The Issue The issue is whether Leon County Project ID No. LSP160001, conditionally approved on February 5, 2016, is consistent with the Leon County Land Development Code (Code) and the Tallahassee-Leon County 2030 Comprehensive Plan (Plan).
Findings Of Fact The Parties Floresta is a limited liability corporation that proposes to develop property located at 5044 Blountstown Highway (State Road 20), approximately one-half mile west of the intersection of Capital Circle Northwest and State Road 20. The Association is comprised of residents of the Wolf Creek Subdivision (Subdivision), and numbers around 200 residential town homes on State Road 20 just west of the proposed development. The parties agree that a substantial number of members of the Association would otherwise have standing to bring this action in their own right. J.P. Lepez lives in the Subdivision directly adjacent to, and west of, the development proposed by Floresta. Michael and Elizabeth Urban reside in Deer Tree Hills Condominium Community adjacent to, and west of, the Subdivision, and in close proximity to the proposed development. Carol Smith resides just south of Deer Tree Hills Condominium Community on the opposite side of Blountstown Highway, and in close proximity to the proposed development. The Approval Process On January 12, 2016, the County received a site and development plan application filed by Floresta regarding a proposed project called the Residential Condominiums on Blountstown Highway, a principal arterial roadway. The application consisted of an application; a permitted use verification; an applicant's affidavit of ownership and designation of agent; a school impact analysis form; an application for concurrency determination; a natural features inventory approval; a site plan narrative; a site and development plan; a concept utility plan; a concept water and sewer plan; and fire flow calculations. The applicant also submitted an environmental impact analysis application, consisting of the application, an environmental impact analysis narrative, a proposed conservation easement, a conservation easement management and maintenance plan, a stormwater analysis, and an environmental impact analysis plan. See Ex. 3a.-g., 4, 8a.-e., 9, 13, 14, and 16. The project is Phase I of a multi-phase development. Floresta proposes to develop around 4.09 acres of the total 33.52-acre parcel. As explained in more detail in the site plan narrative prepared by Floresta's consultant on January 13, 2016: The residential condominium project is limited to the front +/- 4 acres along Blountstown Highway and will include the entry drive with guest parking, a stormwater pond and 24 residential units. Each unit is a small footprint unit for low- income residents. It is anticipated that not all residents will rely upon a vehicle for transportation and therefore not all units will have driveways. Units will range in size, but will be less than 500 gsf [gross square feet], single story dwellings. The units will be placed within the identified area and located among the existing trees of the property to retain a wooded development. Future phases of construction may include community buildings and additional units based on market conditions. Ex. 3g. Because of the small size of the units -- gross square footage represents the overall footprint of the building -- they were referred to at times by members of the public as "tiny homes." Petitioners' PRO alleges that information obtained at a public meeting conducted by the County on January 27, 2016, revealed that the project will in all likelihood function as a homeless shelter. While no County or Floresta representative testified to confirm or deny this fact, testimony by public commenters suggest this may be true, and their testimony was not challenged by Respondents at hearing. The project is located on a parcel zoned R-3, Single- and Two-Family Residential. It is designated Urban Residential 2 on the Future Land Use Map of the Plan. The R-3 zoning and Urban Residential 2 Future Land Use category allow for a wide range of single-family dwelling units, including single-family detached dwellings, single-family attached dwellings, two-family dwellings, and zero-lot line single-family detached dwellings. See § 10-6.637, L.D.C.; Land Use Element Policy 2.2.24(L). The project consists of small condominium units as single-family detached dwellings. These are a permitted use in the R-3 zoning district and in the Urban Residential 2 Future Land Use category. Because the project is located on a parcel zoned R-3 and consists of 24 units, it qualifies for a Type "A" review under section 10-7.402 of the Code. Under Type A review, an applicant can select from two development review tracks. See § 10-7.402(5), L.D.C. The project was reviewed under the concept plan approval track. This review track option is intended to expedite the review process by reducing the requirement for permitting-level information while providing assurance that the development entitlements reflected on the concept plan can be realized on the subject site. See § 10-7.402(5)(a), L.D.C. An applicant is still required to complete the environmental permitting process for the project prior to construction. A point of entry is available to third parties to challenge any state, but not County, environmental permit required for the project. Under Type A review, an Application Review Committee (Committee), composed of City and County technical staff, reviews the site and development plan application for compliance with the applicable regulations. See § 10-7.403(e), L.D.C. The Committee then renders a recommendation to the County Administrator or designee recommending approval, approval with conditions, or denial of the application. Id. The County Administrator or designee renders a Written Preliminary Decision. Id. That decision becomes final unless an appeal is timely filed. See § 10-7.403(h), L.D.C. For this project, the County's Administrator's designee is the Director of the Department. On January 27, 2016, the County held a noticed Application Review Meeting, whereby the Committee convened to review the application for the project and receive public comment. Pursuant to section 10-7.403(g), notice of the public hearing was mailed at least seven calendar days prior to the meeting to all property owners within 600 feet of the proposed project. The notice euphemistically described the project as a 24-unit "Residential Condominium Project." Although Petitioners assert the notice was misleading, they attended the January 27 meeting, and they were given an opportunity to present witnesses, introduce evidence, and to otherwise participate in the instant case. No evidence of prejudice was shown. At the meeting, the Committee presented a staff report, which included memoranda from the Tallahassee-Leon County Planning Department, Leon County Environmental Services Department, City of Tallahassee Utilities Department, City of Tallahassee Fire Department, and Leon County Public Works Department. See Ex. 7. The staff report and each memorandum included comments regarding deficiencies in the application that the applicant must address in order for the project to be consistent with the Code and Plan. County and City staff determined, however, that the deficiencies were "minor" in nature and agreed to recommend approval of the site and development plan with the condition that the applicant must correct the deficiencies identified in the staff report. See § 10-7.403(f), L.D.C., which allows approval of a Type A application, with conditions. Because they considered the deficiencies to be minor, the staff took the position they did not require a substantial, or even moderate, alteration in the layout or geometry of the site plan. Some of the deficiencies are related to notes that are required to be added to the site plan simply for clarification purposes. On February 2, 2016, the County, through a Department Planner II, issued a Notice of Application Deficiency Letter (Notice). See Ex. 2. The Notice outlined many of the conditions raised in the staff report. The Notice did not impose any additional conditions. On February 5, 2016, the Director of the Department issued a Written Preliminary Decision, approving the project subject to the conditions outlined in the staff report presented at the meeting on January 27, 2016. See Ex. 1. The approval required the applicant to submit a revised site and development plan demonstrating compliance with all conditions within 90 days, or by May 6, 2016. It further cautioned that unless a timely extension was requested by the applicant, a failure to comply with that requirement by the May 6 deadline would render the approval expired. The revised site and development plan was not made a part of the record, and the staff's final compliance determination was not disclosed at hearing. Under the County's approval process, an administrative challenge to the staff's final determination is not available to third parties. On February 17, 2016, Petitioners timely filed a Notice of Intent to File a Petition for Formal Proceedings Before a Hearing Officer. See Ex. 17. On March 7, 2016, Petitioners timely filed their Petition for Formal Proceeding (Petition). Except for one ground voluntarily dismissed at hearing, the Petition alleged that the application was inconsistent with the Code and Plan for the same reasons cited in the staff report dated January 27, 2016, and reiterated in the Notice issued on February 2, 2016. Petitioners' Objections Petitioners' PRO asserts generally that any one of the conditions noted by the staff constitutes grounds for denial of the application. However, based upon the exhibits and testimony of members of the public, in their PRO, they focus on only four items regarding the project. Setbacks Petitioners first allege that the project is inconsistent with development standards for the R-3 zoning district. See § 10-6.637, L.D.C. Development standards for single-family detached dwellings in zoning district R-3 are found in the site data table of section 10-6.637 and require a minimum lot or site size of 5,000 square feet (or 0.11 acres); minimum lot widths of 50 feet; minimum lot depths of 100 feet; minimum front setbacks of 20 feet; minimum side-interior lot setbacks of 7.5 feet on each side; or any combination of setbacks that equals at least 15 feet, provided that no setback shall be less than five feet; minimum side-corner lot setbacks of 15 feet; minimum rear lot setbacks of 25 feet; and no building exceeding three stories in height. In assessing whether the applicant complied with these standards, the staff made the following comments on the project's compliance with setbacks and building height and size requirements: Finding #4: The project appears to meet the applicable building setbacks, height and size requirements; however, please annotate the height of the building (in feet) in the site data table alongside the minimal requirements. Please clarify that the setbacks provided in the site data table are the perimeter setbacks for the development. The applicant will need to also provide the proposed setback between structures to ensure compliance with the Florida Building Code requirements. Ex. 7, p. 000004. This comment became a condition of approval in the Department's Notice to ensure that Floresta was meeting those requirements. As a condition, Floresta was required, no later than May 6, 2016, to "clarify" that the setbacks in the site data table are the perimeter setbacks for the development and provide the proposed setback for each structure. Also, the County relies on note 14 of Sheet 6.0 of the plan, which indicates a front setback of 20 feet, a side interior setback of 15 feet, and a rear setback of 25 feet. See Ex. 4. These distances satisfy the Code requirements. Because the units are one-story in height, they do not exceed the three-story limitation. As an added condition, the County required Floresta to provide the setbacks between each structure. Petitioners contend that the County failed to fully apply the R-3 zoning district's building standards for single- family detached dwellings found in section 10-6.637. Specifically, they assert that the 24 units are listed on the site plan as having a total area of approximately 39,000 square feet, or 1,625 square feet per dwelling. They also contend that the lot geometry is not shown and therefore the site and development plan is not consistent with the minimum lot widths, depths, and setbacks required by the Code. Even if lot geometry were shown, they contend that the 39,000 square feet allotted is insufficient to provide for lots for 24 single-family detached dwellings that meet the minimum required lot width of 50 feet and lot depth of 100 feet. The project involves a condominium development with the creation of individual units on a single lot. See Ex. 3g., p. 4. Therefore, the County asserts that the minimum lot sizes found in section 10-6.637 are inapplicable. This is a reasonable interpretation of the Code. Also, due to a typographical error in the staff report, it initially appeared that rear setbacks were not provided. However, the rear setbacks are actually shown on Note 14 of Sheet 6.0 of the site plan. See Ex. 4. Subject to the above conditions, the project is consistent with the requirements of the Code. Parking Requirements Petitioners also contend that the project fails to comply with parking requirements, as the project will have 24 units, but only 18 regular parking spaces and two handicapped parking spaces are proposed. Section 10-7.545 requires that developments in the R-3 zoning district have between 85 percent and 100 percent of the parking standard in schedule 6-2 of the section. Because the schedule requires that conventional detached homes have 1.5 parking spaces per unit, Petitioners assert that 30.6 parking spaces are required. The applicant does not anticipate that all residents will have automobiles. Because the project will serve low- income residents, this is a logical assumption. The applicant also proposes grass parking to be located closer to each unit. Section 10-7.545(a) allows a deviation from the range of required parking established in Schedule 6-2 upon approval or an approval with conditions from the Parking Standards Committee (Committee). See Ex. 1, p. 000007. That Committee is comprised of the Planning Director, the Department Director, and the Public Works Director, or their designees. As a condition, the applicant will be required to secure approval from the Committee before final approval for the project is given. Id. Subject to Floresta's compliance with this condition, which cannot be administratively challenged by Petitioners, the site plan is consistent with the Code. Transportation Infrastructure Petitioners contend that there is a lack of adequate transportation infrastructure in the area. They also point out that there are no sidewalks on State Road 20, and there is no bus stop adjacent to the project. Therefore, residents or guests in the project will have to walk east along State Road 20 in order to find a bus stop. As a condition of approval, the County required the applicant to extend a stub out from the parking lot to the property line for future interconnection. See Ex. 1, p. 0000010. Mobility Element 1.4.1 requires vehicular, pedestrian, and bicycle interconnection between adjacent, compatible development. The applicant's site plan includes sidewalks within and connecting to the facilities along State Road 20. See Ex. 4; Ex. 1, p. 0000010. Also, a Preliminary Certificate of Concurrency was issued for the project, and a final certificate will be issued upon final site plan approval. See Ex. 1, p. 000005. Subject to compliance with these conditions, the site plan is consistent with the Code. Compatibility For obvious reasons, Petitioners' greatest concern is the intrusion of former homeless persons into the units immediately adjacent to their properties. (By definition, once a person resides in a home, he/she is no longer homeless.) On this issue, they assert that the project is inconsistent with section 10-7.505, which requires that each development shall be designed to be as compatible as practical with nearby development. Petitioners argue that the tiny house community being proposed is not compatible with the "typical" single- family homes found around the project site. The parcel on the west side of the project is also zoned R-3. The parcels on the east side of the project are zoned OA-1 (Airport Vicinity District) and CP (Commercial Parkway District). The OA-1 district does not permit residential uses due to the noise levels from aircraft exceeding the thresholds identified by the Federal Aviation Administration and the State as being compatible with certain land use types. See § 10-6.645, L.D.C. The CP district permits general commercial and community facilities. See § 10-6.649, L.D.C. The project proposes a Type "D" 50-foot buffer on both the eastern and western borders of the property. A Type "D" buffer is the most restrictive buffer provided in the Code. See § 10-7.522, L.D.C. Respondents agree that the project is "small footprint housing for low-income residents." However, there is no prohibition in the Code that restricts low-income housing from occurring in any residential zoning district. Also, the Plan and Code do not regulate the size of dwelling units, outside of minimum housing standards found in the Florida Building Code. While Petitioners' objections are genuine and well-intentioned, there is nothing in the existing Code or Plan that prevents the introduction of extremely small low-income housing units into a residential district, assuming all other requirements are met. The project is compatible with the surrounding area. Public Comments Six members of the public presented comments at the hearing. The public commenters either live in or own typical single-family homes adjacent to or near the project, or operate a commercial business near the project. The undersigned has rejected the County's assertion in its PRO that the comments should be disregarded because a transcript was not prepared. One commenter, who owns a business on State Road 20 less than a quarter mile from the project, is concerned that State Road 20 is inadequate to handle more traffic. He also is concerned with the tiny house development feature of the project and noted that one-half of the project is located within the flood zone. Another commenter who resides in the Subdivision with her disabled daughter expressed concern that low-income housing units occupied by homeless persons sent from the Kearney Center, a nearby homeless shelter, will result in a substantial loss in value to her property and increase safety issues for her daughter who remains home alone during the day while she is at work. Like other commenters, she complained that State Road 20 is already overburdened with traffic without adding another development to the area. A third commenter is also concerned with the level of traffic on State Road 20. During morning rush hours, he cannot turn left onto State Road 20 to go into town and fears the project will cause a further deterioration of traffic conditions. A fourth commenter, who lives in another county, has owned a condominium in the Subdivision since 2007, first used by her daughter while going to college, and now rented. She complained that the notice of the public meeting was misleading as it indicated a condominium project would be built on the parcel, and not tiny homes for former homeless persons. She is concerned that the current level of traffic on State Road 20 will be exacerbated, and that the value of her condominium will be negatively impacted. A fifth commenter who resides in the Subdivision complained that the notice of the public meeting was misleading and vague, and led her to believe that a traditional or multi- story condominium project would be constructed on the parcel, rather than a cluster of tiny homes. She also expressed concerns that a large, low-income population in the neighborhood will raise safety issues for existing residents. The final commenter resides near the project and owns a bail bond business on West Pensacola Street, a mile or so east of the project site and near the Kearney Center. Based upon her experience operating a bail bond business near the Kearney Center, she testified that the number of arrests in that area of town has "skyrocketed" since the shelter opened. She added that there has been an adverse impact on businesses located near the Kearney Center because its residents simply hang out in the area during the day. She fears that an influx of former homeless persons into the tiny homes will lead to a similar increase in the crime rate around the project site. The commenter also serves as a part-time volunteer at the Kearney Center several days a week and noted that no background checks, identification checks, or drug checks are performed on persons entering the shelter. She is concerned that no checks will be performed on the persons who will occupy the tiny homes. She added that many of the shelter residents are drug addicts and do not want to work. If they move into the tiny homes, she believes they will simply hang around the project site and create safety issues for residents in the neighboring properties. She intends to sell her home if the project is approved.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Leon County Board of County Commissioners enter a final order approving the project, subject to confirming that the applicant's revised site plan satisfies all conditions imposed by the County on February 5, 2016. DONE AND ENTERED this 25th day of May, 2016, in Tallahassee, Leon County, Florida. S D. R. ALEXANDER 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 25th day of May, 2016. COPIES FURNISHED: Herbert W.A. Thiele, County Attorney Leon County Attorney's Office 301 South Monroe Street, Room 202 Tallahassee, Florida 32301-1861 Vincent S. Long, County Administrator Board of County Commissioners 301 South Monroe Street Tallahassee, Florida 32301-1861 Timothy J. Perry, Esquire Oertel, Fernandez, Bryant & Atkinson, P.A. Post Office Box 1110 Tallahassee, Florida 32302-1110 (eServed) Patrick T. Kinni, Esquire Leon County Attorney's Office 301 South Monroe Street, Room 202 Tallahassee, Florida 32301-1861 (eServed) Jessica M. Icerman, Esquire Leon County Attorney's Office 301 South Monroe Street, Room 202 Tallahassee, Florida 32301-1861 (eServed) Claude Ridley Walker, Esquire 2073 Summit Lake Drive, Suite 155 Tallahassee, Florida 32317-7949 (eServed) Shanon Ofuiani 2022 Nena Hills Drive Tallahassee, Florida 32304-3788 Joe Smith 1700 Smitty's Way Tallahassee, Florida 32304-9023 Yolanda Robies 1897 Nena Hills Drive Tallahassee, Florida 32304-3785 Jack Neece 4792 Blountstown Highway Tallahassee, Florida 32304-9005 Dori Cordle 34 Cordle Road DeFuniak Springs, Florida 32433-5845 Teresa Ramsook Post Office Box 5352 Tallahassee, Florida 32314-5352
The Issue Whether Petitioner should be granted additional credit for one or more examination questions answered by him during the June 1990 Certified Building Contractor Examination.
Findings Of Fact Petitioner sat for the June 1990 certified building contractor examination. On Part II, he received a score of 68.0. A minimum passing score is 69.01. On Part III, he received a score of 71.00. Minimum passing score is 69.01. Petitioner had previously passed Part I of the exam. Petitioner initially challenged question numbers 6, 13 and 14. Upon completion of the testimony, Petitioner withdrew his challenges to question numbers 13 and 14. The National Assessment Institute prepares licensure examinations for building contractors in the State of Florida under authority of the Office of Examination Services, Department of Professional Regulation. The Institute prepared question number 6 for the certified building contractor examination administered on June 26 and 27, 1990. Question number 6 tested the candidate's ability to calculate the time necessary for a crew to excavate, form and pour concrete for a reinforced concrete curb and gutter in a parking area and have it inspected. The candidate was asked to select the earliest date that concrete can be scheduled to be poured. Four dates were given: (A) June 11, (B) June 13, (C) June 15, and (D) June 18, 1990. The Institute determined that the only correct answer was: (D) June 18, 1990. The Petitioner selected: (C) June 15, 1990. Part of the instructions to the examination candidates stated: "The inspection request will NOT be called in the day the work is completed." The evidence was undisputed that preliminary calculations indicate with regard to question 6 the mathematical approach to the solution demonstrates that the work will take nine days (rounded up), starting June 1 and completed on June 13, and, therefore, the inspection is to be called in on Thursday, June 14, 1990. The third paragraph of the question states: Inspections have been taking one day from the time the inspection is called in until the time the inspection is completed. Inspections can NOT be called in or performed on Saturdays or Sundays." The first sentence of the fourth paragraph states: "The concrete is to be placed the day after the inspection is completed." (Emphasis supplied) The Department's position is that the plain language of the question indicates that it would take one day or 24 hours from the date the request for inspection was called in (June 14) until the inspection was completed which would be June 15. Since the instructions were clear that the concrete cannot be poured on the same day the inspection is completed or on Saturdays or Sundays, then the earliest date that the concrete can be scheduled is Monday, June 18, 1990, or answer (D). The Petitioner argues that it is not uncommon in the construction industry to "call in" an inspection in the morning and have it completed on the same date (in one day). Therefore, since it is undisputed that the inspection is to be "called in" on Thursday, June 14, that it was reasonable and logical for him to conclude that the inspection would also be completed the same date. Since the question instructed that the concrete is to be placed the day after the inspection is completed, he selected answer (C), June 15, 1990 (a Friday) as the correct answer. The Department does not dispute that it is common practice in the construction industry for an inspection to be called for and completed in one day. The Department's determination that answer (D) was the only appropriate answer was arbitrary and unreasonable.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that: Petitioner be awarded four points for his answer to question number 6 of Part II of the Certified Building Contractor examination for June, 1990. Petitioner be awarded a passing grade for Parts II and III of the examination. DONE AND ENTERED this 28th day of March, 1991, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of March, 1991. APPENDIX The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties. Petitioner's proposed findings of fact. Accepted in substance: paragraphs 1,2,3,4,5,6,7,10 Rejected as argument: paragraphs 8,9 Respondent's proposed findings of fact. Accepted in substance: paragraphs 1,2,3(included in Preliminary Statement), 4(in part),5. Rejected: paragraph 4(in part, as against the greater weight of the evidence and argument), 5 and 6(challenge withdrawn) Copies furnished: George Solar 1302 West Adalee Street Tampa, Florida Vytas J. Urba, Esquire Senior Attorney Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Daniel O'Brien, Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32202 Jack McRay, Esquire General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issue is whether Petitioner has proved that Respondent failed to meet performance standards so as to justify his termination from employment.
Findings Of Fact Respondent earned a bachelor's degree in social science and a master's degree in communications. At the time of his retirement from the United States Air Force after 21 years' service, Respondent was working as a public affairs director under a wing commander. Following his military retirement, Respondent obtained a public-communications job with Petitioner. During his six and one-half years' employment with Petitioner, Respondent had reached the level of a Public Communications Specialist III when Petitioner fired him effective August 31, 2000. The events that led to Respondent's termination followed a large-scale reorganization that Petitioner implemented on December 31, 1999. Petitioner does not dispute that, prior to the reorganization, Respondent received good evaluations indicating that his work was average or better than average. Prior to the reorganization, Respondent's job responsibilities emphasized direct contact with the public, such as attending environmental events and presenting or arranging public presentations to various community groups. Working in Petitioner's Department of Water Resources, Respondent devoted substantially all of his efforts to public communications for the Indian River Lagoon National Estuary Program, which is administered by Petitioner. Among other things, Respondent headed the Florida Yards and Neighborhoods Program, which is part of the Indian River Lagoon National Estuary Program; provided staff support for related citizens' advisory committees; coordinated public outreach over five counties and part of a sixth; and published Petitioner's Indian River Lagoon Update (Newsletter). Prior to the reorganization, Respondent's direct supervisor was Martin Smithson, who was the program director of the Indian River Lagoon National Estuary Program. Respondent, Mr. Smithson, and other staff in the Indian River Lagoon National Estuary Program worked in Petitioner's Palm Bay office, which is a considerable distance from Petitioner's headquarters in Palatka. Originally funded largely by the United States Environmental Protection Agency, the Indian River Lagoon National Estuary Program lost federal financial support over several years, as annual federal contributions decreased from $1 million to $300,000. At one time, federal funds paid for the salaries of staff, including Respondent, but, in recent years, Petitioner had assumed much of the financial burden of the program. One of the purposes of the reorganization was to centralize public communications within the District by placing all public-communications employees within Petitioner's Office of Communications. Accordingly, Petitioner reassigned Respondent from the Department of Water Resources to the Office of Communications. Although most of the Office of Communications staff work in the Palatka office, Respondent remained in the Palm Bay office. However, after the reorganization, Respondent reported to Beth Hickenlooper, an Office of Communications supervisor in the Palatka office. On November 30, 1999, Ms. Hickenlooper sent Respondent a memorandum concerning the Newsletter. In this memorandum, Ms. Hickenlooper advised Respondent: "As you join the Office of Communications, you will likely have new experiences, and procedures you have used in the past will change. Change will also effect [sic] the Indian River Lagoon Update.” The November 30 memorandum states that Ms. Hickenlooper has prepared a new master template for the Newsletter. She attached a copy of the new template to the memorandum and supplied Respondent with an electronic copy. Advising that "[n]ot much is changing in the new template," the memorandum states that the electronic version of the Newsletter contains a style sheet to assure uniformity of all fonts and text sizes. The memorandum states that the newsletter will conform to other District publications, including its use of color. The memorandum requests an electronic copy of the Newsletter mailing list by December 3, so that Ms. Hickenlooper could submit the list to the Information Resources Department. The November 30 memorandum states that Garrett Wallace would be seeking bids for printing the Newsletter and asks that Respondent give him a copy of the printing specifications by December 3. However, the memorandum advises Respondent that he will still be responsible for coordinating the printing and mailing of the Newsletter and advising the Information Resources Department of updates to the mailing list. The November 30 memorandum states that Petitioner will continue to publish the Newsletter quarterly. The memorandum elaborates: For planning purposes, the [N]ewsletter is to be published on or about the first week in January, April, July and October. To accomplish this goal, you will be responsible for developing a production schedule at the beginning of each quarter. . . . Submit the schedule to me, in writing, the first week of each quarter along with the proposed story list. I will review both and return to you with any comments. The November 30 memorandum contains an "example" production schedule: Jan. 7--Potential story list due to Beth for review. Jan. 14-Feb. 4--Johnnie gathers information for articles, gathers art and/or takes photographs, writes articles. Johnnie obtains source approvals for articles. Feb. 7--All draft text in Word documents due to Beth for review. Beth will pass along text to technical editor for second review. Feb. 21--Text is returned to Beth. Any necessary rewrites are done by Johnnie. If rewrites are necessary, draft text is again given to Beth for review before text is put in the layout. Feb. 28-March 10--Johnnie finalizes layout. March 13-24--Beth and technical editor review document layout; any changes needed are returned to Johnnie to make during this time. March 27-31--Linda B[urnette, Director of the Office of Communications] reviews document. April 3--Document sent to printer. The November 30 memorandum supplies a copy of a tracking form for use in obtaining the approval of text in accordance with the review process used by the Office of Communications. The memorandum offers a "few tips" to prevent "overcrowding" the Newsletter. These suggestions include determining the maximum word count for each page and writing articles in Microsoft Word to avoid exceeding the maximum length, refiguring the word count when including art in the article, laying out paragraphs that are no longer than seven lines deep, and leaving specified margins of white space around each art boxes and below the heading at the top of each text box. By separate memorandum, also dated November 30, 1999, Ms. Hickenlooper listed several office procedures of the Office of Communications. These procedures include the submittal of a weekly report of daily activities and projects, which Respondent could submit by e-mail or fax; schedule for the following week; biweekly time sheets, which Respondent must submit by fax; by December 3, a list of leave scheduled for the first quarter of 2000; and, by December 10, a list of organizations in which Respondent, on behalf of Petitioner, is active. The office-procedures memorandum directs Respondent to attend a weekly staff meeting each Tuesday at 9:00 a.m. in Palatka, arrange his schedule to avoid compensatory time, not to attend community or school functions unless approved by his supervisor or other appropriate person, not to disseminate news releases, undertake the general writing assignments given him as a member of the Office of Communications (although "much of your focus will remain with the lagoon"), and attend the "refresher training" that Ms. Hickenlooper and Mr. Wallace will schedule for Respondent over the next several months "to keep you aware of trends in the public relations and publishing fields." The office-procedures memorandum states that Mr. Wallace is obtaining a newer computer for Respondent's work station to "eliviate [sic] any computer-related problems in meeting your work goals." The office-procedures memorandum concludes: With the changes in the District, we will all need to make adjustments to make sure we stay focused on the goal of producing the best possible publications to deliver the District's message in the most effective way. I will do my best to assist you and help you to adjust in any way I can. All you have to do is pick up the phone. Accompanying both November 30 memoranda is a detailed description of Respondent's job responsibilities. By time, Respondent's responsibilities break down as follows: 45 percent--performing research and writing for the Newsletter and other publications, as well as scripts and speaking points; 15 percent--executing layout and design work for the Newsletter and other projects, as assigned; 10 percent--producing and obtaining photographs and graphics for the Newsletter and other projects, as assigned; 10 percent--participating in and setting up booths at outreach events, as assigned; and 5 percent each--coordinating printing of the Newsletter, assisting with outreach programs, responding to public inquiries and forwarding callers to Regional Communications Coordinators, and performing other assigned duties. The job description states that Respondent must have knowledge of the Associated Press style manual and basic layout and design, skill in written communication and basic photography, and ability to organize effectively and "demonstrate good customer service to internal and external customers." Also accompanying the November 30 memoranda is a set of performance standards applicable to Respondent's job. Described as a "critical function," the first standard is: "A complete edition of the [Newsletter]." This task represents 40 percent of Respondent's job. Satisfaction of this standard is a function of: "Accuracy of information, accuracy of following style, timeliness of news content, timeliness of production, quantity. Measurements determined by observations and records of supervisor, project-tracking sheets, employee weekly reports." To earn a "meets expectations" rating, Respondent must accomplish the following items: Product is produced quarterly (4 issues each year to be published in approximately January, April, July, and October). 90-95 percent of the document is error free when printed. 60-75 percent of the articles in the document is [sic] written by the employee. 85 percent of photography is taken by employee and other graphics needs are coordinated by the employee. Photos and other artwork (digital and originating from scanned slides, photos, etc.) are sent to a designated graphics artist in the Office of Communications for proper processing to meet current publishing standards allowing the artist 7 to 10 days for processing. 80-90 percent of the layout and design is consistent with District style. 80 percent of the editions contain eight (8) pages. Employee ensures that all text and the draft product is [sic] reviewed through the Office of Communications internal review process. Maintains subscription mailing list, forwarding additions or deletions to supervisor at the beginning of each month. To earn an "exceeds expectations" rating, Respondent must accomplish the following items: [Same as 1. above.] 96-100 percent of the document is error free when printed. 76-100 percent of the articles in the document is [sic] written by the employee. 86-100 percent of photography is taken by employee and other graphics needs are coordinated by the employee. Photos and other artwork (digital and originating from scanned slides, photos, etc.) are sent to a designated graphics artist in the Office of Communications for proper processing to meet current publishing standards allowing the artist 11 days or more for processing. 91-100 percent of the layout and design is consistent with District style. 81 percent or more of the editions contain eight (8) pages. Employee ensures that all text and the draft product is [sic] reviewed through the Office of Communications internal review process. [Same as 9. above.] Produce extra editions, as needed. Add extra pages to an edition, as needed. Described as a "critical function," the second performance standard is: "Written text for a variety of documents or other uses (StreamLines, WaterSpout, speeches, scripts, fact sheets, brochures, etc.)." These tasks represent 30 percent of Respondent's job. Satisfaction of the standard is a function of: "Accuracy of information, accuracy of following style. Measurements determined by observations and records of supervisor, project tracking sheets, employee weekly reports." To earn a "meets expectations" rating, Respondent must accomplish the following items: The text is free of scientific or technical jargon unless such terms are necessary for the understanding of the text/article and such terms are defined. 80 percent of all text written throughout the calendar year is free of errors in grammar, style, spelling, syntax, etc., and follows District style. Text meets the objectives of the client and/or supervisor. Text is written at a reading level appropriate for the intended audience. Employee ensures that all text has been reviewed through the Office of Communications review process. Text assignment is completed no later than the due date assigned with each new assignment in 90 percent of the cases. Provides a total of 6 articles on a variety of lagoon topics to any of the three EPA/NEP newsletters by the deadline requested by the EPA newsletter editor, following approval of the article through the Office of Communications review process. To earn an "exceeds expectations" rating, Respondent must accomplish the following items: 80-100 percent of the text is free of scientific or technical jargon unless such terms are necessary for the understanding of the text/article and such terms are defined. 81-100 percent of all text written through the calendar year is free of errors in grammar, style, spelling, syntax, etc., and follows District style. [Same as 3. above.] [Same as 4. above.] [Same as 5. above.] Text assignment is completed on or before the due date assigned with each new assignment in 95-100 percent of cases. Provides 7 or more articles on a variety of lagoon topics to any of the three EPA/NEP newsletters by the deadline requested by the EPA newsletter editor, following approval of the article through the Office of Communications review process. Described as a "noncritical function," the third performance standard is: "A written report of the employee's weekly activities." This task represents five percent of Respondent's job. Satisfaction of this standard is a function of: "Quantity, timeliness." To earn a "meets expectations" rating, Respondent must accomplish the following items: For a minimum of 40 weeks during the year, the report is turned in to supervisor by 4 p.m. each Friday (or the last day the employee is in the office before scheduled leave or a holiday). Report lists daily activities. Report lists projects on which the employee is working with a brief description of work accomplished toward completing assigned tasks and assignment due dates. Offers supervisor oral reports, as needed, to supplement the written report. To earn an "exceeds expectations" rating, Respondent must accomplish the following items: For a minimum of 45 weeks during the year, the report is turned in to supervisor by 4 pm. each Friday (or the last day the employee is in the office before scheduled leave or a holiday.) [Same as 2. above.] [Same as 3. above.] [Same as 4. above.] Described as a "critical function," the fourth performance standard is: "Responses to staff and public requests for information." These tasks represent 10 percent of Respondent's job. Satisfaction of these tasks is a function of: "Timeliness, accuracy, records kept by District's complaint tracking program." To earn a "meets expectations" rating, Respondent must accomplish the following items: For printed material requests, responds to inquiries within 5 business days. For verbal requests, determines if information can be supplied by employee or refers questions to the appropriate staff member or other agencies. For verbal and written requests from the media, refers the requests to the appropriate Regional Communications Coordinator within 24 hours for nonemergency/noncritical requests, and within one hour for time-sensitive requests. In 85 percent of cases, information disseminated is accurate. To earn an "exceeds expectations" rating, Respondent must accomplish the following items: For printed material requests, responds to inquiries within 3 business days. [Same as 2. above.] For verbal and written requests from the media, refers the requests to the appropriate Regional Communications Coordinator within the same work day for nonemergency/noncritical requests, and within one hour for time-sensitive requests. In 86-100 percent of cases, information disseminated is accurate. Described as a "noncritical function," the fifth performance standard is: "Outreach assistance." This task represents five percent of Respondent's job. Satisfaction of this task is a function of: "Quality." To earn a "meets expectations" rating, Respondent must accomplish the following tasks: Participates in not more than 10 outreach events annually with participation limited to no more than one per day per event (for a total of 10 days spent each year participating in events). Arrives for work assignment no later than 10 minutes after the assigned work starting time. Assists, as needed, with setup, take down and restocking of booths at events at which booths are used. In 80 percent of cases, is familiar enough with the subject matter to completely answer questions of visitors to events. To earn an "exceeds expectations" rating, Respondent must accomplish the following items: Participates in events other than the predetermined 10 as assigned by the supervisor, production manager or Communications director. Arrives for work assignment 5 minutes before the assigned work starting time. [Same as 3. above.] In 81-100 percent of cases, is familiar enough with the subject matter to completely answer questions of visitors to events. Described as a "critical function," the sixth performance standard is: "A complete workday." This task represents 10 percent of Respondent's job. Satisfaction of this task is a function of: "Time sheets, leave slips, reports to supervisor, global observations by other Communications and District supervisors." To earn a "meets expectations" rating, Respondent must accomplish the following items: 95 percent of the time, reports to work no more than 10 minutes after work begins at 8 a.m. daily. Reports to work unless late arrival has been previously approved or employee is on approved annual leave. Calls supervisor at least 15 minutes before starting time to alert supervisor of need to be away from work due to illness or other emergency. For annual, regular medical appointments or other such absences, arranges absences with supervisor at least one week before scheduled absence. Works a full 8-hour day, with the exception of District-allowed 15-minute break in the morning and 15-minute break in the afternoon and one-hour lunch break. 95 percent of the year, successfully manages time to complete workload in order to avoid the need to work overtime or to gain compensatory time. To earn an "exceeds expectations" rating, Respondent must accomplish the following items: 96-100 percent of the time, reports to work no more than 5 minutes after work begins at 8 a.m. daily. [Same as 2. above.] [Same as 3. above, except for omission of "or other emergency."] [Same as 4. above, except substitutes "more than" for "at least."] [Same as 5. above.] 96-100 percent of the year, successfully manages time to complete workload in order to avoid the need to work overtime or to gain compensatory time. Petitioner's Policy 79-18, as last revised on February 10, 1999, establishes the procedures for performance evaluations of Petitioner's employees. Section II.F requires the employee's immediate supervisor to prepare the performance evaluation. Section VII.B requires the supervisor to provide each employee with the applicable performance standards and evaluate each employee in accordance with these standards. Policy 79-18, Section IV.C requires the preparation of a performance evaluation for each employee by January 15 of each year. Section IV.D authorizes the preparation of a special performance evaluation "any time there is a significant change in job performance or where warranted to document exceptional achievements." Policy 79-18, Section V.B.2 requires a corrective action plan to accompany any special evaluation determining that an employee's "overall job performance does not meet performance standards." Section II.B defines a "corrective action plan" as a written document "detailing what the employee must do and how the supervisor will assist the employee to improve job performance so that he/she is meeting the performance standards of the position." Policy 79-18, Section V.B.3 requires the supervisor to reevaluate the employee not more than 60 days after the effective date of the initial unsatisfactory evaluation. If the supervisor determines that the employee's performance still fails to meet performance standards, the supervisor "may" give the employee not more than 60 additional days within which "to improve his/her job performance." If, at the end of the second period, the employee's job performance still does not meet performance standards, Petitioner "shall" start proceedings to terminate the employee. Under Respondent and Mr. Smithson, Petitioner published only two editions of the Newsletter in 1999. Arguably, Petitioner published three editions in 1999 because the third edition--Winter 1999--came out one month early, in December 1998, due to surgery that Respondent had scheduled. Three editions of the "quarterly" Newsletter were acceptable to Mr. Smithson, who was ultimately responsible for the publication prior to the reorganization. Mr. Smithson found that time demands permitted only three editions annually, and this schedule coordinated well with the budget cycle and the three annual meetings of the Indian River Lagoon citizens' advisory committee. Mr. Smithson also supported flexible publication deadlines because they better accommodated updates of recent developments. In any event, Respondent's work on the Newsletter was satisfactory to Mr. Smithson. Having served as Respondent's supervisor for all but two weeks of the evaluation period ending in mid-January 2000, Mr. Smithson provided considerable input into the 1999 performance evaluation of Respondent, who received a satisfactory evaluation. Mr. Smithson probably did not anticipate that the reorganization would substantially change Respondent's relationship to the Indian River Lagoon National Estuary Program. In the fall of 1999, Ms. Burnette had assured Mr. Smithson that the reorganization would not substantially change Respondent's job responsibilities, even though she did not yet know all of the details of the reorganization. In several respects, the reorganization did not dramatically change Respondent's job. Respondent continued to work in the Palm Bay office, receive suggestions from Ms. Hickenlooper on the Newsletter as he had since 1997, and work in the same office as Mr. Smithson and other staff in the Indian River Lagoon National Estuary Program. In other respects, though, the reorganization dramatically changed Respondent's job. After becoming Respondent's supervisor, Ms. Hickenlooper insisted on close contact with Respondent, emphasized Respondent's writing responsibilities, and imposed high standards in written communication and internal organization. Respondent's new supervisors, Ms. Hickenlooper and Ms. Burnette, have considerable experience in journalism, as contrasted to Respondent's primary experience in public relations. As Respondent candidly admitted at the hearing, the reorganization moved him from a stronger area--setting up and giving presentations and working personally with members of the public--to a weaker area--publications. The change was also abrupt. There was no transition period after December 31, 1999. The only transition took place prior to the reorganization, when Ms. Hickenlooper began to involve herself in Respondent's work in the late fall of 1999. Respondent remained responsible for his pre-reorganization duties during this time, and Ms. Hickenlooper's pre- reorganization tasks did not facilitate Respondent's adjustment to the reorganization. Another factor complicating the transition was Ms. Hickenlooper's insistence on the immediate publication of the Winter 2000 edition. Ninety days are required to publish the Newsletter. Prior to the reorganization, Respondent had targeted a January publication of the Winter 2000 edition, but, in accordance with Mr. Smithson's practice, the publication date was flexible. By insisting on a firm January publication date, Ms. Hickenlooper effectively accelerated the previously soft publication deadline. At the same time, Respondent was trying to assimilate other substantial changes resulting from the reorganization. Many procedural changes followed from the simple fact that Respondent's direct supervisor no longer worked in the same office, or even the same part of the state. Making the transition more difficult, as Ms. Hickenlooper acknowledged in a January 2000 e-mail, computers in the Palm Bay and Palatka offices were unable to meet the demands of the publishing software, resulting in frequent computer crashes, lost work, and lost time. After Respondent submitted his draft of the laid-out Winter 2000 Newsletter, Ms. Hickenlooper admitted, by e-mail to Respondent dated January 28, 2000, that "[t]his first edition as an official part of Communications will be a learning experience in how we expect things to be done." Ms. Hickenlooper also attached to the e-mail a detailed set of comments to the newsletter text that Respondent had submitted. Almost without exception, Ms. Hickenlooper's comments identify significant flaws in Respondent's writing and analytic processes and offer good, concrete solutions. Prior to the reorganization, Respondent's writing was undermined by occasional instances of inconsistent usage, unclear references, awkward word order, poor organization, and poor word choice. These writing problems occasionally surfaced in the pre- reorganization Newsletter, which also suffered at times from poor layout and design. At the time of the reorganization, Respondent's writing was inadequate, primarily due to excessive instances of inapt word choice and inept organization. By memorandum dated February 7, 2000, Ms. Hickenlooper comprehensively expressed her dissatisfaction with Respondent's work and attached a marked-up draft of the laid-out newsletter. Focusing on Respondent's deviation from District style, Ms. Hickenlooper's memorandum, revealing evident frustration with Respondent's past dealings with the Office of Communications, notes that she and Ms. Burnette had made similar requests of him in memoranda in August and November 1998 and June 1999, as well as in numerous e-mails and the November 30, 1999, documents detailed above. The February 7 memorandum contains a detailed discussion of Respondent's style errors and concludes with the warning: "If you continue to fail to follow directions, procedures and policies of this office and of the District, your behavior will result in disciplinary action being taken." Ms. Hickenlooper's style comments are detailed and entirely justified; they are also accompanied by specific corrections. In February 2000, Ms. Hickenlooper spoke with Robin Hudson, Petitioner's human relations manager. After describing her dissatisfaction with Respondent's work and noncompliance with office procedures, Ms. Hickenlooper asked for guidance. Ms. Hudson suggested that Ms. Hickenlooper continue to work with Respondent and evaluate his performance over the next 30 to 60 days. If his work remained unsatisfactory, Ms. Hickenlooper could then perform a special evaluation. Thirty days later, Ms. Hickenlooper performed a special performance evaluation of Respondent. The evaluation, which is dated March 14, 2000, reprints the six performance standards previously detailed in the November 30, 1999, memorandum. Ms. Hickenlooper presented Respondent with the evaluation, as well as the below-described corrective action plan, on March 21, 2000. As for the first standard, which is publishing the Newsletter, the performance evaluation is unreasonable and substantially unfounded. This part of the evaluation focuses on Respondent's failure to meet various deadlines for the Winter 2000 edition. As already noted, Ms. Hickenlooper's assumption of ultimate responsibility for the Newsletter was too late in the then-pending publication cycle to impose the new procedures for that edition, especially while effectively accelerating the publication date. One comment at the end of this section of the performance evaluation is misleading. Without offering supporting authority, Ms. Hickenlooper complains that Respondent "should be skilled in electronic layout." Exacerbating the pressure caused by Ms. Hickenlooper's imposition of a firm publication deadline and demanding internal procedures was Respondent's relative unfamiliarity with electronic publishing. Although, as already noted, the pre- reorganization Newsletter sometimes suffered from poor layout and design, it never suffered from the glaring mistakes that marked Respondent's early attempts at electronic publishing. Prior to the reorganization, a subcontractor performed the electronic publishing tasks that Ms. Hickenlooper expected Respondent suddenly to perform. The unreasonableness of her expectation was heightened by the computer problems that Respondent was experiencing and Ms. Hickenlooper's refusal to grant Respondent's request to send him to an external seminar on electronic publishing software, such as Quark or Photoshop. As for the second standard, which is writing text for a variety of purposes, the performance evaluation focuses on Respondent's previously described contributions to the Winter 2000 Newsletter, as well as undisclosed contributions to another District publication. At this point, Ms. Hickenlooper's criticisms of Respondent's writing are justified; nothing in the reorganization should have surprised Respondent in terms of the expectations imposed upon him with respect to clear, effective written communication. As for the third standard, which is weekly activity reports, the performance evaluation asserts that Respondent reported that he was "coordinating" with the non-District coordinator of the Indian River Celebration, but that Office of Communications staff had received calls from this coordinator asking why she had not heard from Respondent. The coordinator testified at the hearing that Respondent had called her several times during January 2000 regarding the upcoming celebration, and she was "appalled" at Ms. Hickenlooper's assertion that Respondent had not adequately coordinated with her. This part of the performance evaluation also claims that, in one of Respondent's weekly activity reports, he claimed to have processed 90 e-mails over two days when District computer records reflect no more than 20 such e-mails. This discrepancy seems to have arisen from Respondent's practice of counting e-mail messages, including duplicates and copies, as opposed to Petitioner's practice of counting only e-mail messages directly addressed to Respondent. The assertions in this part of the performance evaluation are unfounded and largely immaterial. However, none of the assertions--even if justified--in this part of the performance evaluation would preclude the assignment of the superior rating for this activity-report standard, which is measured by: "Quantity, timeliness"--not contents. As for the fourth standard, which is responses to staff and public requests for information, the performance evaluation complains that Respondent responds to telephoned requests by staff for information by e-mail and apparently attempts to determine if staff need the requested information before supplying it. Somewhat contradictorily, this part of the performance evaluation also asserts that Respondent "often brings in other lagoon staff or consults other District personnel in a manner in which he has not been instructed to do before answering a question." The only detailed complaint under this part of the performance evaluation is that, in response to an inquiry from his supervisor as to whether he had ordered mailing labels for the Winter 2000 newsletter, Respondent called the printer, the post office, and an administrative employee-- unknowingly performing work that his supervisor had already done. However, this complaint only provides additional evidence of a lack of communication between Respondent and his supervisor and not necessarily a failing of Respondent. Again, the assertions contained in this part of the performance evaluation do not correspond to the criteria by which Respondent is to be evaluated under this standard: "Timeliness, accuracy, records kept by District's complaint tracking program." Nothing in the record suggests that Respondent could not earn a superior rating under this standard. As for the fifth standard, which is outreach assistance, the performance evaluation notes no adverse comments from the public or staff. As for the sixth standard, which is a complete workday, the performance evaluation states that, on January 11, 2000, Respondent's supervisor told Respondent to submit his timesheets by 9:00 a.m. on the following day. He failed to do so, but, when called the following morning, he faxed the sheets within one-half hour. However, his projected work for the next two days brought him to 45 hours for the week. His supervisor then called him and told him to take five hours off the rest of the week to avoid compensatory time. This part of the performance evaluation also notes that Respondent's absence on February 11, 2000--a Friday--was communicated to the Office of Communications on the same day by an e-mail from a lagoon employee. The following Sunday night, Respondent e-mailed his supervisor that he would probably be out all week. The supervisor replied with an e-mail stating that Respondent needed to call her to report personally that he would be out ill. When Respondent returned to work on February 21, he then failed to inform his supervisor. The prime problem here is the means of communication: e-mail rather than telephone. The seriousness of this departure from policy is belied by the fact that the notice itself is more important than the means of the notice. Also, this performance standard does not require Respondent to confirm his return to work. The March 14 special performance evaluation concludes in part: Johnnie's supervisor and others in the Office of Communications have made many efforts to make Johnnie feel welcomed in his new office and to provide him verbal and written information to assist him in completing assignments and to adjust to his transfer from the Department of Water Resources. These efforts were made prior to the transfer becoming final on Dec. 31, 1999, and have continued since then. The record does not support these statements in their entirety. Ms. Hickenlooper welcomed Respondent's arrival, but as an opportunity to improve the Newsletter, which had been marred by inconsistent writing, editing, layout, and design. The record does not disclose any effort by Ms. Hickenlooper to make Respondent feel welcomed. Ms. Hickenlooper provided Respondent with considerable verbal and written information. Her criticism of his writing proved helpful, as discussed below. However, a recurrent pattern in much of Ms. Hickenlooper's supervision of Respondent was her establishment of performance standards and documentation of his deviations from these standards in a transparent effort to terminate his employment. Accompanying the March 14 performance evaluation is a corrective action plan. The corrective action plan informs Respondent that he will be re-evaluated in 30 days "to determine if his performance has improved and meets performance standards." The corrective action plan states, in part: Written text Write in the journalistic style, using the inverted pyramid, giving most important facts first, followed by supporting information. The employee is to follow District style and Associated Press style in text unless otherwise instructed by his supervisor. Study the "Associated Press Style and Libel Manual." In 25 days, the employee will be given a written assessment on AP style as prepared by his supervisor to show a proficiency in AP style. Read and study the excerpts provided by the supervisor from the book "The Word" by Rene J. Cappon to strengthen journalistic writing style. Practice journalistic writing by submitting a text file to supervisor by close of business each Friday for four weeks effective immediately. The text file must contain a lead paragraph and one or two supporting paragraphs, written in news style using facts supplied by the supervisor. Employee must adequately demonstrate to supervisor an ability to write in the District's and Office of Communications' preferred style and format. * * * Terms will be used consistently and correctly. Text will be written so that it answers the "who, what, when, where, why and how" of the journalistic style and to be obvious to the reader as to why the information is important to him or her. Text will be written so as to be clear as to the District's involvement in the event or activity being written about. The employee will use the spell check feature provided in the various software programs (Word, QuarkXpress, Lotus Notes) he uses before sending out any correspondent or other documents. Graphics/art work Employee is to supply all graphics, photos and other art work to be used in the "Indian River Lagoon Update" to the Communications photographer for proper scanning, color balancing and technical support as spelled out in the employee's performance standards. The employee will not be involved in other graphics work, such as scanning art work for presentations, posters, flyers, letters, etc. The employee is to direct persons making requests for graphics assistance to the Office of Communications. Layout/design Employee will use the electronic template supplied by the Office of Communications for the production of the "Indian River Lagoon Update." The template will not be altered in such a way as to change the design, format or style. All layouts will follow the review procedures outlined on the Office of Communications tracking sheet. The employee will submit each edition of the lagoon newsletter to his supervisor in electronic form on a zip disk for its final edit/review. All layouts will follow District style. Communication It will be the employee's responsibility to call his supervisor each work day from his work station between 8 a.m. and 8:15 a.m., but no later than 8:15 a.m., to report to his supervisor that he is at work and to discuss his planned day's activities so that the supervisor can prioritize the workload. . . . The employee is to be available to answer telephone calls from the supervisor during normal work hours (8 a.m. to 5 p.m., Monday through Friday), unless the employee is preapproved to be away from the office. The employee will take his one-hour lunch break no earlier than 11:30 a.m. When the lunch hour is taken later than 11:30 a.m., the employee will take his break in time to return to the office no later than 1 p.m. The employee will write his weekly report in such language so as to more accurately reflect what was actually done or accomplished. The employee will add to his weekly report the amount of time it takes to accomplish each task. The employee will communicate by telephone with his supervisor in a timely fashion on matters that need immediate attention. An e-mail message may be sent by the employee for written verification of oral conversations. Professional conduct The employee will communicate with his supervisor, co-workers, District staff and the public in a professional manner at all times. The employee will not use offensive or demeaning language or other language that gives the impression of being uncooperative, intimidating, harassing or otherwise abusive to his supervisor, co-workers, District staff or the public. The assessment of Respondent's response to the March 14 evaluation documents requires identification of his work after March 14. Unfortunately, Paragraphs 24, 27, and 32 of Petitioner's proposed recommended order confuses the order of events because these proposed findings find violations of the March 14 evaluation documents in Petitioner Exhibits 17 and 18, which pertain to the Winter 2000 Newsletter. The Winter 2000 edition generated the most salient criticisms contained in the March 14 evaluation documents; the Winter 2000 edition obviously preceded the March 14 evaluation by several weeks, so Respondent's reliance upon the Winter 2000 edition to prove violations of the March 14 evaluation documents is misplaced. Much of Respondent's work on the Spring 2000 Newsletter also preceded the March 14 evaluation documents. An e-mail to Respondent from Ms. Hickenlooper dated February 14, 2000, accompanies her comments on rough text for the Spring 2000 edition that Respondent had submitted to her on February 8. Another e-mail to Respondent from Ms. Hickenlooper dated March 2 accompanies a second edit that she and a technical person had performed on Respondent's rewritten text. Respondent completed the first laid-out draft, whose text remained substantially unchanged from that time forward, on March 13--one day prior to the March 14 evaluation documents. Although Respondent's work on the text of the Spring 2000 Newsletter precedes the March 14 evaluation documents, some of his layout work on the Spring 2000 Newsletter followed the March 14 evaluation documents. Responding to an early layout of the Spring 2000 Newsletter, Ms. Hickenlooper wrote, in a handwritten note dated April 5: Your efforts to clean up the layout are getting better. There are still things you need to fix before I can forward it on. I could make the corrections myself in a few minutes, but I need you to see what has to be done so you can learn to spot these things. I've made some notes for you on how to fix the problems. You should be able to see all these things on your screen even if you don't have the ability to print out proof copies there. If you have questions, please let me know. Ms. Hickenlooper's acknowledgement of Respondent's inability to print his work-in-progress at his Palm Bay office is important. For substantially all, if not all, of the period in question, Respondent was unable to print out screens displaying laid-out pages of the Newsletter. The programs that he used were not entirely "what you see is what you get," so the inability to print out work, together with his early computer problems and lack of software training, seriously undermined Respondent's ability to produce satisfactory product in terms of design and lay-out. Even so, Respondent's shortcomings in electronic publishing were evidently minor by this time, as Ms. Hickenlooper could fix them "in a few minutes." In any event, all of these factors preclude the inference that Respondent refused or was unreasonably unable to produce satisfactory work in the area of electronic publishing. The best measures of Respondent's response to the portions of the March 14 evaluation documents pertaining to his writing deficiencies are the written exercises that he submitted over the following month. Respondent completed eight written exercises from March 24 through April 21, 2000. Each exercise provides a set of facts from which Respondent must prepare a lead paragraph and at least two supporting paragraphs. Respondent submitted the exercises in pairs at approximately regular intervals during the one-month period. However, rather than supply her comments to each set, shortly after its submission, Ms. Hickenlooper provided her comments to all eight exercises by memorandum dated May 12, 2000. Respondent submitted the first two exercises by e-mail dated March 24. In the first exercise, which addressed the loss by fire of 45,000 acres owned by Petitioner of the 450,000 acres statewide, Ms. Hickenlooper accurately notes that Respondent incorrectly buried the most salient fact in the third paragraph of the seven-paragraph "story." She also corrected a couple of usage mistakes. In the second exercise, which addressed the impact of Petitioner's tax rate on the average property-owner, Ms. Hickenlooper fairly pointed out that Respondent's lead paragraph was primarily fluff, which may have been satisfactory for a story concerning a school outing, but was clearly unsatisfactory for a story concerning a major pocketbook issue. She showed Respondent two points that he buried in his six- paragraph "story," but that should have been in the lead paragraph. Respondent submitted the third and fourth exercises by e-mail dated April 7. Again, Ms. Hickenlooper correctly noted that Respondent buried important information in his third exercise, unnecessarily added "general" to "public," misused a word in the phrase "construction of . . . programs," and misstated the facts. However, the fourth exercise was flawless, except for a fairly minor usage error. The problems contained in the first three exercises betrayed Respondent's occasional difficulty in organizing his material. In his pre-reorganization Newsletters, Respondent sometimes failed to write an effective lead paragraph, seeming at times not to grasp the main theme of his material. Respondent submitted the fifth and sixth exercises by e-mail dated April 14. The fifth exercise was flawless. The sixth exercise is nearly flawless. Although the lead paragraph is adequate, Ms. Hickenlooper correctly notes that Respondent could easily have punched-up the lead, and she correctly deletes "area" after "19-county District." Respondent submitted the seventh and eighth exercises by e-mail dated April 21. The seventh exercise was nearly flawless. Ms. Hickenlooper's criticism of the lead paragraph in the eighth exercise seems strained, both as to her claims of blandness and the unanswered "why" question. Ms. Hickenlooper's final criticism of the eighth exercise is unfair. She states: "Part of the assessment was to determine if Johnnie could spot and correct the error in Spontak's title and office name." This is untrue. The instructions on the cover sheet state: "Use the pertinent information from the following list of facts to write a lead and at least two supporting paragraphs for each article listed. Write in the journalistic format, using Associated Press style and District style." Nothing on the cover sheet or the already- quoted corrective action plan notified Respondent that these exercises also were to test his substantive knowledge of District staff and their titles. As discussed below, Ms. Hickenlooper performed the second evaluation of Respondent on May 19. By returning all of the exercises submitted over the preceding month one week prior to the date of the second evaluation, Ms. Hickenlooper emphasized the evaluative, rather than remedial, role of these exercises. The same distinction between evaluative and remedial purposes characterizes Ms. Hickenlooper's administration of the Associated Press style test, which took place on April 17. Her memorandum to Respondent dated April 17 suggests that the purpose of the test is "to pinpoint some areas in which it would help you to do some further studying of AP style." This is a legitimate objective and reasonable use of the test. However, Petitioner's attempt to use the results of this assessment as quantitative evidence of Respondent's incompetence in written expression distorts the purpose of the test. Nothing in the record supports a performance standard of memorization of the Associated Press style manual. Respondent's job required him to use, not memorize, this style source, and the test, as administered by Ms. Hickenlooper, properly identified for Respondent his forms of usage that did not conform to Associated Press style. The proper role of this test is evident: it is to alert Respondent to his tendency, prior to the reorganization, to display little regard for consistency in style, let alone conformance to an external style authority, such as the Associated Press style manual. On May 19, 2000, Ms. Hickenlooper prepared a second special performance evaluation of Respondent. This evaluation is in the same form as the March 14 performance evaluation, except that it lists the additional performance standards contained in the March 14 corrective action plan. The first substantive criticism concerns the written text for the Spring 2000 Newsletter. For the most part, this criticism is unwarranted because it pertains to text that Respondent prepared prior to March 14. To the extent that this criticism pertains to text that Respondent prepared after March 14, this criticism is unsupported by the record, which clearly reveals little post-March 14 revision of the text of the Spring 2000 Newsletter. The second substantive criticism concerns the layout of the Spring 2000 Newsletter. This criticism is unwarranted due to Respondent's inexperience with electronic publishing programs, Petitioner's refusal to provide the external training that Respondent needed and requested, and Respondent's lack of a suitable computer and any printer to learn and perform electronic publishing. Despite these handicaps, Respondent made meaningful progress in layout and design during the period covered by this performance evaluation. The third substantive criticism reveals an omission from the record. Ms. Hickenlooper found that Respondent repeated many of the same mistakes in his text for the June 2000 Newsletter. Although Petitioner Exhibit 21 bears the title, "Comments on June 2000 Newsletter Articles," in the Administrative Law Judge's index to exhibits, the actual exhibit, as supplied by Petitioner in its notebook of exhibits, consists of Ms. Hickenlooper's detailed comments on Respondent's text for the Spring 2000 Newsletter, as well some minor stories that Respondent had prepared for another District publication. Although the Summer 2000 text bearing Ms. Hickenlooper's revisions is missing from the record, Respondent supplied two documents that partly fill this void. Respondent Exhibit 13 is a first draft of the Summer 2000 text, with an approving comment from Mr. Smithson. Respondent Exhibit 40 is the Summer 2000 Newsletter. The following findings assume that Ms. Hickenlooper dictated all changes between the early draft and the final printed version, even though Respondent himself may have made some of these revisions without prompting. A comparison of Respondent's draft text with the published text does not support Ms. Hickenlooper's assertion in the May 19 performance evaluation that Respondent was repeating the "same type of errors he has made in previous writing assessments," such as "errors in AP style, district style, subject/verb agreement, and use of jargon and unfamiliar terms without explanation." To the contrary, Respondent's draft text contained no subject/verb problems and no jargon or unfamiliar terms. He appears to have misnamed Audubon of Florida and committed a few other style errors, but many fewer than he had committed previously. Ms. Hickenlooper printed several of his articles without substantial editing. Although this was Respondent's most important work product following the March 14 performance evaluation, it earns only two sentences of comment in the May 19 performance evaluation. Much of the remainder of Ms. Hickenlooper's evaluation of Respondent is flawed. Although Respondent's writing skills are the most important area of concern, Ms. Hickenlooper addresses little attention to the Summer 2000 text, as noted above, or the eight written exercises, which are the subject of three sentences in her evaluation. Moreover, the three sentences misstate Respondent's work. He did not miss the major point in half of the exercises, as Ms. Hickenlooper asserts; the last five exercises were entirely satisfactory. Also, Ms. Hickenlooper neglects to mention that Respondent's work improved over the one-month period covered by the exercises. Ms. Hickenlooper's evaluation of Respondent's written work also suffers from a repeated failure to adhere to the quantifiable standards applied to the evaluation of Respondent's work. Of greatest importance here is the standard of 90 percent error-free text, but Ms. Hickenlooper never quantifies the rate of error of Respondent's text. The only attempt by Ms. Hickenlooper to quantify Respondent's error rate in written expression was in the Associated Press style test, but, as already noted, this was a misuse of the test. Some other items cited by Ms. Hickenlooper also suffer from a failure to conform to an applicable standard, such as the vague complaint that Respondent's assistance to staff requests is "not always as prompt" as is his assistance to other persons seeking his assistance. Nothing in the fourth performance standard or the associated supplemental requirements imposed by the corrective action plan, to which this complaint pertains, imposes this obligation upon Respondent. Other items cited by Ms. Hickenlooper appear to be in error, such as the timeliness of Respondent's weekly reports. At points, Ms. Hickenlooper's complaints are petty, as when she faults him for stating in an e-mail to an Office of Communications coworker that an attachment was so large that it would take three minutes to open, so "now's a good time to take a bathroom break." Ms. Hickenlooper claims that she found offensive Respondent's use of the word "bathroom," but it is more likely that the source of her displeasure was Respondent's implied criticism of, specifically, the office equipment and procedures and, generally, the Office of Communications. Ms. Hickenlooper concludes the May 19 performance evaluation by finding that Respondent has not "significantly improved" and recommending that Petitioner give him 60 additional days within which to improve and conform to his performance standards, as supplemented by the corrective action plan. On July 31, 2000, Ms. Hickenlooper prepared a third and final special performance evaluation of Respondent. In this evaluation, Ms. Hickenlooper's criticisms of Respondent's layout and design, which focus on the Summer 2000 Newsletter, are undermined by the same mitigating factors already discussed concerning electronic publishing. Ms. Hickenlooper's criticism of Respondent's writing necessarily pertains to non-Newsletter tasks because Respondent had completed most of the text for the Summer 2000 Newsletter prior to May 19 and evidently had not prepared much, if any, of the text for the Fall 2000 Newsletter prior to July 31. Ms. Hickenlooper's criticism of an indexing project assigned to Respondent seems to reveal bad communications between her and Respondent rather than poor writing by Respondent on this fairly simple assignment. Even so, Ms. Hickenlooper acknowledges that "Johnnie has made some improvement in his writing and work skills. During the last 60 days, he has met all but one of the deadlines to submit his work to his supervisor." Ms. Hickenlooper also acknowledges that Respondent has met other standards, such as submitting timely weekly activity reports and timely preparing timesheets and reports to his supervisor. A couple of problems regarding mailing lists and photographs appear to have resulted from poor communications between Ms. Hickenlooper and Respondent. Respondent rebutted a more-focused criticism concerning his omission of "Indialantic" from a story, with the result of an angry caller. Respondent produced the caller as a witness at the hearing, and she testified to her satisfaction with Respondent's handling of the matter. Another of Ms. Hickenlooper's complaints of Respondent's handling of requests for public appearances appears groundless because Respondent was merely doing what he had previously been told to do by another staff person at the Office of Communications. By letter dated August 14, 2000, Petitioner informed Respondent that, based on his three special performance evaluations in March, May, and July 2000, he had "not made the necessary improvements in [his] performance for [his] work to be considered satisfactory." Thus, pending the outcome of any hearings that Respondent might request, Petitioner intended to terminate Respondent's employment. By letter dated August 31, 2000, Petitioner terminated Respondent's employment. Policy 79-18, Section V.B.3.b applies the provisions of Petitioner's disciplinary policy to the termination of an employee who has completed his or her probationary period, as had Respondent at the time of his termination. Policy 80-10, Section III.D.6 gives such an employee the right to an administrative hearing, pursuant to Chapter 120, Florida Statutes.
Recommendation It is RECOMMENDED that the St. Johns River Water Management District enter a final order reinstating Respondent as a Public Communications Specialist III without back pay. DONE AND ENTERED this 27th day of June, 2001, in Tallahassee, Leon County, Florida. ROBERT E. MEALE 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 27th day of June, 2001. COPIES FURNISHED: Henry Dean, Executive Director St. Johns River Management District Post Office Box 1429 Palatka, Florida 32178-1429 John W. Williams Deputy General Counsel St. Johns River Water Management District Post Office Box 1429 Palatka, Florida 32178-1429 Johnnie D. Ainsley 1210 Walnut Grove Way Rockledge, Florida 32955-4629
Findings Of Fact Agreed Facts: The Department of Health and Rehabilitative Services (hereinafter "HRS") is the affected agency and is responsible for agency action concerning certificates of need in Florida. FCC is a Florida corporation located at 345 South Magnolia Drive, Suite E-21, Tallahassee, Florida 32301. FCC applied for a CON to construct a 120-bed nursing home in Dade County, Florida, in January 1984. HRS denied that application on March 2, 1984, and FCC timely requested an administrative hearing. During the course of this first round of administrative litigation, HRS resolved its dispute with FCC and issued to FCC CON No. 3024 to construct a 120- bed nursing home in Dade County, Florida. HRS required 24 of the 120 beds to be dedicated to Medicaid patients. HRS issued the CON to FCC on February 4, 1985, but did not issue its final order in the first round of litigation until July 1, 1985. In October 1985, St. Francis Hospital challenged FCC's CON No. 3024. This litigation was independent of the initial first round of litigation concerning this CON. The St. Francis case was resolved in December 1985, and HRS tolled the time for FCC to commence construction. HRS stated that the new starting date for the project was December 4, 1985, and that the project must be under continuous construction by December 3, 1986. On November 14, 1986, FCC requested a six-month extension of the one- year validity period for CON No. 3024. HRS granted that request on February 5, 1987, and established June 3, 1987, as the new termination date for CON No. 3024. HRS does not dispute that FCC properly obtained this six-month extension. On December 1, 1986, however Forum Group initiated new litigation challenging FCC's CON pursuant to the opinion of the First District Court of Appeal in Gulf Court Nursing Center v. Department of Health and Rehabilitative Services, 483 So.2d 700 (Fla. 1st Dist. 1985). This third round of litigation concluded when Forum Group voluntarily dismissed its appeal before the District Court of Appeal, and the District Court issued its order closing the case on July 28, 1987. Based on this third round of litigation, HRS established January 26, 1988, as the new termination date for CON No. 3024. On October 23, 1987, FCC filed an interim cost report for this project showing an expenditure of $84,000. On January 7, 1988, HRS issued a letter to FCC permitting FCC to lay the foundation for CON project No. 3024. On January 19, 1988, HRS approved the entire construction plans for CON No. 3024, and through its contractor, FCC promptly obtained a local building permit, No. 0788, on January 22, 1988. At 11:15 a.m. on January 27, 1988, the day after the termination date for this CON, HRS conducted a site visit. By letter dated January 29, 1988, HRS stated that the CON was null and void and requested FCC to return the original CON. FCC received that letter on February 8, 1988. FCC timely petitioned for a formal administrative hearing under Section 120.57(1), Florida Statutes (1987), on February 12, 1988. HRS referred the petition to DOAH to conduct a formal hearing. The only grounds stated by HRS as the basis for voiding CON No. 3024 is that the project was not "under physical and continuous construction beyond site preparation" by January 26, 1988. Prior to January 26, 1988, FCC completed the following activities with regard to CON No. 3024: Obtained land for the project; Procured a building permit from the local building authorities; Obtained a foundation permit from HRS; Obtained HRS' approval of the actual construction documents for the construction of the entire 120-bed nursing home, pursuant to a letter from Mr. Richard Rosenvold, HRS, dated January 19, 1988 (authorizing the construction of the entire project beyond the foundation). On or before January 26, 1988, FCC undertook the foundation forming of the nursing home authorized CON No. 3024 by installing steel and placing concrete on its site in Dade County, Florida, in accordance with HRS-approved construction documents. HRS agrees that, if FCC prevails in this case, FCC will have twelve months from the rendition of the Final Order within which to recommence construction pursuant to CON No. 3024. Disputed Facts: Interruptions in the Validity Period The purpose of the validity period of a CON is to provide an uninterrupted space of time for the CON holder to commence construction. During this period the holder of the CON must get architectural plans approved by HRS, obtain land and proper zoning, obtain a building permit, obtain financing, and begin constructing the project. The CON validity period is twelve months. HRS may authorize one six- month extension, for a maximum validity period of eighteen months. The validity period for CON No. 3024 was unique, in that the CON was twice subjected to legal challenges which threatened the validity of the CON long after the CON was issued by final agency action. Because HRS recognizes the significance of legal challenges which threaten the validity of a CON, HRS tolls the validity period throughout the duration of such challenges. HRS twice tolled the validity period for FCC's CON No. 3024, first, because of the challenge brought by St. Francis Hospital and, second, because of Forum Group's Gulf Court challenge As a result of this stop-and-go process, FCC did not have an uninterrupted eighteen months, to commence construction of CON No. 3024. The significance to FCC of the interruptions to the validity period for CON No. 3024 were: FCC could not obtain project financing during legal challenges to the CON or during the time periods after the challenges were concluded but before HRS issued its letter recommencing the validity period. Because of the Forum Group challenge, FCC could not close on its contract to purchase land for the project and lost the first site it had selected for construction of its nursing home. FCC incurred increased costs for zoning in that it lost the sums it had expended to obtain appropriate zoning approval from the local zoning authority for the first site. The St. Francis and Forum Group legal challenges delayed the commencement of construction for CON No. 3024 between three and four months. This delay is in addition to the time lost during the pendency of the litigation when FCC could make no additional expenditures to develop the project. FCC did not make expenditures toward commencing construction of CON No. 3024 during the pendency of any litigation challenging the validity of that CON because to do so is commercially unreasonable. However, FCC did not wait for HRS' notification that the validity period for this CON had recommenced before contracting to purchase an additional site. After investigating five other locations, FCC contracted to purchase land located at 16100 Northwest 2nd Avenue, Miami, Dade County, Florida, on September 4, 1987. Retroactive Notices By statute, HRS is responsible for notifying CON holders of the commencement tolling, and recommencement of the CON validity period. Without notification from HRS about the duration, commencement, tolling, and recommencement of the validity period for a CON, the CON holder cannot make appropriate plans to commence construction of a CON project. Without clear notification from HRS about the duration of the CON validity period, lenders will not finance CON projects. HRS twice provided tardy notice to FCC about the recommencement of the validity period for CON No. 3024: The St. Francis Hospital litigation was settled favorably for FCC in December 1985. Nonetheless, HRS did not notify FCC that its validity period had recommenced as of the date of the December 1985 final order until its letter dated February 10, 1986. Forum Group dismissed its appeal and the First District Court of Appeal issued an order of dismissal on July 27, 1987. Nevertheless, HRS did not notify FCC that the validity period for CON No. 3024 would recommence as of July 27, 1987, until its letter dated September 28, 1987. Even though FCC did not complain about the January 26, 1988, termination date which HRS established for CON No. 3024 by letter dated September 28, 1987, until HRS initiated this action, FCC's failure to complain does not rectify HRS' retroactive notifications. Forum group initiated its challenge with two days then remaining for the validity period for CON No. 3024. HRS then tolled the validity period for this CON throughout the legal challenge. HRS approved FCC's request for the six-month extension by letter dated February 5, 1987, while the validity period continued to be tolled. When the Forum Group litigation was dismissed, HRS extended FCC's validity period for this CON to January 26, 1988, which is a total of six months and two days (182 days) from the date of the July 27, 1987, order of dismissal. Tree Permit There were no trees where the foundation for CON No. 3024 was to be located, and there were no protected species of trees on the site for this project. Accordingly, the local authority for Dade County did not require a tree permit for this site. Zoning and Other Approvals FCC, through its Vice President of Development and Project Architect William T. Searcy, an expert in architecture and in the evaluation of construction costs, applied for zoning for the second project site for CON No. 3024. Prior to commencing construction before the termination date of the CON, the local zoning authority unanimously approved FCC's application for a 120-bed nursing home with a screened fence between the nursing home and its adjoining neighbors. FCC obtained a waiver of the requirement to plat its site for CON No. 3024 from the local authorities for Dade County on January 22, 1988. FCC did preliminary worth with local utility companies to insure all utility service would be available to the nursing home, prior to the January 26, 1988, termination date for CON No. 3024. Construction Contract In late January 1988, FCC, through its owner, James McCarver, verbally agreed to engage Anthony Estevez and Project Advisors Corporation as general contractor to construct the nursing home authorized by CON No. 3024. FCC ordered Estevez to proceed to construct CON No. 3024, and FCC agreed to pay the contractor's time and materials plus 15 percent for overhead and profit. These terms would later be reduced to a written contract, but this action by HRS intervened. Estevez obtained the building permit for CON No. 3024 from the local building authority for Dade County, Florida, only after this verbal construction contract was entered into between FCC and Estevez. Construction Activities FCC hired a soils testing laboratory on October 21, 1987, to do a soil investigation report on the second site for CON No. 3024; adapted its construction plans to fit the new site; hired a building permit specialist familiar with the Dade County building authorities; and hired a civil engineer for the project. The soil testing laboratory, Wingerter Laboratories, Inc., issued its report on October 30, 1987. The project general contractor followed the soil engineer's recommendation in the Wingerter soils report in constructing the footer for the southeast corner of the nursing home authorized by CON No. 3024, and the site was properly prepared. FCC's general contractor, Anthony Estevez, is an expert in general contracting and in the design, construction, and management of health care facilities. On or before the January 26, 1988, termination date, the project's general contractor for CON No. 3024: Had the surveyor, J. F. Lopez, stake out the corners of the building and the footings the contractor planned to pour. Performed all work on the site in accordance with HRS-approved construction documents. Had Vallero Trucking clear the site to good soil where the footer was to be poured. Several thousand square feet were cleared for the footer. The contractor was clearing additional portions of the site when HRS inspected on January 27, 1988. Filled the pad where the footer would be poured. Vibro-compacted the soil under the footer in layers. Used limerock to make a very supportive base for the footer. Set reinforcing steel where the footer was poured. Obtained the threshold engineer's inspection and approval to pour the footer. The threshold engineer inspected the soil compaction and approved the pour. The soil-bearing capacity under the footer was 6,000 pounds per square inch ("PSI"), well in excess of the required 25 PSI for this project. Poured concrete to form a footer of 15 feet at the southeast corner of the foundation for the subject nursing home. Had a compression cylinder test done to determine the strength of the footer. The footer had a strength of 4,600 PSI twenty-eight days after it was poured, well in excess of the 3,000 PSI required. The footer met and exceeded the specification for CON No. 3024 and represents a continuous 15-foot segment of the foundation at the southeast corner of the proposed nursing home. The footer is strong enough to support more than the one-story structure of the nursing home for which it was designed. The contractor had a construction trailer on site for CON No. 3024 on the afternoon of January 27, 1988, just after HRS' inspection. The contractor had a bulldozer, a vibro-compacting roller, and a combination backhoe and front-end loader on site between January 23, 1988, and the end of January or the beginning of February 1988. The contractor's crew was on site for CON No. 3024 from January 22, 1988, until the end of January or the beginning of February 1988, including Saturdays and Sundays. But for this action, there were no barriers to FCC's continuous construction of CON No. 3024 after January 26, 1988. Expenditures and Losses FCC and its general contractor expended, or owe, $256,000 to construct the nursing home in Dade County authorized by CON No. 3024. This includes FCC's expenditures for studies and consultants as well as for legal fees to obtain the CON. This also includes direct costs for travel and long-distance telephone calls, for the development of the architectural plans and construction documents, for engineering, for the down-payment on the second site, and for zoning for both the first and second sites. The general contractor for CON No. 3024 spent in excess of $50,000 on the project to obtain the building permit, fill, equipment, supervision, labor, a threshold engineer, temporary electricity, steel, concrete, the construction trailer, a portable toilet, and insurance. After HRS' site visit on January 27, 1988, when HRS told Estevez, the general contractor for the project, that HRS would terminate CON No. 3024, Estevez ordered all construction on the project to stop. Estevez did so because HRS told him he could not proceed with construction. Because HRS issued its January 29, 1988, letter declaring CON No. 3024 null and void, FCC lost the right to purchase the second site, the land on which it had commenced construction. The HRS Inspection During HRS' inspection on January 27, 1988, there was a bulldozer on site for this project, a construction foreman, and several workers. The construction trailer was in place on the site for this project by the afternoon of January 27, 1988. HRS found a building permit for the project on site during the January 27 inspection. The HRS inspector took pictures of the site for CON No. 3024 depicting construction activity which included foundation forming with steel installation and concrete placing of the footer for the southeast corner of the nursing home authorized by CON No. 3024. HRS sent FCC notice that it was terminating CON No. 3024 as null and void based solely on the January 27, 1988, inspection. HRS based its notice letter on faulty information: HRS believed that a tree permit was required when in fact there were no protected species of trees on the site for CON No. 3024. Consequently, FCC did not need a tree permit from local (Dade County) authorities. HRS believed FCC did not have a soil report when in fact the threshold engineer approved the pouring of a footer based on specified soil compaction. HRS believed that only 25 square feet of the site had been cleared but the footer required, and the contractor cleared, several thousand square feet of the site to pour the 15-foot footer. HRS' decision makers lacked adequate expertise to determine whether FCC had commenced construction of CON No. 3024. The HRS decision makers did not know that the HRS Plans Review Section had approved the construction plans and specifications for CON No. 3024 prior to the January 26, 1988, expiration date for that CON. Site Preparation HRS has no rule for interpreting the "continuous [construction] activities beyond site preparation" portion of the definition of "commence construction." HRS' non-rule interpretation of this phrase is that all site work, including soil compaction for the foundation, delineation of the foot print of the facility, and the clearing of vegetation within the area of the site where the foundation will be poured, must be completed before the termination date in order for the CON holder to validate the CON by commencing construction. FCC was not on notice as to HRS' "policy" definition of construction activity beyond site preparation, and HRS' witnesses did not uniformly describe that "policy." In construction parlance, site preparation includes the preparation of the entire project site. This includes sub-grading under the paving, placing fill under the footers, clearing the entire project site, and finishing the project up to the finished grade. For most large health care and commercial projects, clearing is done in stages and site preparation is merely kept ahead of forming the foundation. No phase is completed before the next phase is begun. If all site preparation had to be completed before a CON holder could go on to the next phase of construction, each CON project would be delayed approximately five weeks at a great cost to the CON holder and to taxpayers and health-care consumers. Prior Inconsistent Action by HRS HRS has not required FCC, nor any other CON holder, to meet the definition of commencing continuous construction beyond site preparation that it required of FCC in this case. HRS found FCC to have commenced construction of five other nursing home projects in Florida after FCC performed construction activities and site preparation identical with FCC's work on CON No. 3024. HRS did not terminate Glenbeigh Hospital's (hereinafter "Glenbeigh") CONs to construct two hospitals even though Glenbeigh completed less construction activity to commence these projects prior to their termination date than FCC had with CON No. 3024. HRS validated Glenbeigh's CON No. 3217 for an eighty-bed substance abuse hospital in Orlando when: Glenbeigh had only a verbal contract with its general contractor three or four days before constructing two small column pads. A building permit was obtained May 21, 1986, before there was any written AIA contract. Glenbeigh only constructed two column pads two feet long by two feet wide by a foot and one-half deep before its June 7, 1986, termination date, versus FCC's fifteen-foot continuous footer on CON No. 3024. A retention pond, shown in pictures taken by HRS of Glenbeigh's project, was not even on the project site and was not something constructed by the CON holder to commence the project. There was no soil test or geologist's report for the column pads, nor for the site. Glenbeigh did site preparation under the foundation long after the column pads were poured and after the termination date for that CON. HRS validated Glenbeigh's CON No. 2667 for a sixty-bed adolescent chemical dependence hospital in West Palm Beach, now licensed, when: Prior to the termination date, Glenbeigh poured two column pads after compacting only under the pads. Glenbeigh continued to perform site preparation under the foundation after the termination date of December 28, 1985, for that CON.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that a Final Order be entered finding that FCC's CON No. 3024 remains valid. In compliance with the Prehearing Stipulation, it is further RECOMMENDED that FCC be given twelve months from the rendition of the Final Order in this proceeding within which to recommence construction of the Dade County nursing home project authorized by CON No. 3024. DONE and RECOMMENDED this 15th day of December, 1988, at Tallahassee, Florida. LINDA M. RIGOT, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division Administrative Hearings this 15th day of December, 1988. APPENDIX TO RECOMMENDED ORDER DOAH CASE NO. 88-0840 Petitioner's proposed findings of fact numbered 1-69 have been adopted either verbatim or in substance in this Recommended Order. Respondent's proposed findings of fact numbered 1, 4, 6, 7, 10, 12, 14, 17, and 21-23 have been adopted either verbatim or in substance in this Recommended Order. Respondent's proposed findings of fact numbered 2, 3, 5, 8, 9, 11, 13, 15, 18-20, and 24 have been rejected as being unnecessary for determination herein. Respondent's proposed finding of fact numbered 16 has been rejected as being irrelevant to the issues in this cause. COPIES FURNISHED: Sam Power, Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700 Robert P. Daniti, Esquire 1017-C Thomasville Road Tallahassee, FL 32303 Richard A. Patterson, Esquire Department of Health and Rehabilitative Services 2727 Mahan Drive Fort Knox Executive Center Tallahassee, FL 32308 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700 =================================================================
Findings Of Fact The findings below are based on the undisputed facts set forth in Petitioner's Protest and supplements thereto, Respondent's Motion to Dismiss, Petitioner's Response in Opposition to Motion to Dismiss, and representations by the parties during the motion hearing. On October 7, 2009, Respondent electronically posted its final ranking of firms which had submitted proposals to provide mechanical engineering services for six HVAC projects for Respondent in 2010. Respondent's electronic posting of the final ranking of firms included the following language: "Failure to file a protest within the time prescribed in Section 120.57(3), shall constitute a waiver of proceeding under Chapter 120, Florida Statutes." On October 12, 2009, Petitioner filed a Notice of Intent to Protest the final rankings. On October 22, 2009, Petitioner filed its Protest. Although Petitioner's Protest was timely filed, Petitioner initially did not file a bond or other security. The Protest alleges that Petitioner was not required to file a bond, because Respondent did not include in its final ranking notice that a failure to post a bond would constitute a waiver of proceedings under Subsection 120.57(3)(a), Florida Statutes. Additionally, the Protest alleges that Respondent: (1) failed to provide Petitioner with notice of the estimated contract amounts within 72 hours, exclusive of Saturdays and Sundays and state holidays, of the filing of a notice of protest as required by Subsection 287.042(2)(c), Florida Statutes; and (2) because Respondent had not provided that notice, Petitioner was unable to calculate the amount of the bond required and was, therefore, relieved of the obligation to file a bond. On October 30, 2009, Respondent, through counsel, wrote to Petitioner. In this correspondence, Respondent informed Petitioner that Section 287.042, Florida Statutes, did not apply to Respondent because it was not an "agency" for purposes of that law. Respondent further informed Petitioner that Section 255.0516, Florida Statutes, allowed Respondent to require a bond in the amount of two percent of the lowest accepted bid or $25,000. Respondent also notified Petitioner that because it was protesting all six project awards, all awards must be included in the calculation of the bond amount required. Finally, Petitioner was allowed ten days within which to post a bond. On November 3, 2009, Petitioner submitted to Respondent a cashier's check in the amount of $3,143.70 and noted that the check was intended to serve as security for the Protest "as required by F.S. 287.042(2)(c)." In the letter which accompanied the check, Petitioner also noted that: (1) the amount of the check was determined by calculating one percent of the largest proposed contract award amount of $314,370.00; and (2) Petitioner was providing that amount "under duress," because Respondent had "just published the contract award amounts." The relief requested by Petitioner in the Protest is that: (1) it be awarded one of the six HVAC projects comprising the final ranking; and/or (2) alternatively, all six awards be rescinded and "start the entire process over." The final ranking which Petitioner protests included six separate projects, each of which had a separate construction budget. Those projects and their respective construction budgets are as follows: Northwest--$1,144,000; Tampa Palms--$2,649,081; Yates--$2,770,828; Ferrell--$2,550,758; Stewart--$2,805,437; and Erwin--$4,191,603. The proposed fees for each project were as follows: $97,240 (Northwest); $211,926 (Tampa Palms); $221,666 (Yates); $204,061 (Ferrell); $224,435 (Stewart); and $314,370 (Erwin).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent, Hillsborough County School Board, issue a final order dismissing the Protest filed by Petitioner, RHC and Associates, Inc. DONE AND ENTERED this 20th day of January, 2010, in Tallahassee, Leon County, Florida. S CAROLYN S. HOLIFIELD 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 20th day of January, 2010.
The Issue The issues in this case are whether the violations alleged in the Administrative Complaint occurred, and whether the Respondent should be fined $5,000.
Findings Of Fact Washington Manor is a skilled nursing home licensed by the Department of Health and Rehabilitative Services. It expanded its existing facility by the construction of a new wing with 15 additional beds. Approval of the construction of the addition was granted by the Petitioner Department as indicated by Exhibit 5. The addition was inspected by the Department's Medical Facility Architect on October 4, 1979. At that time the Department's architect discovered that several of the beds in the new facility were being used. In addition the architect discovered several construction deficiencies. The architect discovered that the partitions designed to be fire resistant and smoke proof had many holes in them which would have permitted smoke to penetrate these walls, which were to be constructed as barriers. The architect discovered that smoke dampers on the ducts were not properly secured. Unsecured, such dampers can be knocked aside by the forces generated in a fire. The architect discovered that "tents" (ventilated and insulated enclosures) had not been constructed over recessed lighting fixtures in a manner to prevent fire from penetrating the fire resistant ceiling tile. In addition to these major deficiencies listed above, the bathrooms did not have bedpan flushing devices, the tamper switch on the fire alarm was not functioning properly, double doors did not have magnetic door closures, and the air conditioners in the patients' rooms did not have their vents locked in the open position. The Department's architect offered uncontroverted and unrebutted testimony that the conditions in the foregoing Paragraphs 3, 4, 5 and 6 violated the provisions of the Southern Standard Building Code. The deficiencies described in Paragraphs 3, 4 and 5 directly related to the safety of the residents notwithstanding the prohibitions of these conditions by the code. An October 8, 1979, a second inspection was conducted by a Department administrative inspector based on the architect's report of premature occupancy. This inspection revealed that ten of the 15 new beds were occupied and had been occupied for a total of more than 55 patient days without proper licensure, which includes the period the safety deficiencies existed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law the Hearing Officer recommends that the $5,000 fine be levied against the Respondent, Washington Manor Nursing and Rehabilitation Center. DONE and ORDERED this 2nd day of July, 1980, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Harold L. Braynon, Esquire Department of HRS 800 West Oakland Park Boulevard Fort Lauderdale, Florida 33311 Myron J. Sponder, Esquire Washington Manor Nursing and Rehabilitation Center 4200 Washington Street Hollywood, Florida 33021
