The Issue The issue is whether Respondent's tentative award to Intervenor of a contract to construct and install a water pipeline should be invalidated because of fraud, arbitrariness, illegality, or dishonesty.
Findings Of Fact In November 1999, Respondent issued a Project Manual containing an invitation to bid for a contract to furnish labor and materials to construct a water pipeline from the Peace River water plant in Charlotte County to the DeSoto County line (ITB). ITB Instructions to Bidders Section 4.9 provides: The submission of a Bid will constitute an incontrovertible representation by BIDDER . . . that without exception the Bid is premised upon performing and furnishing of labor, services, equipment and materials required by the Bidding/Contract Documents in accordance with such means, methods, techniques, sequences or procedures of construction as may be indicated in or required by the Bidding/Contract Documents . . .. ITB Instructions to Bidders Section 6.1 states: The BIDDER shall use the Bid Form included with the Bidding/Contract Documents. Failure to use the Bid Form shall result in the Bid being declared unresponsive. No changes shall be made in the phraseology or format of the forms. All blanks on the Bid Form must be completed in ink or by typewriter. ITB Instructions to Bidders Section 6.6 requires that a Pipe Manufacturer's Commitment, on the supplied form, accompany each bid. The Pipe Manufacturer's Commitment states that the pipe manufacturer, which signs the form, acknowledges that the bidder shall assign all warranties and that the pipe manufacturer shall give Respondent an express warranty that, among other things, the "materials . . . have been manufactured and supplied in strict accordance with the requirements of the Contract Documents " ITB Instructions to Bidders Section 6.7 provides that any bid "may be deemed unresponsive which contains omissions, erasures, alterations, or additions of any kind, . . . or which in any manner should fail to conform to the requirements of the Bidding/Contract Documents." ITB Instructions to Bidders Section 7.1 states: A contract shall be awarded, if at all, on the basis that the BIDDER awarded the contract shall furnish only items of material and equipment named or specified in the Bidding/Contract Documents as advertised or modified by addenda. Each BIDDER shall list the manufacturers and suppliers to whom that BIDDER intends to award subcontracts for furnishing each selected named or specified item. Substitutes shall not be considered until after the notice of award. ITB Instructions to Bidders Section 9.2 authorizes Respondent, "after due evaluation of a bid," to request the BIDDER to remove or replace a subcontractor or supplier, if Respondent has an objection to the subcontractor or supplier. ITB Instructions to Bidders Section 10.2 provides that Respondent shall retain the bid bond, which is five percent of the base bid price, until the bidder has executed the contract. ITB Instructions to Bidders Section 13.1 states that all bids shall remain subject to acceptance for 90 days after the bid opening, and Section 13.2 provides that Respondent may agree with one or more bidders to extend this time for acceptance. ITB Instructions to Bidders Section 14.1 reserves to Respondent [BOLD] "THE RIGHT TO REJECT ANY AND ALL BIDS AS MAY BE DEEMED NECESSARY BY THE AUTHORITY, IN ITS SOLE AND ABSOLUTE JUDGMENT, TO BE IN ITS BEST INTEREST." [BOLD] ITB Instructions to Bidders Section 14.2 reserves to Respondent the right to waive "any and all informalities," as well as "mistakes, errors, or noncompliance with the requirements of these Bidding/Contract Documents, which may be committed by a BIDDER or BIDDERS, when it is deemed by the AUTHORITY to be in its best interest." ITB Instructions to Bidders Section 14.6 authorizes Respondent to enter into negotiations with the "qualified, responsible and responsive bidder" that submits the lowest bid. ITB Instructions to Bidders Section 14.8 authorizes Respondent to "consider all matters deemed relevant to the Project by the AUTHORITY" in "evaluating the Bids." These matters may include "whether or not the Bids comply with the prescribed requirements . . ., as may be requested in the Bid Form " ITB Instructions to Bidders Section 16.3 warns that a failure to timely protest the bid specifications waives the right to dispute the specifications. The Bid Form contains several Bid Schedules, generally divided by the size of the pipe. This case involves the responsiveness of Intervenor's bid regarding the 42-inch pipe. The Construction Contract notes that the purpose of the contract is, among other purposes, the construction of 6100 feet of 42-inch ductile iron pipe. Construction Contract Article 1.B.3 incorporates by reference the specifications included in the Project Manual. Construction Contract Article 20.F states that the CONTRACTOR's entitlement to compensation "is premised upon performing and furnishing the labor, services, equipment and materials required to complete the Project described in the Contract Documents " Bid Contract Section 02511 contains the specifications for the 42-inch pipe. Section 02511, Part 2, describes the ductile iron pipe itself. Petitioner and Intervenor timely submitted bids in response to the ITB. Petitioner's base bid price was $6,822,683, which includes $467,325 for the 3015 linear feet of 42-inch ductile iron pipe on Bid Schedule B and $466,560 for the 2880 linear feet of 42-inch ductile iron pipe on Bid Schedule C. Intervenor's base bid price was $6,464,990, which included $491,445 for the 3015 linear feet of 42-inch ductile iron pipe on Bid Schedule B and $420,480 for the 2880 linear feet of 42-inch ductile iron pipe on Bid Schedule C. The bids of Petitioner and Intervenor each contained a Pipe Manufacturer's Commitment, in the form described above. Petitioner's pipe manufacturer was American Cast Iron Pipe Co., and Intervenor's pipe manufacturer was U.S. Pipe and Foundry Co. (US Pipe). However, Intervenor's bid contained one document not contained in Petitioner's bid. Intervenor's Bid Schedule-- Summary, which is a form summarizing the total base bid price, contains a handwritten note beside an asterisk at the bottom of the page. The asterisk corresponds to another handwritten asterisk beside "Base Bid Price." The handwritten note states: Note: Kenko has based this bid on a quote from U.S. Pipe and Foundry including the attached letter from U.S. Pipe and Foundry dated December 21, 1999, stating that materials will be in accordance with ANSI/AWWA Standards. The December 21 letter, which is part of Intervenor's bid, is on US Pipe stationary and addressed to "Prospective Bidding Contractors." Referencing the subject procurement, the December 21 letter states in its entirety: U.S. Pipe & Foundry Co., Inc. is pleased to be able to provide you with pricing for the above mentioned project. We do however make the following notations: U.S. Pipe & Foundry, Inc. cannot supply the 42" material in accordance with the specifications as written. Several conversations with the engineer have lead [sic] us to believe that concessions of the specifications will be made to allow U.S. Pipe & Foundry, Inc. to make the 42" material acceptable [sic] to ANSW/AWWA Standards. However, U.S. Pipe & Foundry, Inc. will accept no liability if the 42" material is not accepted or approved. U.S. Pipe & Foundry, Inc. will provide all material in compliance with ANSI/AWWA standards. The December 21 letter is signed by Kevin R. Stine, Senior Sales Representative of US Pipe. The December 21 letter follows an exchange of correspondence and memoranda among US Pipe, Respondent, and Respondent's project engineer, Post, Buckley, Schuh and Jernigan, Inc. (Post Buckley). By letter dated December 15, 1999, from Mr. Stine of US Pipe to Thomas F. X. Flynn, professional engineer and vice president of Post Buckley, with a copy to Patrick Lehman, Respondent's executive director, US Pipe stated: A review of the specifications for the above referenced project determines some requirements with which United State Pipe and Foundry Company, Inc. is unable to comply. The following is a partial listing: Proof of Design Testing--Our cement mortar lining meets the requirements of ANSI/AWWA C104/A21.4 and has been found to meet the service requirements imposed. Given the requirements of hydrostatic testing two joined pieces of pipe to 500 p.s.i., dewatering the assembly, allowing three days to dry, then sound the lining for disbondment, U.S. Pipe cannot guarantee the disbondment will not exceed the area quantity specified. Furthermore, this test requires pipe of minimum of 10-foot length. Our test press, which will be required to test TYTON JOINT? pipe, can only accommodate a maximum length of 15 feet. Charpy Impact Coupons--It is neither our standard practice, nor a requirement of ANSI/AWWA C151/A21.51, to evaluate and record the microstructure of Charpy coupons. Autogenous Healing--The Proof of Autogenous Healing testing required may incur an tenure of several months to perform. This could easily compromise the completion of the project within the specified term. Fittings Fabrication--Our fittings are fabricated, tested and lined and coated at our Chattanooga Fittings Facility, not where our pipe is manufactured. Fittings Pressure Test--Not all sizes of fittings can be pressure tested to 500 psi for 10 seconds. However, all sizes are pressure rated above the field test requirements and service requirements. In summation, Unites State Pipe and Foundry Company, Inc. has the ability to provide product which will meet the service requirements of this project, manufactured strictly in accordance with the American National Standards ANSW/AWWA C151/A21.51, ANSI/AWWA C104/A21.4 and ANSI/AWWA C115/A21.15 and United States Pipe and Foundry Company, Inc. manufacturing procedures only. The project specification requirements, included but not limited to, the method of calculating pipe weights, serializing pipe, annealing rejecting criteria, cement lining crack designations, cement lining disbondment testing and designation of where fittings will be lined and tested, will not be adhered to. Please feel free to contact me regarding our concerns of the specifications. We would be unable to supply material for this project according to the current specifications. Unless the specifications are changed, United States Pipe and Foundry Company, Inc. will not bid to supply pipe to this project. By memorandum dated December 15, 1999, Mr. Lehman requested Mr. Flynn and two other Post Buckley representatives, John Eash and Ken Wilson, to respond to the US Pipe December 15 letter. His memorandum notes that Respondent received the US Pipe December 15 letter after the deadline for questions, but adds that they should resolve any technical issues raised by the US Pipe December 15 letter. By memorandum dated December 17, 1999, from Dick Powell of US Pipe to Mr. Wilson, US Pipe offered alternative specifications for the 42-inch ductile iron pipe. The letter notes that Mr. Powell has been unable to submit the bid specifications to US Pipe specialists, as Mr. Wilson had requested, but would be able to do so during the week of December 20. By letter dated December 20, 1999, from Mr. Stine to Mr. Wilson, US Pipe informed Post Buckley that it would bid 42- inch ductile iron pipe, "with the following exceptions to the 42" only specifications as discussed" by Mr. Wilson and Mark Troyanowski, US Pipe Assistant Southern Regional Sales Manager. The letter states the following exceptions: Section 1.08 Quality Assurance--Paragraph B.4.--Add [BOLD] "Serial numbering of pipe will commence at the standard location that is normally adhered to during the manufacturing process." [BOLD] Section 1.09 Suppliers Qualifications-- Paragraph A.2.--"Fittings may be fabricated at a site other than where the pipe is manufactured and all testing and applications of lining and coatings [BOLD] may be performed at the manufacturing facility of the fittings." [BOLD] Section 1.10 Proof of Design Tests-- Paragraph C and D--U.S. Pipe takes exception to these design tests. U.S. Pipe will furnish cement mortar lining in accordance with ANSW/AWWA C104/A21.4. However, U.S. Pipe will supply written documentation from the Ductile Iron Research Association (see enclosed) that autogenous healing does occur and will work on U.S. Pipe's cement mortar lining. Section 1.11 Shop Tests--Paragraph E.1.-- [BOLD] "Each pipe prior to mortar lining shall be hydrostatically tested to 500 psi or 75% of yield for at least 10 seconds. Each fitting prior to mortar lining shall be hydrostatically tested to 250 psi for at least 10 seconds." [BOLD] We thank you for your time and consideration. If you have any questions, please feel free to call me. Intervenor's representative responsible for submitting its bid received the US Pipe December 21 letter less than one hour prior to the deadline for submitting bids. Forced to make a crucial decision under the twin pressures of little time and no guidance from his superiors, Intervenor's representative chose the more cautious path of conditioning Intervenor's bid by including with the bid the asterisked, handwritten note on the Bid Schedule--Summary and a copy of the US Pipe letter. By letter dated December 21, 1999, from Mr. Wilson to Mr. Stine, Post Buckley informed US Pipe that it had received the letter of December 20 from Mr. Stine to Mr. Wilson, but that "any exceptions to the Contract Documents may be cause for bid rejection." The letter adds, "We would like to make it clear that there has been no official acceptance of the exceptions taken as listed in your faxed letter." The day after the bid opening, discovering that it was the low bidder, Intervenor, through its president, Jeffrey McGrand, spoke by telephone with Mr. Flynn and asked how to withdraw the "exception," as Mr. Flynn characterized the above- described conditions accompanying Intervenor's bid. On the same day, December 22, Mr. J.M. LaRock, Southern Sales Manager of US Pipe, sent a letter to Intervenor stating that, "[a]fter several conversations with Mr. . . . Wilson[,] it has become apparent to us that the verbal concessions we have been given will become a reality. In view of their willingness to compromise on some of the specifications which would exclude all but one pipe manufacturer, we believe it will be unnecessary to qualify our bid to you." By letter dated December 27 from Mr. Flynn to Mr. McGrand, Post Buckley acknowledged that Respondent had received a letter dated December 22 from Mr. McGrand asking Respondent to disregard the handwritten, asterisked note added to Intervenor's bid. Mr. Flynn's letter notes, though, that Intervenor's bid contained the US Pipe letter advising that it could not supply compliant 42-inch pipe. Mr. Flynn's letter continues: This contradiction must be resolved before we can recommend to the Authority staff the award of the contract to your company. I suggest that you furnish a letter from a senior official of U.S. Pipe (that is, an individual who has authority over the production and testing of the pipe and who can commit to compliance with the specifications) refuting Mr. Stine's statement on the inability of U.S. Pipe to furnish the material as specified. If the contradiction cannot be resolved in the manner described, then [Intervenor] must name a supplier for the 42-in. pipe that can meet the specifications, with no change in the bid price, for us to recommend to the Authority that the contract be awarded to [Intervenor]. If you follow this course, please submit the Pipe Manufacturer's Commitment from that supplier. The second statement in Mr. Stine's letter says "Several conversations with the engineer have lead (sic) us to believe that concessions of (sic) the specifications will be made . . .." Be assured that the engineer [Post Buckley], made no statements before the bid opening that would have led anyone to believe that concessions would be made to the specifications as bid. While Mr. Stine's statement doesn't directly relate to the formality of the bid process, it does suggest that [Post Buckley] would fail in our duty to our client, and we reject that notion. We request, if another letter from U.S. Pipe is to be forthcoming, that Mr. Stine's statement in this regard also be refuted. The next meeting of the Authority Board of Directors is on . . . 5 January 2000. Mr. Lehman intends to recommend to the Board award of the contract at that meeting. . . . we will need, in hand, the resolution of the matter discussed in this letter by the close of business in Sarasota tomorrow, 28 December. In a telephone conversation the next day between Mr. Flynn and Mr. LaRock, Mr. LaRock continued to ask whether Respondent would relax the specifications to which US Pipe had taken exception, and Mr. Flynn stated that Respondent would not do so. At the end of this conversation, Mr. LaRock advised Mr. Flynn that US Pipe representatives would discuss the matter the following day and decide then what to do. The next day, US Pipe representatives decided that they could conform to the specifications. By letter dated December 29, 1999, from Mr. LaRock to Intervenor, US Pipe asked that Intervenor "[p]lease disregard previous correspondence from us regarding this project. It is our intention to furnish the materials for referenced project as per the specifications issued." By letter dated December 30, 2000, Mr. Eash advised Mr. Lehman that Post Buckley found that the apparent low bidder was Intervenor. The letter notes the handwritten, asterisked note in Intervenor's bid, but adds: "After the bid opening, [Intervenor] requested in writing that the note be disregarded and that they take no exception to the Contract Documents. In addition, United States Pipe and Foundry Company declared in writing its intention to furnish the materials per the specifications." The letter recommends that Respondent award the contract to Intervenor, and Respondent eventually did so. At no time did Respondent or its agent, Post Buckley, ever modify, orally or in writing, the subject specifications concerning the 42-inch ductile iron pipe. Respondent and Post Buckley prepared these specifications based on their intention that this buried pipe convey water for at least 50 years. No bidder or prospective bidder challenged the specifications. At no time did Respondent ever receive any communication, orally or in writing, from US Pipe that it was withdrawing its exception to the specifications. But for the letters of December 22 and 29 from US Pipe to Intervenor, Respondent would have found Intervenor's bid nonresponsive. As late as December 28--one week after bid opening--US Pipe continued to reserve to itself the decision whether to go forward with the contract. The present record leaves little room for doubt concerning the materiality of the difference between what Respondent specified and what Intervenor (and US Pipe) offered. Among Respondent, Intervenor, US Pipe, and Post Buckley, US Pipe possessed the most knowledge concerning 48-inch pipes, and US Pipe consistently excepted to the specifications until eight days after bid opening. Insisting that US Pipe definitively withdraw its exceptions, Post Buckley wisely treated the exceptions as a material variance from the specifications, rather than a minor irregularity whose existence would not interfere with the execution of an enforceable construction contract. The materiality of the difference between the pipe specified and the pipe bid gave Intervenor a unilateral option on the contract that other bidders were obviously denied. By allowing Intervenor to withdraw the exceptions after bid opening, Respondent effectively gave Intervenor a free look at the contract. Until the conditions were withdrawn by Intervenor and US Pipe, whose participation in the formation of the contract between Intervenor and Respondent was substantial, Intervenor and Respondent could not reached a mutually enforceable contract. Under the circumstances, Respondent’s award of the contract to Intervenor is manifestly unfair to the other bidders and undermines the integrity of the bidding process. In the eight days following bid opening, Intervenor enjoyed the unfair advantage, not shared by other bidders, of analyzing the job and its bid, knowing that the absence of an enforceable contract would allow it to walk away from the job with impunity. That Intervenor did not walk away from the job means only that the post-bidding analysis disclosed that the job would be profitable. Intervenor relies on various provisions of the ITB to support Respondent’s decision to award the contract to Intervenor. This reliance is misplaced. For instance, the ITB requires the winning bidder to provide labor and materials in strict conformity with the specifications; however, Intervenor and US Pipe improperly conditioned the specifications with which Intervenor was willing to comply. The Pipe Manufacturer’s Commitment likewise does not cure the conditions improperly contained in Intervenor’s bid; the commitment assures only that the pipe will conform to the requirements of the contract documents, which, again, Intervenor and US Pipe improperly altered. Other ITB provisions reserve to Respondent the right to waive minor irregularities, to negotiate with the winning bidder, or to allow the winning bidder to substitute suppliers and manufacturers; however, these provisions apply only to bids that are responsive to the ITB.
Recommendation It is RECOMMENDED that the Peace River/Manasota Regional Water Supply Authority enter a final order rejecting Intervenor’s bid. DONE AND ENTERED this 30th day of March, 2000, 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 30th day of March, 2000. COPIES FURNISHED: Joseph W. Lawrence, II Vezina, Lawrence & Piscitelli, P.A. 350 East Las Olas Boulevard Suite 1130 Fort Lauderdale, Florida 33394 Mary M. Piccard Vezina, Lawrence & Piscitelli, P.A. 318 North Calhoun Street Tallahassee, Florida 32301 Gary A. Vorbeck Vorbeck & Vorbeck, P.A. 207 East Magnolia Street Arcadia, Florida 34266 Donald E. Hemke Carlton Fields Post Office Box 3239 Tampa, Florida 33601-3239 Patrick J. Lehman, Executive Director Peace River/Manasota Regional Water Supply Authority 18911 Dam Road Bradenton, Florida 34206
The Issue Whether petitioner should take disciplinary action against respondent for the reason alleged in the administrative complaint?
Findings Of Fact Respondent acknowledges the accuracy of the allegations in the first seven paragraphs of the administrative complaint, including the allegation that he holds a certified residential contractor's license, No. CR C027268. He has been licensed in Florida continuously since October of 1983. Petitioner's Exhibit No. 1. On August 14, 1986, respondent Stratton, doing business as Stratton Construction Company, executed a written contract with Aaron Lee and Valerie Patrice Cobb to renovate their home at 5017 Pearl Street in Jacksonville, Florida. He had actually begun work nine days earlier. The contract contemplated installation of a pier under an unsupported sill end, replacement of 17 windows and two doors, hanging a screen door and a storm door, shortening and capping the chimney, adding a roof over the front stoop, reshingling the entire roof, painting the outside of the house, and putting hose bibbs in the front and the rear of the house. In addition, the contract called for extensive work inside the house, replacement of sheetrock, installation of insulation, congoleum, carpeting, paneling, cabinets, new kitchen and bedroom appliances, a new central heating system, and numerous other improvements and repairs. The contract price totalled $18,600, including $2,071 for a utility room. ("Remove back porch and drop flooring to allow enough height to construct 8 foot by 8 foot utility room ... inside walls unfinished ...") Petitioner's Exhibit No. 1. Exclusive of plumbing, electrical, heating, and the utility room, the value of the repairs and renovations exceeded $200.00. As "Stratton Const." respondent contracted with Williams Plumbing Co., Inc. (Williams) on September 8, 1986, to re-pipe, install a working machine drain and furnish a water closet. Respondent's Exhibit No. 3. Respondent or Williams on his behalf obtained a plumbing permit from the City of Jacksonville, No. 25997, at or about the time Williams began work, but Williams "left town" (T.43) before the project was inspected by the City. On October 2, 1986, respondent contracted with Wayne Conn Plumbing (Conn) to do additional plumbing work. In order to obtain a plumbing permit for the additional work, respondent cancelled the first permit. (T.34) The same day he signed the contract with Conn, respondent obtained a second plumbing permit, No. 28215. Respondent's Exhibit No. 1. Conn finished the plumbing work, and it passed inspection by the City. Earlier, on September 5, 1986, respondent or a subcontractor obtained a City permit authorizing electrical work at 5017 Pearl Street. On October 8, 1986, respondent or a subcontractor obtained a mechanical permit for the house's new heating system. In due course, the work authorized by these permits passed City inspections. Petitioner's Exhibit No. 7. Before he began work on the Cobb's house, Mr. Stratton had only built new homes in Florida. He was unaware of any requirement to obtain a permit to effect repairs to the interior of a house other than those he did in fact obtain. He was aware, however, of the need to secure a building permit for construction of the utility room, involving, as it did, alterations to the foundation. Nevertheless, he only applied for this permit on June 11, 1987, long after the work had been completed, and after he had become embroiled in a dispute with the Cobbs. Jacksonville's Building Code, Part 4, makes it unlawful to begin work to contract, enlarge, alter, repair, move, remove or demolish a building or structure, or a part thereof ... without having first filed an application with and obtained a permit therefor from the Building official, except that, for general maintenance or repairs, not involving replacement of components specifically requiring permits, which do not change the occupancy or affect the electrical, plumbing or mechanical systems, the value of which does not exceed two hundred dollars ... no permit shall be required ... Petitioner's Exhibit No. 4, p. 5. In beginning work without a permit to remove the back porch or to replace it with a utility room or to effect general repairs the value of which exceeded two hundred dollars, respondent violated applicable provisions of a local building code. The evidence suggested that the requirement that contractors obtain permits to effect general repairs with a value in excess of two hundred dollars is more honored in the breach than in the observance. In fact, respondent testified that somebody told him no permit is needed "if you don't change the size of the building," (T.46) i.e., alter the foundation. The Building Code also calls for mandatory inspections of foundations and framing as they are completed, but a building inspector testified that inspection of pre-formed concrete piers like those on which the utility room stands would have been foregone. Because the addition stood on (new) piers and because its interior walls remained unfinished, it was possible for the City to inspect both the foundation and the framing, even after the work was finished. John Carlton Sturdevant, a field inspector for Jacksonville's Building and Zoning Department, saw nothing wrong with the framing, nor was there evidence of any problem with the foundation.
The Issue The issue is whether Palm Beach County's application for a permit to construct a domestic wastewater collection/transmission system in Palm Beach County should be approved.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Parties The County is a political subdivision of the State of Florida and is the permittee in this matter. The County Water Utilities Department currently serves approximately 425,000 persons, making it the largest utility provider in Palm Beach County and the third largest in the State of Florida. ITID is an independent water control special district created by special act of the legislature in 1957 and whose boundaries lie within the County. Portions of the transmission line to be constructed by the County will cross easements and roads, and pass under canals, owned by ITID. Petitioners Joseph Acqualotta, Michael D'Ordine, Ann Hawkins, and Lisa Lander all live in areas in close proximity to the proposed transmission line. Lander lives adjacent to the proposed route of the line along 40th Street North, while Acqualotta, D'Ordine, and Hawkins live adjacent to the proposed route along 140th Avenue North. Acqualotta, Hawkins (but not D'Ordine, who resides with Hawkins), and Lander own the property where they reside. Petitioners Troy and Tracey Lee (Case No. 05-2979), Lisa Gabler (Case No. 05- 2980), and Anthony and Veronica Daly (Case No. 05-2982) did not appear at the final hearing. The Department is an agency of the State of Florida authorized to administer the provisions of Part I of Chapter 403, Florida Statutes, and is the state agency charged with the responsibility of issuing domestic wastewater collection/ transmission permits under Section 403.087, Florida Statutes (2004).1 Background On December 15, 2004, the County filed its application with the Department for an individual permit to construct a domestic wastewater collection/transmission system (Transmission Line). The Transmission Line is one element of the County's Northern Region Utilities Improvement Project (Project) and will be approximately 41,050 feet long and comprised of approximately 32,350 linear feet of 20-inch force main and 18,700 linear feet of 30-inch force main (or nearly ten miles in length). A primary purpose of the Project is to provide water and wastewater service to the Village, a 1,900 acre parcel located in the unincorporated part of the County several miles west of the Florida Turnpike, south of State Road 710, and north of the Villages of Wellington and Royal Palm Beach. The Village will be the home of the Scripps Project and Campus. The Transmission Line will run from the southeastern corner of the Village south to Northlake Boulevard, then east to 140th Avenue North, then south along that roadway to 40th Street North, where it turns east until it interconnects with existing facilities. The wastewater will be collected in a regional pump station on the Scripps Project site, where it will be pumped through the Transmission Line to the East Central Plant, which will be the primary treatment facility. The East Central Plant is owned and operated by the City of West Palm Beach (City), but the County owns between forty and forty-five percent of the treatment capacity. Because the wastewater system is interconnected, the wastewater could also be treated at the County's Southern Regional Plant. Ultimately, the flow from the Scripps Project will be one or two million gallons per day. The Transmission Line is the only way that wastewater can be handled at the Scripps Project. A preliminary analysis by the Department and the South Florida Water Management District determined that on-site treatment was not feasible because of the environmentally sensitive nature of the area. The Scripps Project will include residential units, commercial entities, and institutional uses, such as medical clinics. Besides serving these customers, the Transmission Line will also serve other customers in the area. The County has already signed agreements with the Beeline Community Development District (which lies a few miles northwest of the Village) and the Village of Royal Palm Beach (which lies several miles south-southeast of the Village). At the time of the hearing, the County anticipated that it would also sign an agreement with Seacoast Utility Authority (whose service area is located just southeast of the Village) to transport wastewater through the Transmission Line. All of the treatment facilities have sufficient existing capacity to treat the estimated amount of domestic wastewater that will be generated by the Scripps Project and the other users that will discharge to the Line. The County commenced construction of the Transmission Line in May 2005 when the Department issued the Permit. On August 2, 2005, the County published the Department's Notice to issue the Permit, and once the Petitions were filed, the County stopped construction pending the outcome of this hearing. Approximately seventy percent of the Transmission Line is now completed. The Permit does not allow the Transmission Line to be used until it is pressure tested and certified complete. Upon completion, the County must receive an Approval to Place a Domestic Wastewater Collection/Transmission System into Operation from the Department. Such approval is given only after the County has given reasonable assurance that adequate transmission, treatment, and disposal is available in accordance with Department standards. See Fla. Admin. Code R. 62-604.700. On August 15, 2005, Petitions challenging the issuance of the Permit were filed by ITID and the individual Petitioners. ITID contends that the Transmission Line will convey not only domestic wastewater, but also industrial waste; that the County did not comply with all applicable technical standards and criteria required under the Department's rules; that the Project will be located on ITID's right-of-way, on which the County has no right to occupy; that the Project will be located within seventy-five feet from private drinking wells and does not provide an equivalent level of reliability and public health protection; and that the pipe material and pressure design is inappropriate for the Transmission Line's requirements. The individual Petitioners (who filed identical Petitions) are mainly concerned about the location of the Transmission Line in relation to their private drinking wells and property, the possibility of the pipe bursting or leaking once it becomes operational, and the restoration of their property to its original condition after construction is completed. As to the property claims by all Petitioners, the County plans to place the Transmission Line in property that it either owns or has an easement, in property that it is in the process of condemning, or in a public right of way. While the County acknowledges that it has already placed, and intends to place other portions of, the Transmission Line in easements that ITID says it has the exclusive right to use and for which a permit from ITID is required, the County alleges that it also has the right to use those easements without an ITID permit. The dispute between the County and ITID is the subject of a circuit court proceeding in Palm Beach County, and neither the Department nor DOAH has the authority to decide property interests. Petitioners' Objections Domestic wastewater and pretreatment The wastewater that will be generated by the Scripps Project is considered domestic wastewater; it will not include industrial wastewater. Waste that is industrial or non- domestic must be pretreated to protect the wastewater plant, collection system, and the health of system workers and the general public. The Department administers a pretreatment program through which it requires a public wastewater utility to police the entities that discharge to their wastewater plants. A central part of the pretreatment program is the local ordinance that gives legal authority to the utility to permit, inspect, and take enforcement action against industrial users who are part of the pretreatment program. The utility files an annual report with an industrial user survey, and the Department periodically inspects and audits local pretreatment programs to ensure they are being operated as intended. The system is not failsafe but is designed to ensure that potentially harmful wastes are rendered harmless before discharge. For example, the utility has the authority to immediately shut water off if a harmful discharge is occurring. Both the County and the City have pretreatment programs approved by the Department. The City has an ordinance that allows it to enforce the pretreatment standards for all entities that discharge to its wastewater system. The County Water Utilities Department has a written pretreatment manual, and the County has zoning restrictions on the discharge of harmful material to the wastewater system. It has also entered into an interlocal agreement under which it agrees to enforce the City ordinance. The County provides wastewater treatment to industrial, educational, and medical facilities, and it has never experienced a discharge from any of these facilities that has caused adverse health or environmental impacts. The County pretreatment program for the Southern Regional Facility was approved in 1997. The City pretreatment program for the East Central Regional Facility was approved in 1980. The Scripps Project must apply for a permit from the County and provide a baseline monitoring report, data on its flow, and information on the flow frequency and raw materials. Medical waste from the Scripps Project will be pretreated to render it safe before it is discharged into the Transmission Line. Transmission Line Design The Transmission Line was designed in accordance with the technical standards and criteria for wastewater transmission lines in Florida Administrative Code Rule 62- 604.300(5). That rule incorporates by reference a set of standards commonly known as the Ten State Standards, which contain several of the standards used in the design of this project. These standards are recommended, but are not mandatory, and a professional engineer should exercise his or her professional judgment in applying them in any particular case. The Transmission Line also meets the design standards promulgated by the America Water Works Association (AWWA). Specifically, the County used the AWWA C-905 design standard for sizing the polyvinyl chloride, or PVC, pipe used in the project. The County has received written certification from the manufacturer that the PVC pipe meets the standards in AWWA C-905. The Transmission Line is designed with stub-outs, which will allow for future connections without an interruption of service, and inline isolation valves, which allow the line to be shut down for maintenance. The Use of PVC Pipe There is no standard regulating the selection of PVC pipe material in the Department's rules. Instead, the Department relies on the certification of the applicant and the engineer's seal that the force main will be constructed to accepted engineering standards. The only specification applicable to the Transmission Line is the Ten State Standard, adopted and incorporated by reference in Florida Administrative Code Rule 62-604.300(5)(g). That document contains a general requirement that the material selected have a pressure rating sufficient to handle anticipated pressures in wastewater transmission lines. The Transmission Line will be constructed with PVC piping with a thickness of Dimension Ratio (DR) 32.5, which is the ratio of the outside diameter of the pipe to its thickness. Higher ratios mean thinner-walled pipes. This is not the first time the County has used 32.5 PVC piping for one of its projects, and other local governments in the State have used 32.5 or thinner pipe. The County is typically conservative in requiring thicker-walled pipe, because most transmission lines are built by developers, and the County is unable to design the entire line or control or inspect its installation. The specifications for wastewater transmission lines built in the County call for the use of DR 25 pipe. On this project, however, the County determined that thicker- walled pipe would have been an over-design of the system because the County controls the pump stations and oversees the installation; therefore, the Director of the Water Utilities Department has waived that requirement. The County considers the use of DR 32.5 PVC to be conservative. Although this pipe will be thinner than what is typically used in the County, it satisfies the Department's requirements. The Department has permitted many miles of similar PVC force mains in South Florida, and none have failed. PVC has benefits over other transmission line material, such as ductile iron. For example, PVC is more corrosion resistant. Wastewater generates hydrogen sulfide as it decomposes, which can form highly corrosive sulfuric acid. Some of the older transmission lines in the County that were made of ductile iron have corroded. PVC also has a superior ability to absorb surges, such as cyclical surges, than ductile iron. It is easier to install, and its interior flow characteristics are smoother than ductile iron or pre-stressed concrete pipe. Mr. Farabee, a professional engineer who testified on behalf of ITID, recommended a DR 14 pipe, which is thicker- walled than the DR 32.5 pipe used by the County. While he opined that the DR 32.5 pipe was too thin for the project, he could not definitively state that it would not pass the 150 per square inch (psi) pressure test. He also opined that the pipe is undersized because it will be unable to withstand the surge pressures during cleaning. The witness further testified that the pipe would be subject to much higher pressures than 150 psi, and therefore it was impossible to know whether the pipe would fail. In his opinion, this means the Department did not have reasonable assurance for the project. The County consulted with the Unibell PVC Pipe Association (Unibell) in the planning of this project. Unibell is a trade association that provides technical support for PVC pipe manufacturers. Robert Walker, a registered professional engineer and Unibell's executive director who testified on behalf of the County, disagreed with Mr. Farabee's conclusions concerning the adequacy of the PVC pipe in this project. The AWWA C-905 standard uses a safety factor of two, which means the pipes are tested at pressures that are at least twice their stated design strength. Mr. Walker explained the different standards that apply to PVC pipe. DR 32.5 pipe, which is used in this project, has a minimum interior pressure rating of 125 pounds per square psi. Each pipe section is tested before it is shipped at 250 psi, and the minimum burst pressure for the material is in excess of 400 psi. The pipe also meets a 1000- hour test at 270 psi. In light of these standards and testing, the pipe will pass the two-hour 150 psi test required by the Department. Mr. Farabee expressed some concern that the PVC pipe would be more prone to breakage than ductile iron or thicker PVC. However, the PVC pipe standards provide that the pipe can be flattened at sixty percent without splitting, cracking, or breaking. At shallow depths on dirt roads, ovalation, which occurs when PVC is flattened through pressure, will initially occur, but over time the soil around the pipe will become compacted and result in re-rounding of the pipe. The joints are three times stiffer than the body of the pipe, which will protect the joint from excessive ovalation and leaking, and the use of mechanical restrained joints will further strengthen the joints. There has been no joint leakage in Florida due to deflection of the joints. Finally, there have been no failures of PVC pipe caused by three-feet of fill, which is the depth to which the Transmission Line pipe will be buried. To further protect the pipe, the County optimized its pumping system to avoid cyclical surges by using variable frequency drive pumps that gradually increase and decrease speed rather than just turning on or off. In addition, the pump stations are fed by two power lines that come from different directions and emergency generators, which should lessen the chances of harmful surging. Testing the Installation The anticipated pressures in the Transmission Line will likely be about 50 psi. After installation, the Line will be pressure tested at 150 psi for two hours, which is sufficient to provide the Department with reasonable assurance that the Line will hold pressure and will not leak. Also, the County contract inspectors are on the construction site daily. If problems with the installation arise later, the County has committed to promptly fix the problem, even if it means digging up the line. During the hearing, ITID asserted that the Uniform Policies and Procedure Manual standards, which the County has adopted for use by developers when constructing wastewater transmission lines, should be applied to the County as well. This standard, which requires pressure testing to 200 psi for PVC pipes larger than 24 inches, has not been adopted by the Department and is not an applicable Department permitting standard. Even if it did apply, the Transmission Line would meet this criterion because it is designed to withstand 270 psi for at least 1,000 hours. Mr. Farabee believed that the entire Transmission Line would be pressure tested after the construction was complete, which would require digging up sections of the pipe to install bulkheads. However, this assessment of the County's testing program is incorrect. Leisha Pica, Deputy Director of the Water Utilities Department, developed the schedule for the project, helped develop the phasing of the work and budget, and oversaw the technical aspects. She stated that the County has successfully tested approximately fifty percent of the line that was already installed at 150 psi for two hours and not a single section of the line failed the test. Compaction The County has stringent backfilling and compaction requirements, which are sufficient to ensure the pipe will be properly installed and that there will be adequate compaction of the fill material. The County plans and specifications provide that compaction must be to ninety-five percent of the American Association of State Highway and Transportation Officials (AASHTO) standards for non-paved surfaces and one hundred percent of AASHTO standards for paved surfaces. Even ITID's expert agreed that the compaction specifications are sufficient. Mr. Farabee contended, however, that even though the standards are stringent, the County cannot properly test the installation for compliance with the standards. Mr. Farabee believed that testing of the backfill would be done after all of the construction was complete. In that case, he did not see how the testing could be done without digging many holes to check for the density of the backfill. These assumptions, however, are incorrect. The evidence shows that a total of two hundred sixty-four compaction tests have already been done on the portion of the Transmission Line that was completed. No part of the installation failed the tests. The County has an inspector who observes the installation and pressure tests. The compaction was tested at every driveway and major roadway, as well as every five hundred feet along the route. While Lander and D'Ordine pointed out at hearing that no compaction tests have been performed on the dirt roads which run adjacent to their property and on which construction has taken place, the Department requires that, before the work is certified as complete, non-paved roads must be compacted in accordance with AASHTO standards in order to assure that there is adequate compaction of the fill material. The Sufficiency of the Application When an application for an individual transmission/ collection line permit is filed with the Department, the applicant certifies that the design of the pipeline complies with the Department's standards. However, not all of the details of the construction will be included in the permit application. The Department relies on the design engineer to certify that the materials used are appropriate. The application form is also signed and sealed by a professional engineer registered in the State of Florida. All plans submitted by the County, including the original, modifications, and final version, were certified by professional engineers registered in the State of Florida. After receiving the application, the Department requested additional information before issuing the permit, and the County provided all requested information. The original construction plans that were submitted with the application were changed in response to the Department's requests for additional information. The Permit issued by the Department indicates the Transmission Line would be constructed with ductile iron pipe, but this was a typographical error. ITID maintains that all of the technical specifications for the project must be included in the application, and because no separate engineering report was prepared by the County with the application, the County did not meet that standard. While the County did not submit an engineering report, it did submit sufficient data to provide reasonable assurance that the project will comply will all applicable rules of the Department. As a part of its application package, the County submitted construction plans, which contain the specifications required by the Department. Also, the general notes included in the construction drawings specify the use of restrained joints where appropriate, the selection of pipe material, the pressure testing of the Transmission Line, and other engineering requirements. In addition, the plans contain numerous other conditions, which are also specifications sufficient to fulfill the Department's requirements. Finally, further explanation and clarification of the technical aspects of the application was given by the County at the final hearing. At the same time, the Department engineer who oversaw the permitting of this project, testified that a detailed engineering report was not necessary. This engineer has extensive experience in permitting transmission lines for the Department and has worked on over five hundred permits for wastewater transmission and collection systems. The undersigned has accepted his testimony that in a relatively straightforward permit such as this, the application and attachments themselves can function as a sufficient engineering evaluation. This is especially true here since the County is seeking only approval of a pipeline project, which would not authorize the receipt of wastewater flow unless other wastewater facilities are permitted. Impacts on Public and Private Drinking Water Wells As part of the design of the Transmission Line, the County located public and private drinking water wells in the area of the line. County personnel walked the route of the Transmission Line and looked for private wells and researched the site plans for all of the properties along the route. No public wells were found within one-hundred feet of the Transmission Line route, but they did find seventeen private wells that are within seventy-five feet of the line. None of the Petitioners have private wells that are within seventy- five feet of the line. While Petitioners D'Ordine and Hawkins initially contended that the well on Hawkins' property was within seventy-five feet of the Transmission Line, at hearing Mr. D'Ordine admitted that he "misread the plans and referred to the wrong property." In order to protect the private drinking water wells, Florida Administrative Code Rule 62-604.400(1)(b) requires that the County provide an extra level of protection for the wells that are within seventy-five feet of the Transmission Line. The County will provide that extra level of protection by installing restrained joints that will restrain the joints between the pipe sections. The restrained joints are epoxy-coated mechanical devices that reduce the tendency for the pipes to separate under pressure. The County has used these restrained joints on its potable water and wastewater lines in other areas of the County and has never experienced problems with the devices. The restrained joints will provide reliable protection of the private wells within seventy-five feet of the Transmission Line. The Department is unaware of any instances where restrained joints have failed in South Florida. If more wells are discovered that are within seventy-five feet of the Transmission Line, then the County will excavate the Line and install restrained joints. Minimum Separation Distances The County has complied with all applicable pipe separation requirements in the installation of the Transmission Line. More specifically, it is not closer than six feet horizontally from any water main and does not intersect or cross any reclaimed water lines. See Fla. Admin. Code R. 62-555.314(1)(a). It will be at least twelve inches below any water main or culvert that it crosses. See Fla. Admin. Code R. 62-555.314(2)(a). Finally, it will be a minimum of twelve inches below any culverts that it crosses. (However, the Department has no separation requirement for culverts crossed by the Transmission Line.) h. The M-Canal Crossing The Transmission Line must cross the M-canal, which runs in an east-west direction approximately midway between 40th Street North and Northlake Boulevard. The original design called for the Transmission Line to cross above the water, but the City and the Department suggested that it be located below the canal to eliminate the chance that the pipe could leak wastewater into the canal. In response to that suggestion, the County redesigned the crossing so that a 24- inch high density polyethylene pipe in a 48-inch casing will be installed fifteen feet below the design bottom of the canal. The polyethylene is fusion-welded, which eliminates joints, and is isolated with a valve on either side of the canal. Appropriate warning signs will be installed. See Fla. Admin. Code R. 62-604.400(2)(k)2.-5. The depth of the subaqueous line and the use of the slip line, or casing, exceeds the Department's minimum standards. See Fla. Admin. Code R. 62-604.400(2)(k)1. i. Flushing Protocol Section 48.1 of the Ten State Standard recommends that wastewater transmission lines maintain a velocity of two feet per second. When the Transmission Line becomes operational, it will not have sufficient flow to flush (or clean) accumulated solids from the lines at the recommended two feet per second velocities. (Sufficient flow will not occur until other customers connect to the Transmission Line during the first one to three years of operation.) Accumulated solids produce gases and odors that could create a problem at the treatment plant and might leak out of the manhole covers. To address this potential problem, Specific Condition 9 of the Permit requires the County to flush the lines periodically. Pursuant to that Condition, the County plans to flush the Transmission Line with additional water which will raise the velocity to three or four feet per second, so that the accumulated solids will be flushed. The water will be supplied by large portable tanks that will be temporarily set up at several locations along the Line. During the purging of the Line, sewage will collect in the pump stations until the purge is finished. There is sufficient capacity in the pump stations to contain the wastewater. In addition, the County will use a cleansing tool known as a pig, which is like a foam bullet that scrapes the sides of the pipe as it is pushed through the line. This protocol will be sufficient to keep the Line clean. ITID asserts that the County's plan for flushing is inadequate, because it does not provide enough water for long enough to flush both the 20-inch and 30-inch lines. Mr. Farabee calculated that the County would need almost twice the proposed volume, or almost six million gallons, to adequately flush the lines. ITID's analysis of the flushing protocol is flawed, however, because it assumes a constant flow in all segments of the pipe, which is not practical. In order to maintain the flushing velocity of three feet per second, the County will introduce water into the Transmission Line at three separate locations, resulting in a more constant flow velocity throughout the Transmission Line. In this way, it can maintain the proper velocity as the lines transition from a 20-inch to 30-inch to 36-inch pipe. The County has flushed other lines in the past using this protocol and has had no problems. This flushing protocol would only be in effect from one to three years. The County estimates that the necessary volumes to maintain a two-feet-per-second velocity in the 20- inch line would be reached in about one year. The 30-inch line should have sufficient flows sometime in 2008. These estimates are based on the signed agreements the County has with other utilities in the area to take their flows into the Transmission Line. Because of these safeguards, the Transmission Line will not accumulate solids that will cause undesirable impacts while flow is less than two feet per second. Other Requirements The construction and operation of the Transmission Line will not result in the release or disposal of sewage or residuals without providing proper treatment. It will not violate the odor prohibition in Florida Administrative Code Rule 62-600.400(2)(a). It will not result in a cross- connection as defined in Florida Administrative Code Rule 62- 550.200. The construction or operation of the Transmission Line will not result in the introduction of stormwater into the Line, and its operation will not result in the acceptance of non-domestic wastewater that has not been properly pretreated. If constructed and permitted, the Transmission Line will be operated so as to provide uninterrupted service and will be maintained so as to function as intended. The record drawings will be available at the Department's district office and to the County operation and maintenance personnel. Finally, concerns by the individual Petitioners that the County may not restore their property to its original condition after construction is completed are beyond the scope of this proceeding. At the hearing, however, the Deputy Director of the Water Utilities Department represented that the County would cooperate with the individual property owners to assure that these concerns are fully addressed. Reasonable Assurance The County has provided the Department with reasonable assurance, based on plans, test results, installation of equipment, and other information that the construction and installation of the Transmission Line will not discharge, emit, or cause pollution in contravention of the Department's standards.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection enter a final order denying all Petitions and issuing Permit No. 0048923-017-DWC. DONE AND ENTERED this 18th day of October, 2005, in Tallahassee, Leon County, Florida. S DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 18th day of October, 2005.
Findings Of Fact The Respondent is a certified building contractor, having been issued license number CB C011621 as an individual contractor. The Petitioner is an agency of the State of Florida, having responsibility and authority to license building contractors and to regulate their licensure status and their standards of practice pursuant to Chapter 489, Florida Statutes. Sometime in December, 1979, the Respondent, doing business as Economy Steel Buildings, Inc., entered into a contract with Digital Machine and Tool Company to construct a steel building for that firm. The Respondent subsequently commenced the construction on land owned by Digital Machine and Tool Company and obtained a permit from Seminole County on December 6, 1979, authorizing the installation of a septic tank. On the face of the permit appeared language containing the specification that the "stub-out" or pipe exiting the septic tank be installed 12 inches above the original grade level. The Respondent observed that language on the face of the building permit and knew and understood its import, as his own testimony reveals. The Respondent subsequently subcontracted the installation of the septic tank to a company known as Al's Septic Tanks, which installed the tank and drain field during the early part of February, 1980. On February 10, 1980, an inspector for the Seminole County Health Department, Don Gross, inspected the septic tank installation and informed the subcontractor and the Respondent that it was not in conformance with Section 10D-6.25(2)(e), Florida Administrative Code, in that the subcontractor had not followed the instructions on the face of the building permit (12 inches above grade level), which were designed to satisfy that Administrative Code section. Sometime between February 10, 1980, and the end of April, 1980, the Respondent received a "Notice of Violation" from the Seminole County Health Department regarding the alleged improper installation of the septic tank. The Respondent admitted that sometime soon after installation of the septic tank he became aware that it did not pass the Seminole County Health Department inspection. The Respondent maintained that he made three attempts to contact the Health Department regarding the Notice of Violation during the month of April, 1980, but he introduced no competent, substantial evidence to show what efforts, if any, he made to correct the installation of the septic tank. There were ongoing disputes between Digital Machine and Tool Company, its representative, Galon Lyell, and the Respondent during this period, and on May 21, 1980, the Respondent was told to stay off the premises and perform no further construction on the site. There arose at about this time a civil dispute between the Respondent and Digital Machine and Tool Company which is outside the scope of this proceeding. In any event, the Respondent did not correct the installation of the septic tank and there is no question that the septic tank was not installed with the "stub-out" pipe 12 inches above the original grade level. Digital Machine and Tool Company later obtained a corrected installation of the septic tank so that it would be "stubbed-out 12 inches above original grade" from a different subcontractor, at its own additional expense, in the amount of $855. From the period of December, 1979, through the completion of the building for Digital Machine and Tool Company, the Respondent was performing contracting under the name of Economy Steel Buildings, Inc. The Respondent admitted that he was fully aware, as of November 19, 1979, that he could not properly perform contracting work under the name, Economy Steel Buildings, Inc., without properly qualifying that company. After a Notice of Violation (Respondent's Exhibit 6) was issued by the Construction Industry Licensing Board through Investigator Hunter, the Respondent was aware that contracting under an unqualified company name was improper. After that Notice of Violation, the Respondent made some attempts to separate his personal contracting business from that of his material supply company, Economy Steel Buildings, Inc. The Respondent, however, accepted payment for contracting and materials from his client, Digital Machine and Tool Company, for the subject project in the name of Economy Steel Buildings, Inc. The Respondent also paid Myron Roseland, a subcontractor, from Economy Steel Buildings, Inc.'s account for work attributable to the Digital Machine and Tool project. Finally, Petitioner's Exhibit 5 establishes that the Respondent attempted to discharge personal liability as a contractor, which attached to him through the Digital Machine and Tool Company project and other projects, by declaring bankruptcy pursuant to Chapter 11 of the Federal Bankruptcy Act as Economy Steel Buildings, Inc., since in that petition he listed numerous subcontractors, including Myron Roseland, who performed work on the Digital Machine and Tool Company job, as creditors of that corporation to be discharged. In summary, during the period of December, 1979, through the completion of the building for Digital Machine and Tool Company, the Respondent was performing contracting work as Economy Steel Buildings, Inc. During that time period, Economy Steel Buildings, Inc., was not properly qualified or registered with the Construction Industry Licensing Board by the Respondent, who was the owner and sole stockholder of Economy Steel Buildings, Inc.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, the evidence in the record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED: That a Final Order be entered by the Petitioner finding the Respondent guilty of the violations alleged in Counts III and IV of the Amended Administrative Complaint and imposing an administrative fine of $1,000. The administrative fine should be suspended in part, provided the Respondent provides proof within sixty (60) days from the date thereof that he has made restitution to Digital Machine and Tool Company for the $855 it had to expend to obtain correction of the improper septic tank installation, as well as restitution of monies owed to Mr. Myron Roseland attributable to the Digital Machine and Tool Company project, in which event the Respondent's fine should be reduced to $250. DONE AND ENTERED this 10th day of February, 1983, at Tallahassee, Florida. P. MICHAEL RUFF, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of February, 1983. COPIES FURNISHED: John O. Williams, Esquire 547 North Monroe Street Suite 204 Tallahassee, Florida 32301 James R. Lavigne, Esquire 1971 Lee Road Winter Park, Florida 32789 James Linnan, Executive Director Construction Industry Licensing Board Department of Professional Regulation Post Office Box 2 Jacksonville, Florida 32202 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
The Issue The issue posed for decision herein is whether or not the Respondent, Melvin Stewart, t/a Depar Motel, has engaged in acts and/or conduct, as more particularly set forth in the Notice to Show Cause filed herein, which warrants the Petitioner's proposed sanctions of suspending or revoking the Respondent's license to operate a motel or the assessment of a civil penalty.
Findings Of Fact Based upon my observation of the witness and his demeanor while testifying, the arguments of counsel and the entire record compiled herein, the following relevant facts are found. Melvin Stewart, trading as the Depar Motel, is licensed by the Petitioner and holds license control No. 23-13405H. The Depar Motel is situated at 301 Northwest 62nd Street, Miami, Florida, and is of concrete block and stucco construction. The motel has approximately sixty-three (63) rooms plus a bar and lounge. Rogers Brown is an inspector employed by the Petitioner since approximately 1976. During his tenure, there has been a brief hiatus in his employment during which time he was on leave with the Department of Health and Rehabilitative Services, State of Florida. During the course of his employment, Inspector Brown made a routine inspection of the Depar Hotel on February 7, 1979, and noted that the Depar Motel was not being properly maintained, for reasons set forth hereinafter for which the Respondent, Melvin Stewart, was cited as violating Chapter 509, Florida Statutes, and Rule Chapters 7C-1 and 7C- 3, Florida Administrative Code. Without reciting herein the numerous alleged violations set forth in the Notice to Show Cause /1 or reciting in toto inspector Brown's testimony, the following is a brief summary of the conditions he found at the Depar Motel during his inspection on February 7, 1979. Inspector Brown found that the fire extinguishers at the Depar Motel were located at travel distances of more than seventy-five (75) feet apart. He found inadequate electrical wiring in several rooms, in that electrical wires were burned and exposed, air conditioning wires were exposed in several apartments, electrical shaving receptacles were exposed, electrical wall sockets did not have adequate cover plates and several rooms had no sockets in the bedrooms and bathrooms. (Apartments 33, 51, 10 and 19.) Inspector Brown found several apartment doors with improper locking devices; were poorly sealed; had loose door frames and broken jalousies in the doors and windows. (Apartments 13, 7, 15, 17, 27, 30, 32, 33, 34, 39, 40, 52 and 55.) He also found several rooms which had holes in the bathrooms and living room walls. (Apartments 7, 8, 16, 17, 18, 19, 24, 33, 39, 49, 52, 55, 57 and 59.) Inspector Brown also found several apartments which had inoperable jalousie windows and doors. (Apartments 4, 5, 11, 15, 24, 32, 33, 34, 37, 38, 39, 52, 57 and 60.) Inspector Brown found several rooms with clogged plumbing drains and he observed standing water in several plumbing fixtures, (Apartments 7 and 4.) He also found leaking faucets and hot water handles missing in several apartments. (Apartments 4, 16, 40, 52, 55 and 59.) Inspector Brown also found that several apartments lacked screen windows and that the screen windows in several apartments were torn. (Apartments 1, 4, 8, 10, 12, 15, 28, 29, 32, 34, 40, 51 and 60,) He also observed rodent droppings and roaches in several apartments. (TR. 70-73.) Inspector Brown found weeds, trash and debris outside the building. He noted that several apartments had soiled mattresses and in others the mattresses had no covers. (Apartments 4, 6, 30, 32 and 33.) Finally, Inspector Brown testified that the Respondent did not have on file with the Division a form No. 208, which is required of all licensees. 2/ Chapter 7C-3.02, Florida Administrative Code. The Respondent did not offer any witnesses to refute the charges set forth herein in the Notice to Show Cause or to counter the credited testimony of Inspector Rogers Brown.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED: Upon issuance of the Division of Hotels and Restaurants' Final Order herein, the Respondent's license be suspended for a period of one (1) year with the suspension held in abeyance for a period of thirty (30) days, during which time the Respondent be allowed an opportunity to correct the deficiencies cited in the Notice to Show Cause filed herein. In the event that Respondent fails to correct the deficiencies as set forth in the referenced notice during the allowable period, Petitioner shall be authorized to immediately suspend Respondent's license for a period of one (1) year without the necessity for further hearing. Section 509.261(3)(a), Florida Statutes. RECOMMENDED this 7th day of April, 1980, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings 101 Collins Building Tallahassee, Florida 32301 (904) 488-9675
The Issue The issue for consideration in this case is whether sufficient grounds exists for the Petitioner, West Coast Regional Water Supply Authority, to terminate Respondent, Steve Toler, Jr.'s employment with the Authority because of the matters alleged in the Letter of Termination dated February 15, 1995.
Findings Of Fact At all times pertinent to the allegations herein, the Petitioner, Authority, was a governmental agency with membership held by Hillsborough, Pinellas and Pasco Counties and the cities of St. Petersburg and Tampa. It is charged with the responsibility of providing water resource management for its members. In November, 1994, the Respondent, Steve Toler, Jr., then employed for 9 1/2 years by the Authority as a maintenance technician, was under the supervision of Ben Nevel, lead supervisor for his crew and Harry Vogel, the facilities maintenance supervisor at Cypress Creek pump station. Just before Thanksgiving that year, his crew was given the responsibility of removing certain supposedly above ground aluminum pipe belonging to Pinellas County and replacing it with buried PVC pipe on the county's well field on Cross Bar Ranch, owned by Pinellas County. On the last day of the project Respondent was working by himself at the job site doing those things necessary to complete the project. This included removing three aluminum pipes and replacing them with three PVC pipes. In the course of the removal of the aluminum pipe, two pipes were damaged by Respondent because they were buried and he could not see them. When Respondent attempted to bury the three pieces of PVC pipe, he found that he needed some pipe lubricant in order to get them joined and called the pump station to have someone bring it. The lubricant was brought to the site by Mr. Vogel about noon, and the two men talked about the project. According to Mr. Vogel, Respondent made no mention of any damaged pipe nor did Vogel see any damaged pipe while he was at the site. Vogel adamantly denies that he ever, either that day or at any other time, told Respondent that he could throw away damaged pipe. The instructions that Vogel had left with Mr. Nevel for transmittal to the crew was that the removed pipe was to be placed in storage at the north end of the ranch because it belonged to Pinellas County, not to the Authority, and even if the pipe was damaged, the ends might be used for fittings. It is not clear whether Respondent knew the pipe belonged to the county or to the cattle company which had originally owned the ranch. Notwithstanding, Respondent took the two damaged pipes back to the Cypress Creek pumping station where, without speaking to anyone about what he proposed to do, he placed them in the trash dumpster for disposal. The following day, after completing his day's work, Respondent noted that the pipe was still in the dumpster and, without seeking approval from anyone, removed it from the dumpster, placed it in his truck, and that same day, sold it to All American Metal Recycling in Land O'Lakes, Florida, for $29.00 which he kept for his personal use. He collects scrap aluminum and copper in order to sell them. Respondent admits that as an Authority employee, he did not have the authority to take property owned by the Authority or its members for his own use. Ordinarily, he admits, the disposal of Authority-owned property had to be approved. The authority for approval, as contained in the agency's standard operating procedure for disposal of Authority assets, dated February 14, 1994, was the Cypress Creek storekeeper. Though it is not written, the Authority has a policy against employees taking material out of the dumpsters at the Cypress Creek facility. It was Toler's understanding, however, that old, unusable pieces of piping and wood could be thrown away, but equipment and property that had value had to be turned into Mr. Rooney, the storekeeper, who would evaluate it for disposal or repair. At no time did Respondent have the authority to make that determination. Mr. Toler admits he was aware of the Authority's policy on the disposal of property as noted in the February 14 SOP, as it had been outlined at no lees than two safety meetings he had attended. He understood that if he threw property away without authority, he could be fired. In fact, he admits, Mr. Vogel had so advised him of that. In the instant case, however, he contends, Mr. Vogel told him on the last day of the project in issue, in response to his inquiry, that he should throw the damaged pipe away. This was, as stated earlier, categorically denied by Mr. Vogel. Respondent also indicates that on the second day of the project, pipe being removed was damaged. That pipe was taken to the north pasture and stacked near other, undamaged pipe. The total amount of aluminum pipe removed in this project consisted of approximate one hundred twenty foot long "sticks". Respondent well knew he could not take and sell the stacked pipe, even that which was damaged. Respondent claims that no one saw him put the damaged pipe into the dumpster. He did not think about the opportunity to salvage the pipe when Mr. Vogel told him to throw it away or even when he brought it back and threw it into the dumpster. It was not until the next day when, after work, he saw the pipe still in the dumpster, that it occurred to him to take it, he claims. Respondent admits he has taken scrap metal and sold it before and claims others have done so, too. When he put this pipe in the dumpster he realized that others might take it, so he was somewhat surprised when it was still there the next day. Respondent also admits he did not tell Mr. Vogel how he had disposed of the pipe at first. Once the situation came under investigation, however, as a result of an inquiry regarding missing pipe from the Cross Bar Ranch project, he did so. He admits that sometime after the day he took and sold the pipe as scrap, but before the investigation was commenced, Mr. Vogel asked him what he had done with the pipe, and Respondent replied he had thrown it away. A few days later, in Vogel's office, when the investigation had begun, Mr. Vogel again asked Respondent what he had done with the pipe, and this time Respondent admitted to scrapping it. In the course of the investigation, Respondent spoke with Mr. Capp, a Cypress Creek engineer, about the allegation. In that conversation, held in Mr. Capp's office while no one else was present, Respondent admitted selling the broken pipe for scrap and advised that Mr. Vogel had told him to throw it away. At that time, he offered to replace the pipe, but his offer was not accepted. Some time later, and prior to the pre-disciplinary hearing, he was given a letter by Mr. Capp placing him on administrative leave pending investigation. At that time, Mr. Capp denied knowing what was in the letter. On February 8, 1995 a pre-disciplinary hearing was held with Respondent and counsel present at which time Respondent was given an opportunity to tell his side of the story. At that time, he did not mention any other individuals who had taken scrap from the dumpster, nor had he ever told Mr. Vogel, Mr. Capp or Mr. Kennedy about that. He claims he does not know of any cases where either Mr. Capp or Mr. Kennedy knew of others taking scrap but not being disciplined. However, Respondent is of the opinion Mr. Vogel knows what is going on but he cannot be sure. As was stated previously, Respondent has taken scrap from the dumpster before and claims Mr. Vogel knew it. Vogel, predictably, denies that. Some time after the pre-disciplinary hearing, after Kennedy received the information regarding the incident as determined therein, he discharged Respondent for several violations of the Authority's personnel rules. These included the removal and sale of the scrap pipe owned by Pinellas County, committing a breach of public trust, and committing a breach of member government trust which was deleterious to the Authority in that, in Kennedy's opinion, it undermined the public's faith and confidence in the Authority's public service responsibilities. Kennedy asserts that the relationship between the Authority and its member governments requires that each cooperate with the other in the mission to supply water to the public. Trust and confidence are essential elements of that relationship. Employees of the Authority and its member governments frequently are in and out of each others' facilities. If a member government loses trust in an Authority employee, the Authority's ability to efficiently perform its function would be hampered. This is a reasonable and supportable position and it is so found. In the past, the Authority has discharged employees for violating employee rules which reflect adversely on Authority integrity. One was discharged for the improper use of an Authority vehicle, and others have been discharged for violations of the property disposal policy. It would appear that Mr. Toler has not been treated differently than any others who were found to have violated similar policies. Since February, 1944, when the Authority adopted its policy regarding disposal of property, three employees, including Respondent, have removed materials from the dumpster at the Cypress Creek facility for their own use. Among these are Mr. Nevel who admits to taking electric wire and three discarded printers. Nothing taken by the others included aluminum pipe, however. Capp, Kennedy and Vogel all deny knowing that employees were taking scrap. Respondent cannot say that any of them did know. Consistent with that philosophy, Mr. Kennedy indicates he would have discharged Respondent for placing the scrap in the dumpster whether or not he sold it. By the same token, he would have discharged Respondent had he taken and sold the pipe, even if he had not placed it in the dumpster. Another incident arose in June, 1995, just prior to the hearing, involving the potential disposal of scrap pipe. Mr. Kennedy learned that a stick of aluminum pipe was in the dumpster at the Cypress Creek facility. The pipe, owned by the Authority, had been placed there by Mr. Rooney, the storekeeper, after Mr. Nevel used the ends to retrofit some piping at the Cross Bar Ranch. When this was discovered, Mr. Kennedy directed the pipe be recovered and held for possible future use or sale. Whereas Respondent contends this action was an attempt at a cover-up, it is more likely the result of an unintentional discard of potentially useful pipe.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that the East Coast Regional Water Supply Authority deny Respondent's Petition for Relief and Enter a Final Order discharging him effective February 15, 1995. RECOMMENDED this 29th day of August, 1995, in Tallahassee, Florida. ARNOLD H. POLLOCK, 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 29th day of August, 1995. APPENDIX TO RECOMMENDED ORDER The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. FOR THE PETITIONER: & 2. Accepted and incorporated herein. & 4. Accepted but irrelevant to any disputed issue of fact. Accepted. - 8. Accepted. 9. - 14. Accepted and incorporated herein. 15. - 19. Accepted and incorporated herein. 20. - 25. Accepted and incorporated herein. 26. & 27. Accepted and incorporated herein. 28. Accepted. 29. Accepted and incorporated herein. 30. Accepted and incorporated herein. 31. Accepted and incorporated herein. FOR THE RESPONDENT: Respondent's counsel has identified his Proposed Findings of Fact by letter rather than number. For the sake of consistency in this Order they will be re- identified herein with numbers. Accepted and incorporated herein. & 3. Accepted but not dispositive of any issue of fact. - 8. Accepted and incorporated herein. Accepted but not dispositive of any issue of fact. - 12. Accepted and incorporated herein. Accepted and incorporated herein. Rejected as not a proper Finding of Fact but more a Conclusion of Law. COPIES FURNISHED: Gregory A. Hearing, Esquire Thompson, Sizemore & Gonzalez, P.A. 109 North brush Street, Suite 200 Post Office Box 639 Tampa, Florida 33601 Michael S. Edenfield, Esquire Battle & Edenfield, P.A. 206 Mason Street Brandon, Florida 33511 General Manager West Coast Regional Water Supply Authority 2535 Landmark Drive, Suite 211 Clearwater, Florida 34621 Donald D. Conn General Counsel West Coast Regional Water Supply Authority 2535 Landmark Drive, Suite 211 Clearwater, Florida 34621
