The Issue Whether the segment of N.E. 26th Street from Old Dixie Highway to its easternmost point in the City of Wilton Manors should be reclassified as an Urban Collector and reassigned to the City's road system as proposed by the Department of Transportation? Did the Department of Transportation comply with the requirements of Florida Administrative Code Rule 14-12.013(5) in connection with its proposed reclassification and reassignment of this road segment? If not, what remedial action, if any, should be taken?
Findings Of Fact Based upon the evidence received at hearing, the Hearing Officer makes the following Findings of Fact: N.E. 26th Street is an east-west artery that lies entirely within the incorporated area of Broward County. Its western terminus is North Andrews Avenue. As it runs east from North Andrews Avenue, it intersects with Old Dixie Highway and then North Federal Highway before ending in a cul-de-sac. The length of N.E. 26th Street from North Andrews Avenue to North Federal Highway is approximately two miles. A short distance west of where it intersects with North Federal Highway, N.E. 26th Street crosses over a bridge. The middle of the bridge marks the jurisdictional boundary between the City of Wilton Manors and the City of Fort Lauderdale. To the West of this boundary line, N.E. 26th Street is entirely within the corporate limits of the City of Wilton Manors. The remaining portion of N.E. 26th Street is wholly within the corporate limits of the City of Fort Lauderdale. From North Andrews Avenue to Old Dixie Highway (hereinafter referred to as "Segment 1"), N.E. 26th Street is a two-way, two-lane roadway with a posted speed limit of 30 miles per hour. Since 1978, Segment 1, which travels through a primarily residential area of the City of Wilton Manors, has been functionally classified as an Urban Collector and has been the jurisdictional responsibility of the City of Wilton Manors. The functional classification and jurisdictional assignment of Segment 1 are not in dispute in the instant case. From Old Dixie Highway to North Federal Highway (hereinafter referred to as "Segment 2"), N.E. 26th Street passes through a primarily commercial area and has a posted speed limit of 35 miles per hour. This portion of N.E. 26th Street has two eastbound lanes and two westbound lanes. It also has a turning lane separating eastbound and westbound traffic. The Department has proposed to change the functional classification of Segment 2 from a Minor Arterial to an Urban Collector and to reassign jurisdictional responsibility for Segment 2, to the extent it lies within the corporate limits of the City of Wilton Manors, from Broward County to the City. The instant controversy concerns these proposed actions. In 1987, the Department began the process of reevaluating the functional classification and jurisdictional assignment of all roads and road segments in Broward County, including Segment 2. Evaluation points were awarded to each of these roads and road segments in accordance with the Department's rules. Data collected by the Department reflected that the Average Daily Traffic on Segment 2 was 16,540 vehicles. Accordingly, Segment 2 was given seventeen points for traffic volume. It was also awarded two points for length; fifteen points for number of lanes; five points for speed; and fifteen points for being a divided roadway, for a total of 54 points. Other roads and road segments in Broward County received more evaluation points than did Segment 2. The combined length of these other roads and road segments with a higher point total than Segment 2 was not less than 416 miles. Therefore, the Department determined that Segment 2's functional classification should be changed from a Minor Arterial to an Urban Collector. Because N.E. 26th Street lies entirely within the incorporated area of Broward County, the Department further determined that the jurisdictional responsibility for Segment 2 should be reassigned to the City of Wilton Manors and the City of Fort Lauderdale, with the former exercising responsibility for that portion of the road segment within its corporate limits and the latter doing the same with respect to that portion of Segment 2 within its corporate boundaries. On July 29, 1988, following a public hearing on the matter, the Department sent a letter to the Mayor of the City of Wilton Manors advising him, among other things, of the foregoing conclusions it had reached regarding the appropriate functional classification of Segment 2 and the assignment of jurisdictional responsibility for this road segment. The letter was not sent by certified mail, return receipt requested. The City of Wilton Manors received the letter on August 4, 1988. By letter dated August 23, 1988, it requested that the Department reconsider its determination to functionally reclassify that portion of Segment 2 within the corporate limits of the City and to reassign it to the City's road system. In its letter, the City requested a formal hearing on the matter.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department of Transportation enter a final order functionally reclassifying that portion of N.E. 26th Street from Old Dixie Highway to the easternmost point of the City of Wilton Manors as an Urban Collector and assigning jurisdictional responsibility of this road segment to the City. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 30th of August, 1989. STUART M. LERNER 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 30th day of August, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-5068 The following are the Hearing Officer's specific rulings on the Proposed Findings of Fact submitted by the Department of Transportation: Accepted and incorporated in substance in this Recommended Order. Rejected as not supported by competent substantial evidence. It appears from the date stamp on the Department's July 29, 1988, letter to the City that it was received by the City on August 4, 1988, not August 9, 1988. Accepted and incorporated in substance in this Recommended Order, to the extent that it addresses Segment 2 of N.E. 26th Street. Insofar as it asserts that the Department proposes to functionally reclassify other segments of N.E. 26th Street, it is rejected as not supported by competent substantial evidence. Rejected as unnecessary. Rejected as more in the nature of a conclusion of law than a finding of fact. Rejected as more in the nature of a conclusion of law than a finding of fact. Rejected as more in the nature of a conclusion of law than a finding of fact. Accepted and incorporated in substance in this Recommended Order. Accepted and incorporated in substance in this Recommended Order. Accepted and incorporated in substance in this Recommended Order. Accepted and incorporated in substance in this Recommended Order. Accepted and incorporated in substance in this Recommended Order. Rejected as contrary to the greater weight of the evidence. COPIES FURNISHED: Charles G. Gardner, Esquire Haydon Burns Building 605 Suwannee Street, M.S. 58 Tallahassee, Florida 32399-0458 George Richardson, Jr. City Attorney City of Wilton Manors 524 N.E. 21st Court Wilton, Manors, Florida 33305 Kaye N. Henderson, Secretary Department of Transportation 605 Suwannee Street, M.S. 58 Tallahassee, Florida" 32399-0450 Thomas H. Bateman III, Esquire General Counsel Department of Transportation 605 Suwannee Street, M.S. 58 Tallahassee, Florida 32399-0450
The Issue The issue is whether Respondent, Todd Voigt, should be terminated from employment with the City of Clearwater (City) for violating City policies as alleged in the City's Termination and Dismissal Notice (Notice) dated August 3, 2016.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Civil Service Board make a determination that the charges in the Notice are sustained, and that Mr. Voigt be terminated as a City employee. DONE AND ENTERED this 7th day of December, 2016, in Tallahassee, Leon County, Florida. S LYNNE A. QUIMBY-PENNOCK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 7th day of December, 2016.
Findings Of Fact Appellant owns the property located at 1430 Palmetto Street, Clearwater, Florida. The area is zoned RS-50, a zoning for single family residents. The house located thereon is a three-bedroom, two-bath home with a garage and carport. Appellant proposes to enclose the garage to provide two additional bedrooms and a bath. The lot on which this house is sited contains 13,000 square feet. The minimum lot size for RS-50 zoning is 5,000 square feet. The structure exceeds all setback requirements of the Code. Most of the homes in this neighborhood have driveways to the garages while Appellant's property has a circular drive in front of the house. The structure meets the City of Clearwater's fire code and to be licensed as an Adult Congregate Living Facility (ACLF) must meet all requirements of the Department of Health and Rehabilitative Services. Appellant has a housekeeper on the premises at all times to prepare the meals and take care of the residents. Appellant's son manages the property and the son's wife visits the premises daily to do the necessary shopping, take the residents to doctor appointments, shopping, or for outings. Only one automobile remains at the premises on a 24-hour basis. Some residents do not have any family locally and visitors average one every two weeks per resident. Use of this property as an ACLF is reasonably compatible with the neighborhood. Excessive traffic will not be generated by use of this property as requested and the requirements for on-site parking is satisfied. Although an ACLF is a business, it is operated similar to a home in that business hours are not such that any disturbance of the neighborhood will occur and insignificant additional traffic will be generated as a result of granting this special exception. Neighbors generally have no complaints regarding the operation of the existing ACLF with a total of five residents but strongly oppose any increase in the number of residents. As grounds for opposing the increase these witnesses cited expected decrease in property values, anticipated increase in traffic and traffic hazards to the elderly residents of the ACLF who may walk along the street, excessive numbers of vehicles at the premises for which off-street parking is not available, a general dislike for any business activity conducted in the neighborhood, their opinion that an ACLF is incompatible with the neighborhood, and that Appellant will reap a financial bonanza if the special exception is granted. No statistical evidence was presented to support any of these contentions.
Findings Of Fact Petitioner, Flamingo Lake RV Resort, Inc., operates a camping facility located in Duval County, Florida, located at the interchange of 1-295 and SR 115 or Lem Turner Road. The Petitioner applied to the Department pursuant to Section 479.26, Florida Statutes, and Chapter 14-85, Florida Administrative Code, to participate in the logo program at the interchange. The logo program is the means by which businesses, located within a specified distance from an interstate highway exit, are permitted to display their logo sign on information panels placed on the interstate highway near the applicable exit. Such panels identify motorist services available at the exit categorized by "Food," "Gas," "Lodging" or "Camping." The Petitioner applied to place the logo of Flamingo Lake RV Resort on a "Camping" information panel. There are no logo panels currently at the interchange of 1-295 and SR 115. The only signage at that interchange located on the interstate right-of- way consists of a small generic sign displaying a picture of a camper underneath the exit ramp sign. The small generic camper sign is not readily noticeable. The generic sign neither identifies the particular campground which it references, nor supplies directions to the campground. Signage on a logo panel is important because it assists a traveler in finding a particular campground and provides directions to the campground. By letter dated October 17, 1990, the Department notified Petitioner that its application was denied, because: The interchange on 1-295 is "excluded from the program." The interchange does not fit the definition of "rural interchange" in that it is located in an urban area or is bordering the urbanized area of Jacksonville, and the number of eligible businesses at the interchange exceeds the logo sign's panel capacity. Pursuant to unpublished policy, the Department has excluded all of 1- 295, the interstate beltway around Jacksonville, Florida, from participating in the logo program. The policy was adopted at some point in time in 1987, by the Department's District Secretary. The policy was established because 1-295 is in close proximity to the core city and anticipated that development would move in that direction. 1-295 is a circumferential route with crossroads that radiate into and out of the City of Jacksonville. Exiting 1-295, you can head toward Jacksonville and encounter an increasing number of services. There has been no logo signing on 1-295 in Duval County, and other areas excluded from the logo program in the District are U.S. 441 in Alachua County and 1-75, 39th Avenue and 1-75 in Alachua County, State Road 26, 24, and 121 (at 1-75). Areas surrounding the interchange, including Petitioner's property, are classified as "rural areas" by the Census Bureau. The characteristics of the interchange are marked by farming, pine forests containing abundant wild life, and a large lake located on Petitioner's campground. Other than Petitioner's campground facility, there is no commercial or significant residential development located at or near the interchange, and the area is designated open-rural for zoning purposes. Petitioner's property is not serviced by city water or sewer lines. The interstate speed limit at the interchange is 65 mph, and the speed limit along Lem Turner Road at the interchange is 55 mph. Such speed limits are characteristic of a rural, rather than an urban location. The interchange of 1-295 and SR 115 is located in a rural setting. Traveling in a northerly direction along the Lem Turner (SR 115) crossroad from the interchange, no commercial or residential development is encountered until the traveler reaches Callahan, Florida, a distance in excess of ten miles from the interchange. Traveling in a southerly direction along the Lem Turner (SR 115) crossroad from the interchange, no commercial or significant residential development is encountered until reaching the Lem Turner Road/Dunn Avenue intersection, a distance of approximately one mile from the interchange. Within 1.5 miles of the interchange, there are only two gas station businesses potentially eligible to participate in the logo program. Both gas stations are located at the Dunn Avenue/Lem Turner Road intersection, at a distance of 1.2 miles from the interchange. Within three miles of the interchange, the only business eligible for the restaurant logo program is a McDonald's restaurant located on Lem Turner Road just south of its intersection with Dunn Avenue. None of the other restaurants located within a three mile distance of the interchange meet the restaurant eligibility requirements due to limited seating capacity or the limited hours of business. McDonald's desires to participate in the logo program at the interchange. Other than Petitioner's campground, there are no other campgrounds located within three miles in either discretion along the Lem Turner crossroad from the interchange. There are no lodging facilities located within three miles of the interchange. Lodging facilities are located at the Dunn Avenue/I-95 intersection, a distance over three miles but less than six miles of the 1-295 and SR 155 interchange. To reach these facilities, however, the northbound traveler must drive south on Lem Turner Road for approximately 1 mile, then turn east on Dunn Avenue and travel approximately three miles to reach the interchange of 1-95 and Dunn Avenue. For persons traveling south, the more direct route to the I- 95/Dunn Avenue interchange is to continue south on 1-95 approximately one mile rather than to turn onto 1-295. The District Logo Coordinator did a survey of the volume of business in each category and determined that the panel capacity for two of the types of mother board would be exceeded within the six-mile distance. In reaching this conclusion, the Department considered businesses within six miles because the Department did not feel that there were enough qualifying businesses within three miles. However, within six miles, the Department determined there would be so many qualifying businesses that the logo mother board would be exceeded and when the logo mother board capacity is exceeded, all logo panels must come down. Therefore, the Department denied all logo panels. There were qualifying or qualifiable gas station(s), restaurant(s), and campground(s) accessible from the intersection. Of the three logo categories, only lodging lacked a qualifier within three miles. Only when the radius of inquiry extended to six miles and left Lem Turner Road to go to the Dunn Avenue/I-95 interchange was a lodging qualifier found. At this point, the Department determined that there were too many lodgings and precluded all logo signs in all categories. Respondent's Exhibit 1 is a map of the urbanized area in the vicinity of Jacksonville, Florida. This designation of urbanized area by the Department was approved by the Federal Highway Administration. This exhibit reveals that the 1-295/SR 115 interchange is located in the urbanized area. On November 30, 1990, the Department published notice in the Florida Administrative Weekly announcing a proposed change to Chapter 14-85 of the Florida Administrative Code. Notice of the proposed rule change was not given to Petitioner individually; however, individual notice was not required. The amendments to Chapter 14-85 became effective March 20, 1990. This administrative hearing was held on March 19, 1991. The effect of the amendments to the rules under Chapter 14-85 removes the exception to the "Rural Interchange" definition found in Rule 14- 85.003(10)(b), and would deny Petitioner the right to erect a logo sign at the interchange if the interchange is found to be located within an urban or urbanized area. The amendment would make any interchange located within an urban or urbanized area ineligible to participate in the logo program, regardless of whether the number of eligible businesses at the interchange exceed the logo sign's capacity.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Petitioner's application for eligibility in the logo program for a location at Exit 13 on Interstate 295 be denied because said location does not qualify as a rural interchange under the current rule DONE and ENTERED this 24th day of April, 1991, in Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 File with the Clerk of the Division of Administrative Hearings this 24th day of April, 1991. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 90-7304T Petitioner's Proposed Findings of Fact 1-4. Adopted. 5-6. Adopted in part and combined with paragraph 4. The part rejected was irrelevant. Adopted. Adopted and divided into paragraphs 7 and 8. 9-10. Adopted and restructured. 11-12. Adopted. 13-14. Conclusion of law. 15-21. Adopted. Respondent's Proposed Findings of Fact 1-3. Adopted. COPIES FURNISHED: John S. Ball, Esq. Michael W. Fisher, Esq. Fisher, Trousey, Leas & Ball 2600 Independent Square Jacksonville, FL 32202 Vernon L. Whittier, Jr., Esq. Department of Transportation Haydon Burns Building, M.S. 58 605 Suwannee Street Tallahassee, FL 32399-0458 Ben G. Watts, Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, FL 32399-0458 Thornton J. Williams, Esq. General Counsel Department of Transportation 562 Haydon Burns Building Tallahassee, FL 32399-0458
Conclusions An Administrative Law Judge of the Division of Administrative Hearings has entered an Order Relinquishing Jurisdiction and Closing File in this proceeding. A copy of the Order is attached to this Final Order as Exhibit A.
Other Judicial Opinions REVIEW OF THIS FINAL ORDER PURSUANT TO SECTION 120.68, FLORIDA STATUTES, AND FLORIDA RULES OF APPELLATE PROCEDURE 9.030(b) (1) (C) AND 9.110. TO INITIATE AN APPEAL OF THIS ORDER, A NOTICE OF APPEAL MUST BE FILED WITH THE DEPARTMENT’S AGENCY CLERK, 2555 SHUMARD OAK BOULEVARD, TALLAHASSEE, FLORIDA 32399-2100, WITHIN 30 DAYS OF THE DAY THIS ORDER IS FILED WITH THE AGENCY CLERK. ‘THE NOTICE OF APPEAL MUST BE SUBSTANTIALLY IN THE FORM PRESCRIBED BY FLORIDA RULE OF APPELLATE PROCEDURE 9.900(a). A COPY OF THE NOTICE OF APPEAL MUST BE FILED WITH THE APPROPRIATE DISTRICT COURT OF APPEAL AND MUST BE ACCOMPANIED BY THE FILING FEE SPECIFIED IN SECTION 35.22(3), FLORIDA STATUTES. YOU WAIVE YOUR RIGHT TO JUDICIAL REVIEW IF THE NOTICE OF APPEAL IS NOT TIMELY FILED WITH THE AGENCY CLERK AND THE APPROPRIATE DISTRICT COURT OF APPEAL. MEDIATION UNDER SECTION 120.573, FLA. STAT., IS NOT AVAILABLE WITH RESPECT TO THE ISSUES RESOLVED BY THIS ORDER. FINAL ORDER NO. DCA 11-GM-126 CERTIFICATE OF FILING AND SERVICE I HEREBY CERTIFY that the original of the foregoing has been filed with the undersigned Agency Clerk of the Department of Community Affairs, and that true and correct copies have been furnished as indicated to each of the persons listed below on this day of , 2011. \s Paula Ford Agency Clerk By U.S. Mail The Honorable David M. Maloney Administrative Law Judge Division of Administrative Hearings The Desoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 By Electronic Mail Brad E. Kelsky, Esquire 10189 Cleary Boulevard Plantation, Florida 33324 bradkelsky@kelskylaw.com Cari L. Roth, Esquire Suzanne Van Wyk, Esquire Bryant Miller & Olive P.A. 101 North Monroe Street, Suite 900 Tallahassee, Florida 32301 croth@bmolaw.com svanwyk@bmolaw.com Linda Loomis Shelley, Esquire Karen A. Brodeen, Esquire Fowler White Boggs, P.A. 101 North Monroe Street, Suite 1090 Post Office Box 11240 Tallahassee, Florida 32302-1240 lshelley@fowlerwhite.com kbrodeen@fowlerwhite.com Derek Rooney, Esquire Charlotte County Attorney's Office 18500 Murdock Circle Port Charlotte, Florida 33948 Derek .Rooney@charlottefl.com Robert H. Berntsson, Esquire FINAL ORDER NO. DCA 11-GM-126 McKinley, Ittersagen, Gunderson & Berntsson, P.A. 18401 Murdock Circle Port Charlotte, Florida 33948 rberntsson@bigwlaw.com Lynette Norr Assistant General Counsel Department of Community Affairs 2555 Shumard Oak Blvd. Tallahassee, Florida 32399-2100 Lynette.Norr@dca.state.fl.us
Findings Of Fact Respondent, Alonzo P. Baggett, owns a residential parcel of property at the corner of State Road 35 (Bartow Highway) and Hollingsworth Road in Lakeland. Respondent's property has his residence on it which was purchased in 1961. When purchased, the property was originally a duplex with a driveway serving each unit. Respondent enclosed the carport on the easterly side of the house for use in an upholstery business. When he did so, the driveway at the easterly end of the house remained in place. The house is presently used as a single family residence and the entrance to what was originally the right hand, or eastern unit, is permanently enclosed with concrete block construction. Respondent resides in the western side of the duplex and parks in the driveway which serves that side. The driveway on the right hand side of his property is approximately the length of one vehicle. The intersection of State Road 35 and Hollingsworth Road is a busy signalized intersection. On an average day, upwards of 8500 vehicles pass through the intersection. State Road 35 is a four lane facility in the vicinity of Respondent's home. Both State Road 35 and Hollingsworth Road have dedicated right and left turn lanes at the intersection. The easterly connection which Petitioner is seeking to close is within the radius of the turn at the southwest corner of State Road 35 and Hollingsworth Road and the access is located in front of a stop bar on State Road 35. To use the subject driveway, a driver must back into the flow of traffic at the intersection to exit the driveway. The connection also allows a driver to make a series of conflicting movements in relation to the traffic in the intersection. As it presently exists, there are no signal heads facing the driveway and a driver cannot see the traffic signals at the intersection. Both conditions create a safety problem because a driver, without seeing the signal head, cannot tell who has the right-of-way. Respondent's State Road 35 connection provides uncontrolled access into a controlled intersection and could present an unexpected traffic movement to drivers entering the intersection from either State Road 35 or Hollingsworth Road. Additionally, the backing motion could conflict directly with the pedestrian crosswalk at that corner. Also, there are two public schools, Lime Street Elementary and Lakeland High School, served by the intersection of State Road 35 and Hollingsworth Road. The driveway in question creates a conflict with school children who cross the road at the intersection. Petitioner has engaged in an extensive review project of resurfacing, signalization, and road upgrades to new standards and has received a number of requests to change sidewalk and curb ramps to comply with ADA standards. The upgrades also included relocating some signal loops and Respondent's driveway came within the loop and upgrading review process. Petitioner has no authority to change the zoning of Respondent's property such that he can resell it to a commercial purchaser as Respondent has requested. Closing the subject driveway is necessary to alleviate the safety problems referenced herein. Although the effect of this intended closure will prevent Respondent's access to his driveway on State Road 35, based on the limited usefulness and the access that he has to his property (the Hollingsworth Road connection), the closure is not arbitrary or unreasonable as Respondent contends. In this regard, Respondent still has access from Hollingsworth Road. That access is safer to use and the signalization from that road can be seen and the traffic flow isn't as heavy as State Road 35.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that: Petitioner, the Department of Transportation, enter a final order closing Respondent's connection to State Road 35 and that such closure be completed by Petitioner at its own cost. DONE AND ENTERED this 19th day of July, 1994, in Tallahassee, Florida. JAMES E. BRADWELL 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 19th day of July, 1994. COPIES FURNISHED: Paul Sexton, Esquire Assistant General Counsel Department of Transportation 605 Suwannee Street Tallahassee, Florida 32399-0458 Alonzo T. Baggett 605 Hollingsworth Road Lakeland, Florida 33801 Thornton J. Williams, General Counsel Department of Transportation 562 Haydon Burns Building Tallahassee, Florida 32399-0450 Ben G. Watts, Secretary Attn: Eleanor F. Turner Haydon Burns Building Department of Transportation Haydon Burns Building, M.S. 58 Tallahassee, Florida 32399-0450
Findings Of Fact The road segments in question are located totally within the City of Palm Bay in Brevard County and the Urbanized Area designated by Petitioner as "Cocoa-Melbourne." The segments are: Malabar Road between Minton Road on the west and Interstate 95 on the east; Palm Bay Road between Babcock Street on the west and Robert J. Conlan Boulevard on the east; and Robert J, Conlan Boulevard in its entirety from Palm Bay Road on the southwest to U.S. Route 1 on the northeast. At all material times, the above-described road segments ("Road Segments") have been classified as Urban Collector Roads and have been under the jurisdiction of Brevard County. The Palm Bay Road segment in question ("Palm Bay Segment") runs in an east-west direction a distance of approximately 1 1/2 miles. Palm Bay Road lies entirely inside the City of Palm Bay except for a portion of the road running between Minton Road on the west and about one-eighth of a mile west of Babcock Road on the east. This part of Palm Bay Road, which is west of the Palm Bay Segment, marks the boundary between the City of Palm Bay and the unincorporated area of Brevard County. The parties stipulated that the center line of this part of Palm Bay Road constitutes the boundary. Palm Bay Road west of the Palm Bay Segment is classified as an Urban Collector Road and is assigned to Brevard County. Petitioner does not propose changing this assignment. Babcock Street, which marks the westerly end of the Palm Bay Segment, is classified as an Urban Minor Arterial Road. Palm Bay Road east of the Palm Bay Segment is classified as an Urban Collector Road entirely within the limits of the City of Palm Bay and assigned to Respondent. Petitioner does not propose changing this assignment and Respondent does not challenge it. Palm Bay Road west of Robert J. Conlan Boulevard is designated by Petitioner as County Road 516. In 1981, Petitioner, in an effort to reflect traffic patterns, re- designated the east end of County Road 516 so that it no longer followed Palm Bay Road (with a couple of turns) to U.S. 1, but instead turned north and followed Robert J. Conlan Boulevard to its termination at U.S. 1. At the same time, Petitioner designated Palm Bay Road east of Robert J. Conlan Boulevard plus short sections of Main Street and Hickory Avenue as County Road 5070. Robert J. Conlan Boulevard runs north off Palm Bay Road and then in a northeasterly direction to U.S. 1 for a total distance of 1.7 miles. The Malabar Road segment in question ("Malabar Segment") runs in an east-west direction a distance of 2.443 miles. The Malabar Segment is part of Malabar Road, which runs east into unincorporated Brevard County. The east end of the Malabar Segment is marked by an interchange at Interstate 95. East of the interchange, Petitioner has classified Malabar Road as an Urban Minor Arterial Road and assigned it to the State of Florida. Malabar Road runs west of Minton Road, but remains within the city limits and terminates at the boundary between the city and the unincorporated area of the county. Petitioner introduced an Urbanized Area Characteristic Evaluation Points scoresheet for each of the three Road Segments, although the point sheet for the Palm Bay Segment included County Road 5070. Petitioner's expert witnesses, although lacking any detailed knowledge of the roads and road segments in the subject Urbanized Area, opined that the Road Segments were properly classified as Urban Collector Roads. Respondent's expert witness was its City Engineer, Harry Lampe. He testified that Palm Bay Road is one of only two east-west arteries serving downtown Palm Bay, which is an extremely fast-growing area whose population center has dramatically shifted westward in the past eight years to a point in the vicinity of Interstate 95. Mr. Lampe testified that specific characteristics of all three Road Segments were undervalued by Petitioner and opined that the Road Segments should be classified as Urban Minor Arterial Roads. No evidence was presented, however, as to the relative value of the points that either Petitioner or Respondent assigned to any of the Road Segments. According to Respondent's map, the traffic volume on the greater part of the Palm Bay Segment significantly exceeds the traffic count for the portion of Malabar Road that Petitioner has classified as an Urban Minor Arterial Road. Petitioner offered no traffic count for the Palm Bay Segment. Petitioner's traffic count covered a road segment consisting of the Palm Bay Segment plus the less-traveled County Road 5070. It was never clear if Petitioner's traffic count even reflected traffic conditions on the Palm Bay Segment. The segment of Palm Bay Road between Minton Road and Robert J. Conlan Boulevard and the segment of Malabar Road between U.S. 1 and Interstate 95 are comparable in length, service as the only east-west arteries in the Palm Bay area, and interstate access by way of an interchange. The interchange is under construction at Palm Bay Road--a fact that Petitioner admittedly did not take under consideration. Although there was no evidence as to the number of lanes, divided-or-undivided status, or speed limit of Malabar Road east of Interstate 95, the Palm Bay Segment received the maximum points for lanes and divided status and was in the second highest category as to speed limit. The five characteristic evaluation points it conceivably could lack if the above- described segment of Malabar Road had a higher speed limit were offset by the heavier traffic on the above- described segment of Palm Bay Road.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Department of Transportation enter a Final Order assigning Malabar Road between Minton Road and Interstate 95 to the City of Palm Bay. DONE and ORDERED this 20th day of February, 1990, in Tallahassee, Florida. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of February, 1990. COPIES FURNISHED: Ben Watt, Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, FL 32399-0450 Thomas H. Bateman, III General Counsel Department of Transportation 562 Haydon Burns Building 605 Suwannee Street Tallahassee, FL 32399-0450 Leonard A. Carson John D.C. Newton, II Lu Ann Snider Carson & Linn, P.A. Mahan Station 1711-D Mahan Drive Tallahassee, FL 32308 Vernon L. Whittier Department of Transportation 605 Suwannee Street, M.S. 58 Tallahassee, FL 32399-0458 =================================================================
Findings Of Fact Petitioner, within the past year, purchased two tracts of property 50 feet by 100 feet located at 614-620 Mandalay Avenue on Clearwater Beach. This property is zoned "CG" or "General Business" and there are four buildings on this property comprising five dwelling units. The land use plan for this location is commercial/tourist facilities. Petitioner submitted an artist's drawing of what the site could look like if the variance requested was granted. No building permits have been requested; accordingly, no specific plans have been submitted to establish the use to which the property would be put if the variance requested is granted. The proposal of Petitioner (such as it is) contemplates converting the ground floors of the existing structures to commercial use. If the existing buildings were so converted, with the upper floors remaining residential, the zoning code requires provision be made for twenty-eight off-street parking spaces. Since the existing five dwelling units would be credited (grandfathered) for having eight such parking spaces due to the construction having occurred before the zoning code was enacted, Petitioner is requesting a variance for the remaining twenty off-street parking spaces that would be required. Actually, there are no off-street parking spaces on this property but five or six parking spaces exist in the right-of-way for Mandalay Avenue. There are no off-street parking spaces on Mandalay Avenue in the vicinity of Petitioner's property and none are proposed to be provided by Petitioner. Mandalay Avenue is the main north-south artery on Clearwater Beach and is four-laned in the vicinity of Petitioner's property, which lies near the northern terminus of "CG" zoning. At the hearing before the Board one witness spoke in favor of the variance requested because the proposal by Petitioner was better than if the property was used for the construction of a high-rise residential unit, which the zoning would permit. Since no specific proposal is before the Respondent for the issuance of a permit, there is no assurance that granting the requested variance would preclude the construction of high-rise residential units. The dwellings occupying this property were constructed some thirty years ago and are expensive to maintain and are not a very attractive investment. Petitioner referred to several other businesses where variances in parking requirements have been granted when bars and restaurants on Mandalay Avenue were rebuilt or expanded; however, little evidence was presented that parking variances have been granted when a new use for the property was proposed.
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
