The Issue The issues in this proceeding are whether the Respondent has violated provisions of Florida Statutes pertaining to the licensing of contractors as alleged in the Administrative Complaint, and, if so, what disciplinary action should be imposed.
Findings Of Fact The Respondent has been licensed in Florida as a general contractor since November, 1970. At all times material to this proceeding, the Respondent qualified A & E Builders, Inc., and Maury Daniel Construction Company under his general contractor's license. During March, 1982, Respondent qualified Southern Bilt Kitchens & Baths, Inc. ("Southern Bilt"), under his general contractor's license. Prior to March, 1982, Petitioner had not applied to qualify Southern Bilt under his contractor's license. Angel Alvarez is now and at all material times was the owner and president of Southern Bilt. Neither Alvarez nor Southern Bilt was registered or certified as a contractor with the Construction Industry Licensing Board. Alvarez has been licensed in Dade County only as a miscellaneous carpenter. For a period of time which included the years 1980 and 1981, the Respondent received payments from Southern Bilt to obtain building permits so that Southern Bilt could engage in various construction projects. Respondent was not otherwise employed or involved with Southern Bilt, and he did not participate in the operations, management, or control of the company. Respondent would receive payments from Southern Bilt, the amount of which varied depending upon the nature of the project, in exchange for obtaining building permits. Southern Bilt did not have persons in its employ who were qualified to obtain building permits. Southern Bilt utilized Respondent's services solely for the purpose of obtaining building permits. During October, 1980, Patricia Stewart, a resident of Miami, Florida, entered into a contract with Angel Alvarez, who represented Southern Bilt. The contract was for Southern Bilt to construct an addition to Mrs. Stewart's home. Alvarez and Southern Bilt were not qualified to obtain a building permit to complete the project. The Respondent obtained a building permit for the construction as the qualifier for A & E Builders, Inc. The permit was issued on January 15, 1981. Except for obtaining the permit, neither the Respondent nor A & E Builders, Inc., was involved in the project in any manner. Difficulties arose during construction of the project. Mrs. Stewart had paid a substantial portion of the contract price. She was dissatisfied with the quality and pace of work that was being performed. She did not learn that the building permit for the addition to her home was obtained by persons other than Alvarez and Southern Bilt until after she considered the project abandoned by Southern Bilt and contacted employees of the Building and Zoning Department in Dade County.
The Issue Whether Respondents' apartments are subject to regulation by the State of Florida, Division of Hotels and Restaurants? If so, did the Respondents violate the rules and regulations?
Findings Of Fact Between 1983 and January 3, 1999, Respondents jointly owned five apartment buildings of four units each on 29th Street, Niceville, Florida. The buildings were situated on one parcel of land, on the same side of the street, with common areas which are separated by a paved driveway. Each building was assigned a separate street address by the City of Niceville postal service. On January 4, 1999, by quit claim deed the Respondents transferred ownership interest in the buildings and property. By building address, the ownership of the four units is as follows: 1417 Charles Reid 1409 Robert Dukes 1415 Jane Reid 1411 James K. Dukes The fifth building was not transferred and remained the property of Respondents, along with the common areas and driveways separating the buildings. (See Petitioner's Exhibit 7.) The apartments are regularly managed by Mrs. Jackie Jones. The leases for the apartments are for a period in excess of six months. Respondents have never licensed the apartments with the Division of Hotels and Restaurants as a public lodging establishment. Following a complaint by the Department of Health on July 13, 1998, the Division directed that an inspection of the property be conducted by Filip Perez, a Sanitation and Safety Specialist employed by the Division of Hotels and Restaurants. Mr. Perez has been employed by the Division for 18 months, and has 20 years experience in the regulation of food service and lodging with the U.S. Army, and one year of experience with the Walton County Health Department. His duties with the Division include inspection of public lodging establishments and public food service establishments. He conducts between 100 to 150 inspections per month; of those, about 25 are of public lodging establishments. Mr. Perez investigated the complaint on July 21, 1998. The occupant of the apartment who initiated the complaint with the Department of Health was not available to allow inspection of her unit. Mr. Perez, pursuant to Division policy, conducted a routine inspection of the property. A routine inspection of a public lodging facility involves checking approximately 44 categories, including safety and licensure status. Critical violations are noted in red on the form and marked with an asterisk. As part of his inspection, Mr. Perez observed that there were several apartment buildings with approximately 20 total units on one lot, and classified the property on his inspection form as "nontransient apartment." Before he visited the property, Mr. Perez conducted a record check and determined that the property was not licensed because it did not appear in the Division's licensure data base. In the course of his inspection, Mr. Perez interviewed a tenant of Apartment C, Building 1409, who permitted Mr. Perez to test the tenant's smoke detector, which Mr. Perez determined was inoperative. He also determined that there were not fire extinguishers installed on the outside of the buildings. Respondents admitted that fire extinguishers are not furnished to the tenants. Public lodging establishments are required to be protected by smoke detectors, through NFPA 101, 19-3.4.4.1 and Section 509.211. Fire extinguishers with approved service tags are required by NFPA and Rule 61C-1.004(9)(a), Florida Administrative Code, in public lodging establishments. Mr. Perez also found a broken stair step at Building 1411 and discovered that there were not vacuum breakers (back- flow preventors) installed at the outside spigots to prevent back flow into the plumbing system. Mr. Perez filled out a lodging inspection report listing five violations, including the lack of licensure. The lack of fire extinguisher, inoperative smoke detector, broken step, and lack of licensure were noted as critical violations. The lack of vacuum breakers was not noted as a critical violation. A copy of the report was sent to Respondents by certified mail. On September 11, 1998, Chuck Franzalia, a Sanitation and Safety Specialist with the Division of Hotels and Restaurants, conducted a re-inspection of the property at the direction of the Division. Mr. Franzalia has been employed in that capacity with the Division for six years; before that, he was employed for 18 months in a transitional office for food inspection and for 15 years with the Okaloosa County Health Department as an environmental health specialist. Mr. Franzalia could not affirm or deny the NFPA violations, but observed that there were no vacuum breakers on the spigots, and the broken step had not been repaired at Building 1411. He conducted a pre-hearing inspection on May 4, 1999, and observed that the vacuum breakers had been installed; however, he observed no exterior fire extinguishers, and the broken step at Building 1411 was completely missing.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the case be dismissed. DONE AND ENTERED this 31st day of August, 1999, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of August, 1999. COPIES FURNISHED: Gail Hoge, Esquire Gabrielle D'Alemberte, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Charles W. Reid, Esquire Post Office Box 151 Valparaiso, Florida 32580 Dorothy W. Joyce, Director Division of Hotels and Restaurants Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 William Woodyard, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue Whether Respondent, Firehouse Subs/Wilson and Gettings Investment,1/ is liable to Petitioner, Bryan Siegel, for discrimination based on his religion, in violation of the Florida Civil Rights Act of 1992 (the Act), sections 760.01– and 509.092, Florida Statutes.
Findings Of Fact Petitioner is a 24-year-old male of the Jewish faith. He was employed as a sandwich maker at the Firehouse Subs franchise located at 2217 East Colonial Drive in Orlando, Florida, from January 20, 2011, until he was terminated on June 4, 2012. Petitioner claims he was subjected to a hostile work environment and unlawful termination based on his religion. Wilson and Gettings Investment (WGI) is the corporate entity under which Perry Wilson owned the subject Firehouse Subs franchise which employed Petitioner. WGI employed no more than 13 employees on any work day during the time Mr. Wilson owned the franchise. This particular Firehouse Subs was a busy location, particularly at lunchtime. Co-workers described the job as fast-paced at lunchtime, but more relaxed later in the day. Employees talked and socialized in the evenings. Some employees teased each other and made up nicknames for one another. For example, two employees, Ariel Wilkinson and Leticia Valentin, nicknamed Petitioner “Princess Brianna.” Petitioner described Ms. Wilkinson as a good friend. Mr. Wilson was aware that Ms. Wilkinson and Ms. Valentin used the nickname “Princess Brianna” for the Petitioner, but asked them to stop only if it offended Petitioner. There was no evidence either that Mr. Wilson inquired with Petitioner whether the nickname was offensive or that Petitioner complained of the nickname. Petitioner worked hard and put in a lot of hours at Firehouse Subs while attending school at the University of Central Florida. He is described by his co-workers as a hard worker during the hectic lunch-hour shifts. Petitioner excelled in some aspects of his job. For example, he was the fastest at accurately pre-portioning meats for each type of sandwich. On March 14, 2011, less than two months after he was first employed, Petitioner received a verbal warning. The Personnel Action Form states that although he had passed a test on menu knowledge, he was having problems reading the tickets. Petitioner was assigned a short training course in executing menu tickets. The general manager, Sophia Pernicano, noted that “once Bryan completes this course I see no further problems arising.” However, Petitioner developed additional problems at work, particularly displaying a poor attitude toward authority. On August 27, 2011, approximately seven months after Petitioner was hired, Ms. Pernicano gave Petitioner a written warning for cursing at her while he was working on the line. She described Petitioner as having a “mouthy attitude” which would not be tolerated. Approximately five months later, on January 20, 2012, Petitioner was written up for what is described as a “verbal altercation” with the store’s compliance director, Denise Miller. Following a meeting with Ms. Miller and Mr. Wilson, Ms. Pernicano presented Petitioner with two options: (1) take a one-week suspension, or (2) write a letter of apology to Ms. Miller. On the Personnel Action Form, Ms. Pernicano noted, Bryan is a great employee when he feels the need to be, I would like him to be a great employee at all times. The cursing, the bad attitudes, the flipping of the meat it has all got to stop. Otherwise I am left with no options but to end our Firehouse relationship. Petitioner chose to write the letter of apology and was allowed to return to work.2/ On June 4, 2012, Petitioner experienced an anxiety attack while driving to work. He testified that he remained in his car for some time after arriving at the restaurant in an attempt to collect himself, then entered the restaurant to work his shift. Petitioner testified that the panic attack continued while working his shift. He described the feeling of the walls closing in on him and decided he could not complete his shift. Petitioner reported to the shift supervisor, Ms. Wilkinson, that he was having a panic attack and needed to leave. Petitioner left without completing his shift. Ms. Wilkinson reported to Ms. Pernicano later that day that Petitioner had notified her he was not feeling well and needed to leave. After leaving the restaurant on June 4, 2012, Petitioner drove home, gathered some clothing and other belongings, then drove to his family home in Fort Lauderdale. Petitioner was seen by his family physician on June 7, 2012, and was diagnosed and treated for an anxiety disorder. Although the details are unclear, Petitioner was terminated by Mr. Wilson on June 4, 2012, after Mr. Wilson learned that Petitioner had left the restaurant during his shift. During his drive from Orlando to Fort Lauderdale, Petitioner contacted Mr. Wilson via text message. A series of text messages ensued which culminated in Mr. Wilson’s informing Petitioner he was terminated. Other than his communication to Ms. Wilkinson on June 4, 2012, Petitioner never reported to anyone at Firehouse Subs, prior to his termination, that he was experiencing anxiety or panic attacks. Petitioner returned to the restaurant several days later to turn in his uniform and pick up his final paycheck. At that time, Petitioner also signed and received a copy of the Personnel Action Form documenting his termination. Hostile Work Environment Petitioner alleges that he was subject to unlawful harassment by Mr. Wilson on the basis of Petitioner’s Jewish faith. Petitioner testified that Mr. Wilson introduced him as “the Jew” to his friends who would visit the restaurant, told Petitioner he was in “Jew heaven” in response to Petitioner’s skill at pre-portioning meats, and made anti-Semitic jokes on a regular basis. Petitioner further testified that on May 9, 2011, Mr. Wilson entered a sandwich order at the cash register and handed the receipt to Petitioner to make the sandwich he ordered. The receipt, which was received into evidence, notes the date the order was placed, the order number, and the description of a steamer sandwich with hot peppers, spicy mustard, and no dressing. In the space where the customer’s name would appear are the words “Now Ginger Jew.”3/ Petitioner testified he made the sandwich, put the receipt in his pocket, and moved on to another work station. He further testified he showed the receipt to another co-worker, Neal Faulkner. Mr. Wilson testified that he did not prepare the offensive receipt and could not testify with certainty whether he was present at the restaurant on the date in question. Further, Mr. Wilson testified that any employee would have had access to the cash register to ring up the order. The Employee Handbook for Firehouse Subs of Colonial (Handbook),4/ with which Petitioner was familiar, provides, with respect to harassment: If you believe that you have been subjected to harassment or if you believe you have witnessed any form of harassment, you should immediately contact your General Manager. An allegation against your own supervisor should be filed with the Director of Human Resources. Your complaint will be immediately and thoroughly investigated in a professional manner. There will be no retaliation against any employee who files a complaint in good faith or who assists in providing information relevant to a claim of harassment, even if the investigation produces insufficient evidence to support the complaint. Petitioner did not report to either his General Manager or Human Resources Director that that he was being harassed, demeaned, or otherwise discriminated against. In fact, Petitioner did not share with any co-worker, shift supervisor, or any other employee of WGI the fact that he was being harassed, demeaned, or otherwise discriminated against. Petitioner testified he did not report the harassment to Ms. Pernicano, the general manager, because she was in a personal relationship with Mr. Wilson. Petitioner stated he feared reporting it to Ms. Pernicano would jeopardize his job. Petitioner did not produce any witnesses to corroborate his hearsay testimony that Mr. Wilson referred to Petitioner as “the Jew,” stated he was in “Jew heaven,” or made anti-Semitic jokes during his tenure at Firehouse. At final hearing, Mr. Wilson denied having made any anti-Semitic jokes or otherwise harassing Petitioner on the job. Respondent introduced testimony of two of Petitioner’s co- workers who denied having heard any such statements by Mr. Wilson. The receipt for the sandwich order stating “Now Ginger Jew” is some evidence of a statement made by some employee of WGI in derogation of Petitioner’s Jewish faith. Unlawful Termination Petitioner alleges that his termination was unlawful, based solely on his religion and Mr. Wilson’s alleged prejudice against Jewish people. Respondent maintains Petitioner was terminated because he “abandoned his shift” on June 4, 2013, which, together with his previous disciplinary issues, constituted grounds for termination. According to the greater weight of the testimony, “abandoning a shift” means reporting for a scheduled shift but not completing the scheduled shift. The Handbook does not use the term “abandon shift.” With respect to attendance and punctuality, the Handbook states: It is important for you to report to work on time and to avoid unnecessary absences. Firehouse Subs of Colonial recognizes that illness or other circumstances beyond your control may cause you to be absent from work from time to time. However, frequent absenteeism or tardiness may result in disciplinary action up to and including discharge. Excessive absenteeism or frequent tardiness put an unnecessary strain on your coworkers and can have a negative impact on the success of Firehouse Subs of Colonial. You are expected to report to work when scheduled. Whenever you know in advance that you are going to be absent, you should notify your General Manager. If your absence is unexpected, you should attempt to reach your General Manager as soon as possible, but in no event later than one hour before you are due at work. In the event your General Manager is unavailable, you must speak with a shift manager/Shift Leader. If you must leave a message on voicemail, you must provide a number where your supervisor may reach you if need be. You are expected to be at your workstation at the beginning of scheduled shift. If you are delayed, you must call your General Manager to state the reason for the delay. As with absences, you must make every effort to speak directly to a manager. Regular delays in reporting to work will result in disciplinary action up to and including discharge. Further, the Handbook provides: If you become ill or get hurt while at work, you must notify your General Manager immediately. Failure to do so may result in a loss of benefits under the state workers’ compensation law. Firehouse Subs of Colonial is concerned about the physical well-being of its staff and encourages all employees to have periodic physical examinations. Check your Health Plan documents to determine coverage. Firehouse Subs of Colonial may also request that a physician examine you whenever conditions make this desirable for your protection or that of Firehouse Subs of Colonial. An additional section of the Handbook, which neither party addressed, is also relevant here. The section titled “Notification Procedures” provides as follows: When you are absent from work if your absence has not been previously scheduled, you must personally notify your General Manager as soon as you are aware that you will be late or unable to report to work. Leaving a voicemail, or a message with another staff member, does not qualify as notifying your supervisor –- you must personally speak with him or her. When absence is due to illness, Firehouse Subs of Colonial reserves the right to require appropriate medical documentation. Excessive absenteeism or tardiness can result in discipline, up to and including discharge. Petitioner maintains that he became ill at work on June 4, 2013, notified his shift supervisor, and was given permission to leave. He denies that he abandoned his shift. The evidence conflicted as to whether Petitioner failed to follow established procedure for leaving during a scheduled shift. Ms. Pernicano first testified that Petitioner did not comply with the company’s policy to notify the general manager so that the position could be filled for that shift.5/ On cross- examination, however, Ms. Pernicano testified Petitioner complied with the written policy to speak with the shift leader in the event the general manager was unavailable.6/ Petitioner’s absence on June 4, 2012, was not previously scheduled, Petitioner made no attempt to reach Ms. Pernicano, and Petitioner introduced no evidence that Ms. Pernicano was unavailable. Despite Ms. Pernicano’s equivocal testimony, the greater weight of the evidence supports a finding that Petitioner left his scheduled shift without following established procedure. In addition, Petitioner had been previously disciplined for insubordinate behavior on at least two occasions, a fact which he does not deny. Petitioner did not prove that he was terminated based upon his religion. Respondent did prove that Petitioner was terminated for a lawful reason.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing Petitioner’s Discrimination Complaint and Petition for Relief consistent with the terms of this Recommended Order. DONE AND ENTERED this 13th day of August, 2013, in Tallahassee, Leon County, Florida. S SUZANNE VAN WYK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of August, 2013.
The Issue Whether Respondent, Patio Casual, LLC (Patio Casual), discriminated against Petitioner, William Lane, based on a perceived or actual disability in the terms of his employment in violation of section 70-53(a)(1) of the Pinellas County Code of Ordinances (Code).1
Findings Of Fact Parties Petitioner was an employee of Patio Casual, as defined by section 70-51 of the Code. There is no dispute Petitioner suffers from a liver condition requiring medication and which causes him to take frequent bathroom visits. As such, Petitioner has a disability. During the relevant time period, Patio Casual was an employer, as defined by section 70-51 of the Code. Patio Casual is a 1,500 square foot retail patio furniture store that is located within a flea market in Clearwater, Pinellas County, Florida. Anne and Tom Othen are co-owners of Patio Casual. At all times relevant to this case, Anne Othen was Patio Casual's manager and had hiring, firing, and supervisory duties over Petitioner. During the relevant time period, Patio Casual had at least three employees, not including the Othens. This included Petitioner and Christina Cook. Petitioner's Position and Job History Due to the COVID-19 pandemic, on March 1, 2020, Florida Governor Ron DeSantis declared a state of emergency for the State of Florida. See Off. of the Governor, Exec. Order 20-51. On April 1, 2020, Governor DeSantis issued a "Safer at Home" executive order that had the effect of closing most retail stores such as Patio Casual. See Off. of the Governor, Exec. Order 20-91. The "Safer at Home" Order specifically allowed businesses to continue to service customers through non-store sales: E. All businesses or organizations are encouraged to provide delivery, carry-out or curbside service outside of the business or organization, of orders placed online or via telephone, to the greatest extent practicable Despite the pandemic, Patio Casual saw an uptick in demand for outdoor furniture and products. As a result, on or around April 15, 2020, Anne Othen advertised on Facebook for a "Sales & Marketing Administrator – Website designer e commerce" position. The advertisement stated: Busy, Local & Growing Patio Casual – Tampa Bay's Favorite Outdoor Furniture Superstore! This Family Owned Patio Furniture Company is in need of a key person to head up our Digital Marketing and E commerce Sales Department – www.patiocasual.com You Must Have excellent organization and computer skills – Wordpress and Woocommerce experience. Furniture & Home Goods Sales a plus! With this position you CAN WORK FROM HOME- BUT MUST LIVE IN TAMPA BAY. Full time Position, Pay based on Experience, Full Medical Benefits available. Check out our website – how can you help?? Petitioner applied for this job and was interviewed by Anne Othen. During the interview, Petitioner emphasized his experience as a general manager at a patio store in Ohio and his 20 years of sales experience. Although Petitioner's resume indicated he had not been employed since 2016 and he did not have any web-related experience, he told Anne Othen that he could learn how to operate the Patio Casual website and conduct online sales. At the interview, Petitioner also disclosed he had a liver condition and informed Anne Othen that he may have to use the bathroom frequently, but otherwise could do the job. Petitioner claims that during the interview, Anne Othen seemed disappointed and "expressed her discriminatory animus" towards him because of this medical condition. Patio Casual denies any derogatory remarks or animus based on Petitioner's liver condition or request for visiting the restroom more frequently. The undersigned finds Patio Casual's witnesses' testimony more credible, primarily because there was no dispute Anne Othen hired Petitioner on the spot. Petitioner was offered the job and accepted it during the interview. The evidence indicates Petitioner was hired for the website sales position on a part-time basis at $10.00 an hour. Patio Casual did not offer any medical or other benefits to Petitioner. Anne Othen ordered shirts for Petitioner with the company logo and made arrangements for Ms. Cook to train Petitioner on the website and how to conduct online sales.2 2 Ms. Cook had previously quit her position at Patio Casual on or about April 4, 2020, but agreed to come back to assist with the website. Petitioner started at the Patio Casual store on Saturday, April 25, 2020. During his first week he asked to have limited hours because he was moving. Anne Othen granted his request. Ms. Cook worked with Petitioner for approximately six shifts, before she quit on May 6, 2020. Although at the hearing Ms. Cook testified Petitioner was "just fine" on the website except for spelling issues, her testimony about his mastery of the website and ability to handle the online sales is contradictory to statements she made to the Othens, PCOHR, and in an email. The undersigned finds Ms. Cook's assessment that Petitioner had trouble with the website and was more of a "true Salesman [and] not a website designer" is credible. It became apparent after Ms. Cook no longer was assisting Petitioner that Petitioner was not able to handle the online sales or operate the store's website without assistance, but Patio Casual did not fire Petitioner at this point. Rather, Tom Othen moved Petitioner to the sales floor based on Petitioner's assertions that he had previous sales experience in patio furniture. On May 14, 2020, a week later, Patio Casual terminated Petitioner. After being terminated, Petitioner received disability benefits; he did not qualify for unemployment benefits because of his limited work history prior to Patio Casual. After Patio Casual, Petitioner applied for numerous positions. Although he was offered positions by other employers, he declined those positions because they did not offer any benefits. No evidence was offered regarding the number of offers Petitioner received or the rates of pay for the positions he declined. Petitioner is currently working for a real estate agency. No evidence was provided as to his current position, start date, or current salary. Comments Regarding Petitioner's Disability Petitioner claims that during his brief employment with Patio Casual the Othens made numerous comments regarding his appearance, ability to lift furniture, and whether he could do his job with his disability. There was evidence the Othens made comments that Petitioner appeared sluggish and did not meet "their standards." Even assuming these statements were made, there was no evidence these comments were related to Petitioner's condition. Ms. Cook and Tom Othen also corroborated Petitioner's assertion that the Othens did not want him to carry heavy furniture. Again, there was no evidence that this comment was related to his disability. To the contrary, Tom Othen admitted he told Petitioner he did not want him to handle the furniture because he had witnessed Petitioner drag patio furniture improperly and did not want him to damage the merchandise. Ms. Cook believed the Othens did not treat any of the Patio Casual employees well. For example, Anne Othen told her that she was dispensable and could easily be replaced. Ms. Cook also noted that all employees were scolded for taking breaks. One employee had been fired after taking an unauthorized lunch break. There was no evidence as to the other employees' disability status. The only comments directly attributed to Petitioner's liver condition were based on Anne Othen's concern and fear about Petitioner being exposed to the coronavirus while working and becoming severely sick as a result. Anne Othen admitted at the hearing she was especially concerned about Petitioner's health given what little was known at that time about the impact of the coronavirus on people with underlying conditions. She assumed Petitioner's condition made him more vulnerable than other employees. Differential Treatment Petitioner claims he was treated differently than other employees at Patio Casual in two main ways: (1) his rate of pay and number of hours scheduled; and (2) the mask policy. In early May 2020, Patio Casual hired Nicholas Ocasio at the same rate of pay as Petitioner: $10.00 an hour. There is no evidence Mr. Ocasio was disabled. As such, there is no evidence that Patio Casual paid non-disabled employees at a higher rate than disabled employees. There was also no evidence of how many hours Petitioner actually worked at Patio Casual during his brief employment. Therefore, there is no evidence Patio Casual scheduled non-disabled employees for more hours or gave them more overtime than disabled employees.3 On May 14, 2020, Anne Othen texted Petitioner and asked that he come in later than usual. She also asked if he would be willing to wear a mask in the store. Anne Othen: Hey [Bill] because of your medical condition we think you should always wear a mask at work to protect yourself and others - you ok with that??? William Lane: Ok. No problem. Anne Othen: Glad you agree - we want you and everyone safe. William Lane: Sure, I agree, I don't have it but if I got it would kill me. 3 Although Petitioner claims he was hired as a full-time employee, the evidence establishes otherwise. Moreover, although he complained about not getting enough hours, during his first week of work, Petitioner requested to leave early so that he could move. There was also evidence the store had limited hours since it was open by appointment only due to the coronavirus pandemic lockdown. At the time, there was guidance by health agencies that masks helped prevent the spread of the coronavirus, but there was no national, state, or local mandatory mask requirement in effect.4 When Petitioner came to work that day, he noticed that other employees were not wearing masks. At that point he took off his own mask. Anne Othen told Petitioner she would like him to wear the mask. Fifteen minutes after he refused to wear the mask, Ms. Othen terminated him. Anne Othen testified, and the undersigned finds, that there was confusion during that point in the coronavirus pandemic regarding proper protocol and safety procedures. There was also confusion as to what questions a business could ask its employees related to their health, and whether businesses could require customers and employees to abide by certain safety protocols such as mask wearing. Patio Casual claims that there was no mask requirement just for Petitioner, and that it was a suggestion for everyone. It also asserts Petitioner was fired for his performance and not his disability. Although Patio Casual may have eventually fired Petitioner for his performance, based on the specificity of the text message and the temporal proximity of the discussion regarding his health to his termination, the undersigned finds Patio Casual fired Petitioner because he refused to wear a mask even though other employees were not required to wear a mask.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, the undersigned recommends entry of a final order finding that Respondent, Patio Casual, LLC, treated Petitioner, William Lane, differently in the terms of its mask policy and terminated him because of his disability. Patio Casual should no longer discriminate against those with a disability and must enforce any safety protocols equally among its employees. As both parties were self-represented, there is no basis to award reasonable costs and attorney's fees. Jurisdiction to award reasonable costs as provided in section 70-78 of the Pinellas County Code of Ordinances will be reserved. If the parties are unable to agree upon costs they may file a motion seeking resolution of the disagreement. DONE AND ENTERED this 29th day of March, 2021, in Tallahassee, Leon County, Florida. S HETAL DESAI Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of March, 2021. COPIES FURNISHED: Anne Othen Patio Casual, LLC 23492 US Highway 19 North Clearwater, Florida 33765 William David Lane Post Office Box 276 Crystal Beach, Florida 34681 Yury L. Rosas, Administrative Support Pinellas County Office of Human Rights 5th Floor 400 South Fort Harrison Avenue Clearwater, Florida 33756 Jeffery Lorick Pinellas County Office of Human Rights 5th Floor 400 South Fort Harrison Avenue Clearwater, Florida 33756 Paul Valenti, Human Rights/EEO Officer Pinellas County Office of Human Rights Fifth Floor 400 South Fort Harrison Avenue Clearwater, Florida 33756 Lisa Postell Equal Opportunity Coordinator 1 Pinellas County Office of Human Rights Fifth Floor 400 South Fort Harrison Avenue Clearwater, Florida 33756
The Issue Should Petitioner's application for Class 0701 and Class 0704 Fire Equipment Dealer license and Class 0901 and Class 0904 Fire Equipment permit be granted?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: The Department is the agency of the State of Florida charged with the responsibility of issuing licenses and permits under Chapter 633, Florida Statutes, and enforcing the provisions of Chapter 633, Florida Statutes. By Final Order dated September 8, 1993, the Department revoked all licenses and permits previously issued to Petitioner under Chapter 633, Florida Statutes, for a period of five years. During this revocation period Petitioner was prohibited from engaging in any type of business requiring a license or permit under Chapter 633, Florida Statutes. After the revocation period expired, Petitioner filed an application with the Department for the issuance of a Class 0701 and Class 0704 Fire Equipment Dealer License and a Class 0901 and Class 0904 Fire Equipment Permit. By letter of denial dated December 30, 1998, the Department advised Petitioner that the Department was denying Petitioner's application for licensure on the basis that Petitioner had conducted business contrary to the provisions of the Department's Final Order dated September 8, 1999. Subsequently, the Department moved to amend its initial letter of denial dated December 30, 1998. The motion was granted and this matter proceeded forward on the amended letter of denial. The amended denial letter provided in pertinent part as follows: Investigation of your activities during the period of revocation resulted in a determination that you have conducted business contrary to the provisions of the Department's Final Order issued September 1993, therefore your request for licensure has been reviewed and must be denied. You continued to engage in the business of servicing, repairing and inspecting preengineered systems without being licensed by soliciting companies for the purposes of servicing their preengineered systems and by making arrangements with Rogers Fire Protection of Dade City, Florida for the performance of these services, and then by receiving a payment or "kickback" for the servicing of these extinguishers and systems. You also continued to engage in the business of servicing, repairing and inspecting fire extinguishers and preengineered systems without being licensed by supervising and training employees who service, repair, inspect and/or install fire extinguishers and/or preengineered systems. The amended denial letter also advised Petitioner that such activity was in violation of Section 633.061(1), Florida Statutes. At all times pertinent to this proceeding, Petitioner was co-owner of Canady CO2 Gas Co. and Canady Fire Equipment Co.(Canady Co.) located in Lakeland, Florida. Richard Dawley was co-owner of Canady Co. with Petitioner from October 1996 through 1997. During the years 1996 and 1997, Daniel Dawley, Billy Benton, and Todd Gardner were employed by Canady Co. During the years of 1996 and 1997, all of the employees of Canady Co. and Richard Dawley were licensed by the office of the State Fire Marshall pursuant to Chapter 633, Florida Statutes which allowed all of them to engage in the business of servicing portable fire extinguishers. During the years 1996 and 1997, neither the owners nor any of the employees of Canady Co. were licensed to service, test, inspect, repair, and install preengineered fire systems. During the years 1996 and 1997, Canady Co. sold and delivered C02 cartridges. Before Petitioner's licenses and permits were revoked by Final Order dated September 8, 1993, Petitioner engaged in the business of testing, servicing, inspecting, and repairing preengineered fire systems. During this period of time, Petitioner established customers with whom he maintained contact with after his licenses and permits were revoked. During the years 1996 and 1997, Canady Co. ran an advertisement in the yellow pages which advertised "Automatic Kitchen Hood Fire Systems, Kitchen Hoods Installed W/Exhaust Fans, Kitchen Hoods & Exhaust Ducts Cleaned, and Kitchen Hood Filters." Petitioner sold this type fire equipment but was not licensed to test, install, repair, service, or inspect such equipment. There is nothing in the advertisement to indicate that Petitioner was licensed to test, install, repair, service, or inspect such fire equipment. There was no evidence that any potential customer or former customer of Petitioner would assume, based on the language of the advertisement, that Petitioner was licensed to test, install, inspect, service, or repair such equipment. Likewise, during the period of revocation, Petitioner did not advise any former customer or potential customer that he was licensed to test, install, repair, service, or inspect fire systems. During 1997, Roy Rogers, owner of Rogers Fire Protection, was licensed to test, install, repair, service, and inspect fire systems. During 1997, Roy Rogers and Petitioner entered into an agreement whereby Petitioner would refer customers to Rogers whose fire systems needed testing, repairing, servicing, or inspection. Roy Rogers would perform this work under his license and bill Petitioner for his regular fee. Petitioner would then bill his customer for the amount charged by Roy Rogers plus a referral fee. The invoice submitted by Petitioner to the customer did not indicate that Roy Rogers had performed the work or that the customer was being charged a referral fee by Petitioner. Upon being paid by the customer. Petitioner would pay Roy Rogers and retain the referral fee. By invoice number 10288 dated May 22, 1997, Rogers Fire Protection billed Canady Fire Equipment $55.00 for testing and inspecting a Range Guard 2.5 gallon Fire Suppression System for Dockside Lounge, Lakeland, Florida. By invoice number 00260 dated June 2, 1997, Canady Fire Equipment Co. billed Dockside Lounge, Lakeland, Florida $80.00 for services rendered by Rogers which included Petitioner's referral fee of $25.00. Petitioner's referral fee was not stated separately on the invoice. By invoice number 10286 dated May 22, 1997, Rogers Fire Protection billed Canady Fire Equipment $55.00 for testing and inspecting a Kiddle HDR-25 Fire Suppression System for Lakeside Baptist Church, Lakeland, Florida. By invoice number 00258 dated June 2, 1997, Canady Fire Equipment Co. billed Lakeside Baptist Church, Lakeland, Florida $80.00 for services rendered by Rogers which included Petitioner's referral fee of $25.00. Petitioner's referral fee was not stated separately on the invoice. By invoice number 10287 dated May 22, 1997, Rogers Fire Protection billed Canady Fire Equipment $55.00 for testing and inspecting a Safety First ARS-15C Fire Suppression System for Dove's Nest, Lakeland, Florida. By invoice number 10285 dated May 22, 1997, Rogers Fire Protection billed Canady Fire Equipment $55.00 for testing and inspecting a Ansul R-102 3-gallon Suppression System for Brothers Bar-B-Q, Lakeland, Florida. On May 27, 1997, Petitioner issued a check in the amount of $220.00 to Rogers Fire Equipment. Although the check does not state which invoice(s) are being paid, the amount equals the total of invoices numbers 10285 through 10288. By invoice number 10294 dated May 27, 1997, Rogers Fire Protection billed Canady Fire Equipment $55.00 for testing and inspecting a Ansul R-101 Fire Suppression System for Silver Ring Cafe, Lakeland, Florida. By invoice number 10319 dated June 13, 1997, Rogers Fire Protection billed Canady Fire Equipment $55.00 for testing and inspecting a Range Guard 6-gallon Fire Suppression System for the Elks Lodge, Lakeland, Florida. By invoice number 10320 dated June 13, 1997, Rogers Fire Protection billed Canady Fire Equipment $55.00 for testing and inspecting a Range Guard 2.5-gallon Fire Suppression System for the Plantation Café, Lakeland, Florida. By invoice number 10343 dated June 27, 1997, Rogers Fire Protection billed Canady Fire Equipment $55.00 for testing and inspecting a Range Guard 2.5-gallon Fire Suppression System for Grace Lutheran Church, Lakeland, Florida. On June 2, 1997, Canady Fire Equipment issued a check to Rogers Fire Protection in the amount of $155.00. On June 17, 1997, Canady Fire Equipment issued a check to Rogers Fire Protection in the amount of $122.50. By invoice number 10327 dated June 20, 1997, Rogers Fire Protection billed Canady Fire Equipment $105.00 for inspecting and servicing a Range Guard 2.5-gallon Fire Suppression System and for labor and material for Jackie's Caribbean Cuisine, Auburndale, Florida. By invoice number 10328 dated June 21, 1997, Rogers Fire Protection billed Canady Fire Equipment $140.00 for inspecting and servicing a Range Guard 2.5-gallon Fire Suppression System and other labor for other worked performed for Citrus Woods Property Owner's Association, Lakeland, Florida. By invoice number 00400 dated June 21, 1997, Canady Fire Equipment billed Citrus Woods Property Owner's Association $359.90 for services rendered by Rogers Fire Protection which apparently included Petitioner's referral fee. By check dated June 24, 1997, Canady Fire Equipment paid Rogers Fire Protection $245.00 which covered invoice numbers 10327 and 10328. By Fax dated May 15, 1997, Petitioner advised Rogers Fire Protection that Star Foods, Winter Haven, Florida; Chings Place, Lakeland, Florida; Touchdown Eddie's, Lakeland, Florida; Silver Ring Café, Lakeland, Florida; Dove's Nest, Lakeland, Florida; Brothers Bar-B-Q. Lakeland, Florida; and Dockside Lounge, Lakeland, Florida were systems to be serviced and invoiced to Canady Fire Equipment Co. Additionally, Petitioner advised Rogers that each of the above customers had been advised that Petitioner was sending someone to service their systems and that Rogers was to remind the customer that he was doing the work for Petitioner. Petitioner also advised Rogers that Petitioner would invoice the customers for the work. There is insufficient evidence to show that Petitioner supervised or trained employees or Richard Dawley on the servicing or repair of portable fire extinguishers during the time that he was not licensed by the Department, notwithstanding the testimony of Richard Dawley and Daniel Dawley to the contrary of which I find lacks credibility. There is insufficient evidence to show that Petitioner allowed the unlicensed employees of Canady Co to tag fire extinguishers or used another company to certify fire extinguishers, notwithstanding the testimony of Richard Dawley and Daniel Dawley to the contrary of which I find lacks credibility.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Insurance enter a final order denying Petitioner's application for the issuance of Class 0701 and Class 0704 Fire Equipment Dealer license and Class 0901 and Class 0904 Fire Equipment permit. DONE AND ENTERED this 30th day of September, 1999, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6947 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of September, 1999. COPIES FURNISHED: Bill Nelson State Treasurer and Insurance Commissioner The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300 Daniel Y. Sumner, General Counsel Department of Insurance and Treasurer The Capitol, Lower Level 26 Tallahassee, Florida 32399-00300 Robert Paine, Esquire 914 South Florida Avenue Lakeland, Florida 33803 Mechele R. McBride, Esquire Department of Insurance and Treasurer 200 East Gaines Street Tallahassee, Florida 32399-0333
The Issue The issue to be determined in this proceeding is whether Angelo's Aggregate Materials, LTD ("Angelo's") is entitled to permits from the Department of Environmental Protection ("Department") to construct and operate a Class I landfill in Pasco County.
Findings Of Fact The Parties The Department is the state agency with the power and duty under chapter 403, Florida Statutes, to review and take action on applications for permits to construct and operate solid waste management facilities, including landfills. Angelo's is a Florida limited partnership authorized to conduct business under the name Angelo's Recycled Materials. Angelo's filed the permit applications which are the subject of this proceeding. Angelo's owns the property on which the proposed landfill would be constructed and operated. Crystal Springs Preserve is a Florida corporation that owns approximately 525 acres in Pasco County, Florida on which is located Crystal Springs, a second magnitude spring that flows into the Hillsborough River. The property is about 10 miles south of Angelo's proposed landfill site. Crystal Springs Preserve's primary business activities are selling spring water for bottling for human consumption and operating an environmental education center that focuses on Crystal Springs and the Hillsborough River. Crystal Springs Preserve hosts approximately 50,000 visitors annually at the environmental education center. Crystal Springs Preserve holds a water use permit which authorizes it to withdraw up to 756,893 gallons of water per day (annual average) from Crystal Springs for production of bottled water. The water is transported about three miles to a water bottling facility operated by Nestlé. Nestlé is a private corporation engaged in the business of bottling and selling spring water. Nestlé purchases spring water from Crystal Springs Preserve. Nestlé's "Zephyrhills Spring Water" brand is composed of approximately 90 percent Crystal Springs water and 10 percent Madison Blue Spring water. The only water treatment applied by Nestlé is filtering the water to remove gross contaminants and passing the water through ultraviolet light or ozone to kill any potential bacteria before bottling. Nestlé has established "norms" for its spring water and would not be able to use the water from Crystal Springs if its chemical composition varied significantly from the norms. WRB is a Florida corporation that owns 1,866 acres in Pasco County known as Boarshead Ranch. Boarshead Ranch is adjacent to the east and south of Angelo’s property and is approximately 3,000 feet from the proposed landfill at its closest point. Boarshead Ranch is currently being used for agricultural, recreational, residential, and conservation purposes, including wildlife management. Nearly all of Boarshead Ranch is subject to a conservation easement held by the Southwest Florida Water Management District (SWFWMD). The conservation easement allows WRB to continue agricultural operations. Numerous agricultural water wells are located on Boarshead Ranch. WRB holds a water use permit which authorizes the withdrawal of 820,000 gallons per day (gpd) (annual average) for a number of uses, including production of agricultural products, animal drinking water, and personal use. The City of Zephyrhills is located in Pasco County and is a municipal corporation. Zephyrhills' water service area encompasses Zephyrhills and portions of Pasco County. Zephyrhills owns, operates, and maintains a water distribution and transmission system of pipes, pump stations, and storage tanks within the City and its service area. Zephyrhills holds a water use permit which authorizes nine potable water supply wells with a combined withdrawal of 2.9 million gallons per day ("mgd") (annual average). Zephyrhills has two new production wells located about two miles southeast of the proposed landfill. The City of Tampa owns and operates the David L. Tippin Water Treatment Plant, the Hillsborough River dam, and the City of Tampa reservoir on the Hillsborough River. Flows from Crystal Springs make up a substantial amount of the water in the Hillsborough River, especially during drought conditions when the spring flow accounts for about 50 percent of the flow. The City of Tampa holds a water use permit which authorizes the withdrawal 82 mgd (annual average). The City of Tampa owns, operates, and maintains a water distribution and transmission system of pipes, pump stations, and storage tanks within the City and its service area. Carl Roth, Marvin Hall, and Louis Potenziano own property in Pasco County near the proposed landfill site. Roth's property is 3.5 miles west of the proposed landfill site; Hall's property is located approximately one mile southwest of the site; and Potenziano's property is 1.6 miles to the south/southeast of the site. Roth, Hall, and Potenziano have water wells on their properties. The record does not establish that John Floyd owns property in the area. Floyd and Associates, Inc., owns about 55 acres in the area and holds a water use permit authorizing the withdrawal of water for agricultural uses. The Stipulated Agreement On March 1, 2010, Angelo's filed with DOAH a "Stipulated Agreement" signed by all parties. The Stipulated Agreement states in relevant part: Angelo's shall provide a final design, revised complete permit application and site investigation (referred to jointly as "Revised Submittal") to DEP with copies to all Parties and DEP shall make a completeness determination prior to this proceeding being set for a new final hearing date. * * * Angelo's shall not revise its permit application or supporting information beyond the Revised Submittal prior to or during the final hearing except in response to issues raised by DEP. It appears that the Aligned Parties did not remember the Stipulated Agreement until the commencement of the final hearing. They did not object before then to any of the evidence which Angelo's had prepared or intended to prepare for hearing on the basis that it violated the terms of the Stipulated Agreement. At the commencement of the hearing, Nestlé argued that the Stipulated Agreement barred Angelo's from revising its application or presenting new support for its project at the final hearing. The Stipulated Agreement is unusual and the necessity for Angelo's to make any concessions to the Aligned Parties in order to obtain their agreement to an abeyance was not explained. Allowing an applicant time to amend a permit application is usually good cause for an abeyance. The Stipulated Agreement allowed Angelo's to continue to respond to issues raised by the Department. Angelo's contends that all of the evidence it presented at the final hearing qualifies as a response to issues raised by the Department. The Proposed Landfill Angelo's applied to construct and operate a Class I landfill with associated buildings and leachate holding tanks. Application No. 22913-001-SC/01 corresponds to the construction permit application and Application No. 22913-001-SO/01 corresponds to the operation permit application. A Class I landfill is a landfill authorized to receive Class I waste, which is solid waste from households and businesses. Class I waste does not include hazardous waste, yard waste, or construction and demolition debris. See Fla. Admin. Code R. 62-701.200(13) and (14). The proposed landfill would be approximately 30 acres in size. It is part of a 1,020-acre parcel owned by Angelo's that is west of County Road 35 and south of Enterprise Road in Pasco County. The site is currently leased for cattle grazing and hay and sod production. There are also spray fields, orange groves, and a pond on the 1,020-acre parcel. Angelo's would construct the landfill by first clearing the 30-acre site. It would then excavate and fill to create the design subgrade or floor of the landfill with slopes required for the liner system. The subgrade would be compacted with a vibratory roller. After the subgrade compaction, the grouting plan would be implemented. The grouting plan calls for grouting 39 subsurface locations on the site that have voids, loose soils, or other unstable characteristics. A liner system would be installed after the grouting is completed and the subgrade is finished. From the bottom upward, the liner system would begin with a 12-inch layer of clay, over which a reinforcement geotextile would be installed, followed by another 12-inch layer of clay. This reinforcement geotextile is in addition to the double liner system required by Department rule. Its purpose is to maintain the integrity of the liner system in the event that a sinkhole occurs beneath the landfill. Installed above the reinforcement geotextile and clay layer would be a 60-millimeter high-density polyethylene ("HDPE") geomembrane, followed by a HDPE drainage net. These last two components comprise the secondary leachate collection system. Above the HDPE drainage net would be the primary leachate collection system, consisting of another 60-millimeter HDPE geomembrane and HDPE drainage net, followed by a geotextile, then a 12-inch sand layer for drainage, and an additional 12-inch sand layer for protection against puncture of the HDPE liner. A 48-inch layer of selected waste, free of items that could puncture the liner, would be the first waste placed over the primary leachate collection system. "Leachate" is "liquid that has passed through or merged from solid waste and may contain soluble, suspended, or miscible materials." See Fla. Admin. Code R. 62-701.200(66). Leachate would be collected through a system of perforated pipes that empty into a sloping trench with a leachate collection pipe. The leachate collection pipe would run down the center of the landfill to the lowest point where a pump would send the collected leachate through a force main 0.25 miles to storage tanks. Five above-ground storage tanks would be installed on a concrete pad with capacity to store 90,000 gallons of leachate. The stored leachate would be periodically transported to an offsite location, such as a wastewater treatment facility, for disposal. Sinkholes and Karst The terms "sinkhole" and "sinkhole activity" are not defined by Department rule, but the statutory definitions in chapter 627, a chapter dealing with insurance coverage for homes and other buildings, are generally consistent with the scientific meanings of these terms. The term "sinkhole" is defined in section 627.706(2)(h) as: a landform created by subsidence of soil, sediment, or rock as underlying strata are dissolved by groundwater. A sinkhole forms by collapse into subterranean voids created by dissolution of limestone or dolostone or by subsidence as these strata are dissolved. The term "sinkhole activity" is defined in section 627.706(2)(i) as: settlement or systematic weakening of the earth supporting the covered building only if the settlement or systematic weakening results from contemporaneous movement or raveling of soils, sediments, or rock materials into subterranean voids created by the effect of water on a limestone or similar rock formation. Sinkholes occur throughout Florida. There have been many reported and confirmed sinkholes in Pasco County. The more common type of sinkhole that has occurred on the Brooksville Ridge is a "cover subsidence" sinkhole, which is caused by voids in the limestone and the downward movement--"raveling"--of overlying soils into the cavity. Eventually, the loss of soils in the raveling zone will propagate upward until the soils at the ground surface also move downward and a depression is formed at the surface. Cover subsidence sinkholes develop slowly and are usually small, less than ten feet in diameter. Less common are "cover collapse" sinkholes, which can form in a matter of days or hours as the result of the collapse of the "roof" of a dissolved cavity in the limestone. These sinkholes are usually large and deep. The occurrence of a sinkhole does not always mean that areas near the sinkhole are unstable. However, the occurrence of a sinkhole is reasonable cause for concern about the stability of nearby areas and a reasonable basis for the Department to require thorough geologic investigations. "Karst" refers to limestone that is undergoing dissolution and it is common in Florida. A sinkhole forms in karst. "Epikarst" is limestone that was weathered while exposed above sea level millions of years ago before being submerged again. It is generally softer and more permeable than unweathered limestone. "Paleokarst" refers to karst that is very old in geologic time. Paleosinks are old sinkhole features in the paleokarst. A paleosink may no longer be unstable because it has been filled in for thousands or millions of years. A "lineament," or a "photolineament," is a relatively straight line seen in the topography or aerial photographs of the ground surface in an area. It might be defined by soil color, sloughs, ponds, wetlands, or other land features that follow a linear path. Lineaments are sometimes, but not always, associated with subsurface fractures in the bedrock where one would expect to also find active karst, sinkholes, and relatively rapid groundwater flow. Even where there is no lineament, there can be fractures in limestone that, when extensive enough, will allow for "fractured," "preferential," or "conduit flow" of groundwater. Fractured flow can occur in a small area or may go on for miles. Springs in Florida are usually associated with fractured flow or conduit flow that allows groundwater to move through the aquifer a long distance relatively rapidly, in weeks rather than decades. Geotechnical Investigation The Department's rules require subsurface conditions to be explored and described, including soil stratigraphy, soft ground, lineaments, and unstable areas, but the rules do not require the application of any particular geologic testing technique. An applicant's testing program is primarily a function of the professional judgment of the applicant’s geologist in cooperation with Department staff. The amount of geological testing done by Angelo's during its initial testing was similar to what was done for recent landfill applications. Angelo's conducted additional testing to respond to Department concerns and to prepare for the final hearing in this case, making the total amount of testing at Angelo's proposed site more extensive than is usual for a proposed landfill. The geologic investigation conducted by Angelo's experts to determine subsurface features, including any sinkholes, employed several technologies. Split Spoon Penetrometer Test (SPT) or SPT borings were drilled with a drill rig that advances a split spoon sampler into the ground with a 140 pound hammer. The hammer is dropped 30 inches and the number of blows required to drive the sampler each successive 12 inches is referred to as the "N" value and indicates soil strength and density. The higher the N value, the denser the soil. When the material is so dense the drill rod cannot (essentially) be hammered deeper, the N value is shown as "R," which stands for "refusal." SPT Bore logs also note any observed "weight of hammer," "weight of rod," or "loss of circulation." These terms describe areas where the drilling encounters very soft material or voids. Weight of rod, for example, means the weight of the drilling rod, by itself, with no hammer blow, was enough to cause the rod to fall deeper through the soil or rock. Cone Penetrometer Test ("CPT") borings were also conducted. CPT borings are relatively shallow, performed with a hand-held rod and special tip that the operator pushes into the ground. The CPT equipment continuously measures and records tip resistance and sleeve resistance as the rod moves downward through soils. It is helpful in some applications, but is less precise in determining soil type, strength, and compressibility than SPT borings and cannot be used to explore deep zones. Ground penetrating radar ("GPR") studies were used. GPR equipment transmits pulses of radio frequency waves into the ground. The manner in which the radio waves are reflected indicates the types of soil and rock encountered. It can also detect cavities and other features that would suggest karst activity. When the GPR identifies geologic features of interest, they can be further investigated with SPT borings. Another investigative tool used by Angelo's was Multiple Electrode Resistivity ("MER"). MER uses a grid of wires and electrodes and the equipment interprets the resistivity of electrical signals transmitted through the subsurface. MER data can be displayed in a two dimensional or three dimensional format, depending on the software program that is used to process the data. Like GPR, MER is useful for indentifying geologic features of interest that can be further explored with SPT borings. However, GPR generally has good resolution only near the ground surface, while MER has good resolution to a depth of 100 feet. The Regional Geology The proposed site is in a geologic transition zone on the eastern flank of a regional, geological feature known as the Brooksville Ridge. It is a transition zone for both the Suwannee Limestone and Hawthorn Group. The Brooksville Ridge was formed when it was part of the coastline. In its geologic past, the Brooksville Ridge experienced sea level changes, weathering, erosion of sediments, and beach reworking. The general layering of geologic features on the Brooksville Ridge, from the top down, begins with topsoil and a layer of sand. Under the sand layer is the Hawthorn Group, an older geologic layer consisting of a heterogeneous mix of limestone, clays, and sands which generally range in depth from slightly under 60 feet to 80 feet or more. It was formed by river and wind erosion, flushing, and re-deposition in a beach dune environment. Below the Hawthorn Group is the Suwannee Limestone Formation, which is present throughout eastern Pasco County. The upper surface of the Suwannee Limestone Formation is undulating, due to a gradual chemical weathering of its upper surface, representing a "paleokarst environment." Underlying the Suwannee Limestone Formation is the Ocala Limestone Formation. It extends throughout most of Florida. It is composed of nearly pure limestone and is considered the Floridan Aquifer. It extends across the site’s subsurface. Angelo's used the Florida Geologic Survey's data base to determine there are six sinkholes within five miles of the proposed landfill. A seventh sinkhole, not in the data base, is the 15- foot sinkhole at the Angelo's Enterprise Road Facility landfill, a Class III landfill (yard waste and construction and demolition debris) about a mile northwest of the proposed site. Angelo's contends that the sinkhole at its Class III landfill was "induced" during construction of the facility by the diversion of stormwater runoff to an area where overburden had been removed. The average diameter of the seven sinkholes is 11.9 feet. The Geology of the Proposed Site Rule 62-701.410(2)(c) requires a geotechnical site investigation and report, which shall: Explore and describe subsurface conditions including soil stratigraphy and ground water table conditions; Explore and address the presence of muck, previously filled areas, soft ground, lineaments, and sinkholes; Evaluate and address fault areas, seismic impact zones, and unstable areas as described in 40 C.F.R. 258.13, 258.14 and 258.15; Include estimates of the average and maximum high ground water table across the site; and Include a foundation analysis to determine the ability of the foundation to support the loads and stresses imposed by the landfill. It may include geotechnical measures necessary to modify the foundation to accommodate the imposed loads and stresses. The foundation shall be analyzed for short-term, end of construction, and long-term stability and settlement conditions. Considering the existing or proposed subgrade conditions and the landfill geometry, analysis shall include: Foundation bearing capacity; Subgrade settlements, both total and differential; and Subgrade slope stability. Angelo's conducted a geotechnical site investigation, but it was not adequate, as discussed below and in sections I. and J. The proposed landfill site is geologically complex, having features that are discontinuous horizontally and vertically. The site has karst features or areas where the limestone has dissolved. There is a clay layer in some areas, but it is not continuous and its depth and thickness vary. There are deposits of hard and soft sands at various depths. There are pinnacles of limestone surrounded by softer materials. Photographs from a quarry called the Vulcan Mine, located on the western flank of the Brooksville Ridge, show exposed features in the top 20 to 30 feet of the Suwannee Limestone in the region. The features at the Vulcan Mine are roughly similar to features at the Angelo's site. There are a number of shallow depressions on the surface of the ground on the Angelo's site. The origin and significance of these depressions was a matter of dispute. The Aligned Parties believe they represent sinkhole activity, but the evidence presented did not rise to the level of proof. However, Angelo's did not prove they were unassociated with geotechnical issues that could affect the proposed landfill. Angelo's offered no reasonable explanation for the depressions. Determining the exact cause of the depressions may not be possible even with more extensive investigation, but it was Angelo's responsibility as the permit applicant, pursuant to rule 62-701.410(2)(c), to make a greater effort to account for them. Angelo's initial permit application identified two intersecting lineaments on Angelo's property, based on aligned lowlands, enclosed valleys, and ponds. Angelo's contends the lineaments do not reflect an unstable subsurface or fractured limestone. The Aligned Parties contend that the lineaments are regional features and reflect fractures in the bedrock. They also contend that the onsite pond, which is located along the lineament, is an old sinkhole. The Aligned Parties did not prove the proposed landfill site is above an area of fractured bedrock, but the evidence presented by Angelo's was incomplete and insufficient to show there are no fractures. The limestone on the site was not adequately investigated for voids and fractures. Angelo's did not refute the possibility that the lineaments reflect a significant subsurface feature that could affect both site stability and groundwater movement. The Regional and Local Hydrogeology Rule 62-701.410(1) requires a hydrogeological investigation and site report, which shall: Define the landfill site geology and hydrology and its relationship to the local and regional hydrogeologic patterns including: Direction and rate of ground water and surface water flow, including seasonal variations; Background quality of ground water and surface water; Any on site hydraulic connections between aquifers; For all confining layers, semi-confining layers, and all aquifers below the landfill site that may be affected by the landfill, the porosity or effective porosity, horizontal and vertical permeabilities, and the depth to and lithology of the layers and aquifers; and Topography, soil types and characteristics, and surface water drainage systems of the site and surrounding the site. Include an inventory of all the public and private water wells within a one-mile radius of the proposed landfill site. The inventory shall include, where available: The approximate elevation of the top of the well casing and the depth of each well; The name of the owner, the age and usage of each well, and the estimated daily pumpage; and The stratigraphic unit screened, well construction technique, and static water levels of each well. Identify and locate any existing contaminated areas on the landfill site. Include a map showing the locations of all potable wells within 500 feet of the waste storage and disposal areas to demonstrate compliance with paragraph 62- 701.300(2)(b), F.A.C. Angelo's conducted a hydrogeological investigation, but it was not adequate, as discussed below. Angelo's and the Aligned Parties disputed the hydrogeological characteristics of the proposed landfill site and region. The principal disputes related to the direction and velocity of groundwater flow. Angelo's contends that groundwater flows from the landfill site to the west, making the proposed landfill site part of the Withlacoochee River groundwater basin. The Aligned Parties contend that groundwater flows south toward Crystal Springs and, therefore, the site is within the "springshed" of Crystal Springs. A United States Geological Survey map of the Crystal Springs springshed shows Angelo's proposed landfill site within the springshed. A springshed study done for SWFWMD also indicates the site is within the Crystal Springs springshed, but the District has not always been consistent in its statements about the groundwater basin boundaries in this area. A water chemistry analysis of the groundwater in the area of Angelo's proposed landfill indicates that the site is an area of higher recharge and within the Crystal Springs springshed. The springshed boundary can shift, depending on rainfall. Angelo's hydrogeological evidence was not sufficient to refute the reasonable possibility that the proposed landfill site is within the Crystal Springs springshed. Therefore, the Department's determination whether Angelo's has provided reasonable assurances must account for the threat of contamination to Crystal Springs and the other public and private water supply sources to the south. There are no creeks or streams and only a few lakes in the area between Crystal Springs and the Angelo's site. The absence of surface runoff features indicates it is an area of high recharge to the groundwater. Crystal Springs is in an area of conduit flow. The hydrologic investigation conducted by Angelo's was not thorough enough to characterize surficial aquifer flow and flow between aquifers. The preponderance of the evidence shows more groundwater recharge to the Floridan Aquifer in the area than estimated by Angelo's. Angelo's hydrogeological investigation was inadequate to refute the possibility of fractured flow or rapid groundwater movement at the proposed landfill site. Angelo's contends there is a continuous clay confining layer that would prevent contamination from moving into deep zones, but the preponderance of the evidence shows discontinuity in the clay and large variations in thickness and depth. The landfill's impermeable liner will impede water movement downward from the landfill, but groundwater will still recharge from outside the landfill to carry any contaminants deeper. If fractured flow or conduit flow extends south from the proposed landfill site, any leachate released into the groundwater beneath the landfill could travel rapidly toward the water supply sources of the City of Zephyrhills, Crystal Springs, Nestlé, and the City of Tampa. Whether the Proposed Landfill is in an Unstable Area Rule 62-701.200(2)(a) prohibits the storage or disposal of solid waste "[i]n an area where geological formations or other subsurface features will not provide support for the solid waste." However, the Department has adopted by reference a federal regulation, 40 C.F.R. 258.15, which allows a landfill to be constructed in a geologically unstable area if the permit applicant can demonstrate that engineering measures are incorporated into the design to ensure that the integrity of the landfill’s structural components "will not be disrupted." The parties presented evidence on many disputed issues of fact at the final hearing, but most of the case involved two ultimate questions: whether the proposed landfill site is unstable and, if so, whether Angelo's has proposed measures that would eliminate the unstable conditions and make the site suitable for a landfill. as: An "unstable area" is defined in 40 C.F.R. § 258.15 A location that is susceptible to natural or human-induced events or forces capable of impairing the integrity of some or all of the landfill structural components responsible for preventing releases from a landfill. Unstable areas can include poor foundation conditions, areas susceptible to mass movements, and Karst terrains. There is overwhelming evidence that the proposed landfill site is an unstable area. A considerable amount of evidence presented by Angelo's supports this finding. For example, Angelo's experts agreed there are loose soils, evidence of raveling, and sinkhole activity. These conditions make the site susceptible to natural or human-induced events or forces capable of impairing the integrity of some or all of the landfill structural components responsible for preventing releases from the proposed landfill. The Department's landfill permitting staff requested a sinkhole risk assessment from the Florida Geologic Survey ("FGS"). The State Geologist and Director of the FGS, Dr. Jonathan Arthur, believes the potential for sinkhole formation at the proposed site is moderately high to high. That potential is consistent with the characterization of the area as unstable. Whether the Proposed Engineering Measures Are Adequate Because the site is unstable, Angelo’s must demonstrate that engineering measures have been incorporated into the landfill's design to ensure that the integrity of its structural components will not be disrupted. See 40 C.F.R. § 258.15(a). The engineering measures proposed by Angelo's are discussed below. Because it was found that Angelo's hydrogeological and geotechnical investigations were not sufficient to characterize all potentially unstable features of the subsurface, it was not demonstrated that the proposed engineering measures would overcome the instability and make the site suitable for a landfill. Roller Compaction Angelo's would use roller compaction on the graded floor of the landfill to compact the soils to a depth of about five feet and eliminate any voids within that depth. The Aligned Parties did not contradict Angelo's evidence that its proposed roller compaction will be done in a manner exceeding what the Department usually requires as far as roller force and the number of roller "passes." However, roller compaction will not affect deep voids. Liner System In order to ensure that the landfill’s liner system components will not be disrupted in the event of a sinkhole, Angelo’s proposes to include the reinforcement geotextile discussed above. The Department previously approved the use of geotextile reinforcement, combined with grouting, to demonstrate site stability for the Hernando County Northwest Landfill, which had a comparable risk of sinkhole formation according to the Department. The reinforcement geotextile can span a 15-foot diameter sinkhole without failure. As found above, the average diameter of the seven sinkholes within five miles of the proposed landfill is 11.9 feet. Angelo's proved that the proposed liner system meets all applicable criteria, except the requirement of rule 62- 701.400(3)(a) that the liner be installed upon a geologically stable base. Grouting Plan Angelo's grouting plan would be implemented to fill voids and stabilize areas of loose or weak material. The grouting plan was first designed to grout all locations where there was a Weight of Hammer, Weight of Rod, Loss of Circulation, or loose sands, as indicated by a low blow count. Angelo's revised the grout plan to include several more areas of concern identified later, for a total of 39 locations. Each grout location would have seven grout points, one in the center and six others equally-spaced on a ten-foot radius from the center. If more than ten cubic yards of grout is needed, additional grout points further outward would be injected until the void or loose soils are filled or stabilized. Although Angelo's proposes to grout every boring of concern, that still ties the integrity of the grouting plan to the thoroughness of the borings. The geologic evidence indicates that there are unstable areas which the grouting plan does not address. The Aligned Parties' MER analysis was persuasive in identifying potential areas of instability that were omitted from Angelo's investigation and from its grouting plan. There are other unstable areas existing on the site that should be grouted or otherwise engineered to provide support for the landfill. The grouting plan does not provide reasonable assurance that the integrity of the structural components of the landfill will not be disturbed. Other Issues Raised by the Aligned Parties The Aligned Parties raise a number of other issues, some of which begin with the assumption that the site is unstable and a large sinkhole would form at the landfill. This sometimes mixes issues inappropriately. It has been found that Angelo's did not provide reasonable assurance that the site will support the proposed landfill, but other project elements must be reviewed on their own merits where possible, assuming the site was engineered for stability. Leachate Collection System There is a single leachate collection trench in the center of the two landfill cells, which makes the landfill operate much like a single cell. The two halves of the cell slope toward the center, so that leachate will drain to the leachate collection trench, and the entire landfill slopes to the west, so that the trench will drain to a sump from which the leachate is pumped to storage tanks. At full capacity, the landfill will generate about 40,000 gallons of leachate per day. Careful cutting and grading of the earth is necessary to create the slopes that are essential to the proper functioning of the project’s leachate collection system. Settlement analyses are necessary to assure that the slopes are maintained. Rule 62-701.410(2)(e) requires a foundation analysis which must include a study of "subgrade settlements, both total and differential." "Total settlement" refers to the overall settlement of a landfill after construction and the loading of solid waste. "Differential settlement" compares settlement at two different points. Angelo's did not meet its burden to provide reasonable assurance on this point. The settlement analysis conducted by Angelo's was amended two or three times during the course of the final hearing to account for computational errors and other issues raised by the Aligned Parties. The analysis never came completely into focus. The final analysis was not signed and sealed by a professional engineer. The settlement analysis is dependent on the geologic analysis, which is inadequate. Without adequate settlement and geologic analyses, it cannot be determined that leachate collection would meet applicable criteria. Storage Tanks The Aligned Parties contend that the leachate storage tanks cannot be supported by the site. Because it was found that Angelo's geologic investigation was not adequate to identify all unstable areas, it is also found that Angelo's failed to provide reasonable assurance that the site would support the leachate storage tanks. In all other respects, the Aligned Parties failed to refute Angelo's demonstration that the storage tanks would meet applicable criteria. Groundwater Monitoring Plan The Aligned Parties contend that there is an insufficient number of monitor wells proposed by Angelo's to detect a leak from the landfill and the wells are too shallow. Because it was found that Angelo's did not adequately characterize the geology and hydrology of the proposed landfill site, the monitoring plan does not provide reasonable assurance of compliance with applicable criteria. Cell Design The Aligned Parties contend that the "mega-cell" design proposed by Angelo's provides less flexibility to respond to and isolate landfill problems than other landfill designs with smaller cells, and the mega-cell design could generate more leakage. No evidence was presented to show whether Angelo's design was one that had been approved or rejected in the past by the Department. Although it is not the best landfill design, the Aligned Parties did not show that the proposed design violates any permitting criteria. Operation and Closure The evidence presented by the Aligned Parties in support of their issues regarding the operation of the proposed landfill, such as noise, odor, and traffic, was not sufficient to refute Angelo's evidence of compliance with applicable criteria, with one exception: Angelo's has not provided an adequate contingency plan to show how it would respond to a sinkhole or other incident that required the landfill to be shut down and repaired. Assuming the site was engineered to support the landfill, there is nothing about the Closure Plan that the Aligned Parties showed does not meet applicable criteria.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection deny Angelo's Permit Application Nos. 22913-001-SC/01 and 22913- 002-SO/01. DONE AND ENTERED this 28th day of June, 2013, in Tallahassee, Leon County, Florida. S BRAM D. E. CANTER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of June, 2013. COPIES FURNISHED: Carl Roth, Qualified Representative 8031 Island Drive Port Richey, Florida 34668-6220 Christopher M. Kise, Esquire Foley and Lardner, LLP 106 East College Avenue, Suite 900 Tallahassee, Florida 32301-7732 Wayne E. Flowers, Esquire Lewis, Longman and Walker, P.A. Suite 150 245 Riverside Avenue Jacksonville, Florida 32202-4931 Janice M. McLean, Esquire City of Tampa 7th Floor 315 East Kennedy Boulevard Tampa, Florida 33602-5211 Joseph A. Poblick, Esquire City of Zephyrhills 5335 8th Street Zephyrhills, Florida 33542-4312 Doug Manson, Esquire William Bilenky, Esquire Brian A. Bolves, Esquire Manson Bolves, P.A. 1101 West Swann Avenue Tampa, Florida 33606-2637 Jacob D. Varn, Esquire Linda Loomis Shelley, Esquire Karen A. Brodeen, Esquire Fowler, White, Boggs, P.A. 101 North Monroe Street, Suite 1090 Tallahassee, Florida 32302-1547 David Smolker, Esquire Smolker, Bartlett, Schlosser, Loeb and Hinds, P.A. Suite 200 500 East Kennedy Boulevard Tampa, Florida 33602-4936 Stanley Warden, Esquire Christopher Dale McGuire, Esquire Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 William D. Preston, Esquire William D. Preston, P.A. 4832-A Kerry Forest Parkway Tallahassee, Florida 32309-2272 Herschel T. Vinyard, Jr., Secretary Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Matthew Z. Leopold, General Counsel Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Lea Crandall, Agency Clerk Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000
The Issue The issue in these cases is whether the Department of Environmental Protection should grant an environmental resourced permit and a variance from the provisions of Rule 40C-4.032(c), Florida Administrative Code, for a project proposed by J.B.'s Fish Camp.
Findings Of Fact The Parties. Respondent, J.B.'s Fish Camp (hereinafter referred to as "J.B.'s"), consists of a restaurant and aquaculture facility. J.B.'s is owned by John Bollman. J.B.'s is located on an unnamed branch of the Indian River (hereinafter referred to as "Indian River North "), near Bethune Beach, Volusia County, Florida. J.B.'s is located approximately eight miles south of Ponce de Leon Inlet, which provides access to the Atlantic Ocean. Respondent, the Department of Environmental Protection (hereinafter referred to as the "Department"), is an agency of the State of Florida. The Department is charged with the responsibility for, among other things, reviewing environmental resource permit applications for certain docks, applications for sovereign submerged lands leases, and variance applications for construction of structures which potentially may pollute waters designated as Aquatic Preserve. Petitioners, William and Jill Crouthers, reside at 6828 Engram Road, Bethune Beach, Florida. Their residence is approximately 300 feet south of J.B.'s. Mr. Crouthers operates a sailboat, and a motorized boat in Indian River North, adjacent to J.B.'s. Petitioner, Paul Tyre, resides at 6820 Engram Road, Bethune Beach, Florida. His residence is approximatley 250 feet south of J.B.'s. Mr. Tyre has often boated in Indian River North, adjacent to J.B.'s. J.B.'s Existing Facility. At the time of the formal hearing of these cases, J.B.'s operated a resturant on the shore of Indian River North. J.B.'s owns approximately 308 feet of shoreline. The waters in which J.B.'s docks are located have been approved by the Department for conditionaly restricted shellfish harvesting. The waters have been designated Class II waters, an Aquatic Preserve, and an Outstanding Florida Water. J.B.'s has two existing docks in Indian River North and connected to the shoreline of J.B.'s property. One dock is "L" shaped and is located adjacent to the restaurant (hereinafter referred to as the "Existing Restaurant Dock"). J.B.'s other dock is "T" shaped, and is located near a bait shop operated by J.B.'s south of the Existing Restaurant Dock (hereinafter referred to as the "Existing Bait-Shop Dock"). The Existing Restaurant Dock is used by patrons of the restaurant and by J.B.'s to unload shellfish which are raised and harvested by J.B.'s. Passengers are also loaded from the Existing Restaurant Dock on tour boats operated by J.B.'s. Boats are docked at both docks by partons of the restaurant. At times as many as 40 boats may be docked at J.B.'s. The Existing Restaurant Dock is only designed to reasonably dock less than 10 boats. More boats are docked at the Existing Restaurant Dock because they are "rafted". "Rafting" is the docking of a boat at a dock and then tying other boats to the side of the docked boat. Additional boats are then tied to the outside boat. Boats are also anchored on the bottom around the docks and the immediate area. The existing docks are in relatively shallow water. As a consequence, prop dredging takes place at low tide near the docks. J.B.'s Proposed Project. In June of 1989 J.B.'s filed an application with the Department seeking a permit which would allow it to replace the existing docks with a ten-slip dock to replace the Existing Restaurant Dock, a concrete boat-launching ramp adjacent to J.B.'s existing bait shop, and six-slip dock to replace the Existing Bait-Shop Dock. On or about September 16, 1996, J.B.'s requested a variance from the requirements of Rule 40C-4.302©, Florida Administrative Code. The proposed facilities were described in the application, in part, as follows: The proposed docking facility will consist of a primary dock 24-feet wide by 75-feet long attached to an existing concrete patio. An 8- foot wide walkway will extend from the north end of the main dock, extending 80-feet to the north. Three finger piers will be constructed perpendicular to and extending waterward from the walkway. One will be four feet wide, the other two will be 2'6" wide. They will extend waterward sixteen feet. . . . . . . . Another existing dock, in a "T" shape is located 35' north of the applicants' south property line. The existing dock extends waterward 73'6" and is 4' wide. The top of the "T" section is 46'6" by 4' wide. Four finger piers 2/6" wide by 16' long will be constructed waterward from this dock and one finger pier 2'6" wide by 10' long will be constructed parralell to the shore line. . . . J.B.'s represented in the application that the dock be constructed to replace the Existing Restaurant Dock (hereinafter referred to as the "Proposed Restaurant Dock"), would be used by boaters visiting the restaurant, and to unload shellfish. J.B.'s respresented in the application that the dock to replace the Existing Bait Shop Dock (hereinafter referred to as the "Proposed Bait Shop Dock"), would be used as rental spaces for six boats. Due to concerns raised by the Department about J.B.'s initially proposed project, J.B.'s modified its proposal: The width of the Proposed Restuarant Dock was reduced from 24 feet to 10 feet, except where the dock will intersect with an existing platform; The Proposed Restaurant Dock was moved further from shore and into deeper waters; The proposed boat ramp was eliminated completely; and The Proposed Bait-Shop Dock was eliminated and the Existing Bait-Shop Dock is to be completely removed. As finally approved by the Department, the project will consist of the following sixteen-slip Proposed Restaurant Dock (hereinafter referred to as the "Proposed Project"): A 10-foot long walkway running waterward of the existing concrete deck, will be built over the Existing Restaurant Dock; The walkway will connect with a 10-foot walkway running parallel to the shoreline for a distance of approximately 224 feet; Sixteen slips will extend waterward of the parallel walkway, for a total width of walkway and slips of 26 feet; Two slips will be roofed for use for J.B.'s commercial fishing activites. The roof will be peaked, rather than flat; and A railing of a minimum of 3-feet high will be constructed along the landward side of the Proposed Restaurant Dock in an effort to discourage boats from mooring in locations other than the 16 approved slips. A number of conditions on the issuance of the variance sought by J.B.'s have been imposed by the Department on the Proposed Project: This variance is validonly if a wetland resource management permit is issued for this project, and is subject to any and all conditions on the permit. The granting of this variance does not guarantee the issuance of the permit. This variance shall be valid through the life of the permit, if one is issued. Where necessary, proper turbidity controls shall be used to prevent violations of the State Water Quality Standard for turbidity. Further details of turbidity control may be specified in the permit, if one is issued. There shall be no more than sixteen boats moored at the structure. No overboard discharges of trash, human or animal waste, or fuel shall occur at the dock. Any non-water department structures, such as gazebos or fish cleaning stations, shall be located on the uplands. Further design details may be specified in the permit. Any proposed or anticipated boat shelter shall not have enclosed sides. The mooring area shall be located in waters sufficiently deep to prevent bottom scour by boat propellers. Any structures located over grassbeds shall be designed so as to allow for the maximum light penetration practicable. Further design details may be specified in the permit, if one is issued. The boat ramp shall be peermanently closed. Given good cause by either party, the District Director may alter the terms and conditions of the variance. The following conditions on the permit being sought by J.B.'s designed to protect manatee have been accepted by J.B.'s: The number of slips available for boat usuage be limited to 16. Rafting, anchoring or pulling boats ashore shall be prohibited; The existing boat ramp shall be closed; The standard manatee construction conditions are followed for all in water construction; Manatee caution signs and/or information displays are installed and maintained; Distribute copies of "Volusia County Manatee Protection Zones" booklets available free of charge from the Florida Inland Navigation District. J.B.'s also agreed to establish a conservation easement over an area of approximately 224-linear feet of shoreline (excluding an area dedicated as a public easement). The area of the conservation easement must be planted by J.B.'s with littoral vegetation. J.B.'s has agreed to plant mangroves. J.B.'s will use pilings for the Proposed Restaurant Dock of a type approved by the Department with regard to potential leaching of preservatives into the surrounding waters. J.B.'s Applications. On or about June 7, 1989 J.B.'s filed an application with the Department for what was then referred to as a "wetlands resource or dredge and fill permit". On or about September 16, 1996 J.B.'s applied for a variance from Rule 40C-4.302(1)(c), Florida Administrative Code. This Rule requires that a permit application be denied if a project will result in damage to areas in Class II Waters and areas approved for shellfish harvesting. In support of its Proposed Project, J.B.'s submitted the following: A hydrographic study prepared by a civil engineer. J.B.'s Exhibit 4; An Aquatic Preserve Report prepared by an environmental consultant. J.B.'s Exhibit 14; and A shoreline planting plan for mangroves prepared by the environemantl consultant that prepared the Aquatic Preserve Report. J.B.'s Exhibit 15. J.B.'s also applied for a submerged lands lease in conjunction with its permit application and request for variance. The evidence, however, proveed that the Department has not yet given notice of its intended action on the submerged lands lease. Whether the submerged lands lease should be granted is, therefore, not issue in this proceeding. The Department's Proposed Approval and the Challenges Thereto. The Department decided to enter a notice of intent to issue the permit and variance sought by J.B.'s. On January 6, 1997, notice of the Department's decision was published in a local newspaper. On or about January 17, 1997 Paul Tyre filed a letter challenging the Department's proposed decision. The letter was not filed within 14 days of the date notice of the Department's decision was published. Therefore, the Department dismissed Mr. Tyre's request for hearing. The Department subsequently discovered that the published notice indicated that challenges could be filed with 21 days of the date of publication. When the Department discovered this fact, it accepted Mr. Tyre's request for hearing. On or about Janaury 23, 1997 William and Jill Crouthers filed a Joint Petition challenging the Department's proposed decision. The Impact on Water Quality. There will be some turbidity during the construction of the Proposed Project. That turbidity will be temporary. Steps will be taken to minimize the amout of turbidity through the use of reasonably available turbidity controls. By moving the Proposed Restaurant Dock into deeper water than the water in which the Existing Restaurant Dock is located, turbidity caused by boats which frequent the dock will be reduced. This impact is a positive benefit which will be realized from the project over existing conditions. The evidence also proved that tidal flow in the area is sufficient to adequately disperse any pollutant discharges. There are impacts to the quality of water surrounding the existing facilities as a result of boats using the existing docks, fish cleaning on the docks, and the boat ramp. These impacts would continue regardless of whether the Proposed Project is approved. At issue, therefore, is whether the Proposed Project will worsen those impacts. The evidence proved that the Proposed Project will not result in a worsening of the impacts to water quality. In fact, the Proposed Project should lessen those impacts. The Proposed Project will reduce existing impacts to water quality by improving the depth at which boats will dock, the elimination of fish cleaning on the docks, the elimination of the Existing Bait Shop Dock, and the elimination of the existing boat ramp. Impacts to water quality may also be lessened if J.B.'s adheres to the conditions imposed by the Department on the docking of boats at the Proposed Restaurant Dock. J.B.'s has represented to the Department that the conditions designed to reduce the number of boats that can be moored at the Proposed Restaurant Dock are acceptable and will be adhered to. At the formal hearing, Mr. Bollman indicated some doubt about his ability to insure that conditions concerning the number of boats moored at the Proposed Restaurant Dock are always carried out. Whether Mr. Bollman believes that the conditions are capable of enforcement by J.B.'s, Mr. Bollman and J.B.'s have indicated agreement to the issuance of the permit with the conditions. Therefore, whether Mr. Bollman believes the conditons can be carried out, he is bound to carry them out. The evidence presented by Petitioners concerning the impact on water quality failed to address the impacts from the Proposed Project. Petitioners presented evidence of an anecdotal nature. That evidence related to the existing docks and not the Proposed Project. Petitioners also presented evidence in the form of documents which relate to the Indian River Lagoon generally. Those documents constituted hearsay and did not address impacts on water quality from J.B.'s Proposed Project. The weight of the evidence proved that the proposed facilities will not cause a violation of water quality standards. Impact on the Public Health, Safety and Welfare and the Property of Others. The evidence in this case proved that the Proposed Project will not adversely impact the public health, safety, and welfare. Considering the permit with the conditions imposed, the impact on the public health, safety and welfare of the area should be slightly improved over existing conditions. Petitioners suggested that the Proposed Restaurant Dock will cause an increase in the number of boats that frequent J.B.'s. This suggestion is based upon the size of the new dock and their assumption that the conditions of the permit concerning the limitation on the number of slips and the manner in which boats may be moored will not be enforced. That is an assumption that cannot be made for purposes of this review. Reviewing the permit with its conditions, the number of boats that moor at the Proposed Restaurant Dock should be reduced. J.B.'s has agreed to be bound by the conditions. That is all that is required for purposes of this review. Failure to adhere to the conditions, if that occurs, is an enforcement issue. The evidence proved that the Proposed Project should not have an adverse impact on the property of others. Impact on Conservation of Fish and Wildlife, Including Threatened or Endangered Species, of Their Habitat. The depth of water in the area of the Proposed Restaurant Dock is approximately three feet. There is no vegetation at the footprint of the dock. Benthic organisms are present in the footprint area, but their numbers and diversity should not be adversely affected by construction, and operation of the dock. Due to the lack of vegetation in the area, fish and other wildlife are not attracted to the area around the Proposed Restaurant Dock. The shoreline area of J.B.'s is also devoid of significant emergent vegetation. The Proposed Project should not disturb grasses or vegetation that do exist. There are mangroves located at the north end of J.B.'s They will not be impacted by the construction or operation of the dock. The parties stipulated that at least 16 manatee utilize Indian River North. They travel to and from foraging, mating and resting areas in Indian River Lagoon. The evidence failed to prove that the Proposed Project will increase any negative impacts to manatee in the area. The evidence failed to prove that the area of the Proposed Restaurant Dock constitutes a feeding, mating or resting area for manatee. Although little specific evidence concerning manatee was presented, it appears that the most serious danger to the manatee are associated with boats striking manatee. The evidence failed to prove the extent, if any, to which manatee mortality or injury is associated with boats utilizing the docks at J.B.'s. The evidence also failed to prove that the Proposed Project will increase any such negative impact that may already be taking place. The conditions imposed on J.B.'s concerning the protection of manatee may lessen any current impact on manatee from boats utilizing J.B.'s. These conditions provide greater protection than currently exists. The evidence presented by Petitioners concerning the impact on fish and wildlife, including threatened and endangered species, or their habitat, failed to address impacts from the Proposed Project. Petitioners presented evidence of an anecdotal nature. That evidence related to the existing docks and not the Proposed Project. Petitioners also presented evidence in the form of documents which relate the Indian River Lagoon generally. Those documents constituted hearsay and did not address impacts from J.B.'s Proposed Project. The evidence proved that the impact on fish and wildlife, including threatened or endangered species, or their habitat, will be minimal. Impact on Navigation, the Flow of Water, Erosion and Shoaling. Water depths in the area of J.B.'s increase gradually away from the shoreline to approximately five feet. There is no central, dredged channel in Indian River North. The distance between the most waterward edge of the Proposed Restaurant Dock and the opposite shoreline is approximately 250 feet. The Proposed Project will extend over approximately 18 percent of the total width of Indian River North at J.B.'s. The navigable channel of Indian River North is located to the east of the center of the water body adjacent to J.B.'s. It is slightly closer to J.B.'s than it is to the opposite shore. There is sufficient water depth and area between the most waterward side of the Proposed Restaurant Dock and the opposite shore for the passage of manatee and boats. If the conditions of the permit relating to the number of boats that may dock at the Proposed Restaurant Dock are adhered to, the proposed facility should slightly improve navigation because of the elimination of rafting of boats. Currently, shoreline erosion in the area of J.B.'s is caused from landward activities and not boat wakes. The evidence failed to prove that the amount of erosion that does occur from boat wakes will be any greater as a result of the Proposed Project. The conservation easement and the shoreline plantings agreed to as a condition of the Department's approval of the proposed facility will add protection to the shoreline at J.B.'s, and should reduce erosion. The permit condition prohibiting boats from mooring outside of designated moorings should reduce prop scouring near shore. Moving the Proposed Restaurant Dock further from shore should also reduce prop scouring. These conditions will result in a positive benefit over current conditions. The evidence presented by Petitioners concerning the impact on navigation, the flow of water, erosion and shoaling failed to prove that there will be negative impacts from the Proposed Project. Petitioners presented evidence of an anedotal nature. That evidence related to the existing docks and not the Proposed Project. The evidence proved that there will be no negative impacts to navigation, or the flow of water as a result of the Proposed Project. The evidence also proved that the Proposed Project will not cause erosion or shoaling. Impact on Fishing, Recreational Values, and Marine Productivity in the Vicitnity of the Project. The Proposed Project will result in a slight increase in recreational values in the vicinity of J.B.'s. The evidence failed to prove that the Proposed Project will have an adverse impact on fishing or marine productivity in the vicinity of J.B.'s. Temporary or Permanent. The Proposed Project will be permantent in nature. Impact on Historical and Archaeological Resources. The Proposed Project will have no impact on historical or arcyhaeological resources. Impact on the Current Condition and Relative Value of Functions Being Performed by Areas Affected by the Proposed Activity. The evidence proved that the Proposed Project will not adversely affect current conditions, or the relative value of functions being performed by areas affected by the Proposed Project. Because of shoreline plantings, the conservation easement and the increased depth of water where boats will be docked, the areas affected by the docks at J.B's will be slightly improved.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered by the Department of Environmental Protection granting the permit and variance sought by J.B's Fish Camp with the conditions agreed to by J.B.'s Fish Camp, and dismissing the petitions filed by William and Jill Crouthers and Paul Tyre in these cases. DONE AND ENTERED this 30th day of June, 1997, in Tallahassee, Leon County, Florida. LARRY J. SARTIN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 30th day of June, 1997. COPIES FURNISHED: Robert J. Shields, Qualified Representative 6863 Engram Road New Smyrna, Florida 32169 Paul Tyre 6820 Engram Road New Smyrna Beach, Florida 32169 Thomas I. Mayton, Jr., Assistant General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard, Mail Station 35 Tallahassee, Florida 32399-3000 Mary D. Hansen, Esquire STORCH, HANSEN and MORRIS, P.A. 1620 South Clyde Morris Boulevard, Suite 300 Daytona Beach, Florida 32119
