The Issue The issue is whether Respondent's policy with regard to Section 112.65(2), Florida Statutes, constitutes an administrative rule, and, if so, whether the rule is valid.
Findings Of Fact Petitioner was employed as a police officer with the City of Live Oak, Florida, and is currently a deputy sheriff with the Suwannee County Sheriff's Department. On March 1, 1990, the Suwannee County Sheriff's Department assumed the functions of the Live Oak Police Department and the Police Department was disbanded. Petitioner and other members of the Police Department became employees of the sheriff's office. Petitioner has been continuously employed by the sheriff's office since 1990 and presently is the patrol commander for the sheriff. The ordinance creating the City of Live Oak Retirement System was repealed on October 12, 1990. The pension plan was terminated. An annuity was purchased by the City of Live Oak following termination of the pension plan from the Franklin Life Insurance Company for Petitioner, a vested member of the former pension plan. The annuity entitled Petitioner to future benefits. Non-vested members of the police force were refunded their previous contributions to City of Live Oak retirement plan. Several months prior to the retirement annuity purchase and the repeal of the City of Live Oak Retirement System, Petitioner had elected, on April 9, 1990, by ballot provided by Respondent to retain his vested benefits with the annuity provided by the City and "begin membership in the Florida Retirement System (FRS) effective March 1, 1990." The ballot choice selected by Petitioner stated specifically that "I understand I may not purchase past service in the FRS for service under the local retirement system which may be used to obtain a benefit." Petitioner's position is that he was not aware on April 9, 1990, that he could select the second ballot choice that would have permitted him to withdraw from the City of Live Oak Retirement System and join the FRS at that time. He represents that he was told specifically by the sheriff at the time that he could not elect this option. The sheriff is now deceased. At the time he joined the sheriff's office, Petitioner had not vested in the FRS, although he had prior service as a state employee. No evidence establishes on-site visitation by Respondent employees upon transfer of police functions to the County sheriff's office, or direct advice by Respondent employees to Petitioner or any other transferring employees. A letter, however, dated April 18, 1990, from Loraine Voss, a former Bureau Chief with Respondent, documents that there were communications between Respondent employees and the now-deceased sheriff. In pertinent part, the letter advised that employees were eligible to purchase past service credit in FRS provided such past experience would not be used to provide a benefit in another retirement scenario. Absent the letter authored by Voss, Respondent provided no documented direction regarding retirement options to Petitioner at the time of his election to retain his service in the city's retirement annuity. The action of local authorities (i.e., the mayor of the City of Live Oak and the county sheriff) in advising the transferees on retirement matters was not taken at the behest of or on behalf of Respondent. As established by testimony of the now-retired police chief, Jack Garret, members of the police force were aware at the time that their contributions could be withdrawn from the City's retirement fund even though a member might be vested. Before the police force of the City of Live Oak was disbanded, Marvin Clayton, a representative of the Florida Department of Insurance, addressed the members of the force. Clayton recalls that at the February 9, 1990, meeting, he informed the officers of the force that persons who were vested in the City's plan could have their contributions refunded and thereby become eligible to buy past service with the FRS. Local police and fireman retirement funds were regulated by the Department of Insurance at that time. In 1998, Petitioner changed his mind. He contacted Respondent's representative in order to purchase additional retirement credit in FRS for his time with the City of Live Oak Police Department. By letters dated June 15, 1998, and again on October 15, 1998, he was informed by Respondent representatives that he was not eligible to purchase such service because of provisions of Sections 112.65(2) and 121.081(1)(I ), Florida Statutes. As established at the final hearing, Petitioner would have to assign any benefits of his annuity to FRS and pay required FRS contributions plus interest since 1990 in order to acquire FRS credit today for his time with the City of Live Oak Police Department.
The Issue The issue in this case is whether Petitioner should be granted an exemption from disqualification from employment with a private contractor providing adult day training to developmentally disabled clients of Respondent.
Findings Of Fact From April 2016 to October 2016, Petitioner Bertha Delaney ("Delaney") was employed by Cypress Place, Inc. ("Cypress"), a private, nonprofit corporation that provides services to developmentally disabled clients, and operates under the regulatory jurisdiction, of Respondent Agency for Persons with Disabilities ("APD"). Delaney was hired by Cypress as a receptionist, and her responsibilities included answering the phones, handling clerical tasks such as maintaining attendance sheets and filing, and assisting other employees as needed. Cypress operates an adult day training program, which offers "adult day training services" to APD clients. Such services include "training services that take place in a nonresidential setting, separate from the home or facility in which the client resides, and are intended to support the participation of clients in daily, meaningful, and valued routines of the community. Such training may be provided in work-like settings that do not meet the definition of supported employment." § 393.063(1), Fla. Stat. There is no persuasive evidence showing that, during her employment with Cypress, Delaney ever had face-to-face contact with a client while performing adult day training services. She was not, therefore, a "direct service provider" as that term is defined in section 393.063(13), Florida Statutes. Delaney did, however, have incidental, in-person interactions with clients, the evidence establishes, occasionally assisting clients in need of immediate help. Thus, although Delaney did not provide training services to clients, she provided some services in the broader sense of "helpful acts." In early August of 2016, an incident involving a client occurred at Cypress's facility, which the Department of Children and Families ("DCF") investigated. In the course of the investigation, the DCF investigator interviewed Delaney and learned that, because the subject client had appeared to be limping on the day in question, Delaney had helped the client walk from the bus to the building. At the time, Delaney had not yet undergone level 2 background screening because Cypress had not instructed her to do so. Rather, in or around April 2016, when she was hired, Cypress had required Delaney to go to the police department for a local criminal background check, which she did. Delaney, in fact, did everything that Cypress asked her to do with regard to background screening. Soon after (and perhaps because of) the DCF investigation, Cypress directed Delaney to submit to a level 2 background review, which she did.1/ And so it happened that in late August 2016, a search of Delaney's criminal history was performed, and the results were forwarded to DCF, which administers the background screening process for APD. By letter dated October 3, 2016, DCF notified Delaney that it had discovered her criminal conviction on a charge of grand theft of the third degree, to which she had pleaded no contest on June 13, 2001. This crime is a "disqualifying offense" under the applicable screening standards, which means that Delaney is ineligible to work as a direct service provider without an exemption from such disqualification. DCF advised Delaney that she needed to quit her job at Cypress and obtain an exemption from disqualification if she wanted to resume working there. Delaney promptly resigned her position with Cypress. Delaney then sought an exemption from disqualification from employment, submitting her Request for Exemption to DCF in November 2016. By letter dated March 17, 2017, APD informed Delaney that it intended to deny her request based solely on the ground that Delaney had "not submitted clear and convincing evidence of [her] rehabilitation." In other words, APD determined as a matter of ultimate fact that Delaney was not rehabilitated, which meant (as a matter of law) that the head of the agency had no discretion to grant an exemption.2/ APD did not, as an alternative basis for its proposed agency action, articulate any rationale for denying the exemption notwithstanding a showing of rehabilitation, assuming arguendo that such had been made. Delaney initiated the instant proceeding, hoping to prove her rehabilitation. The undersigned has considered the evidence as it relates to the statutory criteria for assessing rehabilitation, and makes the following findings of fact as a predicate for the ultimate determination. The Circumstances Surrounding the Criminal Incident. In or around September of 2000, Delaney stole cash receipts from her employer, Blockbuster Video, totaling approximately $13,800.00. She was soon arrested and charged with grand theft of the third degree, a felony offense as defined in section 812.014, Florida Statutes. At the time of the offense, Delaney, then 25 years old, was experiencing financial difficulties raising two young daughters. Although married, Delaney managed the household mostly on her own, as her husband, an interstate truck driver, was often on the road. Exercising what she now acknowledges was poor judgment, Delaney stole her employer's funds to ease her personal financial burden. On June 13, 2001, appearing before the Circuit Court in and for the Eleventh Judicial Circuit of Florida, Delaney entered a plea of nolo contendere to the criminal charge, was convicted by plea (adjudication withheld), and was sentenced to two years' probation with orders to make restitution in the amount of $13,778.00 to Blockbuster. Delaney completed her term of probation and complied with all of the other conditions imposed by the court, including the payment of restitution. The Time Period That Has Elapsed since the Incident. The disqualifying offense was committed about 17 years ago. Delaney thus has had ample time to restore her reputation and usefulness to society as a law abiding citizen following her conviction, and to mature into an older, more responsible adult. The Nature of the Harm Caused to the Victim. Delaney did not cause personal injury to any person in the commission of her crime. She was ordered to make restitution to the victim, and did, although the details of this transaction are not available in the record. Therefore, the economic harm caused by Delaney's theft appears to have been minimal. The History of the Applicant since the Incident. Since her conviction, Delaney has completed a training program to become a patient care technician and obtained a license to practice in Florida as a certified nursing assistant. She has held positions in these fields and performed admirably. Delaney lives with her two adult daughters, son-in-law, grandson, and fiancé; her current family situation is stable, both emotionally and financially. Her civil rights have been restored. She has not reoffended or otherwise run afoul of the law. APD severely faults Delaney for a so-called nondisclosure in her response to a question on the exemption request form concerning previous employment. The form asks the applicant to "provide your employment history for the last three years." Delaney answered, in relevant part, by stating: "I have not been employed for the last three (3) years." She followed this statement by describing employment predating "the last three (3) years" and explaining that an ankle injury in May 2013 (which required multiple surgeries to repair), together with the attendant convalescence and rehabilitation, had kept her out of the workforce for a couple of years. APD argues that Delaney lied about her employment history——it is undisputed that she had, in fact, worked (for Cypress) during the three years preceding her request for an exemption——and that this alleged "lie" proves Delaney had known not only that she was required to undergo level 2 background screening before taking the job with Cypress, but also that such screening would reveal her disqualifying criminal conviction, and that, therefore, to avoid detection, she had worked without being screened, in knowing violation of law. Put aside for the moment the issue of fact regarding whether Delaney "lied" about her employment history. APD's argument (that this "lie" is proof of Delaney's knowing violation of the background screening law) is illogical. For even if (as a matter of fact3/) Delany were required to be screened, and even if (as a matter of law4/) the background screening statutes were personally violable by an applicant or employee, Delaney's allegedly fraudulent answer to the employment history question does not rationally lead to the conclusion that she knew either of these premises to be true. Moreover, as discussed in endnote 1, it is unacceptable for an agency to rely upon an applicant's alleged violation of a regulatory statute as grounds to deny an exemption request where such alleged violation has never been proved in an enforcement proceeding. This is because any person charged with committing a disciplinable offense must be served with an administrative complaint and afforded clear notice of the right to a hearing, at which, if timely requested, the agency must prove the alleged wrongdoing by clear and convincing evidence. APD wants to skip all that and just have the undersigned find here, for the first time, that Delaney clearly violated section 393.0655 by working at Cypress for at least six months without being screened. See Resp.'s PRO at 9. That's not happening. The only relevant finding in this regard, which the undersigned makes, is that Delaney has never been found to have violated section 393.0655 by working at Cypress for at least six months without being screened. As for the alleged "lie," APD's position that Delaney's response to the employment history question was knowingly and intentionally false (by omitting reference to Cypress) does not make sense, because DCF already knew (from investigating an unrelated matter) that Delaney had worked for Cypress, and Delaney knew that DCF was aware of this fact when she filled out the form. That cat was out of the bag. At hearing, Delaney testified credibly and convincingly that she had not intended to mislead DCF. It is clear that she interpreted the question as asking about her employment during the three years before the job from which she had been disqualified (as opposed to the three years before completing the exemption request form). She misunderstood the question, to be sure, but it was an honest mistake, and the undersigned can appreciate how a person in Delaney's shoes could conclude that the job from which one has recently been disqualified does not "count" towards her employment history for purposes of seeking an exemption from disqualification. Delaney's testimony in this regard is corroborated by the fact that she submitted to DCF, as part of her exemption request package, two letters of recommendation from employees of Cypress, written on Cypress letterhead, attesting to her good character. These letters, taken together, make it clear that Delaney had recently been an employee of Cypress. Obviously, if Delaney had intended, knowingly, to deceive DCF by concealing her employment with Cypress, she would not have provided these letters. APD argues that one of these letters, from Rashard Williams, which is dated October 27, 2016, does not specifically indicate that Delaney ever worked at Cypress——and thus does not bolster Delaney's testimony that she never intended to conceal the fact that she had. To reach this conclusion one must discount the writer's statement that "Ms. Delaney has proven herself to be reliable, trustworthy, and compassionate both as a person and as an employee." If the Williams letter were the only written recommendation from a Cypress employee, however, the undersigned would consider APD's interpretation to be, while certainly not the best or most reasonable, at least plausible in view of Mr. Williams's additional comments about how well Delaney took care of his grandmother in a capacity, apparently, other than as an employee of Cypress. But the companion to the Williams letter, a recommendation from Mark Chmiel dated October 24, 2016, leaves no room for doubt that Delaney was a recent employee of Cypress. A short, two-sentence excerpt suffices to support this finding: "Bertha is an invaluable addition to our agency [i.e., Cypress,] and she has fulfilled the potential of her position far better than anyone before her. Her moral character is beyond reproach and I have no qualms about trusting her with our clients."5/ The letters of recommendation that Delaney furnished DCF refute the notion that she knowingly omitted Cypress from her employment history with the intent to mislead DCF. They prove, instead, that Delaney took for granted DCF's knowledge of her work for Cypress, for she was certain DCF already knew about it. In turn, that foundational assumption (which, in fact, was true) prompted Delaney to provide a history of her employment during the several years leading up to the job with Cypress. The undersigned finds that Delaney is not guilty of knowingly withholding material information from DCF in response to the question about her previous employment. Finally, the undersigned observes that APD, in its preliminary decision-making, impermissibly allowed speculation and conjecture to take the place of facts. In forming its intent to deny Delaney's application, APD took into account the "possibility that Ms. Delaney was trying to protect Cypress Place from demonstrating that they were in violation of the screening laws" as well as the "possibility that Rashard Williams might have tried to hide the fact [sic6/] that there was a violation of the screening requirements by Cypress Place." Resp.'s PRO at 10 (emphasis added). On the basis of this rank speculation, APD conjectured that "Ms. Delaney was willing to collude with [Cypress employees] in order not to spotlight their violation of the licensing law." Resp.'s PRO at 18. APD proved none of this imaginative guesswork. Circumstances Showing Applicant Poses No Danger. Yvonne Ginsberg, the executive director of Cypress, testified in support of Delaney's application. Ms. Ginsberg stated that Delaney was an "excellent" employee and affirmed that she had "no qualms" about Delaney's returning to work at Cypress once an exemption has been secured. The undersigned credits Ms. Ginsberg's testimony as to Delaney's character. In addition, Delaney submitted the written character references of Messrs. Chmiel and Williams, which were discussed above. These documents credibly attest to Delaney's trustworthiness, integrity, and ethical behavior. The undersigned finds without hesitation that Delaney would likely not present a danger in the future if an exemption from disqualification were granted. Ultimate Factual Determination The undersigned has determined, based on clear and convincing evidence, including sufficient persuasive evidence of rehabilitation, that Delaney should not be disqualified from employment because she is, in fact, rehabilitated.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Persons with Disabilities enter a final order granting Bertha Delaney the exemption from disqualification for which she is, in fact, eligible. DONE AND ENTERED this 18th day of August, 2017, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 18th day of August, 2017.
The Issue The issues to be resolved in this proceeding concern whether the Respondent is guilty of a violation known as a "Class II violation" or "deficiency" and, if so, whether a $2,500.00 fine and conditional licensure status should be imposed upon the Respondent facility.
Findings Of Fact The Agency for Health Care Administration (AHCA or Agency) is the regulatory agency charged with licensure and enforcement of all applicable statutes and rules governing skilled nursing facilities and the appropriate provision of nursing and other elements of care in such facilities in Florida. The Respondent Haven of Our Lady of Peace, Inc., (Haven) owns and operates a skilled nursing facility, which is a 120 bed facility located in Pensacola, Florida. On July 20, 2004, a survey was conducted by AHCA of the Haven facility. One Agency representative was on the premises on July 20, 2004, to investigate a complaint received by the Agency. When the survey was made the facility was operating under a standard license (Number SNF11970951) issued by the Agency, with an effective date of July 1, 2004 through June 30, 2005. Haven was cited for a Class II deficiency and issued Notice of a Conditional License and a $2,500.00 fine as a result of the survey. It chose to contest this initial Agency action by availing itself of the right to a formal proceeding pursuant to Section 120.57(1), Florida Statutes. The basis of the charged Class II deficiency was an incident involving Resident 3, in which she fell from a seated position in a wheelchair, injuring her head. At the time of the incident an order had been written by the treating physician assigned to Resident 3, which read as follows: D/C lap buddy. D/C lateral supports. Velcro torso support while in w/c [wheelchair]. Release Q2 for toileting, exercise, repositioning. As a result of the survey, the Agency provided Haven with a "Statement of Deficiencies" stating upon what basis the purported Class II deficiency was believed to exist. Resident 3 experienced a fall when she turned over her wheelchair in July 2003 by leaning to far to the right. Haven, in response to this experience, tried several approaches to help Resident 3 when she was in the wheelchair. Lateral supports and "lap buddy" were the first two interventions. The lap buddy caused the resident aggravation and therefore was discontinued and the torso support device was implemented. The torso support was not a restraint, but rather was applied to assist Resident 3 in maintaining good position while in her wheelchair. While Resident 3 had fallen on several occasions, she had never fallen or leaned forward prior to the subject falling incident. If Resident 3 had previously leaned forward, then other devices, such as wedge cushions, would have been used rather than the torso support. The torso support is not a good device to use if a resident falls forward. The torso support was not intended to directly prevent falls. On July 17, 2004, Kathy Anderson, a Certified Nursing Assistant (CNA), was preparing Resident 3 for bed. Ms. Anderson took Resident 3 from the living room, at which Resident 3 had a torso support on, in her wheelchair to the bathroom in Resident 3's room. The torso support was taken off so that the resident could use the bathroom. Ms. Anderson, as she had done on many occasions while caring for Resident 3, then placed her in a good position in the wheelchair, without applying the torso support and pushed her several feet into the bedroom and placed the wheelchair perpendicular to her bed, with the wall at the right side of the wheelchair (to prevent the feared fall to the right based upon a past tendency of the resident to lean to the right). Ms. Anderson had leaned Resident 3 back in the wheelchair prior to moving her from the bathroom. During the many times Ms. Anderson had cared for Resident 3 she had never leaned forward in her wheelchair. Ms. Anderson determined, while in the bathroom, that the resident's diaper was wet and a dry diaper was needed. The diapers were located in a closet just outside the bathroom. Ms. Anderson, standing at the back of the wheelchair, when it was positioned as described above in the resident's room, was able to reach into the closet and obtain a diaper without losing sight of the resident. It was not necessary for Ms. Anderson to walk to the closet, as the distance was close enough for her to reach the diaper without other movement. As she had done in the past, Ms. Anderson had instructed the resident that she was getting a diaper. The resident was still sitting in the wheelchair when Ms. Anderson had the diaper in hand. The resident then suddenly leaned forward and fell from the wheelchair and struck her head on the bottom of the bed. Ms. Anderson tried to catch the resident when she saw her falling, but was unsuccessful. Ms. Anderson then called a nurse, Joyce Parks, and Resident 3 was placed in her bed. Dr. Holmes' order (and his testimony) provided that the supports should be released at least every two hours. The torso support is not worn when the resident is in bed. The torso support must be removed to change the resident's clothes. There was no reason for the torso support to be re- applied after the resident used the bathroom. Ms. Anderson provided appropriate supervision of Resident 3 and her actions did not violate Dr. Holmes's order. The fall that occurred on July 17, 2004, was unforeseeable as the resident had never leaned forward before, but had always leaned to the right after she had been sitting for a long time and grew tired. Further, the resident had been placed in the bed after using the bathroom by Ms. Anderson using the same procedure during the two months that Ms. Anderson had cared for the resident. Resident 3 was in the nursing home for about two years. Dr. Holmes advocated that the residents be restrained as little as possible. According to Dr. Holmes, Resident 3 was a "delightful lady" and the applying of a restraint would have negatively impacted her quality of life. The relevant regulation applicable to nursing facilities requires that anything that restricts a resident be classified as a restraint; therefore, Haven was required to list the torso support as a restraint. In actuality, the torso support was not and did not function as a restraint. A torso support is applied to position the resident more straight and in a better position in a wheelchair. A torso support allows a resident to sit more straight for a longer period of time, to be more comfortable and thereby enjoy a better quality of life. It was reasonable for Ms. Anderson to be standing behind the wheelchair when she wheeled Resident 3 out of the bathroom and into the bedroom. The resident's ability to reach her highest practicable mental, physical and psycho-social well- being was not compromised by the Haven staff in this instance. Resident 3 received adequate supervision and assistance devices on July 17, 2004, when this incident occurred.
Recommendation Based on the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED that a final order be entered by the Agency for Health Care Administration, dismissing the Amended Administrative Complaint in its entirety; that no fine be assessed, and that the Respondent be granted a standard license for the period of time in question. DONE AND ENTERED this 24th day of June, 2005, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF 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 24th day of June, 2005. COPIES FURNISHED: Janis L. Rosenthal, Esquire Agency for Health Care Administration Fort Knox Building III, Mail Station No. 3 2727 Mahan Drive, Building 3 Tallahassee, Florida 32308 Karen Goldsmith, Esquire Jonathon Grout, Esquire Goldsmith, Grout & Lewis, P.A. 2180 Park Avenue North, Suite 100 Post Office Box 2011 Winter Park, Florida 32790-2011 Richard Shoop, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Station 3 Tallahassee, Florida 32308 William Roberts, Acting General Counsel Agency for Health Care Administration Fort Knox Building, Suite 3431 2727 Mahan Drive Tallahassee, Florida 32308
Conclusions Background These consolidated cases involve applications by Secret Oaks Owners' Association (Secret Oaks) for a regulatory wetland resource management (dredge and fill) permit (OGC Case No. 95- 1341; DOAH Case no. 98-5290) and a proprietary consent of use for sovereign submerged lands (OGC Case No. 98-2669; DOAH Case No. 98-5190) for the construction of a dock on the St. Johns River, a Class III waterbody, in the Secret Oaks subdivision located on Fruit Cove Road and Secret Oaks Place in St. Johns County, near Jacksonville, Florida. The total square footage of the proposed dock over waters of the state is 3,234 square feet. The proposed dock would have an access pier 5 feet by 520 feet, a terminal platform 10 feet by 16 feet, a covered boat slip 16 feet by 28 feet waterward from the terminal platform, and a catwalk 3 feet by 26 feet at the boat slip. There is an existing dock on Lot 10 in Secret Oaks subdivision owned by Martin and Linda Parlato (the Parlatos). Secret Oaks has an easement along a 20 foot wide strip along one side of the Parlatos' lot to the waterfront. At one time there was an "ancillary dock" connecting the easement, over the water, to the existing dock on the Parlatos' lot. The ancillary dock was removed by the Parlatos and Secret Oaks has no easement to cross Parlatos' lot between the 20 foot easement and the location of the existing dock. The proposed dock would be constructed at the end of the 20 foot wide easement. Secret Oaks' applications for the permit and consent of use are being opposed by the Parlatos who own and reside at Lot 10. The decision to grant a consent of use is also being opposed by Patricia Ward (Ward) who lives at 912 Fruit Cove Road, Florida, immediately adjacent to and south of the Parlatos' property. A hearing on the consolidated cases was held on May 10 and 11, and July 21, 1999, before an administrative law judge (ALJ) with the Division of Administrative Hearings (DOAH). On January 27, 2000, the ALJ submitted his Recommended Order (RO) to the Department of Environmental Protection (Department). The ALJ concluded that the application for the dock satisfied all of the requirements for the regulatory permit, but concluded that the application for the dock did not comply with the proprietary requirement of rule 18-21.004(3) that the dock not interfere with the riparian rights of the adjacent upland owners. The ALJ believed that the concurrent review provisions of section 373.427 and rules 18-21.00401 and 62-343.075 applied to both the applications for the regulatory permit and the proprietary consent of use. Because the concurrent review statutes and rules provide that a regulatory wetland resource management permit may not be issued unless the applicant also meets all the requirements for any required proprietary approval, the ALJ recommended that both the regulatory permit and the proprietary consent of use be denied. A copy of the Recommended Order is attached as Exhibit A. On February 8, 2000, Secret Oaks filed a motion requesting entry of an order extending the time to file exceptions to the Recommended Order to and including February 24, 2000. In support of its motion, Secret Oaks' counsel of record stated that he had not received a copy of the Recommended Order, and that DOAH agreed to mail him a copy on February 9, 2000. On February 9, 2000, Secret Oaks filed a supplemental motion consenting to a corresponding extension of time (i.e., an extension of 15 days) for the Department to enter this final order. On February 10, 2000, the Department's counsel for the hearing below filed a response of no objection to the requested extension of time, and further requested that all parties be granted an extension of time to file exceptions to the Recommended Order to and including February 24, 2000. On February 10, 2000, I entered an order granting the request for extension of time for all parties to file exceptions to the Recommended Order to and including February 24, 2000, and granting a corresponding 15 day extension of time for the entry of this final order. Exceptions to the Recommended Order were filed by Secret Oaks, the Parlatos, and the Department. Patricia Ward did not file exceptions. The Department filed a response to the exceptions of Secret Oaks. No other responses to exceptions were filed. The matter is now before me as the Secretary of the Department for final agency action. Under chapter 373 of the Florida Statutes and chapter 62- 312 of the Florida Administrative Code, I have jurisdiction to enter this final order on the wetland resource management permit. Under rule 18-21.0051 of the Florida Administrative Code, I have delegated jurisdiction to enter this final order on the proprietary consent of use to use sovereign submerged lands. As a preliminary matter, I note that when an ALJ's findings of fact are supported in the record by competent substantial evidence I am bound by those findings and may neither reject them nor reweigh the evidence. See Dunham v. Highlands County School Board, 652 So.2d 894 (Fla. 2d DCA 1995); pietz v. Florida Unemployment Appeals Commission, 634 So.2d 272 (Fla. 4th DCA 1994); Florida Department of Corrections v. Bradley, 510 So.2d 1122 (Fla. 1st DCA 1987); Heifetz v. Department of Business Regulation, 475 So.2d 1277, 1281 (Fla. 1st DCA 1985); Sec. 120.57(1)(1), Fla. Stat. (1999). Nor may I rejudge the credibility of testimony. See Brown v. Criminal Justice Standards and Training Commission, 667 So 2d 977 (Fla. 4th DCA 1996). However, in an area of law over which the Department has substantive jurisdiction, as long as I state with particularity the reasons for rejecting an ALJ's conclusion of law and find that my substituted conclusion is as reasonable, or more reasonable, I am not bound by the ALJ's conclusions of law. Sec. 120.57(1)(1), Fla. Stat. (1999). See also, Harloff v. Citv of Sarasota, 575 So.2d 1324, 1328 (Fla. 2d DCA 1991), review denied, 583 So.2d 1035 (Fla. 1991). For the reasons discussed in detail below, I concur in and accept the ALJ's recommendation that the consent of use be denied. However, I disagree with and reject the ALJ's recommendation that the wetland resource management permit also be denied. The ALJ's recommendation that the wetland resource management permit be denied was based on the erroneous finding of fact and conclusions of law that the concurrent review provisions of section 373.427 of the Florida Statutes and rules 18-21.00401 and 62343.075 of the Florida Administrative Code applied to these applications (FOF No. 2; COL Nos. 62, 71, 77, and 87). In the proceeding below, the ALJ took official recognition of rules 18-21.00401 and 62-343.075 (RO at 5). The official history notes published in the Florida Administrative Code show that these concurrent review rules did not take effect until October 12, 1995. The applications for the regulatory permit and the proprietary consent of use were received on November 28, 1994, (FOF No. 12, RO at 9), and the Department's intent to issue the wetland resource management permit was noticed on June 7, 1995 (FOF No. 22, RO at 13). Thus, the concurrent review rules took effect after the Department's decision on the intent to issue. With respect to whether the concurrent review rules apply to this case, the issue presented is whether a rule that takes effect after an application is complete--and after the agency's decision to grant or deny the application is made within the 90- day timeframe allowed for final agency action on the application under section 120.60 -- may be applied to the application in a subsequent administrative hearing on the application. Because the application of the concurrent review rules would add criteria for the issuance of the wetland resource management permit, application of the concurrent review rules would be a substantive increase in the requirements for obtaining a wetland resource management permit. The case law on this issue presents an uncertain guide. In Lavernia v. Department of Professional Regulation, 616 So.2d 53 (Fla. 1st DCA 1993), after an application for a medical license was filed--but before the Board of Medicine noticed its intent to deny the license--the applicable licensing statute was amended. The court held that the amended statute applied to the pending application. Lavernia, is not directly on point because in the applications at issue here the concurrent rule took effect after the Department had noticed its final agency action within the 90- day permitting timeframe allowed by section 120.60. Closer to the situation at hand is the case in Central Florida Regional Hospital v. Department of Health and Rehabilitative Services, 582 So.2d 1193 (Fla. 5th DCA 1991). In Central Florida Regional Hospital, after the agency had made a final decision on the application within the timeframe allowed by section 120.60--but before an administrative hearing on the application--an applicable rule was invalidated. Despite the fact that the rule had been invalidated, the court held that the rule should still be applied to the application. In other words, the law as it existed at the time of the decision within the 90-day permitting timeframe of section 120.60 applied. In contrast to Central Florida Regional Hospital, in Agency for Health Care Administration v. Mount Sinai Medical Center of Greater Miami, 690 So.2d 689 (Fla. 1st DCA 1997), the court held that an agency rule invalidated after an application was complete, but before a final decision on the application was made, cannot be applied to the application in a subsequent administrative hearing. In other words, the new law must be applied in the subsequent administrative hearing.1 In both Lavernia and Mount Sinai Medical Center the court recognized an exception when the application of the new law would be unfair. In the case now before me, the application was filed, complete, and the final decision of the agency to grant the regulatory wetland resource management permit was made before the concurrent review rules took effect. This case does not involve the application of a rule that was subsequently invalidated. The issue of whether an invalid rule should be given effect raises its own unique policy issues. Therefore, the holdings in Mount Sinai Medical Center and Central Florida Regional Hospital are not directly applicable. I am guided by the fact in both Lavernia and Mount Sinai Medical Center the court recognized an exception when the application of the new law would be unfair. I note that even though this administrative proceeding is a de novo determination of the final agency action,2 it would be fundamentally unfair to the applicant to change the substantive rules of the game to "raise the bar" after an application is complete, and even more so after a final agency decision on the application is made within the 90-day timeframe allowed by section 120.60. Therefore, I conclude that the concurrent review rules do not apply to this case. In view of all of the above, I find and conclude that the ALJ's conclusion that the concurrent review provisions apply to these applications is contrary to the ALJ's own findings, is not supported in the record by competent substantial evidence, and is erroneous as a matter of law. Based on my review of the applicable case law, on the findings that the application was filed on November 28, 1994, and on the fact that the Department's intent to issue was noticed on June 7, 1995, and based on the official history notes of rules 18-21.00401 and 62-343.075 showing an effective date of October 12, 1995, I find that my substituted conclusion that the concurrent review rules do not apply is as reasonable, or more reasonable, as the rejected conclusion of law. Therefore, I reject the ALJ's finding and conclusions of law that the concurrent review provisions of section 373.427 of the Florida Statutes and rules 18-21.00401 and 62-343.075 of the Florida Administrative Code apply to these applications. Accordingly, I must reject the recommendation that the wetland resource management permit be denied. Although the law as interpreted by this order requires that the regulatory permit be issued even though the proprietary consent of use is denied, I do note that the issuance of the permit will be of little avail to Secret Oaks because it cannot build the dock without the consent of use, which is denied by this order. Rulings on the Exceptions of the Parlatos Parlatos' Exceptions Regarding the Wetland Resource Management Permit The Parlatos filed two exceptions concerning the wetland resource management permit. Parlatos' first exception disputes the ALJ's Finding of Fact No. 5 that before the Parlatos purchased Lot 10, the developer of Secret Oaks had recorded a Declaration, Grant of Easements, Assessments [sic] for the Secret Oaks subdivision. The Parlatos assert that the Declaration was recorded on April 10, 1991 [sic], and that the Parlatos purchased the lot on an earlier date. The Parlatos do not cite to the record in support of their contention that they purchased the lot before the Declaration was recorded. Parlatos' Exhibit No. 6 was admitted into evidence and is a partial summary judgment in Secret Oaks Owners Association v. Parlato, Case No. CA 92-692, Seventh Judicial Circuit (December 29, 1992) (attached as an exhibit to the Recommended Order). Paragraph 3 of the partial summary judgment states that the Declaration was recorded on April 10, 1990.3 Paragraphs 7 and 8 of the partial summary judgment state that the Parlatos were fully aware of the other lot owners' right [under the declaration] to use the [existing] dock before they purchased Lot 10. Also attached as an exhibit to the Recommended Order is a declaratory judgment in the same case, Secret Oaks Owners Association v. Parlato, Case No. CA 92-692, Seventh Judicial Circuit (March 31, 1994). That order states the developer of Secret Oaks signed and delivered a warranty deed for Lot 10 to the Parlatos on March 13, 1991. The order further states that the deed to the Parlatos was recorded on April 13, 1991. Accordingly, the record contains competent substantial evidence in support of Finding of Fact No. 5. Therefore, this exception is denied. Parlatos second exception disputes the conclusion of law in paragraph 56 of the Recommended Order that Secret Oaks has provided reasonable assurance that the project is not contrary to the public interest "as required by section 373.414" of the Florida Statutes. The Parlatos contend that Secret Oaks has not provided reasonable assurance that the dock will not be used for mooring an excessive number of boats, and therefore that reasonable assurance has not been provided that there will not be unacceptable impacts to grassbeds, manatees, and other environmental resources in the area. The Parlatos contend that the railing along the dock will not prevent such excessive use and consequent harm to the resources. The Parlatos do not take exception to the ALJ's Findings of Fact Nos. 17-20 and 25-31 wherein the ALJ found that there would be no adverse impact to manatees; no adverse impact to seagrass beds, that handrails would discourage boaters from mooring in those places where handrails were placed; that the pier would be elevated to five feet above mean high water to discourage excessive mooring of boats; that there would be no long-term adverse impacts to water quality; that short-term turbidity impacts would be mitigated; that there would be minimal impacts on biological diversity; that there would be no adverse effect on public health, safety, or welfare; that the project will not have an adverse effect on the property of others; and that there would be no adverse impact on navigation. Although, as noted above, I am not bound by the ALJ's conclusions of law, in view of the above findings, to which the Parlatos take no exception, I find the ALJ's conclusion of law that Secret Oaks has provided reasonable assurance that the project is not contrary to the public interest is reasonable. Accordingly, I will not disturb that conclusion of law. The exception is denied. Parlatos' Exceptions Regarding the Consent of Use The Parlatos filed four exceptions concerning the consent of use. Parlatos' first exception disputes the ALJ's conclusion of law in paragraph 66 that, for the purpose of deciding whether Secret Oaks should be granted a consent of use to build a dock from its easement, Secret Oaks should be assumed to have no proprietary right to use the existing dock on Parlatos' Lot No. 10. The Parlatos contend that because Secret Oaks asserted that it has a right to use the existing dock on Lot 10 in a petition for an administrative hearing in another case,4 it should be assumed that Secret Oaks has such a right for the purpose of determining whether the present application for another dock is "no more than the minimum length and size necessary to provide reasonable access to navigable water" as required to qualify for a consent of use under rule 18-21.005(1)(a) 1. Even if there was merit in Parlatos' assertion -- which I need not decide -- it is contrary to Finding of Fact No. 15 to which the Parlatos take no exception and must therefore be bound. See, e.g, Couch v. Commission on Ethics, 617 So.2d 1119, 1124 (Fla. 5th DCA 1993); Florida Dept. of Corrections v. Bradley, 510 So.2d 1122, 1124 (Fla. 1st DCA 1987). I do note that the partial summary judgment and the declaratory judgment in Secret Oaks Owners Association v. Parli to (Case No. CA 92-692, Seventh Judicial Circuit) noted above, held that Secret Oaks has an easement right along a 20 foot wide strip perpendicular to the shore line where it once connected to a now removed "ancillary" dock structure that provided access to the Parlato dock. The court also held that Secret Oaks has an easement right to be on the Parlato dock, but that Secret Oaks has no easement right to cross Lot 10 from the 20 foot easement strip to the location of the existing dock. Because of the gap that now exists between the 20 foot easement strip and the location of the existing Parlato dock, and because the declaratory judgment held that members of Secret Oaks have no right to cross Lot 10 to get to the Parlato dock, I cannot agree that the existence of the Parlato dock should be considered in determining whether Secret Oaks proposed dock is "no more than the minimum length and size necessary to provide reasonable access to navigable water." Accordingly, the exception is denied. Parlatos' second exception disputes the ALJ's conclusion of law in paragraph 80 that the dock proposed by Secret Oaks is eligible for a consent of use. The Parlatos contend that When state submerged lands would be preempted by a proposed dock, it cannot be authorized by consent of use [sic]. Under the existing policy of DEP, a dock that preempts an area of state waters can only be authorized under a submerged lands lease. This contention has no merit. Rules 18-21.005(1)(a)1. and 2 of the Florida Administrative Code expressly authorize consents of use for docks under certain conditions, and all docks preempt some sovereign submerged lands. Rule 18-21.003(38) defines "preempted area" as follows: "Preempted area" means the area of sovereignty lands from which the traditional public uses have been or would be excluded to any extent by an activity. The area may include, but is not limited to, the sovereignty lands occupied by the docks and other structures, the area between the docks and out to any mooring pilings, and the area between the docks and the shoreline. If the activity is required to be moved waterward to avoid dredging or disturbance of nearshore habitat, a reasonable portion of the nearshore area that is not impacted by dredging or structures shall not be included in the preempted area. Fla. Admin. Code R. 18-21.003(38) (1999) (emphasis added). Clearly, all docks have a preempted area associated with them, and a consent of use is expressly authorized for some docks under rules 18-21.005(1)(a)1 and 2.5 Accordingly, the exception is denied. Parlatos' third exception disputes the ALJ's conclusion of law in paragraph 81 that the project is not contrary to the public interest under chapter 18-21 of the Florida Administrative Code. The Parlatos contend that Secret Oaks has insufficient financial resources to be financially responsible for the dock, and that should make granting the consent of use contrary to the public interest. Except for special event leases under rule 18- 21.0082, which is not applicable to this case, there is no provision in chapter 18-21 for consideration of financial responsibility in determining whether a consent of use or other proprietary authorization should be granted. Accordingly, this exception is denied. Parlatos' fourth exception disputes the ALJ's conclusion of law in paragraph 84 that the project will not result in significant adverse impacts to sovereign submerged lands. The Parlatos contend that this conclusion is erroneous because of the likelihood of improper mooring along the dock. This exemption is rejected for the same reasons as stated for the second exemption in Part II. A above. Rulings on Exceptions of Secret Oaks Secret Oaks filed six exceptions. Secret Oaks' first exception disputes the conclusion in paragraph 65 that "[o]nly the Parlatos have DEP permission to use that [the existing] dock." Secret Oaks correctly notes that a Department permit under chapter 62312 to construct a dock does not regulate who may use the dock -- it is merely an authorization to construct the dock. To the extent the ALJ's paragraph 65 states otherwise, the exception is granted. The granting of this exception does not alter the outcome of this proceeding. Secret Oaks' second exception disputes the statement in paragraph 66 that "it is not assumed that the Association has any proprietary rights in the dock already in place at Lot 10." Secret Oaks argues that the Department lacks jurisdiction to determine ownership interests in either riparian areas or docks. It is clear from paragraph 56 of the Recommended Order that the ALJ was not implying that the Department had jurisdiction to adjudicate ownership rights in property. As discussed in the response to the exceptions of the Parlatos, Part II.B above, the ALJ's comment relates to whether the proposed dock is "no more than the minimum length and size necessary to provide reasonable access to navigable water" for the purposes of rule 18- 21.005(1)(a)1. Accordingly, the exception is denied. Secret Oaks' third exception disputes the finding in paragraph 75 that the proposed dock would create a preempted area between the proposed dock and the existing dock on Lot 10. Although this statement is in the section of the Recommended Order designated conclusions of law, I agree that it is a finding of fact and should be treated as such. See J. J. Taylor Co. v. Department of Business and Professional Regulation, 724 So.2d 192 (Fla. 1st DCA 1999) (a statement that is a finding of fact must be treated as such regardless of whether it is characterized as a conclusion of law by the ALJ); accord Battaglia Properties v. Land and Water Adj. Commission, 629 So.2d 161, 168 (Fla. 5th DCA 1994). Secret Oaks claims that there is no preempted area between the docks because the proposed dock is limited to one slip, and because members of Secret Oaks have the right to use the existing dock on Lot 10. Secret Oaks misconstrues the meaning and purpose of the preempted area rule provision. The purpose of the preempted area provision is to take into consideration that the general public, for which the sovereign submerged lands are held in public trust, will either lose or suffer a reduction in ability to access the preempted area of sovereign submerged lands. Therefore, it is not determinative whether the docks have one slip or whether Secret Oaks has access rights to both docks. The issue is to what degree is the general public's use of the sovereign submerged lands impaired by the docks. Thus, as noted above, rule 18-21.003(38) defines preempted area as "Preempted area" means the area of sovereignty lands from which the traditional public uses have been or would be excluded to any extent by an activity. The area may include, but is not limited to, the sovereignty lands occupied by the docks and other structures, the area between the docks and out to any mooring pilings, and the area between the docks and the shoreline. If the activity is required to be moved waterward to avoid dredging or disturbance of nearshore habitat, a reasonable portion of the nearshore area that is not impacted by dredging or structures shall not be included in the preempted area. Fla. Admin. Code R. 18-21.003(38) (1999) (emphasis added). If the docks are close enough so that traditional use by the general public would be excluded to any extent, there will be a preempted area between the docks regardless of whether Secret Oaks has access rights to both docks. Accordingly, the exception is denied. Secret Oaks' fourth and fifth exceptions dispute all of paragraph 86 in the Recommended Order. Secret Oaks contends that the Department has no jurisdiction to determine property rights, and that because a court has determined that Secret Oaks has an easement across Lot 10 to the water, the Department cannot take into consideration the provision of rule 18-21.004(3)(c) that the proposed dock may "not restrict or otherwise infringe upon the riparian rights of adjacent upland riparian owners." I disagree. In Secret Oaks Owners' Association v. Department of Environmental Protection, 704 So.2d 702 (Fla. 5th DCA 1998), the court held that Secret Oaks, by virtue of its easement, had sufficient title interest under rule 18-21.004(3)(b) "for the purpose of seeking permission to construct a dock." Id., 704 So.2d at 703, 706. The court did not hold that when seeking permission to construct a dock Secret Oaks did not have to comply with the provisions of 18-21 concerning proprietary approval for the construction of a dock on sovereign submerged lands. As noted above, rule 18- 21.004(3)(c) requires the Department to consider whether a proposed structure will "restrict or otherwise infringe upon the riparian rights of adjacent upland riparian owners." I agree with the statement in paragraph 56 of the Recommended Order that this administrative proceeding cannot adjudicate real property disputes between Secret Oaks and the Parlatos. See Buckley v. Dept. of Health and Rehabilitative Services, 516 So.2d 1008, 1009 (Fla. 1st DCA 1988); Miller v. Dept. of Environmental Regulation, 504 So.2d 1325 (Fla. 1st DCA 1987); Hageman v. Carter, 17 F.A.L.R. 3684, 3690 (Fla. DEP 1995); Powell v. Alabama Electric Cooperative,15 F.A.L.R. 325, 326 (Fla. DER 1992). However, absent a controlling court adjudication regarding riparian rights lines and whether a proposed structure would interfere with those riparian rights, the Department is required under rule 18-21.004(3) to consider whether a proposed structure will restrict or otherwise infringe upon the riparian rights of adjacent upland riparian owners. Accordingly, I reject these exceptions. Secret Oaks sixth exception disputes the recommendation that the wetland resource management permit be denied. I accept this exception for the reasons stated in Parts I and II.A above, and reject the recommendation that the wetland resource management permit be denied. Rulings or' Exceptions of the Department The Department's first exception objects to Findings of Fact No. 2 and Conclusions of Law Nos. 62, 71, 77, 87, and 79 insofar as they relate to the ALJ's finding and conclusion that the concurrent review provisions of section 373.427 and rules 18- 21.00401 and 62-343.075 are applicable to these applications. For the reasons stated in Part I above, this exception is accepted, and the above findings and conclusions of law are modified accordingly. The Department's second exception takes issue with the statement in Conclusion of Law No. 79 that the Department is authorized under rule 18-21.0051 to consider Secret Oaks' request for a consent of use to use sovereign submerged lands. Department's counsel below notes that rule 18-21.0051 has an effective date of October 12, 1995. Section 253.002(2) of the Florida Statutes expressly notes that -- at the time of the enactment of this provision in 1994 -- the Board of Trustees of the Internal Improvement Trust Fund had certain uncodified delegations to the Department to take actions on requests for authorizations to use sovereign submerged lands. Section 253.002(2) directed that these delegations be codified by December 31, 1995. Rule 18-21.0051 codified these delegations and demonstrates that, prior to the adoption of rule 18-21.0051, the Department had delegated authority to act on this application for a consent of use. Furthermore, the delegation under rule 18-21.0051 is only procedural. Applying the rule to these applications does not affect the substantive rights of the applicant and is not unfair. Therefore, in this de novo administrative proceeding, the application of rule 18-21.0051 at the time of entry of this final order is both appropriate and authorized. See generally Lavernia v. Department of Professional Regulation, 616 So.2d 53 (Fla. 1st DCA 1993). The exception is therefore accepted in part and rejected in part. Conclusion The consent of use must be denied because the proposed dock would restrict or otherwise infringe on the riparian rights of adjacent upland riparian owners in contravention of rule 18- 21.004(3)(c). Because the application for the dock meets all the permitting criteria for a wetland resource management permit, and because the concurrent review provisions of section 373.427 and rules 18-21.00401 and 62-343.075 do not apply, the wetland resource permit must be issued. ACCORDINGLY IT IS ORDERED THAT: Except as otherwise stated in this final order, the Recommended Order is adopted and incorporated herein by reference. The application for a proprietary consent of use for sovereign submerged lands in OGC Case No. 98-2669; DOAH Case No. 98-5190, is DENIED. The regulatory wetland resource management (dredge and fill) permit as described in the intent to issue noticed on June 7, 1995, DEP File No. 552613202, in OGC Case No. 95-1341; DOAH Case No. 98-5290 is APPROVED, and the Department staff is directed to issue the permit forthwith. DONE AND ORDERED this 24th day of March 2000. DAVID B. STRUHS Secretary 3900 Commonwealth Boulevard Tallahassee, FL 32399-3000 Notice of Rights Any party to this proceeding has the right to seek judicial review of the Final Order pursuant to Section 120.68, Florida Statutes, by the filing of a Notice of Appeal pursuant to Rule 9.110, Florida Rules of Appellate Procedure, with the clerk of the Department in the Office of General Counsel, 3900 Commonwealth Boulevard, M.S. 35, Tallahassee, Florida 32399-3000; and by filing a copy of the Notice of Appeal accompanied by the applicable filing fees with the appropriate District Court of Appeal. The Notice of Appeal must be filed within 30 days from the date this Final Order is filed with the clerk of the Department.
Conclusions THE PARTIES resolved all disputed issues and executed a settlement agreement which is attached and incorporated by reference. The parties are directed to comply with the terms of the attached settlement agreement. Based on the foregoing, this file is CLOSED. DONE AND ORDERED on this the /7 day of 5.erf=l/lYlfJk , 2009 in Tallahassee, Florida. HollyBeson, Secretary Agency for Health Care Administration 1 Filed September 22, 2009 3:49 PM Division of Administrative Hearings. A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO A JUDICIAL REVIEW WHICH SHALL BE INSTITUTED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF AHCA, AND A SECOND COPY ALONG WITH FILING FEE AS PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE AGENCY MAINTAINS ITS HEADQUARTERS OR WHERE A PARTY RESIDES. REVIEW PROCEEDINGS SHALL BE CONDUCTED IN ACCORDANCE WITH THE FLORIDA APPELLATE RULES. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED. Copies Furnished to: Peter A. Lewis, Esquire Attorney for Petitioner 2931 Kerry Forest Parkway, Suite 202 Tallahassee, Florida 32309 (U.S. Mail) Brevin Brown, Senior Attorney Agency for Health Care Administration 2727 Mahan Drive, MS #3 Tallahassee, Florida 32308-5403 (Interoffice) Carlton D. Snipes, Deputy Secretary Agency for Health Care Administration 2727 Mahan Drive, MS #8 Tallahassee, Florida 32308 (Interoffice) Wesley Hagler, MPA Administrator Agency for Health Care Administration 2727 Mahan Drive, MS #21 Tallahassee, Florida 32308 (Interoffice) _t CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished to the above named addresses by U.S. Mail on this the of ke,209' 9' RICHARD SHOOP, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Stop #3 Tallahassee, Florida 32308-5403 (850) 922-5873 ' . STATE OF FLORIDA
Findings Of Fact Respondent is a dealer in agricultural products and is licensed by the Department of Agriculture and Consumer Services, under Sections 604.15-604.34, Florida Statutes. On or about April 29, 1987, Steve Brill, who is a project manager and landscape architect employed by Respondent, placed an order with Petitioner, on behalf of Respondent, for various trees. The order was never reduced to writing by Respondent. Respondent ordered six dogwoods, one 18-foot ilex, three 13-foot ilex, 14 laurel oaks, and two ligustrums. Sandra Couey, who took the telephone order for Petitioner, informed Mr. Brill that he could have a higher quality $350 ligustrum or a lower quality $200 ligustrum. He chose the cheaper tree. Mr. Brill requested 18-foot dogwoods, but Ms. Couey informed him that the largest she had was 12 feet. On May 14, 1987, Respondent's driver picked up the trees at Petitioner's nursery. Ms. Couey had removed the ilex from the shipment because these trees, which had been purchased by her from another nursery, were of poor quality. The driver left a check in the amount of $3003, which, by prior agreement of the parties, was not to be deposited for 30 days. Alberto Ribas, president of Respondent, had asked Ms. Couey on the prior day to hold the check until the customer paid Respondent. Immediately upon receiving the shipment, Mr. Brill and Mr. Ribas noticed that the dogwoods were 12 feet and that the quality of the ligustrums were, in Mr. Brill's words, "shaky." Petitioner and Respondent did not communicate again until June 3, 1988, when Ms. Couey telephoned Mr. Ribas to see if she could deposit the check one week early. During the June 3 conversation or shortly thereafter, Mr. Ribas first complained to Ms. Couey about the quality of the trees. He stopped payment on the check and advised Ms. Couey that he intended to procure replacement trees elsewhere, for which Petitioner would be liable, if she did not replace the trees within seven days. Respondent ordered and Petitioner delivered six dogwood trees for a total agreed-upon price of $720, 14 laurel oak trees for a total agreed-upon price of $840, and two ligustrum trees for a total agreed-upon price of $400, which, plus tax, comes to a total of $2058. To date, Respondent has paid nothing of this amount.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a Final Order be entered requiring Respondent to pay Petitioner the sum of $2058. DONE and RECOMMENDED this 30th day of September, 1988, in Tallahassee, Florida. ROBERT E. MEALE 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 30th day of September, 1988. APPENDIX Treatment Accorded Respondent's Proposed Findings 1-2. Adopted. 3. First sentence adopted. Second sentence rejected as irrelevant. The dogwoods met the requirements of the contract or agreement between Petitioner and Respondent, regardless whether they met the requirements of Respondent's job. 4-5. Adopted in substance. 6-7. Rejected as irrelevant and against the greater weight of the evidence. 8. Adopted in substance. COPIES FURNISHED: Sandy D. Couey, Owner Southern Trees, Inc. Route 1 Box 60-J High Springs, Florida 32643 Stuart H. Sobel, Esquire Sobel & Sobel, P.A. Penthouse 155 South Miami Avenue Miami, Florida 33130 United States Fidelity & Guaranty Company Post Office Box 14143 Tampa, Florida 33623 Clinton H. Coulter, Jr., Esquire Department of Agriculture Consumer Services Mayo Building Ben Pridgeon Bureau of License & Bond Mayo Building Tallahassee, Florida 32399 Robert Chastain General Counsel Department of Agriculture and Consumer Services Mayo Building, Room 513 Tallahassee, Florida 32399-0810 Honorable Doyle Conner Commissioner of Agriculture The Capitol Tallahassee, Florida 32399-0810
