterly direction to a junction with SR 44 on the east edge of the City of Leesburg, Florida to Petitioner. Respectfully submitted and entered this 25th day July, 1988, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 25th day of July, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-4388 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties in this case. Rulings on Proposed Findings of Fact Submitted by the Petitioner Adopted in Finding of Fact l. Adopted in Finding of Fact 4. 3-6. Adopted in Finding of Fact 9. 7. Adopted in Finding of Fact 7 but clarified. 8-9. Adopted in Findings of Fact 12 and 13 respectively. 10-11. Rejected as immaterial or irrelevant to any determination in this case. 12-14. Adopted in Finding of Fact 17. Rejected as immaterial or irrelevant to any determination in this case. Adopted in Finding of Fact 19 but clarified. Adopted in Finding of Fact 18 except that reclassification of Main Street was not the subject of the resolution. Rulings on Proposed Findings of Fact Submitted by the Respondent The first 2 sentences are rejected as immaterial or irrelevant to any determination in this case. The third sentence is rejected as not being supported by substantial competent evidence in the record in that Main Street was located entirely within the city limits of Leesburg. The fourth, sixth, and seventh sentence are adopted in Findings of Fact 1, 8, and 12, respectively. The fifth sentence is adopted in Findings of Fact 6. The eighth and ninth sentence is adopted in Finding of Fact 13. The tenth sentence is adopted in Findings of Fact 14 and 15. The first 2 sentences are rejected as not being material or relevant to any determination in this case. The third sentence is adopted in Finding of Fact 5. The fourth and fifth sentences are adopted in Finding of Fact 16. The first 6 sentences are rejected as not being material or relevant to any determination in this case. The balance of paragraph 3 is adopted in Findings of Fact 17, 18, 19, 20 and 21 but clarified. COPIES FURNISHED: Sanford A. Minkoff, Esquire 1150 East Highway 441 Tavares, Florida 32778 Vernon L. Whittier, Esquire Department of Transportation Haydon Burns Building, M.S. 58 Tallahassee, Florida 32399-0458 Kaye N. Henderson, Secretary Department of Transportation Haydon Burns Building, M.S. 58 Tallahassee, Florida 32399-0458
