Findings Of Fact Petitioner works for the Department of Transportation as an Engineer Technician III in the maintenance section of the Tallahassee field office in Leon County, Florida. Petitioner's position requires that he perform certain tasks in Leon, Gadsden, Jefferson, Wakulla, Franklin and Liberty counties. Ninety percent of Petitioner's duties involve the inspection of contract maintenance work within a six county area to ensure conformance to contract specifications, department specifications, rules, regulations, and policies. More specifically, Petitioner inspects, supervises, or measures: (a) work zone traffic control and maintenance of traffic setup; (b) contract roadside mowing, slope mowing, small machine mowing and hand trimming; (c) removal and replacement of existing striping, symbols and raised pavement markers; (d) roadway sweeping and edging and roadside litter removal; (e) tree trimming; and (f) brush removal, drainage repair and other activities assigned to Department of Corrections crews. Petitioner's job also requires him to: (a) prepare forms used for various concrete projects and daily inspection reports; (b) sample and test concrete and other materials as required; (c) calculate data and input it to computer for weekly status reports; (d) participate in Department/Contractor pre-construction conferences; (e) measure, compute and computerize quantities to be used for future contracts; (f) measure, calculate, and input to computer contract quantities to determine payment to contractors and for reporting to Respondent; and (g) assist in contract office administration by preparing required correspondence, documents and quantities on a personal computer. Approximately five percent of Petitioner's time is spent making daily pre-trip inspections of vehicles, tools and equipment including cleaning and maintenance or scheduling of maintenance. The remaining five percent of Petitioner's time is spent performing other duties as required. At times, Respondent's employees, including Petitioner's supervisors, have site meetings with county commissioners, county permitting officials, and/or their delegates. Occasionally Respondent enters into contracts, memoranda of agreement and joint participation agreements with counties and boards of county commissioners. Respondent's enforcement of these contracts sometimes conflicts with the desires of the local government. Petitioner currently provides specifications and inspects work being done by the county for driveways or county road intersections on a state highway. It is his responsibility to ensure that county employees comply with all specifications when widening turning lanes, deceleration lanes, and acceleration lanes or when placing culverts in ditches. Petitioner's job requires him to meet with county residents and private contractors to inspect work performed under a Department of Transportation permit. County residents often call upon their county commissioners to assist them when problems arise in the permitting or inspection process. Petitioner is not actively involved in issuing permits and awarding contracts. However, if Petitioner campaigns or becomes a county commissioner, a conflict of interest would arise any time the county residents put pressure on him to intercede on their behalf and take a position contrary to that of Respondent. In that case, Petitioner would be in a situation where regard for a private or local interest might lead to a disregard for the employee's duty as a state employee.
Recommendation Based upon the findings of fact and the conclusions of law, it is, RECOMMENDED: That Respondent enter a Final Order denying Petitioner's request to campaign for, and to hold, the office of county commissioner in Liberty County, Florida. DONE and ENTERED this 6th day of May, 1996, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD, 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 May, 1996. APPENDIX CASE NO. 95-5901 The following are the Hearing Officer's specific rulings on the finding of facts proposed by the parties in their proposed findings of fact. Petitioner's Proposed Findings of Fact Accepted in Findings of Fact 1 of this Recommended Order. Accepted in part in Findings of Fact 2-6 of this Recommended Order. Not supported by competent substantial evidence. The letter from the Clerk to the Board of County Commissioners of Liberty County is hearsay which is not sufficient to support a finding of fact. Section 120.58(1)(a), Florida Statutes. Irrelevant. Accepted in Finding of Fact 11 of this Recommended Order. Accept that, if elected, Petitioner would be a member of a board who could abstain from voting on matters involving a conflict of interest. However, reject that the influence of a county commissioner is limited to formal votes during board meetings. Therefore, irrelevant. Accepted in part in Finding of Fact 11. However, Petitioner admits that he could be required to work in permitting at anytime. Accept, however, if elected, Petitioner as a county commissioner would be meeting with the Assistant District Maintenance Engineer to discuss some issue then, as the state's inspector, be required to follow the engineer's policy decisions regardless of Petitioner's political position on that issue. Accept. However, the conflict of interest would still exist. Reject as not supported by persuasive competent substantial evidence. See above. Reject as not supported by persuasive competent substantial evidence. Reject. See above. Accept in Findings of Fact 11 of this Recommended Order. Respondent's Proposed Findings of Fact Accepted in part in Preliminary Statement. Petitioner's allegations are not findings of fact. Accepted as reasons Respondent gave for not giving Petitioner authorization to campaign and hold office. Accepted. See Preliminary Statement. Accepted in Findings of Fact 1 of this Recommended Order. Accepted in Findings of Fact 1 of this Recommended Order. Accepted in Findings of Fact 9 of this Recommended Order. Accepted in Findings of Fact 2 of this Recommended Order. Not necessary for resolution of the case. Accept as a specific example of conflict described in Findings of Fact 10 of this Recommended Order. Accepted as restated in Findings of Fact 9-11 of this Recommended Order. COPIES FURNISHED: Charles G. Gardner, Esquire Dept. of Transportation 605 Suwannee Street Tallahassee, FL 32399-0458 David Summerlin Post Office 122 Hosford, FL 32334 Ben G. Watts, Secretary Attn: Diedre Grubbs Department of Transportation Mail Station 58 Haydon Burns Building 605 Suwannee Street Tallahassee, FL 32399-0450 Thornton J. Williams, Esquire Department of Transportation 562 Haydon Burns Building Tallahassee, FL 32399-0450
Findings Of Fact Agreed Facts: The Department of Health and Rehabilitative Services (hereinafter "HRS") is the affected agency and is responsible for agency action concerning certificates of need in Florida. FCC is a Florida corporation located at 345 South Magnolia Drive, Suite E-21, Tallahassee, Florida 32301. FCC applied for a CON to construct a 120-bed nursing home in Dade County, Florida, in January 1984. HRS denied that application on March 2, 1984, and FCC timely requested an administrative hearing. During the course of this first round of administrative litigation, HRS resolved its dispute with FCC and issued to FCC CON No. 3024 to construct a 120- bed nursing home in Dade County, Florida. HRS required 24 of the 120 beds to be dedicated to Medicaid patients. HRS issued the CON to FCC on February 4, 1985, but did not issue its final order in the first round of litigation until July 1, 1985. In October 1985, St. Francis Hospital challenged FCC's CON No. 3024. This litigation was independent of the initial first round of litigation concerning this CON. The St. Francis case was resolved in December 1985, and HRS tolled the time for FCC to commence construction. HRS stated that the new starting date for the project was December 4, 1985, and that the project must be under continuous construction by December 3, 1986. On November 14, 1986, FCC requested a six-month extension of the one- year validity period for CON No. 3024. HRS granted that request on February 5, 1987, and established June 3, 1987, as the new termination date for CON No. 3024. HRS does not dispute that FCC properly obtained this six-month extension. On December 1, 1986, however Forum Group initiated new litigation challenging FCC's CON pursuant to the opinion of the First District Court of Appeal in Gulf Court Nursing Center v. Department of Health and Rehabilitative Services, 483 So.2d 700 (Fla. 1st Dist. 1985). This third round of litigation concluded when Forum Group voluntarily dismissed its appeal before the District Court of Appeal, and the District Court issued its order closing the case on July 28, 1987. Based on this third round of litigation, HRS established January 26, 1988, as the new termination date for CON No. 3024. On October 23, 1987, FCC filed an interim cost report for this project showing an expenditure of $84,000. On January 7, 1988, HRS issued a letter to FCC permitting FCC to lay the foundation for CON project No. 3024. On January 19, 1988, HRS approved the entire construction plans for CON No. 3024, and through its contractor, FCC promptly obtained a local building permit, No. 0788, on January 22, 1988. At 11:15 a.m. on January 27, 1988, the day after the termination date for this CON, HRS conducted a site visit. By letter dated January 29, 1988, HRS stated that the CON was null and void and requested FCC to return the original CON. FCC received that letter on February 8, 1988. FCC timely petitioned for a formal administrative hearing under Section 120.57(1), Florida Statutes (1987), on February 12, 1988. HRS referred the petition to DOAH to conduct a formal hearing. The only grounds stated by HRS as the basis for voiding CON No. 3024 is that the project was not "under physical and continuous construction beyond site preparation" by January 26, 1988. Prior to January 26, 1988, FCC completed the following activities with regard to CON No. 3024: Obtained land for the project; Procured a building permit from the local building authorities; Obtained a foundation permit from HRS; Obtained HRS' approval of the actual construction documents for the construction of the entire 120-bed nursing home, pursuant to a letter from Mr. Richard Rosenvold, HRS, dated January 19, 1988 (authorizing the construction of the entire project beyond the foundation). On or before January 26, 1988, FCC undertook the foundation forming of the nursing home authorized CON No. 3024 by installing steel and placing concrete on its site in Dade County, Florida, in accordance with HRS-approved construction documents. HRS agrees that, if FCC prevails in this case, FCC will have twelve months from the rendition of the Final Order within which to recommence construction pursuant to CON No. 3024. Disputed Facts: Interruptions in the Validity Period The purpose of the validity period of a CON is to provide an uninterrupted space of time for the CON holder to commence construction. During this period the holder of the CON must get architectural plans approved by HRS, obtain land and proper zoning, obtain a building permit, obtain financing, and begin constructing the project. The CON validity period is twelve months. HRS may authorize one six- month extension, for a maximum validity period of eighteen months. The validity period for CON No. 3024 was unique, in that the CON was twice subjected to legal challenges which threatened the validity of the CON long after the CON was issued by final agency action. Because HRS recognizes the significance of legal challenges which threaten the validity of a CON, HRS tolls the validity period throughout the duration of such challenges. HRS twice tolled the validity period for FCC's CON No. 3024, first, because of the challenge brought by St. Francis Hospital and, second, because of Forum Group's Gulf Court challenge As a result of this stop-and-go process, FCC did not have an uninterrupted eighteen months, to commence construction of CON No. 3024. The significance to FCC of the interruptions to the validity period for CON No. 3024 were: FCC could not obtain project financing during legal challenges to the CON or during the time periods after the challenges were concluded but before HRS issued its letter recommencing the validity period. Because of the Forum Group challenge, FCC could not close on its contract to purchase land for the project and lost the first site it had selected for construction of its nursing home. FCC incurred increased costs for zoning in that it lost the sums it had expended to obtain appropriate zoning approval from the local zoning authority for the first site. The St. Francis and Forum Group legal challenges delayed the commencement of construction for CON No. 3024 between three and four months. This delay is in addition to the time lost during the pendency of the litigation when FCC could make no additional expenditures to develop the project. FCC did not make expenditures toward commencing construction of CON No. 3024 during the pendency of any litigation challenging the validity of that CON because to do so is commercially unreasonable. However, FCC did not wait for HRS' notification that the validity period for this CON had recommenced before contracting to purchase an additional site. After investigating five other locations, FCC contracted to purchase land located at 16100 Northwest 2nd Avenue, Miami, Dade County, Florida, on September 4, 1987. Retroactive Notices By statute, HRS is responsible for notifying CON holders of the commencement tolling, and recommencement of the CON validity period. Without notification from HRS about the duration, commencement, tolling, and recommencement of the validity period for a CON, the CON holder cannot make appropriate plans to commence construction of a CON project. Without clear notification from HRS about the duration of the CON validity period, lenders will not finance CON projects. HRS twice provided tardy notice to FCC about the recommencement of the validity period for CON No. 3024: The St. Francis Hospital litigation was settled favorably for FCC in December 1985. Nonetheless, HRS did not notify FCC that its validity period had recommenced as of the date of the December 1985 final order until its letter dated February 10, 1986. Forum Group dismissed its appeal and the First District Court of Appeal issued an order of dismissal on July 27, 1987. Nevertheless, HRS did not notify FCC that the validity period for CON No. 3024 would recommence as of July 27, 1987, until its letter dated September 28, 1987. Even though FCC did not complain about the January 26, 1988, termination date which HRS established for CON No. 3024 by letter dated September 28, 1987, until HRS initiated this action, FCC's failure to complain does not rectify HRS' retroactive notifications. Forum group initiated its challenge with two days then remaining for the validity period for CON No. 3024. HRS then tolled the validity period for this CON throughout the legal challenge. HRS approved FCC's request for the six-month extension by letter dated February 5, 1987, while the validity period continued to be tolled. When the Forum Group litigation was dismissed, HRS extended FCC's validity period for this CON to January 26, 1988, which is a total of six months and two days (182 days) from the date of the July 27, 1987, order of dismissal. Tree Permit There were no trees where the foundation for CON No. 3024 was to be located, and there were no protected species of trees on the site for this project. Accordingly, the local authority for Dade County did not require a tree permit for this site. Zoning and Other Approvals FCC, through its Vice President of Development and Project Architect William T. Searcy, an expert in architecture and in the evaluation of construction costs, applied for zoning for the second project site for CON No. 3024. Prior to commencing construction before the termination date of the CON, the local zoning authority unanimously approved FCC's application for a 120-bed nursing home with a screened fence between the nursing home and its adjoining neighbors. FCC obtained a waiver of the requirement to plat its site for CON No. 3024 from the local authorities for Dade County on January 22, 1988. FCC did preliminary worth with local utility companies to insure all utility service would be available to the nursing home, prior to the January 26, 1988, termination date for CON No. 3024. Construction Contract In late January 1988, FCC, through its owner, James McCarver, verbally agreed to engage Anthony Estevez and Project Advisors Corporation as general contractor to construct the nursing home authorized by CON No. 3024. FCC ordered Estevez to proceed to construct CON No. 3024, and FCC agreed to pay the contractor's time and materials plus 15 percent for overhead and profit. These terms would later be reduced to a written contract, but this action by HRS intervened. Estevez obtained the building permit for CON No. 3024 from the local building authority for Dade County, Florida, only after this verbal construction contract was entered into between FCC and Estevez. Construction Activities FCC hired a soils testing laboratory on October 21, 1987, to do a soil investigation report on the second site for CON No. 3024; adapted its construction plans to fit the new site; hired a building permit specialist familiar with the Dade County building authorities; and hired a civil engineer for the project. The soil testing laboratory, Wingerter Laboratories, Inc., issued its report on October 30, 1987. The project general contractor followed the soil engineer's recommendation in the Wingerter soils report in constructing the footer for the southeast corner of the nursing home authorized by CON No. 3024, and the site was properly prepared. FCC's general contractor, Anthony Estevez, is an expert in general contracting and in the design, construction, and management of health care facilities. On or before the January 26, 1988, termination date, the project's general contractor for CON No. 3024: Had the surveyor, J. F. Lopez, stake out the corners of the building and the footings the contractor planned to pour. Performed all work on the site in accordance with HRS-approved construction documents. Had Vallero Trucking clear the site to good soil where the footer was to be poured. Several thousand square feet were cleared for the footer. The contractor was clearing additional portions of the site when HRS inspected on January 27, 1988. Filled the pad where the footer would be poured. Vibro-compacted the soil under the footer in layers. Used limerock to make a very supportive base for the footer. Set reinforcing steel where the footer was poured. Obtained the threshold engineer's inspection and approval to pour the footer. The threshold engineer inspected the soil compaction and approved the pour. The soil-bearing capacity under the footer was 6,000 pounds per square inch ("PSI"), well in excess of the required 25 PSI for this project. Poured concrete to form a footer of 15 feet at the southeast corner of the foundation for the subject nursing home. Had a compression cylinder test done to determine the strength of the footer. The footer had a strength of 4,600 PSI twenty-eight days after it was poured, well in excess of the 3,000 PSI required. The footer met and exceeded the specification for CON No. 3024 and represents a continuous 15-foot segment of the foundation at the southeast corner of the proposed nursing home. The footer is strong enough to support more than the one-story structure of the nursing home for which it was designed. The contractor had a construction trailer on site for CON No. 3024 on the afternoon of January 27, 1988, just after HRS' inspection. The contractor had a bulldozer, a vibro-compacting roller, and a combination backhoe and front-end loader on site between January 23, 1988, and the end of January or the beginning of February 1988. The contractor's crew was on site for CON No. 3024 from January 22, 1988, until the end of January or the beginning of February 1988, including Saturdays and Sundays. But for this action, there were no barriers to FCC's continuous construction of CON No. 3024 after January 26, 1988. Expenditures and Losses FCC and its general contractor expended, or owe, $256,000 to construct the nursing home in Dade County authorized by CON No. 3024. This includes FCC's expenditures for studies and consultants as well as for legal fees to obtain the CON. This also includes direct costs for travel and long-distance telephone calls, for the development of the architectural plans and construction documents, for engineering, for the down-payment on the second site, and for zoning for both the first and second sites. The general contractor for CON No. 3024 spent in excess of $50,000 on the project to obtain the building permit, fill, equipment, supervision, labor, a threshold engineer, temporary electricity, steel, concrete, the construction trailer, a portable toilet, and insurance. After HRS' site visit on January 27, 1988, when HRS told Estevez, the general contractor for the project, that HRS would terminate CON No. 3024, Estevez ordered all construction on the project to stop. Estevez did so because HRS told him he could not proceed with construction. Because HRS issued its January 29, 1988, letter declaring CON No. 3024 null and void, FCC lost the right to purchase the second site, the land on which it had commenced construction. The HRS Inspection During HRS' inspection on January 27, 1988, there was a bulldozer on site for this project, a construction foreman, and several workers. The construction trailer was in place on the site for this project by the afternoon of January 27, 1988. HRS found a building permit for the project on site during the January 27 inspection. The HRS inspector took pictures of the site for CON No. 3024 depicting construction activity which included foundation forming with steel installation and concrete placing of the footer for the southeast corner of the nursing home authorized by CON No. 3024. HRS sent FCC notice that it was terminating CON No. 3024 as null and void based solely on the January 27, 1988, inspection. HRS based its notice letter on faulty information: HRS believed that a tree permit was required when in fact there were no protected species of trees on the site for CON No. 3024. Consequently, FCC did not need a tree permit from local (Dade County) authorities. HRS believed FCC did not have a soil report when in fact the threshold engineer approved the pouring of a footer based on specified soil compaction. HRS believed that only 25 square feet of the site had been cleared but the footer required, and the contractor cleared, several thousand square feet of the site to pour the 15-foot footer. HRS' decision makers lacked adequate expertise to determine whether FCC had commenced construction of CON No. 3024. The HRS decision makers did not know that the HRS Plans Review Section had approved the construction plans and specifications for CON No. 3024 prior to the January 26, 1988, expiration date for that CON. Site Preparation HRS has no rule for interpreting the "continuous [construction] activities beyond site preparation" portion of the definition of "commence construction." HRS' non-rule interpretation of this phrase is that all site work, including soil compaction for the foundation, delineation of the foot print of the facility, and the clearing of vegetation within the area of the site where the foundation will be poured, must be completed before the termination date in order for the CON holder to validate the CON by commencing construction. FCC was not on notice as to HRS' "policy" definition of construction activity beyond site preparation, and HRS' witnesses did not uniformly describe that "policy." In construction parlance, site preparation includes the preparation of the entire project site. This includes sub-grading under the paving, placing fill under the footers, clearing the entire project site, and finishing the project up to the finished grade. For most large health care and commercial projects, clearing is done in stages and site preparation is merely kept ahead of forming the foundation. No phase is completed before the next phase is begun. If all site preparation had to be completed before a CON holder could go on to the next phase of construction, each CON project would be delayed approximately five weeks at a great cost to the CON holder and to taxpayers and health-care consumers. Prior Inconsistent Action by HRS HRS has not required FCC, nor any other CON holder, to meet the definition of commencing continuous construction beyond site preparation that it required of FCC in this case. HRS found FCC to have commenced construction of five other nursing home projects in Florida after FCC performed construction activities and site preparation identical with FCC's work on CON No. 3024. HRS did not terminate Glenbeigh Hospital's (hereinafter "Glenbeigh") CONs to construct two hospitals even though Glenbeigh completed less construction activity to commence these projects prior to their termination date than FCC had with CON No. 3024. HRS validated Glenbeigh's CON No. 3217 for an eighty-bed substance abuse hospital in Orlando when: Glenbeigh had only a verbal contract with its general contractor three or four days before constructing two small column pads. A building permit was obtained May 21, 1986, before there was any written AIA contract. Glenbeigh only constructed two column pads two feet long by two feet wide by a foot and one-half deep before its June 7, 1986, termination date, versus FCC's fifteen-foot continuous footer on CON No. 3024. A retention pond, shown in pictures taken by HRS of Glenbeigh's project, was not even on the project site and was not something constructed by the CON holder to commence the project. There was no soil test or geologist's report for the column pads, nor for the site. Glenbeigh did site preparation under the foundation long after the column pads were poured and after the termination date for that CON. HRS validated Glenbeigh's CON No. 2667 for a sixty-bed adolescent chemical dependence hospital in West Palm Beach, now licensed, when: Prior to the termination date, Glenbeigh poured two column pads after compacting only under the pads. Glenbeigh continued to perform site preparation under the foundation after the termination date of December 28, 1985, for that CON.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that a Final Order be entered finding that FCC's CON No. 3024 remains valid. In compliance with the Prehearing Stipulation, it is further RECOMMENDED that FCC be given twelve months from the rendition of the Final Order in this proceeding within which to recommence construction of the Dade County nursing home project authorized by CON No. 3024. DONE and RECOMMENDED this 15th day of December, 1988, at Tallahassee, Florida. LINDA M. RIGOT, 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 Administrative Hearings this 15th day of December, 1988. APPENDIX TO RECOMMENDED ORDER DOAH CASE NO. 88-0840 Petitioner's proposed findings of fact numbered 1-69 have been adopted either verbatim or in substance in this Recommended Order. Respondent's proposed findings of fact numbered 1, 4, 6, 7, 10, 12, 14, 17, and 21-23 have been adopted either verbatim or in substance in this Recommended Order. Respondent's proposed findings of fact numbered 2, 3, 5, 8, 9, 11, 13, 15, 18-20, and 24 have been rejected as being unnecessary for determination herein. Respondent's proposed finding of fact numbered 16 has been rejected as being irrelevant to the issues in this cause. COPIES FURNISHED: Sam Power, Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700 Robert P. Daniti, Esquire 1017-C Thomasville Road Tallahassee, FL 32303 Richard A. Patterson, Esquire Department of Health and Rehabilitative Services 2727 Mahan Drive Fort Knox Executive Center Tallahassee, FL 32308 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700 =================================================================
The Issue This cause concerns whether the Respondent committed certain violations of Chapter 471, Florida Statutes (1989), governing the regulation of licensure and practice of Professional engineers in the State of Florida by certain alleged negligent acts with regard to the preparation of plans for a building and alleged engagement in the practice of architecture beyond the scope of authorized engineering practice.
Findings Of Fact The Petitioner is an agency of the State of Florida charged, in pertinent part, with regulating the practice of engineering pursuant to Section 20.30, Florida Statutes, Chapters 455 and 471, Florida Statutes, and with enforcing the licensure standards for registered professional engineers in the State of Florida. The Respondent is a licensed engineer, licensed by the State of Florida, holding license number PE 0029985. His address of record is Charles Stokes Engineering, 3000 Highway 231, North, Lynn Haven, Florida 32404. In 1989, the Respondent contracted with James Carlton to prepare building plans for a restaurant known as the Crab Shanty in Panama City Beach, Florida. Numerous changes were effected in the plans, both before and during construction, such that the restaurant evolved finally as a three-story restaurant built primarily of wood with utility-pole type pilings or posts and beams for framing, including glued-laminated wood beams (glue-lam). An initial set of plans (Petitioner's Exhibit 1) were submitted to the Bay County Building Official, Mr. James Pybus. While the initial 11-page plans depicted in Petitioner's Exhibit 1 lacked some detail, especially with regard to electrical, plumbing, air conditioning and mechanical aspects, the plans were later augmented by an additional 11 pages depicting some of the previously absent details and Mr. Pybus confirmed that the practice of his agency is not to require more detailed plans of such electrical, plumbing, air conditioning, or mechanical work, if it comes within the scope of the exceptions set forth in Section 471.003(2)(i), Florida Statutes (1989). Those exceptions provide that licensed subcontractor, in those fields can design the electrical, plumbing, air conditioner, or mechanical aspects of a project themselves if they have the appropriate contractor's licenses without engineering registration. Therefore, Mr. Pybus' agency does not require that engineers preparing such plans, as to these aspects of the planning work, include such details if licensed contractors for those areas of the construction project will be doing the design and installation work, which was the case in this situation. Personnel under Mr. Pybus' direction inspected the building during construction and preformed a final inspection, all of which confirmed that the construction was in accordance with appropriate building codes. Mr. Pybus opined that his office had reviewed the plans submitted and determined that the plans had depicted sufficient detail for construction in accordance with the applicable codes. The Petitioner presented a consulting engineer, Mr. Harold Benjamin, as an expert witness. Mr. Benjamin opined that the Respondent had exceeded the limits of his engineering experience by signing and sealing plans which entailed mechanical engineering, electrical engineering, and, to some extent, the field of architecture. The Respondent, however, has worked for many years in the nuclear power industry, during which time he was actively involved in electrical, structural and mechanical engineering and design which, by this extensive experience, qualified him to sign and seal plans covering the fields of mechanical and electrical engineering. The evidence to this extent refutes the testimony of Mr. Benjamin, and it is rejected in this regard. Further, although the Respondent preformed a minor amount of architectural work in designing the building, the architectural aspects of his building design were clearly incidental to the major considerations of civil, mechanical, structural, and electrical engineering. Even Mr. Benjamin, the Petitioner's witness, conceded that the architectural aspect of the design work was incidental to the overall plan and design work involved and was on the order of approximately ten percent of the Respondent's work on the project. Mr. Benjamin testified that he observed certain omissions on the plans contained in Petitioner's Exhibit 1. Those omissions involve not showing the proper type of support for some stairs, a foundation plan not being labeled, wall sections not being properly shown, and an absence of an "electrical legend" on the face of the plans. He opined that heating and air conditioning plans were unclear as to duct size, air delivery and quantities to various rooms. Mr. Benjamin acknowledged, however, that he was basing this testimony on only the plans depicted in Petitioner's Exhibit 1, which consisted of the first 11 pages and it was shown that this was not the complete set of plans actually drawn and ultimately filed with the building department by the Respondent, which consisted instead of a total of 22 pages which showed much more detail then Mr. Benjamin had reviewed and upon which he based his testimony. Mr. Benjamin only saw the remaining portion of the plans in question very briefly shortly prior to hearing and acknowledged that many of the omissions had been supplied on the additional plan sheets. Mr. Benjamin also acknowledged in his testimony that flaws in the design alleged by a Mr. Coleman, a "complaining architect" had not been proven in his view and, therefore, the Respondent was not negligent in his design. Upon redirect examination, Mr. Benjamin acknowledged that he only opined that the Respondent was negligent in terms of not consulting with qualified electrical and mechanical engineers with regard to the project because of his previously discussed opinion that the Respondent's engineering experience or expertise did not extend to electrical and mechanical engineering. This opinion, however, has been refuted as delineated above. Concerning the structural design aspects of the building and plans, in view of Mr. Benjamin's letter report to the Department of June 12, 1989, coupled with Mr. Benjamin's testimony that he did not do a complete review of the plans and did not examine the building itself, Mr. Benjamin's testimony has not established any negligence on the part of the Respondent. It affirmatively establishes that any architectural practice the Respondent may have engaged in was only incidental to his engineering design work for the project as a whole. Further, the testimony of Mr. Benjamin to the effect that the air conditioning system appeared to him inadequate to handle the peak load, as generated by restaurant occupancy of nearly 100 people and the restaurant kitchen, it was demonstrated at page 41 of the transcript that Mr. Benjamin had not observed the restaurant and kitchen space at the building in question and was not aware of what the actual occupancy of the restaurant was. Therefore, he is not deemed competent to express expert opinions concerning the adequacy of the air conditioning equipment and design. The Petitioner also presented the testimony of Mr. Berton Hufsey, a mechanical engineer. He was accepted as an expert witness in this field. Mr. Hufsey initially expressed criticism about certain plumbing and HVAC (heating, ventilating and air conditioning) aspects of the plans. Mr. Hufsey acknowledged, however, that because his practice is in the Miami, Florida, area, he was not familiar with the extent of detail customarily shown on engineering plans in the Bay County area and, thus, was not familiar with the professional practice standards in the Bay County area in that regard. Mr. Hufsey initially opined that the grease trap for the restaurant was inadequately sized and that all kitchen and bathroom waste were routed though the grease trap; that the toilet vent was a "dry vent" and that a wet vent, which washes the bottom of the vent pipe, should have been employed. He criticized the absence of details of the water heater and the kitchen ventilating system not being shown to be coordinated and balanced, but acknowledged that two fans were shown and appeared to balance. He also opined that the plans did not show an innerconnect to shut off heat producing equipment when the fire extinguisher system was operating, that exhaust fans or windows were not shown for the bathroom/toilet area, that the gas furnace was not shown to have a flue connection, and that the HVAC system was not shown to have a condensate water drain. Mr. Hufsey acknowledged in his testimony, however, that he thought, based upon this opinion and review of the initial set of the 11-page plans he had reviewed in making his recommendation to the Department, that the complaint had some validity but he would not go so far as to testify that negligence had occurred. Then, when confronted in his testimony by the as-built" plans, which he only saw on the day of the hearing, Mr. Hufsey acknowledged that the grease trap was properly designed, that the kitchen supply and exhaust fans were also appropriately detailed on the as-built plans, as well as the fire sprinkler system, and the air conditioning system. In summary, after reviewing the actual as-built, 22-page set of numbered and sealed plan sheets prepared by the Respondent, Mr. Hufsey acknowledged that the omissions and lack of detail noted on the first 11-page set of "rough plans" had been corrected with the exception of the "dry vent" for a toilet. Mr. Hufsey, however, acknowledged in regard to this that an experienced, qualified plumbing contractor would know the correct type of vent to install for the toilet, even if it was not actually depicted on the plans, and acknowledged that professional engineering practice in Florida provides that certain types of jobs can be designed and built by the licensed trade contractors such as plumbers, electrical contractors and mechanical contractors and that these types of trade contractors can design and build the plumbing, heating and air conditioning, and electrical aspects of a job such as this without having the design actually placed in the plans by the licensed registered engineer. See the exception contained in Section 471.003(2)(i), Florida statues (1989). Moreover, the Respondent, in his plans, affirmatively indicated that the sprinkler system had to take priority in its design and location over the mechanical, heating, air conditioning equipment and duct work, as well as the plumbing piping. This was a safety feature in order to ensure that the sprinkler system had effective coverage in the event of fire. Because of this safety feature, noted on the plans by the Respondent engineer, there necessarily had to be some degree of flexibility for installing the HVAC, the duct work~ and the plumbing work for those pertinent, licensed trade contractors. This was an additional appropriate reason why specific detail of the plumbing, electrical, and mechanical HVAC aspects of the job were not firmly and finally designed by the Respondent, because of the necessarily precise location of the sprinkler system shown on page 15 of the as-built plans. Thus, because of the exception allowed in the statute for design of HVAC, plumbing, and electrical work by the appropriate, licensed trade contractors and because of the priority the Respondent himself noted on the plans for the sprinkler system design and installation, it has not been shown that the Respondent was negligent in regard to the lack of detail on the plans for HVAC, electrical and plumbing design. Further, Mr. Hufsey acknowledged in his testimony concerning the alleged water heater detail deficiency, the lack of depiction of the air conditioning condensate drain, the furnace flue, and air supply; that experienced, licensed trade contractors in those relevant trades would be able to design and build those features into the building appropriately within the exception allowing them to do so at Section 471.003(2)(i), Florida Statutes. Mr. Garcia testified as an expert in the field of electrical engineering. Mr. Garcia stated that the plans submitted for the permit were deficient as to electrical items, thereby demonstrating negligence. Specifically, Mr. Garcia found that the initially submitted plans depicted no "panel scales"; no electrical risers; no load analysis; no specifications for lighting fixtures; insufficient detail to show compliance with the national electrical code and the energy code; that emergency lighting did not comply with the national electrical code; that no electrical legends were depicted; that circuits were not properly identified for lighting fixtures; that no schedule specifying light fixtures were shown; and that stairs were not shown to have the required emergency lighting. Mr. Garcia acknowledged in his testimony that the later, as-built plans depicted in Petitioner's Exhibit 8 showed that many of these items were corrected, although not all of them. He acknowledged, however, that on a project of this size that a licensed electrical contractor could design and build the required electrical items, equipment, and service, including the items he found not sufficiently depicted on the plans, without the services of a licensed engineer for the design, in accordance with the exception provided at Section 477.033(2)(i), Florida Statutes. Mr. Garcia testified, however, that a prudent engineer, if he omitted such detail from his plans, should make a notation on the plans to that effect to indicate that that design detail was to be provided by the licensed electrical contractor performing that aspect of the job. The Respondent failed to make this notation. The Petitioner presented the testimony of James Owen Power, a structural engineer accepted as an expert witness in that engineering field. Mr. Power expressed criticism concerning the Respondent's plans as demonstrating negligence in the practice of engineering in the following particulars: Sheet 2 of Exhibit 1 shows a roof over the third floor, sheet 3 shows no roof. The details on sheet 5 of Petitioner's Exhibit 1 related to the girder layout indicated glue laminated wood beams with insufficient notes to guide the contractor. The stairs of the south elevation were shown in two locations and did not show proper detail to show attachment to the building, nor that they met life safety standards. Sheet 5 of Petitioner's Exhibit 1, according to Mr. Power, shows a connection of the glued laminated wood member to a girder which was structurally inadequate because of the type and manner of bolting. The plans contained in Petitioner's Exhibit 1 used to obtain the building permit were somewhat confusing because certain irrelevant notes were written on the right hand side of sheet 1 of those plans. The piling construction notes, according to Mr. Power, called for 8 X 8 square pilings or 8 inch round marine treated pilings, but the drawing showed 12 inch round pilings. Sheet 6 of Petitioner's Exhibit 1 is confusing in that it is unclear whether it should be applied to the second or third floor, or just one of those two floors because the sheet specifies metal stud walls but does not indicate the gauge or size of the metal studs, nor did Mr. Power find the details sufficient to show how the walls should be framed at the top under the second floor trusses. Petitioner's Exhibit 1 allegedly shows insufficient detail with regarding to flashing and, finally, Mr. Power opined that there was not proper specification with regard to attachment of sheet metal to an overhang. Mr. Power's testimony was directed to Petitioner's Exhibit 1, the initial preliminary plans submitted for purposes of obtaining the building permit. Although building permit submittal plans should depict sufficient detail to show that a safely constructed building will result which will comply with appropriate building codes, it is not expected, as Mr. Pybus demonstrated, that all details be shown, especially in this case where certain planning details are appropriately and legally left to the designing and building performance of licensed trade contractors for the electrical, plumbing, and HVAC aspects of the building. Mr. Power's testimony does not demonstrate that the plans in Petitioner's Exhibit 1 would not have resulted in a safely constructed building which could comply with the building codes. In any event, the as-built set of plans drawn and designed by the Respondent (Petitioner's Exhibit 8), coupled with Respondent's unrefuted testimony, shows that these alleged deficiencies did not exist or had been adequately depicted in the as-built plans. The alleged improper connection of the glue lamented wood members to girders was actually demonstrated by the Respondent's testimony to be structurally adequate and in accordance with good, safe engineering practices. Concerning the alleged life safety standard violations regarding the stairs, Mr. Power acknowledged he had no architectural expertise, and was not qualified to render such an opinion, and the Respondent's case in chief shows that there was a change order regarding the stairs which legitimately accounts for the two different locations shown. Further, concerning the piling size complaint of Mr. Power, the Respondent demonstrated that the 8 inch sectional dimension of the pilings was the minimum diameter specification, which becomes obvious when it is taken into account that the drawing showed 12 inch round pilings. Accordingly this aspect of Mr. Power's criticism is invalid and is not indicative of negligence in the practice of engineering. The matters concerning the gauge or size of metal stud walls, the flashing, the depiction of roofs for the second and third floors, and the attachment of sheet metal to the overhang involved structural changes made during the course of construction as the result of legitimate agreements between the Respondent and the owner, as well as apparent deficiencies which were actually corrected on the final set of signed and sealed plans. Accordingly, these criticisms from Mr. Power do not reflect inadequacies or negligence in the practice of engineering in this regard either. Further, although Mr. Power expressed criticism concerning non- compliance with the statutory requirement for the drawings to be signed and sealed by the Respondent engineer, on cross examination he acknowledged that the Respondent had- in fact, attached to his final plans a cover letter and an index which had been signed and sealed with the appropriate raised seal and that each sheet of the drawing incorporated under that cover letter by reference was, in turn, appropriately identified by a stamped, red ink seal. Thus, the final plans were appropriately signed and sealed. Finally, it should be pointed out that none of the expert witnesses presented by the Petitioner had viewed the structure involved and none was able to testify competently that the structure had not, in fact, been finally designed, in the final plans, and constructed in a manner which would result in an improperly constructed, unsafe building. The Respondent presented the testimony of Mr. James Carlton, one of the owners of the building. Mr. Carlton established that he retained the Respondent to perform engineering services and that he did not want or need an architect because he had already conceived the architectural design of the building based upon his experience in the restaurant business. Mr. Carlton established that he was satisfied with the services provided by the Respondent and described his close cooperation with him and his supervision of the construction as very satisfactory. In fact, Mr. Carlton described the Respondent as working late at night seven days a week and always readily responding if changes were needed or desired by the owner or the contractors. Mr. Carlton described in detail the structural soundness of the building, even when subjected to 80 MPH winds and the weight and movement of crowds involving hundreds of people, which corroborated the Respondent's own testimony regarding the substantial structural soundness of the resulting building. The Respondent also presented the testimony of Henry Skipper, the contractor who actually constructed the building. Mr. Skipper confirmed that the plans provided adequate guidance for construction and for the work which was to be actually performed by licensed subcontractors in the trades of mechanical, electrical, plumbing, and HVAC. Mr. Skipper corroborated the fact that the Respondent was readily available to assist the contractors and subcontractors and the owner and to ensure that the building was properly constructed at all stages. Mr. Skipper found that the Respondent's plans contained the appropriate amount of detail treatment which he was accustomed to encountering in the preparation and use of building plans in the Bay County construction industry over a period of many years. Mr. Skipper's testimony appearing at pages 110 through 120 of the transcript specifically refutes the claims by Petitioner's witnesses concerning the adequacy of the design or construction of the stairs, the exterior walls, the glue--lam beams, the metal roofing and sheet metal detail, the perimeter walls, and the electrical, mechanical, plumbing, and HVAC aspects of the project. His testimony is accepted. Respondent testified in his own behalf and described his extensive experience as a professional engineer. In refuting the Petitioner's claims that he had worked outside his training and experience in terms of mechanical and electrical engineering, he established that he has many years of experience, derived from the nuclear power industry primarily, as well as to some extent in the sanitary sewer engineering design field by which he acquired extensive expertise in electrical mechanical, as well as structural engineering design. He is a licensed professional engineer in Alabama, Georgia, and Florida, and has been certified by the State of Florida as a Designated, Threshold Engineering Inspector. He has been approved for state employment as a professional engineer-mechanical III and a professional engineer-electrical I. His testimony appearing at pages 147-160 of the transcript together with the testimony of Mr. Skipper, the contractor, and the owner, Mr. Carlton, refutes the Petitioner's criticism concerning his design of the HVAC, plumbing, electrical, and structural aspects of the bui1ding. The Respondent established, in fact, that his design of the laminated beams and the method of connection of them, in fact, exceeded the recognized engineering and structural design requirements. Although various of the Petitioner's witnesses, as well as the Respondent in his testimony, established that sufficient detail concerning the mechanical, electrical, HVAC, and plumbing portions of the project were depicted on the plans so that appropriately licensed trade contractors practicing in those fields of contracting could do the final design and installation of those aspects of the project, the Respondent did not refute the showing by the Petitioner's witnesses that, as to the electrical equipment and service design portion of the project, the Respondent failed to properly note on his plans that flexibility for appropriate design and installation of the electrical segment of the project was being left to the licensed electrical subcontractor. In this regard then, it was established that the Respondent was negligent in the practice of engineering. It was not established that the Respondent engaged in any fraud or misconduct in the practice of engineering however, nor that he practiced architecture beyond the purview of his engineering licensure, in more than an incidental way.
Findings Of Fact Stipulated Facts Deemed Relevant to Be Found Petitioner is the state land planning agency with the duty and responsibility to enforce and administer Chapter 380, Florida Statutes. The Killearn Lakes project is a planned residential community located north of Tallahassee near Bradfordville in Leon County, Florida. A portion of the Killearn Lakes Project, consisting of Units 1, 2, 3, 4 and 5 (phase I) is vested from Development of Regional Impact (DRI) review pursuant to Section 380.06(20), Florida Statutes. Petitioner recognized the vested rights for said portion of Killearn Lakes in BLIVR-274-037. The vested portion of Killearn Lakes has never undergone DRI review and is not a subject of this administrative proceeding. The remainder of the Killearn Lakes project, consisting of Units 5 (phases II and III), 6 and 7, is not vested from DRI review. Killearn was the sole owner of the non-vested portion of Killearn Lakes during the original DRI review, and is presently the owner and developer of most of the undeveloped portion of the Killearn Lakes DRI. The county is the local government with the jurisdiction to issue DRI development orders, and is the local government with the primary responsibility for administering DRI development orders for the land covered by the Killearn Lakes DRI development order. On November 14, 1974, Killearn filed a DRI application for development approval (ADA) for the non-vested portion of Killearn Lakes. In March of 1976, the Northwest Florida Planning and Advisory Council, District II, issued its Development of Regional Impact Evaluation for Killearn Lakes, Inc. On March 23, 1976, the county held a public hearing pursuant to Section 380.06(7), Florida Statutes (1975), on the Killearn Lakes ADA. The county commission issued a Development of Regional Impact Development Order approving the Killearn Lakes DRI and rejecting the conditions recommended by the Northwest Florida Planning and Advisory Council. No notice of the adoption of the Killearn Lakes DRI development order was, or has ever been, recorded in the Public Records of Leon County. At the time of the adoption of the Killearn Lakes DRI development order, Chapter 380, Florida Statutes, did not require the developer to record a notice of adoption, as is presently required by Section 380.06(15)(f), Florida Statutes (Supp. 1990), which first became effective in 1980. The county has issued every final local permit for the development that has occurred in the Killearn Lakes DRI. The county has not adopted a document entitled "Amendment to the Killearn Lakes DRI Development Order," and no such amendment to the Killearn Lakes DRI Development Order has been rendered to the Petitioner. Development within the Killearn Lakes DRI has not been completed. Central sewer has not been constructed throughout the developed portion of Killearn Lakes DRI. Other Facts Issuance of the Development Order Preliminary to action taken by the county commission which approved the subject development, the Tallahassee-Leon County Planning Commission met on March 18, 1976. It considered the recommendations of the Northwest Florida Regional Planning and Advisory Council related to the project. The recommendations of the Council were: Approval of the project on a phase by phases [sic] basis with necessary permits being granted after review and evaluation of the completed and proposed phases of development; Close monitoring of the drainage methods throughout each phase of development by the Leon County Engineering Department through on-site inspection; Developer is required to obtain a report from the Florida Games and Fresh Water Fish Commission for submission to the Leon County Commission concerning the evaluation of a lake drawdown project before a permit is granted; Developer must provide more information to the Leon County Commission regarding dredge and fill operation prior to the issuing of a permit for each phase of construction; Before the Leon County Commission issues a permit for each phase of development, a review of the upgrading of the Thoamsville [sic] Highway is required from the Florida Department of Transportation; Developer is required to comply with the following two conditions before a permit can be granted: Place hydrants so that all dwellings are within 1000 feet, and commercial property is within 500 feet. Increase water pressure and supply. A phase by phase review of projected growth of the Killearn Lakes Project and a brief impact analysis of Environmental and Natural Resources, Economy, Public Facilities, Public Transportation Facilities, and Housing in the immediate community and region is required before a permit can be issued to continue the Killearn Lakes project on a phase by phase basis. The successful review and evaluation of the above mentioned modifications prior to issuing each phase construction permit is recommended. The local planning group recommended approval of a development order without acceptance of the conditions suggested by the Northwest Florida Regional Planning Council. As mentioned before in Footnote 1, the county rejected all recommendations by that planning and advisory group. According to the minutes of the March 23, 1976 meeting: Mr. Simpson reported that the Planning Commission had recommended granting the development permit of Killearn Lakes without the application of the recommendations of the Northwest Florida Planning & Advisory Council, Inc. Commissioner Vause moved that the report from the Northwest Florida Planning & Advisory Council, Inc. dated March of 1976, be reflected in the minutes as being received and filed and that the Board follow the recommendation of the Planning Commission, Commissioner Marchant seconded the motion. Following very much discussion, Commission Vause amended his motion to adopt the following resolution and to issue a development order as recommended by the Planning Commission, Commissioner Marchant agreed to the amendment and the vote of the Board was unanimous in favor thereof. The Tallahassee-Leon County Planning Commission in its action of March 18, 1976 had not suggested any substantive changes to the ADA. The County Commission did not vote to modify the ADA by changes to the language in the ADA through additions or deletions to the text of the ADA or requirements set forth in the development order or attachments to the development order. Having rejected the recommendations set out by the Northwest Florida Regional Planning and Advisory Council, and offering no other conditions to control the development order other than those contemplated by statutes or rules pertaining to the issuance of the development order, the terms of the development order became those found within the ADA. Deadline for Development Among the topics discussed in the ADA is the date for completing the project. The ADA identifies the project completion date as 1985. This information is provided in accordance with the questionnaire which the consultant to Killearn answered in preparing the ADA. Having examined the Draft Operating Manual for Developments of Regional Impact which had been prepared by the Division of State Planning, the predecessor agency to the Petitioner, it is inferred that the application format/questionnaire recommended by the Division of State Planning was followed in preparing the ADA. The questionnaire contemplates in a number of instances establishment of a concluding date for the project. The evidence presented at hearing did not show that the county made a conscious decision to require submission of the application in the format set forth in the draft operating manual by the Division of State Planning, rather it acquiesced in that protocol on this occasion. There is no evidence that the Division of State Planning had communicated with the county concerning the use of this questionnaire for preparing an ADA, especially as it might pertain to the policy reasons for setting forth a deadline for project completion. Excepting the questionnaire, the Draft Operating Manual for Developments of Regional Impact prepared by the Division of State Planning was not shown to have been made available to the county or the applicant prior to the submission of the application. In particular, the applicant and county were unfamiliar with Section 2.05c. in its statement that all local development orders issued in response to an ADA should include provisions pertaining to the period of effectiveness of the development order and Section 2.07a.(2) pertaining to expiration of the period of effectiveness of the development order as a factor that may require retriggering of the DRI process. By implication, the county was not carrying forward the policy ideas expressed by the Division of State Planning where it urges local government, in the interest of sound planning principles to include a provision in the development order pertaining to the period of effectiveness of that development order and the statement that at the expiration of that period of effectiveness the development order may require a retriggering of the DRI review process. In the abstract, the questions that were answered in the ADA in response to the format contemplated by the Division of State Planning dealing with a concluding date for the project can be seen as associated with the concept of establishing an expiration date for the development order. The answers do not equate to setting out the expiration date as an incorporated requirement countenanced by this development order. Neither does the development order nor the incorporated ADA remind the developer or its successors in interest that there is a deadline for concluding the project beyond which the development order is no longer effective and the possible requirement for retriggering review of the DRI. Under the circumstances, absent some requirement of law not arising from the development order per se, the statements found within the ADA concerning the projects's concluding date are nothing more than an internal planning device for the benefit of the developer and its successors in interests. As an estimate by the applicant it does not express the perception of local government in issuing the development order and is unenforceable. Statutes and rules in effect at the time that the development order was issued, and it is those statutes and rules which control for reasons discussed in the conclusions of law, did not mandate the establishment of deadlines for completing the project, establishment of a period of effectiveness for the development order or a statement setting out the ramifications for not complying with the deadlines for buildout on the possible consequences of operating beyond the period of effectiveness of a development order. More generally stated Chapter 380, Florida Statutes and the rules of the Division of State Planning in existence when the project was considered did not readily explain the application process. It is not accepted that the county in view of the dialogue which took place between various commissioners and representatives of Killearn on March 23, 1976, took official action to extend the deadline set out in the ADA, but the resulting de facto extension of the buildout deadline beyond the effective date set forth in the ADA is irrelevant. The discussion among the commissioners and with representatives of the developer concerning the project completion was inconclusive, because from a parliamentary viewpoint, the county did not act to restate the ADA and by such restatement set forth a project deadline. The county never precluded further development in the DRI area after 1985 absent further DRI review. It did not have to. No deadline was required by law. No legally binding deadline has been imposed. Therefore development may proceed into the future. Sewer Service At The Inception Another item in dispute concerns the need to provide sewer service in the project area and at what point in time. The development order unequivocally requires a sewage treatment system so that units as they are built are connected to that system contemporaneous with their development. The development order does not allow alternative use of septic tanks until a central sewer system becomes available, if it ever does. The introductory portion of the ADA under the report summary speaks of sewer being provided by Talquin Electric Cooperative, Inc. Under the environmental assessments portion of the ADA associated with water quality, Paragraph 19.b.(3)(a), which speaks to possible discharges into ground water of liquid waste states: All units will be connected to a central plant as they are developed. This plant will remove 90 percent of the bio-chemical oxygen demand (B.O.D.) and of suspended solids (Chapter 403, Florida Statutes) and discharge to a land via a land disposal system; no surface discharge, (Figure 19-10). The economic assessments, Paragraph 25, discusses sanitary sewers at pages 59 and 61, as follows: a. Cite amount of sewage expected to be generated by the proposed development and source of treatment facility. Amount generated (added to .04 of Phase I): About 1.4 million gallons per day (mgd) in DRI area. Treatment will be accomplished by Talquin Electric Cooperative for Phases I into IV. The collection system will utilize lift stations (Figure 25-1). Will the design of the sewage system insure that all areas of the development have adequate facilities at all stages of the development? Specify. The Sewage Treatment Plant (STP) and collection system construction will be phased (Table 2) to accommodate this flow as follows: Now ready to start - .040 mgd S.T.P. (Phase (not in DRI area) 1, Unit 5) Until January 1975 - .450 mgd S.T.P. (Phase II, Units 5 & 6) Until mid-1976 - .900 mgd S.T.P. (Phase III, Unit 5+ apt./Condo. & Comm.) 1978 to mid-1982 - 1.800 mgd S.T.P. (Phase IV) or convert .900 mgd S.T.P. to a lift station and pump to City of Tallahassee Talquin Electric Cooperative has a construction permit from the Department of Pollution Control, and operating permit will be issued when the S.T.P. is built, subject to conditions discussed under "discharge to groundwater". The S.T.P. and land disposal site will be located at the northeast corner of Unit 2. Additional acreage, if needed, can be provided at the adjacent school site (Figure 19-10). How does the development's sewage system relate to the county's sewer and water treatment facilities objectives? During Phase IV this responsibility will shift to the City of Tallahassee. 16/ Killearn Lakes sewage then will be treated at the Tallahassee Northeast Treatment Plant (+ 1984). What assurances will the developer provide that such a system will indeed be completed? Construction? Performance bonds? Agreement with Talquin. 15/ Sewer connection to the City of Tallahassee depends on resolution of differences between the City and Leon County. The City/County Technical Coordinating Committee recently passed resolution urging priority action on this matter. Talquin Electric Cooperative builds and operates many total - utilities packages in the area, including sewer systems. It has been in business as a Rural Electric Cooperative for several decades. In addition, in the environmental assessments section, Paragraph 19.b.(2)(a) at pages 7 and 8 dealing with discharges into surface water of detergents and solvents reference is made to commercial and residential sewer service. Figure 19-4, at page 8, related to land disposal speaks of the temporary land disposal site for sewage effluent. Again the section on economics found at page 49 in the ADA comments that Talquin Electric Cooperative is responsible for all utility installation. Table 1, item 25 discusses sewage and notes that all areas to be served by Talquin Electric will be phased into a regional facility in 1984 to meet county objectives. No exception to this requirement is stated. Paragraph 31.c., at page 71, concerning alternative means of providing sewer states: What alternative power, water, sewer and solid waste disposal sources or mixes were considered and evaluated in selecting this particular site? The City of Tallahassee, Leon County, and Talquin Electric Cooperative are the alternative sources and they were selected through a combination of availability, common practice and cost. Contrary to the opinion of the county, this reference is unambiguous and does not contemplate the use of septic tanks at any time as a possible alternative to sewer service. The statement of availability describes the choice between utilities, not the choice between sewer service and septic tanks. Killearn's Agreement With Talquin Electric The sewer service agreement between Killearn and Talquin Electric Cooperative concerning provision of sewer service commented on in Footnote 15 to the ADA addresses provision of sewer service for the entire project controlled by the development order upon request by Killearn with cost or return of the total cost to be guaranteed by Killearn as recited in the agreement. It makes Killearn responsible for depositing funds with Talquin Electric Cooperative as construction work progresses as may be required by Talquin. Those funds must be sufficient to cover Talquin's and Killearn's "actual direct costs related to the installation of said utilities, including engineering and debt service." Killearn is refunded or credited with one-half of all utility revenue received by Talquin in excess of $5 per month per customer. Those excess customer revenues would be credited first to repay amounts borrowed by Talquin for the installation of utilities to meet debt service. The excess of those revenues would be refunded to Killearn to the extent that Killearn had deposited funds with Talquin Electric for project purposes. The refund to Killearn would include any interest paid by Killearn associated with funding. By the agreement Talquin would borrow funds for the installation of the utilities if it could obtain better rates than were available to Killearn. All the funds borrowed by Talquin are subject to Killearn's guarantee on the repayment of all debt service required and if the aforementioned refunds and credits are insufficient to meet that requirement by Talquin, Killearn agrees to deposit with Talquin the amount of that deficiency which would be counted as a cost to Killearn and subject to some future refund. Killearn had agreed to execute the necessary documents for individual loans if requested to do so by Talquin. The agreement has a duration of 20 years beyond the date of completion of the last utility construction. The agreement allows Talquin to place a sewer service tap fee on lot purchasers in the project area at rates which are normal and competitive. Talquin is to deduct the direct cost of installation related to tap fees with agreement to credit or refund the remainder to Killearn. By the agreement Talquin committed to pay Killearn the cost of any land required by Talquin for sewer treatment facilities. Those purchase costs would be included in the total cost of utilities which required deposits or guarantees from Killearn to Talquin. Nothing in the agreement between Talquin Electric and Killearn spoke to the means by which successor developers would assure that sewers were provided for units developed in the DRI area. The development order in addition to not being subject to recording in the Public Records of Leon County, Florida, based upon its own terms or requirements in law, did not obligate Killearn to advise purchasers of parcels in the DRI area who bought those parcels for development purposes, that the subsequent developer would need to provide sewers in accordance with the development order either through Talquin Electric or an appropriate utility. The failure of the development order to require disclosure is not unexpected given the county's willingness to allow the ADA to serve as the development order. The ADA informs the county of the project features. It is not designed to anticipate development controls, in this instance to set out the process by which the initial developer would alert subsequent developers to the terms of the ADA to include the requirement to provide sewer service. Nonetheless, the permission to develop was granted to Killearn as applicant and to the extent that right to develop was assigned to another developer by conveyance which removed Killearn as the responsible developer, it would be reasonable to expect Killearn to give notice of the existence of the development order and its salient features. The need to provide sewer service as development proceeds is among those features. Transactions and Notice to Subsequent Purchasers What did Killearn tell subsequent purchasers about the requirement to provide sewers? J. T. Williams, Jr., CEO and President of Killearn offered testimony on that subject. Williams identified that he had sold by warranty deed to Holt Robinson the Channel 40 television station property. The notice of violation refers to this property as Ton Realty Partnership. Killearn sold parcels to Dennette Rainey on contracts for deed for areas known as Mallard Bluff and Mallard Point. Parcels between Mallard Point and Mallard Bluff were sold to Perry Bodin on contracts for deed. The sales described occurred between 1979 and 1981. The balance of the project which is in dispute has been developed by Killearn and sewer has been installed in those developed areas that Killearn had not sold or agreed to sell. According to Williams the contracts for deed to Rainey and Bodin included references about central sewer. Unfortunately, copies of the contracts for deed were not presented in the hearing to establish the exact nature of those references and the notice they may have given the purchasers concerning their obligations to arrange for sewer service contemporaneous with development (the building of residences). Williams said that the agreement was to provide sewer at the developer's request, meaning to Rainey and Bodin, pursuant to Killearn's agreement with Talquin Electric. As stated, Talquin Electric has no commitment to provide sewer service to a subsequent developer under the terms of its agreement with Killearn. More importantly the agreement with Killearn requires that the developer provide a substantial deposit before installation of sewer service. It is unclear from the record whether Rainey, Bodin or Robinson understood this. Given the arrangement described at hearing which Williams said that he would make between Talquin Electric and Respondents Kinhega Landing and Kinhega Oaks, as liaison, in which the expectation would be that those two developers would be responsible for funding or deposits to move the work forward, the possibility exists that Rainey, Bodin and Robinson had also been made aware that this funding would be needed to bring about the installation of sewer lines in areas to be developed by those purchasers. By contrast they may have understood Williams' explanation to be that Killearn would arrange for provision of the sewer service in the areas to be developed upon their request without the need for initial funding provided by the subsequent developers. The state of the record does reveal that none of the areas described in the contracts for deed between Killearn and Rainey and Killearn and Bodin have sewer service from a central location. Homes in those areas are served by septic tanks. The property conveyed to Ton Realty Partnership may or may not have sewer service based upon proof in this record. Williams stated that he told his immediate purchasers that there was a DRI on the property and bragged that it would not be necessary for those persons who bought from him to go back through a process of project review. This does not signify that those purchasers were familiar with the contract with Talquin Electric which is spoken to under Footnote 15 to the ADA. In a more general sense, the record does not indicate that the immediate purchasers read the ADA. Again, they would not have been aware of the development order and its terms by resort to the Public Records in Leon County, Florida. In addition to Robinson, Killearn gave warranty deeds to other purchasers of parcels within the DRI. Killearn sold the parcel known as Mallard Bluff to Olin Mannheimer while under contract for deed to Rainey. The warranty deed under those circumstances went directly to Olin Mannheimer as developer. The terms of the warranty deed were not identified in the record nor any explanation made of Mannheimer's awareness of the requirement for sewers if he had an impression of that requirement. Williams established that Rainey developed Mallard Point. As Williams describes, for the property between Mallard Point and Mallard Bluff that had been sold to Perry Bodin in which the parcels known as Kinhega Landing and Kinhega Oaks are found, together with Kinhega Estates and the Kinhega Lodge, title was released per warranty deed as acreage was paid off. Except for the last parcel within the Bodin contract for deed with Killearn, that parcel being associated with Kinhega Landing group of Respondents (Southern Heritage Development, Inc., Seay Enterprises, Inc. and Jimmy Boynton Realty, Inc.), Killearn gave warranty deeds directly to persons who purchased property that had been identified under the contract for deed between Bodin and Killearn. Killearn conveyed the Kinhega Landing parcel to Bodin by warranty deed. The terms of that warranty deed were not identified in the record. Killearn conveyed by warranty deed that property known as Kinhega Oaks. That conveyance was subject to restrictions, reservations, covenants and easements of record, if any. The conveyance to the Kinhega Oaks group of Respondents (Stephen John Stoutamire, Lewis Hill, Sr. and Lewis Hall, Jr.) took place on May 19, 1989. Kinhega Landing, Kinhega Oaks and Other Particulars The Kinhega Landing purchase by the present Respondents was based upon a deposit and receipt contract for sale and purchase between Bodin and his wife and James Jarrett followed by a warranty deed from Bodin and his wife to the Kinhega Landing group. No explanation is made concerning Jarrett's understanding of the need to provide sewers. The warranty deed to the Kinhega Landing group of Respondents was executed December 13, 1989, and refers to restrictions, easements, and reservations and covenants that are of record, if any. As with other conveyances and throughout the history of this project no reference to the development order could be found by a search of the Public Records. Neither does the deposit and receipt contract for sale and purchase identify the existence of the development order for the edification of the Kinhega Landing group. Killearn had no direct dealing with purchasers of property contemplated within the agreement for deed between Killearn and Bodin other than the act of preparing and delivering a warranty deed to the Kinhega Oaks group and others similarly situated who took title directly from Killearn based upon the agreement for deed between Killearn and Bodin. To the extent that the agreement for deed with Bodin may have informed the reader that Killearn had disclosed the nature of the requirement for provision of sewer as set forth in the development order, no indication was given in the record that someone other than Killearn may have then made the Kinhega Oaks and Kinhega Landing groups mindful of that caveat or that Bodin or someone that he was affiliated with otherwise disclosed the need to provide sewers for the parcels to be developed by the Kinhega Oaks and Kinhega Landing groups. Bodin is not named as a Respondent nor was he called as a witness in this hearing to explain his position in these matters. Likewise Rainey, Mannheimer and Jarrett are not parties nor were they called as witnesses. In that a warranty deed was given directly from Killearn to Kinhega Oaks, opportunity was presented by that conveyance for Killearn to have alerted the Kinhega Oaks group concerning the DRI and its terms, even if seen from Williams' viewpoint as principally being a favor to Bodin to avoid tax implications of a transfer from Bodin and thus to the Kinhega Oaks group. Although this opportunity was presented to Killearn to describe the existence of the requirements for sewer set out in the development order when making a direct conveyance to the Kinhega Oaks group, the warranty deed did not reveal that information and no discussion was entered into with Kinhega Oaks concerning any aspects of the purchase beyond the conveyance itself. Williams asserts in his testimony in further explanation of the events that Bodin would be responsible for arranging the furnishing of sewer to the Kinhega Landing group, but that Killearn would voluntarily arrange for that sewer service as a matter of a favor, not a matter of contract. This would be upon provision of the payment of 30 per cent of cost of the installation by Kinhega Landing to Talquin Electric. At hearing Williams offered to make a similar arrangement for the Kinhega Oaks group as Williams described as having been done for Rainey under his contract with Killearn, a contract not presented at hearing. Again, this contemplates that Kinhega Oaks would pay 30 per cent of the total costs and that Killearn would get all rebates that pertained for coverage of interest and carrying costs during the rebate period. Notwithstanding Killearn's offer to make these arrangements with Talquin Electric to provide sewer for the benefit of the subsequent developers, those arrangements have not been made. Nothing in the record establishes or suggests that the Kinhega Oaks group and the Kinhega Landing groups were aware of the existence of the development order and its requirement for installation of sewer contemporaneous with development when they purchased their parcels. Had they understood that requirement was incumbent upon them, they would not have undertaken the purchases and incurred debt obligations which they now are experiencing difficulties meeting, in part due to the possible outcome here which could prohibit development absent the contemporaneous installation of sewers. Petitioner argues that no authority exists to allow septic tanks at individual lot sites as an interim condition prior to sewer lines being made available in the areas undergoing development by Kinhega Oaks and Kinhega Landing. This is contrary to the attitude expressed by the county in granting preliminary plats to the two developers and individual permits for septic tank installation until sewer is made available, if that eventuality occurs. Raymond Richard Yates, Jr. testified. He is President of Southern Heritage Development Inc. and together with Jimmy Boynton Realty, Inc. and Seay Enterprises, Inc. owns the property known as Kinhega Landing. Those individuals became involved with the property through contacts between Yates and Jarrett. As alluded to, Jarrett did not tell Yates that the property was subject to the development order and its requirements for provision of sewer. At the inception of their dealings the Kinhega Landing group intended to substitute for Jarrett and his contract and to purchase the property if plat approval could be gained. The record is not clear about Jarrett's position with Bodin and Killearn beyond the previously described deposit and receipt contract for sale and purchase Bodin to Jarrett. The Kinhega Landing group arranged to have a search made of the Public Records of Leon County to discover any easement, development orders and/or restrictions affecting the property in question effective through December 13, 1989. That report of April 22, 1991, did not reveal the existence of the development order. On November 16, 1989, the Tallahassee-Leon County Planning Commission voted to approve the preliminary plat for Kinhega Landing subject to conditions. This was in accordance with the county ordinance on recording subdivision plats that became effective in 1984. (Other developers in the area of Lake Iamonia within the DRI as described had undertaken development before passage of the ordinance.) Among those conditions was the requirement for mound type septic tank systems in lieu of ordinary septic tank systems where subsurface conditions would require the mounded approach. Another condition required that the Kinhega Estates Home Owners Association's covenants and restrictions would apply. A condition was established that homeowners would be required to hook up to a central sewer system if and when it became available. The Kinhega Landing group paid $240,000 for the land or an amount approximating that cost with a fee of $30,000 paid to Jarrett for the assignment of the contract. The Kinhega Landing group obtained a loan for $425,000 to develop the land. In furtherance of the project roads have been installed, clearing has been done and some holding facilities for stormwater runoff put in place. Other permits for development have been acquired to include environmental permits from the county and the State of Florida, Department of Environmental Regulation. After plat approval and purchase, the Kinhega Landing group first discovered that the property was subject to the development order. In addition to the prohibition against the use of septic tanks contemplated by the notice of violation, the county has told the Kinhega Landing group that they may not proceed with development. At present the property in question, which is 29.71 acres with 44 lots and a unit density of 1.65 units per acre lies dormant. No septic tanks have been installed as this developer had anticipated doing. Yates testified that he is not in a financial position to address the sewer requirements in an instance where deposit money would have to be made available for that activity. His other partners have decided they no longer wish to participate and Yates is in jeopardy with his financing institution. On April 20, 1989, the Tallahassee-Leon County Planning Commission voted to approve the preliminary plat for Kinhega Oaks. That parcel has an acreage of 11.87, with 15 lots of a unit density of 1.4 per acre. The preliminary plat has the same conditions that have been described for Kinhega Landing. Kinhega Oaks is owned by Stephen John Stoutamire, Lewis Hill, Sr. and Lewis Hill, Jr. The property was purchased through a real estate agency known as Rae Roeder Realty in the person of Bob Cole. The Kinhega Oaks group did not deal with Perry Bodin directly or anyone other than the realtor. The Kinhega Oaks group bought the property for purposes of development of single-family residential lots of approximately one-half acre size. Improvements intended to be installed included a county maintained road. They did not intend to install a central sewer system. The project contemplated the use of septic tanks. In furtherance of the project the purchasers paid approximately $100,000 and had site evaluations done on two lots that were in the most sensitive area of the project near Lake Iamonia. An engineering firm was hired to gain that preliminary plat approval. Title work was done. Closing on the property was contingent upon activities by the engineering firm, soil samples and title insurance. For the two lots which were the most sensitive in terms of use of septic tanks, soil studies were done and the necessary approvals were gained for the use of septic tanks. In purchasing the property, the Kinhega Oaks group relied upon the conditions for development which were set out in the preliminary plat, including allowances for septic tanks to be used on an interim basis. If the preliminary plat had not been approved, the Kinhega Oaks group would not have purchased the property, nor would they have purchased the property if they had been aware of the existence of the development order. They would not have developed if the studies related to the use of septic tanks had been adverse. Since the purchase of the property, a road has been built, and water service and underground electric service has been provided. A concrete ditch has also been put in place and sod. Approximately $40,000.00 has been expended on improvements. In pursing the project, necessary permits have been obtained. The closest available central sewer is approximately one mile away. To install the sewer system, it would be necessary to tear up the road and lay the sewer line in the middle and T-off on the sides and re-pave the road. Five lots have been sold in the subdivision. Two houses have been constructed and one is underway. All of those houses have septic tanks. The Kinhega Oaks purchasers became aware of the existence of the development order after making improvements and selling the five lots. The Kinhega Oaks group first became aware of the development order when served with a notice of violation. Under the orders for corrective action and the development order, the Kinhega Oaks group and the Kinhega Landing group are confronted with a requirement to provide sewer service within a year of a final order, if Petitioner's position is sustained. The Kinhega Oaks group understands that limits have been imposed on the installation of septic tanks. Had it realized that it would become necessary to place the sewer lines, it would not have purchased the property. If required to make the corrections that are contemplated by the Petitioner, Stephen Stoutamire on behalf of the Kinhega Oaks group, testified that he would "go broke". The County: Application of The Development Order Martin Patrick Black, the present Chief of Land Use Administration for the county, testified. He has held that position since December, 1989. He concedes that the ADA does not mention septic tanks. The person who was principally responsible for considering the applications for plat approval from Kinhega Landing and Kinhega Oaks is Wade Pitt, a planner for the county. He knew of the existence of the development order from when he was initially employed in 1983. He testified that Mallard Bluff, Mallard Point and Kinhega Estates existed before the subdivision regulations were passed in 1984 and did not need to obtain plat approval as was necessary with Kinhega Landing and Kinhega Oaks. This did not excuse development without provision of sewer service. When he reviewed the subject requests for preliminary plat approval after the ordinance was enacted, he referred to the development order and ADA, in addition to the county subdivision regulations. On the issue of sewage disposal, he concluded that the ADA stated that central sewer would be provided by phases in the DRI; however, provision of central sewer was predicated on availability. Given that central sewer was not available at the time that the plat approval was considered, he decided that septic tanks were an acceptable alternative to the installation of sewer until sanitary sewer became available. In effect, he believed septic tanks were an available and appropriate interim measure until sewer became available. His perceptions led to the above described conditions on wastewater treatment which were placed in the preliminary plat approval for both Kinhega Landing and Kinhega Oaks. His interpretation is erroneous. His position, as adopted by the county in the preliminary plat approvals, is incorrect in a setting in which the requirements announced in the development order/ADA are not fairly debatable. There is no allowance for septic tanks as an interim response, especially not when the contingency in the plat approvals is for provision of sewer only when it becomes available, if at all. This is as contrasted with the absolute requirement of sewer service at the project inception, when development commences, found in the development order. The record is devoid of any statement that someone other than the subsequent developers would make the necessary financial contribution to bring about sewer service in those areas which were not developed by Killearn. It appears unlikely that sewer service will become available in substitution for septic tanks under the present circumstances. To the extent that the applicant in responding to the questionnaire which formed the basis of the application considered alternative methods for wastewater treatment, those alternatives did not include septic tanks. The statement of how Killearn would respond to wastewater treatment did not set forth septic tanks as the means, even as an interim measure. For the county to perceive that the ADA/development order would allow septic tanks as an interim condition is contrary to reason and in contravention of the development order which it issued. More About Covenants and Restrictions On November 29, 1979, certain Declarations of Covenants and Restrictions for that portion of the DRI known as Mallard Point were recorded in the Public Records of Leon County, Florida. They are in substance the same as those associated with Kinhega Estates, Unit I, as recorded on December 21, 1982, and those for Kinhega Lodge recorded on February 23, 1987. All were recorded by Killearn as the developer and signed by J. T. Williams, as President of Killearn. The restrictive covenants by Killearn executed in 1979, 1982 and 1987 call for single-family residential development in an area of the DRI which was approved for condominium development. Kinhega Landing and Kinhega Oaks per the terms of the preliminary plats received by those developers must abide by the Kinhega Estates Declaration of Covenants and Restrictions. Pursuant to the definitional section in that document, the term "improvements" includes sewers. Under Article IX, having to do with the preservation of the natural environment, lakes, and Green Areas at Section 5, the developer, Killearn, reserves the right for itself and successors and assigns to go over and around the ground to erect and maintain and use sewers and for other suitable equipment for conveyance and use of sewers in the Green Areas. Right is reserved to locate pumping stations and treatment plants in the Green Areas; however, the rights which may be exercised by the developer and any licensee of the developer, also referred to as the company, shall not be considered as an obligation of the company to provide or maintain the utility, in this dispute, the sewer service. In Section 9 of Article IX, further mention is made of the idea that the granting of the easement in no way places a burden of affirmative action on the developer, and the developer is not bound to make any of the improvements noted or to extend service of any kind. Article XVIII speaks specifically of sewage disposal where it says: "No individual sewage disposal system shall be permitted on any site unless such system is designed, located and constructed in accordance with the requirements, standards and recommendations of the State of Florida's Department of Pollution Control. Approval of such system as installed shall be obtained from such department or departments." These provisions fail to mandate the requirements for provision of sewer service by the original developer or subsequent developers. They also allow septic tanks in contravention of the development order. Other Departures Given the proposed stipulations in law among the parties in which consideration of the factual significance of those other departures from the terms of the development order is not anticipated, intricate treatment of those matters is not undertaken to examine the significance of these deviations from the development order. It suffices to say that the following improvements: the golf course known as Golden Eagle, the single-family residences in the vicinity of Lake Iamonia in lieu of the condominiums identified in the ADA, a school site under the ADA which has been converted to single-family residences in Golden Eagle Units 1 and 3, and the Television 40 site developed by Ton Realty Partnership in an area approved for a single-family residential development or a school site depart from the terms of the development order. Forgiveness Petitioner has not named individual lot owners who purchased property prior to the notice of violation as Respondents.
Recommendation Upon consideration of the facts found and the conclusions of law reached, it is recommended that a Final Order be entered which: Requires Killearn to: comply with the requirements of the stipulation requiring an amendment to the development order incorporating the reduction in density from condominiums to single-family residences in the area bordering Lake Iamonia; the elimination of a school site in an area of residential development; the construction of a golf course and the construction of a television station in an area designated for a school site or alternatively for single-family residential development. provide written notice in all it sells for development by others after the date of the final order that a development order exists and that all new development must have contemporaneous sewer service, and if Killearn intends to broker the contract between Killearn and Talquin Electric as a means of meeting the central sewer requirement the purchaser must be made aware that Talquin Electric must be paid a deposit from the subsequent developer before Talquin Electric will undertake the project. record the development order/ADA and its amendments in the Public Records of Leon County, Florida. Requires the County to: amend the development order pursuant to the stipulation between the county and Killearn described at I.A. refrain from issuing any permits which would allow development in the DRI area not served by a central sewer, excepting those situations set forth in the conclusions of law. In those instances development permits could be issued to successors in interest. In the exceptional cases the permit should provide that the lot owner will be required to connect to a central sewer system when made available. faithfully fulfill the terms of its development order. dismisses the notice of violation against Kinhega Landing, Kinhega Oaks and Ton Realty Partnership. RECOMMENDED this 28th day of August, 1991, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of August, 1991.
The Issue The issues presented herein are whether or not the Respondent's registered roofers contractors' license should be revoked, suspended, or otherwise disciplined based on allegations set forth in the Petitioner's Administrative Complaint filed herein signed February 21, 1983 alleging that Respondent unlawfully abandoned a construction project; diverted funds or property received for the completion of a construction project; made misleading, deceptive, fraudulent or untrue representation in the practice of contracting; was the subject of disciplinary action by a local licensing board and was guilty of misconduct in the practice of contracting, all within the moaning of Sections 489.129(1)(i),(h),(k),(m) and sections 455.227(1)(a), Florida Statutes (1981)
Findings Of Fact At all times material to this proceeding, Respondent was a registered roofing contractor having been issued license number PC 0034672 in the name of John M. Sneed, Beall and Associates Roofing Corporation, 7650 SG 135 Street, Miami, Florida 33156. At all times material, Respondent was qualifier for Beall and Associates Roofing Corporation under his registered roofing contractor's license. (Petitioner's exhibit 1) On April 22, 1982, Respondent entered a contract with Marcel and Goldy Wiesner to reroof the Wiesner home at 9225 Bay Drive, Surfside, Florida for a contract price of $4,915 less five percent. (Petitioner's Exhibit 5) The Wiesners contacted the Respondent and Beall and Associates because of a coupon which Wiesner noticed in the Greater Miami Yellow Pages. The coupon provided for a 5 percent roofing discount on roofing work performed by Beall and Associates Roofing Corporation. (See Petitioner's Exhibit 6 and Testimony of Marcel J. Wiesner) Under the terms of the contract entered into by the parties, Respondent was to complete the installation of roofing tiles on the Wiesner residence on or before May 30, 1992. The Wiesners had informed the Respondent that they would be leaving on vacation during June of 1982, and therefore wanted the roof- repairs completed prior to their departure for vacation. (Petitioner's Exhibit 5 and Testimony of Marcel J. Wiesner) On approximately May 3, 1982, Respondent applied for a building permit from the town of Surfside, Florida, for the repairs to the Wiesner roof. A permit, number 18697, was issued by the town of Surfside for the reroofing job on that same date. (See Petitioner's Exhibits 7 and 8) Respondent immediately commenced construction on the Wiesner project on May 3, 1982. At that time, Respondent was given $2,457.50, which represented 50 percent of the contract price. On May 6, 1982, the Wiesners paid Respondent $1,253.75 making the total percentage of the contract price paid to date 79 percent inclusive of the 5 percent deduction referred to above. During May of 1982, Respondent abandoned the Wiesners reroofing project and, at that time, the tin capping inspection had been performed and the project was approximately 60 percent completed. (Testimony of Marcel J. Wiesner and John Hahn, Town Clerk and Manager, Town of Surfside) Respondent provided the Wiesners no prior notice of his in tent to abandon the reroofing of their residence and did not offer them any reasons for his failure to return to complete the project. (Testimony of Marcel Wiesner) The Wiesners individually, and through their attorney, made numerous attempts to contact Respondent to return to complete the reroofing work to their residence without any success. The Wiesners therefore hired a second roofing contractor to complete the project. During the interim, the Wiesners had to repair the interior of their home which was water-damaged as a result of the Respondent's failure to complete the roofing project the started. On approximately May 23, 1982, Respondent, as qualifier for Beall and Associates Roofing Corporation, contracted with John C. Leisinger to reroof the Leisinger home at 851 Heron Avenue, Miami Springs, Florida. Respondent agreed to install monterey tile on their "villa mission" style home. The contract price was $5,600. (See Petitioner's Exhibit 9 and Testimony of John C. Leisinger) On July 14, 1982, Respondent received $2,800 representing one-half of the contract price to perform the reroofing to the Leisingers' home. On or about July 16, 1982, Respondent received an additional $1,719 from the Leisingers or a total of approximately 81 percent of the contract price. (Testimony of John Leisinger) On or about July 16, 1982, Respondent applied for and received a roofing permit from the City of Miami Springs, Florida, for the reroofing work on the Leisingers' home. (Petitioner's Exhibit 11) Between July 14 through 16, 1982, Respondent partially performed the roofing work on the Leisingers' residence. After July 16, 1982, Respondent failed to return to the Leisingers' residence to complete the reroofing work despite numerous attempts by the Leisingers to get the Respondent to return. At the time that he left the Leisinger residence, Respondent had not installed the roofing tiles as required but left the roof in an exposed state. (Testimony of John C. Leisinger) Respondent left the Leisinger reroofing project without notice to the Leisingers nor did he later provide them any reason for his failure to return to that project. At that time, Respondent had completed approximately seventy (70%) percent of the work required under the contract. Respondent, however, did advise Mr. Leisinger that he was unable to complete the project at the original contract price because the price of the monterey tiles specified in the contract had increased. In this regard, Mr. Leisinger contacted the tile company that supplied the monterey tiles and was in formed that the price was unchanged during the period that Respondent would have purchased those tiles for the project. Further, Mr. Leisinger later purchased the same tiles specified in the contract at the same price contemplated by the parties. Mr. Leisinger was left with the alternative and was forced to purchase the tiles and complete the roofing project himself when Respondent failed to return. (Testimony of John C. Leisinger) During the course of time when the petitioner investigated a complaint filed by Mr. Leisinger with the Petitioner against the Respondent, Petitioner's Investigator, Bill McDonald, received a memorandum sent to all Building Officials in Metropolitan Dade County informing them that Respondent's business and personal Certificates of Competency, issued by Metropolitan Dade County, had been suspended by the Metro-Dade County Construction Trades Qualifying Board until such time as Respondent paid fines totalling one-thousand five-hundred dollars. (See Petitioner's Exhibit 12 and Testimony of Bill McDonald) Based on information contained in the above memorandum, McDonald initiated a complaint against Respondent with regard to the disciplinary action by the Metro-Dade County Construction Trades Qualifying Board. In this regard, on February 11, 1982, the Dade County Construction Trades Qualifying Board, Division "A," considered a complaint filed by Peter Di Filippi against the Respondent. The Board found that there was at least a prima facie showing of violations of Chapter 10, Metropolitan Dade County Code of Ordinances. (Petitioner's Exhibit 13) On or about May 17, 1982, the Building and Zoning Department for Metropolitan Dade County Construction Trades Qualifying Board would hold a hearing to determine whether the Respondent's business and personal Certificates of Competency as a roofing contractor, issued by Metropolitan Dade County, should be disciplined for various charges. On July 8, 1982, the Metropolitan Dade County Construction Trades Qualifying Board considered several charges against Respondent and found that Respondent was guilty of several charges specified in a Complaint and the Board fined Respondent a total of one-thousand dollars to be paid within thirty days following the close of that hearing. The Board also issued a reprimand to Respondent based on those charges. (Petitioner's Exhibit 17) On September 9, 1902, the local Metropolitan Dade County Construction Trades Qualifying Board considered other charges filed against the Respondent and as a result thereof found Respondent guilty of several charges and imposed a fine of $500 payable within 60 days following the close of the September 9, 1982 hearing. Also, the Board directed that Respondent's business and personal Certificates of Competency as a roofing contractor he suspended for a period of thirty days. (See Petitioner's Exhibits 21 and 22) On or about February 7, 1903, John Leisinger obtained a Judgment in the amount of $3,665 plus costs and attorneys fees .. against Beall and Associates Roofing Corporation. The Judgment stemmed from the transaction referred to hereinabove between Leisinger and the Respondent. (Petitioner's Exhibit 28 and Testimony of John Leisinger) On or about -May 23, 1983, Marcel Weisner obtained a Judgment in the amount of $10,440 against Beall and Associates Roofing Corporation end Respondent, jointly and severally. That Judgment was obtained based on the transaction referred to hereinabove between the Weisners and Respondent. (See Petitioner's Exhibit 27 and Testimony of Marcel J. Weisner) Respondent's Defense As stated herein, the Respondent did not appear to offer testimony to refute or otherwise rebut the allegations of the Administrative Complaint filed herein.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby recommended that the Respondent's registered roofing contractor's license be suspended for a period of five years and he be assessed a civil fine of $2000.00 payable to Petitioner. RECOMMENDED this 24th day of August, 1984, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 25th day of August, 1984.
