The Issue The issue in this case is whether the Petitioner, the Department of Health and Rehabilitative Services (HRS), should fine the Respondent, William Loiacano, d/b/a Gulf Coast Food Distributors, Inc., for maintaining a sanitary nuisance.2/
Findings Of Fact In 1990,6/ the Respondent, William Loiacano, d/b/a Gulf Coast Food Distributors, Inc., purchased property at 8402 Lemon Road, Port Richey, Florida, for purposes of relocating his on-going food distributing business. The prior owner operated a carpet business, with approximately five employees, at the location. The Respondent had about 45-50 employees. Shortly after the Respondent started doing business at the new location, he began to have problems with the existing septic tank system. The problem seemed to relate to the increased use of the toilets in the building by the added number of the Respondent's employees. In September, 1990, an HRS environmental health specialist inspected the premises and observed evidence of raw sewage bubbling to the surface from the septic system's drain field and flowing into a stormwater retention pond on the property.7/ The Respondent was directed to abate the nuisance, and a discussion of the Respondent's alternatives ensued. The Respondent rejected the first proposed alternative of connecting to a central public sewer. The nearest connection was over 1000 feet away and would entail significant cost to the Respondent. (The cost would have been even higher if gravity flow was not possible, and it became necessary to pump to the connection point.) The Respondent chose, with HRS' permission, the next alternative of trying to solve the problem by installing a second septic tank system on the property. The second septic tank system for which the Respondent applied, and which he had built, was designed for domestic use by 15 employees. In addition, after installation of the second septic tank system, the Respondent began processing a relish pack and a salad mix on the premises. The processing method for these products required the use of a great deal of water. On or about February 7, 1991, another HRS environmental health specialist inspected the premises and again found evidence of raw sewage bubbling to the surface, this time from the new septic system's drain field, and flowing into the stormwater retention pond. The amount of water flowing into the drainfields, from a combination of the use of the toilets in the building, together with the new processing operations taking place in the building, had overtaxed the double septic tank system, and the system failed. Given the quantities of water needed to process the new products, the Respondent should have anticipated, and probably was aware of, the system failure. The Respondent was directed to fix the problem within a week or stop the processing the new products on the premises. The Respondent tried several water conservation methods in an attempt to address the problem without having to either stop processing the new products or incur the cost of connecting to the central public sewer system. He knew, or should have known, that his efforts were futile, given the quantities of water needed to process the relish pack and salad mix. HRS also referred the matter to the Florida Department of Environmental Regulation. DER inspected on or about February 18, 1991, and told the Respondent that he could not dispose of the industrial waste from the operation of his business in the on-premises septic system without an industrial waste disposal permit. In connection with this, DER apparently advised the Respondent that he would be required to test the water in the stormwater retention pond for certain contaminants. The Respondent was unable to understand what he needed to test for, and how, and sought assistance from DER and HRS. Although there is evidence that HRS tried to help the Respondent by referring him to certain individuals employed by the DER for answers, the Respondent did not follow HRS' guidance. In any case, the efforts would have been futile, as the Respondent did not have enough property to dispose of the industrial wastes from the operation of his business on-site using a septic tank system. On or about June 19, 1991, a neighbor complained to the Respondent about the smell of raw sewage coming from the Respondent's septic system. The Respondent did not receive his neighbor's observations kindly. The neighbor complained to HRS and the Pasco County Sheriff's office. An HRS inspection on June 20, 1991, confirmed the existence of a sanitary nuisance on the premises. Again, raw sewage was bubbling to the surface from the new septic system's drain field and was flowing into the stormwater retention pond. HRS arranged for another meeting with the Respondent on June 27, 1991. At the June 27, 1991, meeting, HRS required that the Respondent stop processing the relish pack and the salad mix until he could hook up to the central public sewer. It was felt that the septic tank systems might be adequate pending connection to the central public sewer if the quantities of water required for processing those products on the premises were eliminated and if other preventive measures were taken. From June 27, 1991, forward to the date of the hearing, the Respondent purchased relish pack and salad mix from other suppliers rather than process them on the premises at 8402 Lemon Road. In addition, the Respondent continued to attempt to conserve water, had the septic tanks pumped out as frequently as required (sometimes practically daily), and had his employees utilize portable toilets in an attempt to avoid additional septic tank failures. After learning that excessive water use at the premises was partially a result of plumbing leaks, the Respondent also had the plumbing fixed. The Respondent also immediately initiated the long process of connecting to the central public sewer. He had a meeting with the assistant county administrator for utilities service for Pasco County on July 3, 1991. They discussed alternatives for connecting the Respondent's business. Initially, the County wanted the Respondent to pay to run a sewer line over 1000 feet to the south of his property to enable the County to efficiently connect other businesses and property owners in that area. But this option would have been costly to the Respondent, and there was no guarantee that gravity flow was possible between the Respondent's property and the connection point. If not, the Respondent also would have to pay the cost of pumping to the connection point. The Respondent hired an engineer to design an alternative that would be less costly. He also sought the cooperation of his neighbors, who would be required to connect to central sewer when the Respondent did. The engineer also worked with those neighbors in designing an alternate connection. On or about September 9, 1991, another meeting was held among the Respondent and his engineer and the county's utilites construction team. As a result of this meeting, the County agreed to modify the connection route in accordance with the Respondent's proposal. The Respondent's engineer continued his work on the design of the connection. HRS inspections on or about September 11 and 25, 1991, revealed that the Respondent's septic system was failing again and that raw sewage again was bubbling to the surface from the new septic system's drain field and flowing into the stormwater retention pond. HRS arranged to meet with the Respondent again on October 4, 1991, along with a Pasco County deputy sheriff and a DER industrial wastewater compliance inspector. At this meeting, the Respondent felt that the deputy sheriff was threatening to arrest him for violation of the law, and he angrily terminated the meeting and asked all of them to leave the premises. In December, 1991, the Respondent arranged a meeting with the County and his neighbors to discuss sharing the cost of the connection route the Respondent was proposing to build. The neighbors, realizing the Respondent's weak bargaining position, refused to share the Respondent's costs. At this point, the County conceded to pay the approximate $9,000 to jack and bore under the road, but the Respondent was required to pay to run a sewer line approximately 300 feet to the south and to construct a manhole on his neighbors' side of the road, as well as on his side of the road. (The second manhole would be used by the neighbors to connect their properties to the line the Respondent was building when the County required them to connect.) The total cost to the Respondent for his part of the construction of the connection to the public sewer will be approximately $24,000. On January 17, 1992, the Respondent paid a $3,428 impact fee for connecting to the central public sewer, based on projected water use. On January 23, 1992, the Respondent applied for a force main interconnect permit. At the time of the final hearing, the jack and bore and the construction of the new sewer line connecting the Respondent's property to the central sewer were about to begin. The evidence indicates that, once HRS made it clear to the Respondent on or about June 27, 1991, that connection to the central public sewer was the Respondent's only remaining option, the Respondent moved with reasonable dispatch. The time it took to arrange to be connected to the public sewer was within normal ranges, and there is no evidence that the Respondent did anything to cause unnecessary delays. (Delays, if any, were caused by the need for the Respondent's engineer to work with and get cooperation from the Respondent's neighbors, who were not as anxious as the Respondent to have the new sewer line built.) There also is no evidence that the Respondent processed relish pack or salad mix on the premises after June 27, 1991. In addition, the Respondent continued to attempt to conserve water, had the septic tanks pumped out frequently (sometimes practically daily), and had his employees utilize portable toilets in an attempt to avoid additional septic tank failures. The evidence also indicates that, after June 27, 1991, all concerned were hopeful that the measures the Respondent was taking would prevent, or at least minimize, septic system failures pending connection to the public sewer. After June 27, 1991, HRS presented direct evidence of septic tank system failures only on two occasions in September, 1991. The evidence is that, after becoming aware of the system failures in September, 1991, HRS sought the imposition of a fine against the Respondent. The evidence suggests two other important motivating reasons for HRS' action: first, not being aware of the actions the Respondent took between June 27 and September, 1991, to connect to the central sewer, HRS mistakenly believed that the Respondent was ignoring its instructions; and, second, HRS mistook the Respondent's angry outburst at the meeting at the Respondent's place of business in September, 1991, when he felt he was being threatened with arrest for violation of the law, as being evidence that the Respondent was not genuine in his apparent concern and efforts to respond to HRS' guidance and instruction.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Health and Rehabilitative Services (HRS) enter a final order fining the Respondent, William Loiacano, d/b/a Gulf Coast Food Distributors, Inc., in the amount of $5,000. RECOMMENDED this 29 day of April, 1992, in Tallahassee, Florida. J. LAWRENCE JOHNSTON 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 day of April, 1992.
Findings Of Fact Ed Smith is the President of Riverside Village Mobile Home Park, Inc., which in turn is the owner of the mobile home park in question in this case. The mobile home park is located in Ruskin, Hillsborough County, Florida. Petitioner was served with an Administrative Complaint alleging that the chlorine residual in the park water supply distribution system was inadequate and that this constituted a violation of Chapter 513 and Section 386.041(1)(f), Florida Statutes, as well as Rule 10D-26.67(1), Florida Administrative Code. Specifically, the Administrative Complaint alleges violations occurring between July 16, 1986 and July 29, 1986, and seeks the imposition of a civil penalty in the amount of $500 per day which "shall be calculated when this complaint is received by the (Petitioner), and will run until the violation has been corrected." Petitioner requested a hearing to contest these allegations, and his request was filed with Respondent's Clerk on October 8, 1986. It was not established by competent substantial evidence when Petitioner "received" the Administrative Complaint which is the subject of this action. The only evidence of any violation occurring between July 16 and July 29, 1986 was the testimony of Harry Messick who signed an Official Notice and Notice of Intended Action which were both dated July 16, 1986, and which alleged that "chlorine reading found at time of inspection (was) between 0.1 ppm and (a) trace." However, Messick did not perform any test to either produce or confirm this result. He testified that someone else performed the field test, but there was no testimony from anyone else who may have actually conducted a test on Petitioner's water supply system on July 16, 1986. Therefore, it has not been established by competent substantial evidence that Petitioner's water supply system on July 16, 1986, was in violation of the requirement that .2 mg/1 of free chlorine residual be maintained. Testimony from Respondent's other witnesses, Norman Vik and Neil R. Schobert, indicates Vik was not even at Petitioner's mobile home park between July 16 and 29, 1986, and the only test conducted by Schobert found that Petitioner's water supply system was in compliance on July 24, 1986. Design modifications in Petitioner's water supply distribution system were approved by the Hillsborough County Health Department on July 9, 1986.
Recommendation Based on the foregoing, it is recommended that Respondent enter a Final Order DISMISSING the Administrative Complaint filed against Petitioner. DONE AND ENTERED this 19th day of February 1987 in Tallahassee, Florida. DONALD D. CONN 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 19th day of February 1987. APPENDIX (DOAH Case No. 86-4094) Rulings on Respondent's Proposed Findings of Fact: 1. Adopted in Finding of Fact 1. 2-3. Rejected in Findings of Fact 4, 5. COPIES FURNISHED: James A. Sheehan, Esquire Florida Federal Building One Fourth Street North Suite 800 St. Petersburg, Florida 33701 Carol M. Dittmar, Esquire 4000 West Buffalo Avenue Suite 520 Tampa, Florida 33614 Gregory L. Coler Secretary Department of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, Florida 32301 John Miller, Esquire General Counsel Department of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, Florida 32301 =================================================================
The Issue Whether Luis A. Gonzalez earned a passing grade on the Professional Engineer Examination of April 14-15, 1988?
Findings Of Fact Luis A. Gonzalez took the Professional Engineer Examination administered by the Department of professional Regulation on April 14-15, 1988. By notice dated July 22, 1988, Mr. Gonzalez was informed by the Respondent's Office of Examination Services that he had failed the Professional Engineer Examination. Question 122 on the Principles & Practices of Engineering Examination, Form 8804, involving Civil/Sanitary/Structural engineering, provided the following: SITUATION: An old, large, retirement community apartment complex has reported sewer overflow and plumbing discharge problems. You are an engineer assigned to review the flow and sizing of the one main sanitary sewer exiting and carrying the total flow of the complex, with the objective of correcting the problem. Review with the manager, and inspection of the plans, reveal there are 490 residential units with an estimated continuing residence population of 1,475. Water bills are paid individually. REQUIREMENTS: NOTE: Use and-show equations for calculations. Do not use a nomograph or hydraulic slide rule. Citing your assumptions and sources, calculate the average, maximum, and minimum sanitary wastewater flows expected, in gallons per day, from the total complex. You measure the main sewer from the project and examine the plans and find it is 10" round ID, VCP, with a slope of 0.0045. Inspection leads to an estimate of n 0/015 (fair) because of age. Calculate theoretical full flow capacity and velocity with no surcharge. Calculate depth and velocity of flow for your estimated maximum flow rate, if you can conclude the sewer is not overloaded. Mr. Gonzalez was instructed to include assumptions and citations in support of his answer to Question 122. The citations included by Mr. Gonzalez in answering part (a) of Question 122, although questioned by the grader of Question 122, were adequate. Mr. Gonzalez failed to list assumptions which he should have taken into account in answering part (a) of Question 122, concerning inflow, infiltration or exfiltration. In answering part (a) of Question 122, Mr. Gonzalez determined "estimated flow." In calculating estimated flow, Mr. Gonzalez multiplied the population of the complex (1,475) times an estimated water use per person of 100 gallons per day. In support of Mr. Gonzalez's use of 100 gallons per person water use, Mr. Gonzalez cited the Civil Engineering Reference Manual, Fourth Edition, and the ASCE Manual on Engineering Practice No. 36. Mr. Gonzalez also provided other references at the formal hearing to support his use of 100 gallons per day. The use of 100 gallons a day per person in answering part (a) of Question 122 by Mr. Gonzalez would be correct only if the problem involved a residential community. The citations used by Mr. Gonzalez indicate that 100 gallons per day is generally acceptable for residential communities or "[i]n the absence of any better basis . . . ." Question 122, however, involves an apartment complex and not a residential community. The weight of the evidence presented at the formal hearing indicates that for an apartment complex an estimated water use of 60 to 80 gallons per day per person should be used. Even some of the references provided by Mr. Gonzalez at the formal hearing support this conclusion. For example, Petitioner's exhibit 5 indicates that a wastewater flow of 67 to 79 gallons per person per day should be used for "[m]ultiple-family dwellings (apartments)." Mr. Gonzalez's use of 100 gallons per day in answering part (a) of Question 122 was incorrect. Mr. Gonzalez failed to demonstrate an adequate understanding of flow in answering Question 122. Although Mr. Gonzalez demonstrated an understanding of full flow, he failed to demonstrate an understanding of partial flow. Mr. Gonzalez's answer to part (b) of Question 122 was adequate. Mr. Gonzalez's answer to part (c) of Question 122 was incorrect. Mr. Gonzalez did not dispute this conclusion at the forma1 hearing. Mr. Gonzalez was awarded a score of 4 for his solution of Question 122. Question 122 was graded pursuant to the National Council of Engineering Examiners Standard Scoring Plan Outline (DPR Exhibit #4). This Outling provides that a grade of 4 is to be awarded under the following circumstances: UNQUALIFIED: Applicant has failed to demonstrate adequate knowledge in more than one ASPECT of one CATEGORY. BU. Fails to demonstrate an understanding of flow and velocity calculations for pipes flowing full or partially full; or contains multiple errors; or one part is missing or wrong with other gross or multiple errors; or the record is deficient; or in combination. A grade of 5 was to awarded under circumstances similar to the circumstances for awarding a score of 4, except that a score of 5 is appropriate only if an "[a]pplicant has failed to demonstrate adequate knowledge in [only] one ASPECT of one CATEGORY." The Respondent properly concluded that Mr. Gonzalez is entitled to a score of 4 for his answer to Question 122 and not a score of 5. Mr. Gonzalez failed to "demonstrate an understanding of flow . . . calculations for pipes flowing . . . partially full . . . ." His answer also "contains multiple errors" and at least "one part is . . . wrong." Finally, Mr. Gonzalez's answer to Question 122 "failed to demonstrate adequate knowledge in more than one ASPECT of one CATEGORY" as opposed to "[only] one ASPECT of one CATEGORY." [Emphasis added]. Question 123 of the Principles & Practice of Engineering Examination, Form 8804, involving Civil/Sanitary/Structural engineering, includes parts (a) through (j). Mr. Gonzalez questioned parts (b), (d) and (e) of Question 123. In pertinent part, Question 123 provides the following: SITUATION: In a detailed study of traffic flow on one lane of a 2-lane urban freeway, the following data were collected: Average Distance between the front bumper of successive vehicles 75 feet Space Mean Speed = 33 mph Time Mean Speed = 32 mph REQUIREMENTS: (b) Determine the traffic density. Assuming that the 30th highest hourly volume is to be used for design purposes on this highway, what is a reasonable estimate of the 30th highest hourly volume in one direction on this facility? Briefly justify any assumptions made. Determine the most widely accepted value of the capacity of a freeway lane operating under ideal conditions of uninterrupted flow. Mr. Gonzalez was instructed to include assumptions and citations in support of his answer to Question 123. Mr. Gonzalez answered part (b) of Question 123 by calculating a density of 70.40. The grader of Question 123 circled this answer and wrote "DECIMAL." The Respondent agreed at the formal hearing that the use of decimals by Mr. Gonzalez was insignificant. In answering part (d) of Question 123 Mr. Gonzalez failed to include adequate assumptions. Although the statements made by Mr. Gonzalez in answering part (d) of Question 123 are correct, his equation is wrong. Mr. Gonzalez did not offer adequate proof at the formal hearing that his response to part (d) of Question 123 was correct. In answering part (e) of Question 123 Mr. Gonzalez assumed a capacity of 2,000 cars per hour. The grader of Question 123 indicated that this capacity is an "obsolete value." The Solutions to be used in grading the Professional Engineer Examination and, in particular, Question 123, indicates the following: Based on the 1985 Highway Capacity Manual or other similar sources, the capacity of a multi-lane freeway lane operating under ideal conditions is 2,000 vehicles per hour. ANSWER Although Mr. Gonzalez's answer to part (e) of Question 123 is consistent with this solution, the capacity of a multi-lane freeway lane operating under ideal conditions, based on the 1985 Highway Capacity Manual is actually 2,800 vehicles per hour and not 2,000 vehicles per hour. The answer to part (e) of Question 123 provided in the Solutions used by graders of the Professional Engineer Examination and Mr. Gonzalez's answer are therefore incorrect. The Solutions provided to graders are to be used only to assist graders and are not binding on them. Although Mr. Gonzalez's answer to part (e) of Question 123 is consistent with the Solutions provided, the answer is incorrect. Therefore, the grader properly took into account Mr. Gonzalez's incorrect solution to part (e) of Question 123. Even if Mr. Gonzalez is given credit for his response to part (e) of Question 123, his grade for Question 123 will not change. Mr. Gonzalez correctly answered parts (a)-(c) and (f)-(j) of Question 123. Mr. Gonzalez was awarded a score of 8 points for his answer to Question 123. Question 123 was graded pursuant to a Six Level Item Specific Scoring Plan (155P). The Plan provides that a grade of 8 is to be awarded under the following circumstances: CLEARLY QUALIFIED: All categories satisfied with at least one at a higher than minimum level. Correct approach but a solution with math errors or answers outside allowable tolerances for parts (d), (e), and (h) or An [sic] slightly incomplete solution. The next highest grade which can be awarded for Question 123 is 10 points, the maximum award possible for Question 123. Ten points are to be awarded under the following circumstances: HIGHLY QUALIFIED: All categories satisfied. -Presentation -may lack in completeness or equations, diagrams, orderly steps in solution, etc. Results within allowable tolerance. Correct approach and correct solution within allowable tolerances for parts (d), (e), and (h) and correct interpretation of results. All parts complete. The Respondent properly concluded that Mr. Gonzalez is entitled to a score of 8 for his answer to Question 123 and not a score of 10. Mr. Gonzalez did not satisfy all categories and he failed to arrive at the "correct solution within allowable tolerances for parts (d), [and] (e) . . . " in answering Question 123. Mr. Gonzalez failed to prove that he should have been awarded a score of 10 for Question 123. Mr. Gonzalez failed to prove that he should be awarded an additional point on the Professional Engineer Examination of April 14-15, 1988.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Engineers issue a final order concluding that Luis A. Gonzalez's grade on the Professional Engineer Examination of April 14- 15, 1988, was a failing grade. DONE and ENTERED this 6th day of April, 1989, in Tallahassee, Florida. LARRY J. SARTIN 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 6th day of April, 1989. APPENDIX Case Number 88-6056 Mr. Gonzalez has submitted a letter dated March 21, 1989, containing proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. The Respondent did not file a proposed recommended order. Mr. Gonzalez's Proposed Findings of Fact Paragraph Number in Recommended Order of Acceptance or Reason for Rejection Paragraphs 1-2, 6 Not proposed findings of fact. Paragraph 3 The first sentence is a statement of the issue concerning Question 122. The second and third sentences are not supported by the weight of the evidence. The Florida Department of Environmental Regulation established water per day usage is for regulatory purposes and not necessarily consistent with the engineering principles to be used in answering questions on the Professional Engineer Examination. References which should have been used in answering Question 122 indicate that a water use rate of 67 to 79 gallons per day should have been used for apartments. The letter referred to was not accepted into evidence and can not form any basis for a finding of fact. Paragraph 4 The first and fifth sentences are accepted in findings of fact 20 and 21. The second and fourth sentences are not relevant to this proceeding. The third sentence is based upon a letter apparently received after the formal hearing. It cannot be taken into account in this proceeding. The sixth sentence is not supported by the weight of the evidence. The grader used the correct information and not "personal conviction." Although it is true that Mr. Gonzalez used the most recent data he was aware of concerning vehicles per hour, the fact remains that the value he used at the time of the examination was incorrect. Paragraph 5 Not supported by the weight of the evidence. Mr. Gonzalez included two references with his letter of March 21, 1989, which were not offered at the formal hearing. Those references cannot be relied upon in this case and have played no part in making the findings of fact and conclusions of law in this Recommended Order. COPIES FURNISHED: H. Reynolds Sampson Deputy General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Luis A Gonzalez 7419 Sandy Bluff Drive Jacksonville, Florida 32211 Kenneth Easley General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Allen R. Smith, Jr. Executive Director Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
Findings Of Fact At all times material to this proceeding, Sandra B. Frazier was a licensed real estate broker-salesman in the State of Florida, License No. 0185565, as an associate with Property Associates, Inc., Tallahassee, Florida. On July 1, 1989, Howard M. Burkholz, Leslie Burkholz, and Jacob H. Schiff entered into an Exclusive Right of Sale Agreement with Property Associates, through its agent, Frazier, for the sale of a house located in Forest Green Subdivision, at 2062 Pepperidge Way, Tallahassee, Florida. The Exclusive Right of Sale Agreement states in part: Seller further certifies and represents that the property has no latent defects except the following: septic tank is pumped monthly at Sellers request. [sic] Mr. and Mrs. Burkholz both told Frazier that the septic tank was not a problem, but Frazier had previous knowledge of septic tank problems in the vicinity and of the significance of needing septic tank pumping. Frazier sold the house across from the Burkholz's house. That house, at 2061 Pepperidge Way, was bought by Marcie Doolittle in December of 1988. The listing information and Notice to Prospective Buyers showed that, due to the composition of the soil and heavy rains, it was necessary to have the septic tank pumped. The seller offered an offset to the buyer for the cost of additional drainfield. Only after Doolittle bought the house did Frazier learn of the severity of the problems and the necessity for pump outs every two weeks. In a letter written by Frazier to Doolittle on February 9, 1989, Frazier indicated that "once a septic tank fails it does not correct itself. It then requires regular pumping." Frazier suggested that the only resolution was more drainfield or regular pumping. After Frazier listed the Burkholz house, she mentioned to Mrs. Doolittle that she could not show the Burkholz house during wet weather because the backyard, in which the septic tank and drainfield was located, was too boggy. Further, Frazier discussed with Mrs. Doolittle that the city was going to install sewer in the area because of the septic tank failures. In conformance with the Exclusive Right of Sale agreement with the Burkholzs, Frazier listed the house through the Multiple Listing Service. The data on the house was input on an input sheet. If there are defects, they can be listed on lines RE1-RE4 on the input form. Despite her knowledge about the Burkholz's septic tank and the Doolittle's septic tank, Frazier did not list this as a defect. Mary Wheatley, a sales associate with Bob Wolfe Real Estate, worked with Jesse and Susan Day to locate a house to purchase. She showed the Days the Burkholz house. Her only knowledge of that house came from the MLS listing, the brochure entitled Highlights of this Home prepared by Frazier, and from information verbally given by Frazier. Wheatley had no knowledge of the septic tank problems and Frazier did not tell her anything about the septic tank or the potential hook up to city sewer. After various offers and counteroffers, the Days and the Burkholtzs signed a contract for the sale and purchase of the house on November 24, 1989. The Contract states in paragraph 14: CONDITION OF PROPERTY: BUYER ACKNOWLEDGES THAT HE HAS NOT RELIED UPON ANY REPRESENTA- TIONS MADE BY A REALTOR(S) AS TO THE CONDI- TION OF THE PREMISES. . . .SELLER warrants that the . . . septic tank . . . shall be in working order on the date of closing. SELLER agrees to repair any of the preceding items not in working order. BUYER agrees to inspect the property prior to closing to determine condition of said items; . . . If BUYER fails to make inspections as required, BUYER agrees to accept property in "as is" condition. BUYER and SELLER will diligently learn and disclose to each other prior to closing all facts affecting the value of the property. On December 26, 1989, the night before the closing, the Days, the Burkholzs, Frazier, and Wheatley did the final walk through. While Wheatley and Susan Day were in another room measuring for curtains, Mr. Day flushed a toilet and noted that it went down very slowly. He asked if there were septic tank problems. Mr. Burkholz indicated that there were, but that sewer hookup was coming and the septic tank was pumped out monthly by the city at no cost. Mr. Day asked about the costs and was told that the pumpouts were free and the sewer would cost several hundred dollars. There is a clear conflict in the testimony of the various witnesses about the sewer cost estimate given to Mr. Day, but the exact figure is of no consequence to the ultimate outcome of the case. Therefore the conflict is not resolved. The Days discussed the septic tank and sewer hookup and decided to go through with the closing. After the walk through, they signed an inspection sheet in which they accepted the premises as inspected, without any noted exceptions, and they relieved the sellers and the realtor from further warranty or responsibility for the condition of the property. According to Thomas Bryant, an engineer with the City of Tallahassee, in December, 1989, no one knew whether there would be sewer installed in Forest Green or the potential cost of sewer hookup. No one knew that even on the date of hearing. The city did enter into an agreement to charge $650 for sewer hookup in Forest Green, but there are additional charges and costs to the homeowner which are as yet undetermined. The septic tank problems constitute a latent defect which should have been disclosed to the buyers before a contract was agreed upon. The failure to disclose is not egregious since the regular pumping of the septic tank is done at no cost to the homeowner and results in no liability to the homeowner. The projected sewer hook up was too uncertain to have required such disclosure.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Florida Real Estate Commission enter a Final Order and therein: Find Sandra B. Frazier guilty of one Count of concealment in violation of Section 475.25(1)(b), Florida Statutes. Based on the mitigating factors set forth above and on the relatively minor nature of the offense, impose a fine of $100.00 on Sandra B. Frazier. Issue a written reprimand to Sandra B. Frazier. RECOMMENDED this 27th day of March, 1991, in Tallahassee, Florida. DIANE K. KIESLING 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 27th day of March, 1991. APPENDIX TO THE RECOMMENDED ORDER, CASE NO. 90-6189 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted in this case. Specific Rulings on Proposed Findings of Fact Submitted by Respondent, Sandra B. Frazier Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1(1). Proposed findings of fact 2-9 are subordinate to the facts actually found in this Recommended Order. COPIES FURNISHED: Janine B. Myrick Senior Attorney Department of Professional Regulation Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, FL 32801-1772 William J. Haley Attorney at Law Post Office Box 1029 Lake City, FL 32056-1029 Jack McRay, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 Darlene F. Keller Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, FL 32801
Findings Of Fact At all times relevant hereto respondents, Selma Fruman and others, were the owners of a 14-unit apartment complex known as the Greenville Apartments located at 1701 North Treasure Drive North Bay Village Florida. Respondents hold license number 23-8285 issued by petitioner, Department of Business Regulations Division of Hotels and Restaurants (Division), and are subject to that agency's regulatory jurisdiction. On or about September 2D 1985, a Division environmental health specialist conducted a routine inspection of respondents' facility to determine if health and safety standards were being maintained. All such facilities must be inspected at least twice during each fiscal year. The inspection was made in the presence of respondents' representatives. The specialist found the following items to be in noncompliance with Division rules: fire extinguishers were not recharged as required by Rule 7C-1.04(1), Florida Adminis- trative Code, combustible and flammable materials were stored in the electric meter room in viola- tion of Rule 7C-1.03(2), Florida Administra- tive Code, the building had flaking and peeling paint in contravention of Rule 7C-1.03(1), Florida Administrative Code, and trash, debris and junk were lying in the rear of the property in violation of Rule 7C- 1.03(5) and (7), Florida Administrative Code. Through testimony at hearing it was established that the deviations from agency rules constituted a threat to the tenants' healthy safety and welfare. A copy of the report listing the above violations was sent to respondents by certified mail. The report warned that all violations must be corrected within ten days of receipt of the notice. The notice included the name and telephone number of the specialist who conducted the inspection. On October 23, 1985, the Division specialist returned to respondents' facility to ascertain if the deficiencies had been corrected. The specialist found none of the four items had been corrected. A notice to show cause was then issued by the Division on November 1, 1985. However, respondents apparently requested an informal conference to discuss the violations and one was scheduled on a later date. After missing the conference, the manager of respondents' facility (and brother of one of the owners) wrote a letter on December 20, 1985 requesting a second conference and advising that "the four items mentioned to be corrected Items a, b and c, have been done and the building has been scheduled for painting the second week of January, 1986." On January 24, 1986, the specialist made a return visit to the facility and found items a and b had been corrected while the violations in items b and c were unrepaired. At an informal conference held on January 29, 1986, respondents disputed the findings of the Division and requested a formal hearing. That prompted the instant proceeding.
Recommendation Based on the foregoing, it is RECOMMENDED that respondents be found guilty as charged in the notice to show cause, and that a $2,000 civil penalty be imposed to be paid within thirty days from date of the final order entered in this proceeding. DONE and ORDERED this 15th day of May, 1986, in Tallahassee Florida. DONALD R. ALEXANDER 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 15th day of May, 1986. COPIES FURNISHED: Lynne A. Guimby, Esquire Department of Business Regulation 725 S. Bronough Street Tallahassee Florida 32301 Mr. Morris Liebman 1701 N. Treasure Drive North Bay Village, Florida 33141 Mr. R. Hugh Snow, Director Division of Hotels & Restaurants Department of Business Regulation 725 S. Bronough Street Tallahassee Florida 32301
The Issue The matter to be resolved by this Recommended Order concerns the Petitioner's Notice of Violation and Order of Corrective Action filed against the Respondent on the subject of alleged violations by the Respondent of the "Florida Safe Drinking Water Act", Sections 403.850 through 403.864, Florida Statutes. Within this complaint document there are six counts constituted of the following allegations: Count I. The Respondent does not continually apply effective disinfection measures to the water distributed to the service connections of the Respondent's water system. Respondent's water system has chlorination equipment installed but a chlorine residual is not continually maintained. This condition has existed since at least February, 1979. These facts show a violation of Rule 17- 22.106(3)(c), Florida Administrative Code. Count II. The Department has not received reports from the Respondent which contain information about the operation and maintenance of the water system. This condition has existed since at least April, 1978. These facts show a violation of Rule 17-22.111(2), Florida Administrative Code. Count III. The Respondent's water system has a daily flow of more than 2,500 gallons per day but less than 0.1 million gallons per day. The operation, maintenance and supervision, if any, of the water system is not performed by a person who has passed an examination that entitled such person to be a certified operator. This condition has existed since at least April, 1978. These facts show a violation of Rule 17-22.107(3)(b), Florida Administrative Code. Count IV. The slab surrounding the well casing has been broken exposing the system to possible contamination. This condition has existed since at least February, 1979. These facts show a violation of Rule 17-22.106(2)(c)2.e., Florida Administrative Code. Count V. The Respondent`s water system has no flow meter for accurately measuring the volume of water distributed by the public water system. This condition has existed since at least February, 1979. These facts show a violation of Rule 17-22.106(3)(g), Florida Administrative Code. Count VI. The Petitioner has incurred costs and expenses in the amount of $57.22 in the course of investigating the case and is entitled to be reimbursed pursuant to Subsection 403.860(3), Florida Statutes.
Findings Of Fact This case is presented for consideration based upon the Notice of Violation and Order of Correction filed by the Secretary of the State of Florida, Department of Environmental Regulation, on August 24, 1979. The action is taken against Arnold H. Parker, an individual who resides in Escambia County, Florida. On September 17, 1979, the Respondent, Parker, by and through his counsel answered the allegations of the Petitioner and requested a Subsection 120.57(1), Florida Statutes, hearing. The request for hearing was granted and on December 6, 1979, in Florida, a formal hearing was held to consider the Petitioner's complaint. (The essential elements of that complaint are reflected in the synopsis reported in the Issue statement of this Recommended Order.) The facts reveal that Daniel C. Walker, an employee of Petitioner, went to Perdido Key, Escambia County, Florida, in February, 1979, for the purpose of inspecting a water system owned and operated by the Respondent and to ascertain the number of service connections associated with the system. When Walker arrived at the location of the Respondent's well, he observed that the above-ground equipment utilized in pumping the water out of the ground was housed in a building. This building had a hole in the roof and the concrete slab surrounding the well casing was broken at the surface allowing for possible contamination by influent. At the time of the inspection a device for introducing chlorine into the extracted water was noted but that device was not connected and no chlorine residual was found in the water system. The water system was not being operated by a certified operator within the meaning of Rule 17-22.107(3)(b), Florida Administrative Code. In addition, the Respondent had not submitted operational reports to the Petitioner since April, 1978. The reports referred to are those reports required by Rule 17- 22.111(2), Florida Administrative Code. While Walker was at the general location of the well in onestion, he observed forty individual lots on which various types of trailers, campers and mobile homes could be found. Walker did not determine if persons were living in these shelters and he does not recall seeing persons in the area of the lots. The witness, Walker, did not observe any restaurant or public food establishment in the area of the well house and lots. On September 25, 1979, Robert Court, another employee of the Petitioner, went to the site of the well house and lots. At that time he counted thirty-two trailers, campers and mobile homes and each of those shelters had a service connection from the well of the Respondent located somewhere on the lot where the shelter was found. The service connection was in the form of a spigot. Court observed several people in the north-east section of the general area which is constituted of the well location and lots. Court returned to the location on November 30, 1979, and in a random survey saw approximately thirty-two trailers, campers and mobile hones. Subsequent to the visits of the employees, the Notice of Violation and Order of Correction was prepared by the enforcement section of the Petitioner and the cost of that preparation was $57.22. The Respondent, Arnold H. Parker, testified in the course of the hearing and his testimony established that there are nine persons who live in the area of the well on a year-round basis and these persons are served by the well during that period of time. Of the nine persons one family, the family of the Respondent, lives in a mobile home and the family is constituted of three persons, the Respondent, his wife and son. In a second mobile home the Respondent's daughter and her husband are found to reside. The final group of persons constituted of the nine full-time residents are the Respondent's daughter, her husband and two children in a third mobile home. Each lot on which the three mobile homes are found is served by a service connection. The remaining lots at the location in question were subdivided approximately two years prior to the hearing date and sold separately with the exception of the three lots where the nine permanent residents reside and two lots where other children of the Respondent resided prior to the February, 1979, inspection by the Petitioner's employee. Respondant sold twenty-four mobile home lots and twelve camper sites to persons other than family members and each of the mobile home lots and camper sites has a service connection to the well. Those persons who use the water system other than the nine permanent residents, use the system from mid-March through mid-September in the calendar year. During that time of usage, there are two families at two separate lots who come down during the week and use the water supply. The number of members in those families was not indicated in the course of the hearing. The balance of the persons using the water supply, excluding the above-mentioned two families and the nine permanent residents, use the shelters for vacation purposes and on the weekend. Some of this latter group would be vacationing in their summer home for a period as long as two weeks. The highest number of persons using the water from the well during the vacation period would be approximately forty persons during holiday weekends in the vacation cycle. From the testimony of the Respondent there would never be more than ten days during the vacation period in which twenty-five or more persons would be utilizing the water supply from the well. The water is brought into the trailers, campers and mobile hones by hoses attached to the spigot service connections and the hoses are removed when the individual owners are not in attendance. The lot owners who are served by the water system of the Respondent pay a fee of $18.00 a year, which the Respondent uses to repair the well pump, for pipe and for the cost of electricity to run the well. The well generating device is a two-horsepower electric pump and the well source is tapped by a two-inch service pipe. A one-half-inch line runs from the main to the service connectors (spigot). After the inspection of February, 1979, the Respondent repaired the broken slab around the well casing and these repairs were made in March or April, 1979. The repairs were depicted in the Respondent's Exhibits 1 and 2 admitted into evidence which are photographs of the well casing after the repair.
Recommendation It is recommended that the action taken by the Petitioner against Respondent pursuant to the Notice of Violation and the Order for Corrective Action be dismissed, to include the Petitioner's claim for costs and expenses. DONE AND ENTERED this 7th day of January, 1980, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: William Hyde, Esquire Department of Environmental Regulation 2600 Blair Stone Read Tallahassee, Florida 32301 Barne J. Morain, Esquire 113 North Palafox Street Pensacola, Florida 32501
The Issue Whether the Department of Environmental Regulation should grant the application which Anne B. Kavanaugh filed for a dredge and fill permit to construct a 40-slip marina, and dry storage space for 140 additional boats, on the western bank of Egans Creek in the City of Fernandina Beach, Florida?
Findings Of Fact Approximately 1,200 feet from the boundary of the Ft. Clinch Aquatic Preserve, Anne B. Kavanaugh and her husband, William Kavanaugh, propose to construct 40 slips with floating piers accessible by elevated concrete walkways, a T-shaped pier, a fixed concrete travel lift pier for boats less than 30 feet long, a permanent sewage pumpout facility, a fueling facility, and a dry rack storage facility to accommodate an additional 140 boats. The marina is planned for the west bank of Egans Creek, inside the City of Fernandina Beach. Egans Creek comprises Class III water not designated as outstanding Florida waters. Under general DER guidelines, water at a marina must ordinarily "flush" within three or four days. If new water does not completely exchange with old within that time, permitting is problematic. Under these guidelines, water must circulate enough to dilute a contaminant at the marina to 90% of its original concentration, within this three- or four-day period. Tidally influenced, Egans Creek easily meets the guidelines at the site proposed for the marina. Fernandina Beach and environs are Florida's (muted) answer to the Bay of Fundi; the average tidal range is on the order of six feet. Contaminants entering Egans Creek at the proposed site are rapidly dispersed, moving 1200 feet down the creek on outgoing tides into the Amelia River, then through St. Mary's entrance into the Atlantic Ocean. Hydrographic studies, including a dye tracer study, demonstrated that 90% dilution can occur within 50 feet in 50 seconds, and that 100% dispersion of a contaminant can occur within minutes in Egans' Creek. According to the weight of the evidence, water quality standards would not be violated in the aquatic preserve as a result of construction or operation of the marina. The International Marine Institute Guidelines are the industry standard for the design of marinas. These were looked to in designing the marina the applicant proposes. According to Mr. Vorpe's uncontroverted testimony, all applicable rules and regulations were considered when designing the marina. Driving the necessary piles requires the dredge and fill permit in contention here. Since the applicant proposes no dredging or filling in waters of the state, other than removing the existing docks and driving new piles, construction itself is expected to have minimal effect on water quality. No petitioner raised any concern or offered any evidence regarding construction, as opposed to operation, of the marina. The applicant has agreed to certain permit conditions, including taking appropriate precautions to control turbidity during removal of the old docks and installation of the new piling. Fueling Facilities The applicants plan to locate fueling facilities above the mean high water line, and to separate the fuel dispenser from adjacent wetlands by constructing a berm. The dispenser would be at least 85 feet from the dock, and a 10,000-gallon gasoline storage tank would stand still further inland. Attached to the dispenser would be a hose 25 feet long for refueling boats after they are taken out of the water, en route to the dry storage building. A berm would partially surround the dispenser, to direct spillage across the pavement into a retention pond capable of holding 10 to 15 times the volume of the storage tank. The dispenser would have two shut-off valves, part of a system designed to shut off electronically, if fuel begins to flow while the dispenser is unmanned. These shut-off valves could also be activated manually. Some distance away, but still within the 100-year flood hazard zone, the storage tank would be located above ground near the northeast corner of the dry stack storage building, at an elevation of 6.1 NGVD. DER routinely permits fuel storage tanks, including underground storage tanks, in 100-year flood zones. Above ground storage tanks have the advantage that leaks and certain other problems are easier to identify and correct, than they would be if the tanks were buried. Soil borings demonstrated the ability of the soil to bear the weight of the tank when full. A concrete retaining wall designed to encompass more than 11,000 gallons would encircle the tank, which would itself be designed in accordance with the standards laid down by the American Petroleum Institute and The National Fire Protection Association. Vented (with a spark arrester to prevent a stray spark from entering the tank and igniting the contents), the tank is to be fabricated from welded steel, and to be bolted to a concrete slab. The retaining wall is designed to withstand not only the hydrostatic force necessary to contain a spill, but also to resist the force of flood waters outside the wall. FEMA publishes maps which depict expected elevations of flood waters. Good engineering practice requires the containment wall to be one foot higher than the 100-year return base flood elevation. The planned height of twelve feet exceeds this requirement. An "ambiguity" in the FEMA regulations requires holes to be placed in walls constructed within a 100 year flood zone in order to allow the flood waters to enter structures without collapsing the walls. This requirement is, of course, incompatible with the purpose of a containment vessel, which is designed to withstand the hydrostatic forces the holes are intended to avoid. Moving the fuel dispensers closer to the relatively nearby site now proposed for the underground storage tank would not be well advised. Mr. Vorpe's testimony that the dispensers are currently planned for the safest place to minimize risk from vehicular traffic, including operation of the forklift, was uncontroverted. Relocating the storage tank further upland would necessitate longer piping, unless the fuel dispensers were also moved. Mr. Odum, the City's expert, conceded a greater potential for problems from increasing the length of the proposed underground piping system than the hazard a 100-year flood would pose to a tank at the proposed location. Mr. Odum agreed that placement of the pipes above ground would render them susceptible to overheating (from direct sunlight in a warm climate) as well as to damage from vehicles, including the forklift. Mr. Odum had no opinion as to whether there is a suitable alternative location for the fuel storage tank. Septic System The applicant has obtained a permit from the Department of Health and Rehabilitative Services authorizing construction of a septic system consisting of a septic tank and an absorption mound. A septic tank is to be placed under the dry stack storage building the required minimum distance from DER's jurisdictional line. Placement of the tank under the building would afford the tank additional protection. The absorption mound would be located on the highest portion of the property, by 14th Street, outside the 100-year flood zone, and more than 200 feet from the nearest marsh. HRS did not require that the mound be constructed to the elevation planned. The applicant wants extra height for added safety and additional filtering action. No discharge into Egans Creek is expected from operation of the septic system. The St. Johns River Water Management District has issued a permit for the extensive storm water management system the project would include authorizing construction of several large retention ponds. Petitioners offered no evidence regarding the design and construction of the septic system or the stormwater management system or any effect on water quality either system might produce. Impacts From Operation Peak boating times include the warmer months (May to December), fishing seasons, weekends and holidays. Perhaps only a tenth of the boats in dry storage would be used even during most of these peak periods. Over the July 4th holiday, considered the "worst day" for boat traffic, up to fifth of the boats in dry storage might go out. If the history of similar facilities is any guide, the dry storage facility might never be filled to more than 80% of the planned 140-boat capacity. Not all the boats used on a given day would enter the creek at the same time. Gasoline, which evaporates more quickly than diesel fuel, would be the only fuel dispensed at the marina. The only other marina operating within the City of Fernandina dispenses both gasoline and diesel fuel over docks from underground storage tanks. (The other marina operating on the island, the Amelia River Yacht Basin, also dispenses fuel from an underground tank sited within the 100-year flood zone.) The applicant has agreed not to fuel boats moored at the dock or to do any fueling over the docks. Although other sources of pollution inevitably attend the operation of marinas, no evidence regarding bottom paint, for example, was adduced. Ms. Altman's proposed recommended order does not constitute evidence. The applicant has agreed to accept several permit conditions intended to keep down pollution from operations. Among these are that a 3:1 ratio of sailboats to power boats be maintained in the wet slips; that no live-aboards be allowed; that no boat maintenance or repair activities be allowed at the marina; that no discharge of fish wastes from fish cleaning stations occur; that there be no fueling over the docks; that gasoline service be provided only to boats in transit to or from the dry rack facility; and that certain conditions for the protection of manatees be implemented, including posting manatee awareness signs and distributing literature to educate boaters about manatees. In addition, the applicant has agreed to enter into a long term contract incorporating the foregoing conditions for operation of the marina. The applicant's intention is that these conditions survive the five-year permit, and bind any successor in interest. To that end, the long-term contract is to be recorded as a public record. Manatees Despite the proposed marina's proximity to the Atlantic Ocean, even boaters headed outside would have to travel through "the known manatee corridor." T.240. Boaters headed the other way travel extensively through the region of the Amelia River where manatees congregate. On the other hand, proposed permit conditions meet or exceed the manatee protection plan requirements of the DNR and the requirements of the manatee protection plan approved by regulatory agencies for the Port of Fernandina. The applicant's expert on manatees was not aware of any manatee deaths or injuries from operation of the Port facility. West Indian manatees who frequent inland waters between Crooked River, Georgia, and Fernandina have been the subject of "a number of tagging studies and aerial surveys." T.232. Even though they are more likely to be present in the summer than in the winter, there were 30 or 40 recorded sightings within this study area during February and March of 1988. T.235-236. Two of these recorded sightings were of manatees in Egans Creek. The military has done studies in an effort to assess the effect of naval operations on manatees in the general vicinity. The largest number of manatee sightings reported in published study data, second only to the number at King's Bay Naval Station in Georgia, occurred in the Amelia River "in the project area." T.232. Moreover, "manatee usage of the Fernandina Beach area has been increasing in recent years." T.245-6. Southwest of the site proposed for the marina, manatees congregate in the Amelia River, near a paper mill and at the City's wastewater treatment plant, both of which have warm freshwater outfalls. These "congregating areas . . . are within the areas of boat traffic." T.239. Situated between the outfalls, the City's marina also frequently has manatees in it. No more than ten "documented sightings of manatees have been reported" (T.235) on any given day, however. Manatees graze on sea grasses and on smooth cordgrass or spartina alterniflora, which is abundant in marshes near the freshwater outfalls into the Amelia River. Manatees feed in the waterways meandering through these marshes, such as Bells River, Lanceford Creek and Jolly River. They "have been documented feeding in those areas on numerous occasions." T.235. Accessible to the manatees' known congregating areas, these feeding grounds, unlike the congregating areas, are somewhat protected from boat traffic. Along the western shore of Egans Creek where the project is proposed, spartina alterniflora is not accessible to manatees at low tide, because it is then completely exposed. Published data show, however, "that the manatee in Egans Creek feed on the same shore as the proposed project." Kavanaugh's Proposed Recommended Order, p.31. Boats in slips waterward of the vegetation would create a barrier protecting the area at high tide. Spartina alterniflora also flourishes in the marsh across the creek from the proposed site. No outfall of warm water enters Egans Creek upstream of the site proposed for the marina, and no deaths or injuries to manatees in Egan Creek were proven. The owner of the boat yard next to petitioner's property testified that he had not seen a manatee in Egans Creek near the project area in several years. But the applicant's expert conceded that manatees "are utilizing" (T.248) Egans Creek. The City requested the County to create a no-wake zone in Egans Creek in 1987, but there are currently no restrictions on the number of boats or their speed in Egans Creek. The applicant proposes to require marina tenants to agree in writing not to exceed idle speed in Egans Creek or face eviction. Boats moored in "wet slips" might result in lower boat speeds in Egans Creek: Boaters tend to slow down so as not to throw wakes which might damage boats that are docked. Historically, DER has deemed itself to have obtained "reasonable assurances" that a marina will not affect manatees adversely by including permit conditions recommended by the Florida Department of Natural Resources and the U.S. Fish and Wildlife Service. Regulatory guidelines depend on educating the public regarding manatees and safe boating practices as the primary means of protecting manatees. In the present case, the U.S. Fish and Wildlife Service wrote a "no jeopardy" letter stating that the proposed marina would not be expected to cause manatees' extinction, if certain recommendations were followed. These recommendations have been included in the proposed permit as "standard marina conditions." The Marine Mammals Section, Office of Protected Species of the DNR, concurred in the U.S. Fish and Wildlife recommendations and evaluation, and recommended approval of the project. Past Problems Petitioner Altman questioned the applicant's ability to provide reasonable assurances, citing prior enforcement actions concerning the property where the marina is proposed to be built. In 1986, eroding upland material sloughed into jurisdictional vegetation after heavy rains. DER requested that the owners of the property at the time, which included the Kavanaughs, remove the material from two 3' by 3' areas and one 5' by 5' area, pay a $450 fine, and execute a consent order, which they did. The property was restored to DER's satisfaction. In 1989, lime rock intended as a road surface was deposited in vegetation within DER's jurisdiction, although not on submerged lands, without a permit. Neither of the Kavanaughs had directed the contractor to place any fill material in the marsh and, because a jurisdictional line had not then been established, neither knew that the vegetation lay within DER's jurisdiction. At the time, Mr. Kavanaugh and his wife owned only 25% of the property; and they were not involved in or responsible for the day-to-day operation of the site. The Kavanaughs were out of town when the majority owner of the property met with DER to resolve the matter. Since a jurisdictional line had not been established, there was some confusion over exactly how far upland the material would have to be removed. On their return, once the Kavanaughs learned of the continuing problem, they personally worked with the DER to resolve the matter to DER's satisfaction. Mr. Kavanaugh cooperated with the DER, completed restoration to DER's satisfaction, paid a $1,080 fine, and executed a consent order. Among other things, the consent order required removal of an old pogy boat and other debris from the rip rap along shore, materials which were already on the property at the time the Kavanaughs first purchased an ownership interest. In December of 1989, Mr. and Mrs. Kavanaugh became sole owners. In 1990, Mr. Kavanaugh received a warning letter from the DER regarding a boat house on the property. A complaint had been called in nearly a year after restoration work on the boat house had been completed, even though Mr. Kavanaugh had obtained permission from the Department of Natural Resources to do the restoration work. When DER learned that the Department of Natural Resources had given prior permission for the restoration work, no further enforcement action was taken. DER sent another warning letter in 1992 regarding shrimp doors and other debris, which shrimpers docking at the marina had placed on the property along the shoreline. Kavanaugh removed all debris from the bank and, after a reinspection by DER, was advised that the site was in compliance. One of the shrimpers no longer docks at the marina. The other shrimper has been admonished. Mr. Kavanaugh has placed "no trespassing" signs and asked the owner of the adjacent boat yard to watch the property, in attempts to stop further unauthorized dumping at the site. The Kavanaughs and the Department of Natural Resources were parties to litigation regarding the boundary of the proposed site as a result of which jurisdictional lines delineating the regulatory authority of the environmental agencies were established. Flags on PVC staffs marking these lines were still in place at the time of the hearing. The Kavanaughs have not knowingly placed illegal fill, nor was any still on site, at the time of the hearing. Unauthorized dumping at the site should decrease after construction of the marina. The plan is to retain full-time employees to maintain the property and police it regularly. Owners of the sailboats using the wetslips may assist in policing the area. Construction plans for the marina also include erection of a fence with a gate which will be locked daily to protect the dry stack storage area and other improvements at the site. Miscellaneous The City offered portions of its Comprehensive Plan in evidence to establish the City's policy regarding marinas. But the City did not adduce testimony to show that the proposed marina is contrary to City policy or otherwise violates what the City considers to be the public interest. No determination has been made regarding the compliance of the applicant's project with the comprehensive plan. Construction of the marina is expected to benefit the local community by making additional fire protection available: Extending the city water supply system to the property would entail laying water lines to properties not previously supplied water by the City.
Recommendation It is, accordingly, RECOMMENDED: That DER grant the application for dredge and fill permit on all applicable proposed conditions, and on the additional condition that the marina be restricted to sailboats. DONE AND ENTERED this 27th day of January, 1993, in Tallahassee, Leon County, Florida. ROBERT T. BENTON, II 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 27th day of January, 1993. APPENDIX The City's proposed findings of fact Nos. 1, 3, 4, 5, 7 and 11 have been adopted, in substance, insofar as material. With respect to the City's proposed finding of fact No. 2, the testimony also described it as the west bank. The City's proposed finding of fact No. 6 amounts to speculation. The City's proposed finding of fact No. 8 pertains to immaterial matters. With respect to the City's proposed findings of fact Nos. 9 and 10, increased length of pipe is a countervailing consideration. Joan Altman's proposed findings of fact were not numbered. DER submitted proposed conclusions of law but did not submit proposed findings of fact. Anne B. Kavanaugh's proposed findings of fact Nos. 1-5, 14, 25, 45, 46, 47, 48, 49, 51, 52, 53, 54, 55, 61, 62, 66, 75, 76, 77, 78, 80, 81, 82, 87, 90, 92, 97, 98 and 101 pertain to subordinate matters except to the extent of facts found in the recommended order. Ms. Kavanaugh's proposed findings of fact Nos. 6, 7, 8, 9, 10, 11, 12, 13, 15, 17, 18, 19, 21, 22, 23, 24, 26, 27,28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 42, 43, 44, 50, 56, 57, 58, 59, 60, 63, 64, 65, 67, 68, 69, 70, 71, 72, 73, 74, 79, 85, 89, 96, 99 and 100 have been accepted, insofar as relevant. With respect to Ms. Kavanaugh's proposed finding of fact No. 20, temporary turbidity would be contained. With respect to Ms. Kavanaugh's proposed finding of fact No. 41, there is a one percent chance each year. With respect to Ms. Kavanaugh's proposed finding of fact No. 83, her expert described the known congregating area as "in the project area." T.232. With respect to Kavanaugh's proposed finding of fact No. 84, the study was done in February and March, which are not summer months. Kavanaugh's proposed finding of fact No. 86 is better characterized as a proposed conclusion of law, which does not reflect recent case law. With respect to Kavanaugh's proposed finding of fact No. 88, a "no jeopardy letter" does not predict a lack of adverse affect. With respect to Kavanaugh's proposed finding of fact No. 91, the sail to power ratio is misstated. Kavanaugh's proposed finding of fact No. 93 has not been established by the evidence. See T.255. With respect to Kavanaugh's proposed finding of fact No. 94, Mr. Howard was not aware of any, but it was not established that none had been reported. With respect to Kavanaugh's proposed finding of fact No. 95, proposed data do not show that manatees do not feed on the eastern bank. Kavanaugh's proposed finding of fact No. 102 pertains to an immaterial matter. COPIES FURNISHED: Carol Browner, Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Daniel H. Thompson, Esquire General Counsel Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Joan Altman 212 Estrada Street Fernandina Beach, Florida 32034 Clyde W. Davis, Esquire 13 North Fourth Street Fernandina Beach, Florida 32034 Deborah D. Barton, Esquire BAUMER, BRADFORD & WALTERS, P.A. Box 4788 Jacksonville, Florida 32201 William H. Congdon, Esquire Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400
