Findings Of Fact Respondent is licensed to practice medicine and surgery in Florida under license number 27358. Between February 4 and August 24, 1981, Respondent treated Mr. Joseph Fleuristal for minor back and neck injuries received in an automobile accident. Initially,, Fleuristal had x-rays taken by a radiologist who diagnosed only spina bifida occulta, a condition unrelated to the accident. Respondent's treatment plan for Fleuristal involved a muscle relaxant (Robaxin), pain medicine (Tylenol III), and heat applications. After approximately one month, Respondent discharged Fleuristal from treatment. Fleuristal continued to visit Respondent's office complaining of pain and requesting further heat treatments. Respondent resumed the heat treatments even though he had concluded they were not necessary and had advised Fleuristal of this determination. Ultimately, Respondent administered 100 such treatments before again discharging Fleuristal in August, 1981. Respondent's charges for treating Fleuristal amounted to $3,835. He sent bills to Fleuristal's attorney who submitted them to the company which insured two of the parties to the automobile accident. This company believed the claim represented excessive treatment and filed a complaint with Petitioner. The testimony of Petitioner's expert witness established that heat treatments, after the first month, constituted gross over-utilization of physiotherapy in the treatment of a minor injury. Although there was disagreement as to the wisdom of the initial treatment plan, it was not shown to have been improper. Petitioner's evidence established that Respondent should have referred the patient to an orthopedic specialist when his initial treatment was not successful. Respondent concedes he administered excessive heat treatments but saw no harm in continuing the treatments since they seemed to give Fleuristal some relief. He did not refer Fleuristal to an orthopedic specialist because, in his view, the patient could not afford the cost.
Recommendation In consideration of the foregoing, it is RECOMMENDED that Petitioner enter a Final Order finding Respondent guilty of violating Subsection 458.331(1)(t), F.S. It is further RECOMMENDED that Petitioner impose an administrative fine of $1,500 and issue a reprimand, as authorized by Subsection 458.331(2), F.S. DONE and ENTERED this 30th day of June, 1983, in Tallahassee, Florida. R. T. CARPENTER, 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 30th day of June, 1983. COPIES FURNISHED: Charlie L. Adams, Esquire Mr. Fred Roche Department of Professional Secretary Regulation Department of Professional 130 North Monroe Street Regulation Tallahassee, Florida 32301 130 North Monroe Street Tallahassee, Florida 32301 Frances Barrera, Esquire 1501 Northwest 14th Street Ms. Dorothy Faircloth Miami, Florida 33125 Executive Director Board of Medical Examiners 130 North Monroe Street Tallahassee, Florida 32301
Findings Of Fact In February, 1990, Respondent Paul Muniz (Muniz), was a duly appointed member of the City of Cape Coral Contractors' Regulatory Board (Board). He was appointed to the Board in 1986. As a member of the Board, Muniz was subject to the provisions of Chapter 112, Part III, Florida Statutes. A scheduled meeting of the Board took place on February 28, 1990, at which time two cases were heard concerning allegedly inappropriate actions by general contractor David Tracey doing business as Tracey Construction, Inc. (Tracey Construction). On February 28, 1990, the Board had authority to hold hearings on alleged violations of the City of Cape Coral's (City) Building Codes, authority to suspend, deny or revoke a contractor's license to operate within the City for violations of the City's Building Codes, and authority to impose fines up to $2,500.00, to issue reprimands, and to order restitution for violations of the City's Building Codes. On February 28, 1990, Muniz and his wife were the sole stockholders, officers, and directors of Delta T Air Conditioning Inc. (Delta T). Muniz owned 75 percent of Delta T's stock. Delta T does heating, ventilating, and heating construction work and services and some refrigeration work. Muniz oversees the work of Delta T, does the estimating and acts as general manager of the company. Muniz usually knows where Delta T's job sites are and who the general contractor is on each job. Tracey Construction is a residential construction company owned by David G. Tracey. Delta T has subcontracted with Tracey Construction to do air conditioning work on a number of occasions prior to February 28, 1990. Delta T had routinely subcontracted with Tracey Construction for several years before February, 1990. Over a number of years prior to February 28, 1990, Delta T had subcontracted with Tracey Construction on more than 200 jobs. Delta T was a subcontractor for Tracey Construction on about 50 jobs from 1989 through 1990. Tracey Construction paid Delta T more than $50,000 for air conditioning subcontractor work in 1989. In 1990, Tracey Construction paid Delta T at least $30,295.60 for air conditioning work. In the course of dealings between Delta T and Tracey Construction, Muniz depended on David Tracey to notify him of potential jobs and invite his company to bid on that job. Delta T competes with other air condition companies for Tracey Construction's business. At the February 28, 1990 Board meeting, two cases came before the Board concerning David Tracey and Tracey Construction: Contractor Board Case Nos. 90-01 and 90-02. Muniz recommended to the Board that they table Case No. 90-01. In Case No. 90-02, Muniz seconded a motion to find David Tracey and Tracey Construction not guilty of the alleged violation of the building code. Muniz voted in both cases to acquit Mr. David Tracey and Tracey Construction of all charges. At the time of the February 28, 1990, Board meeting, Delta T had contracts with Tracey Construction for at least seven jobs. On each of these jobs, either the air conditioning work had been begun but not yet completed, or the work had been completed and final payment had not yet been made by Tracey Construction. Muniz was aware that his company had active contracts with Tracey Construction. Muniz did not file a written conflict of interest form until 28 days after the February 28, 1990 Board meeting. Muniz did not disclose his company's business relationship with Tracey Construction prior to participating in the discussion of and voting on Case Nos. 90-01 and 90-02. Muniz is the same Paul Muniz as is mentioned in Commission on Ethics Opinion No. 91-3.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order and Public Report be entered finding that Paul Muniz violated Sections 112.3143(2)(b), and (3), Florida Statutes; imposing a civil penalty of $750 for each violation (a total of $1500); and issuing a public censure and reprimand. DONE AND ENTERED this 31st day of October, 1994, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND 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 31st day of October, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-5806EC To comply with the requirements of Section 120.59(2), Florida Statutes (1993), the following rulings are made on the parties' proposed findings of fact: Advocate's Proposed Findings of Fact. Paragraphs 1-19: Accepted. Paragraphs 20-23: Accepted in substance. Paragraph 24: Rejected as unnecessary detail. Paragraph 25: Rejected as irrelevant since the facts established that Muniz did not file a conflict of interest form within the time frames established in Sections 112.3143(2)(b) and (3). Paragraph 26: Rejected as unnecessary. Paragraph 27: The first sentence is rejected as constituting argument. The remainder is rejected as subordinate to the facts actually found. Paragraph 28: Rejected as constituting argument. Paragraph 29: Rejected as subordinate to the facts actually found. Paragraphs 30: The first sentence is accepted in substance. The second sentence is rejected as constituting argument. Paragraph 31: Accepted. Paragraph 32: The last sentence is rejected as subordinate to the facts found. The remainder is accepted in substance. Paragraph 33: Rejected as subordinate to the facts found. Respondent's Proposed Findings of Fact. Paragraphs 1a-1q: Accepted. Paragraphs 2a-2f: Rejected as recitation of testimony. Paragraph 3a: Accepted in substance. Paragraph 3b: Accepted in substance to the extent that there was no evidence presented which established that Delta T and Tracey Construction had entered into a formal continuing contract; however the evidence did establish that Delta T and Tracey Construction had routinely done business together prior to February 28, 1990. Paragraph 3c: Accepted in substance to the extent that there was no evidence presented that Paul Muniz had a contract with Tracey Construction; however the evidence did establish that the company, of which Paul Muniz owned 75 percent, did have a contractual relationship with Tracey Construction. Paragraph 3d: Rejected as immaterial. Paragraph 3e: Rejected to the extent that there would have been no affect on Delta T's business and rejected that there would have been little impact on Delta T's business as immaterial. Paragraphs 3f-3g: Rejected as immaterial since the Board did have the authority to do so. Paragraph 3h: Rejected as immaterial because the Board had the authority to suspend or revoke the license. Paragraph 3i: Rejected as immaterial because the Board had the authority to do so. Paragraph 3j: Rejected as not supported by the greater weight of the evidence. See 3i above. Paragraph 3k: Rejected as constituting argument. Paragraph 3l: Rejected as constituting a conclusion of law. Paragraph 3m-3q: Rejected as not supported by the greater weight of the evidence. COPIES FURNISHED: Stuart F. Wilson-Patton Assistant Attorney General Advocate for the Florida Commission on Ethics Office of the Attorney General The Capitol, PL-01 Tallahassee, Florida 32399-1050 John Charles Coleman, Esquire 2300 McGregor Boulevard Post Office Box 2089 Fort Myers, Florida 33902-2089 Bonnie Williams Executive Director Florida Commission On Ethics Post Office Drawer 15709 Tallahassee, Florida 32317-5709 Phil Claypool, Esquire General Counsel Ethics Commission 2822 Remington Green Circle, Suite 101 Post Office Drawer 15709 Tallahassee, Florida 32317-5709
The Issue Did the Respondent violate the provisions of Chapter 471, Florida Statutes, as alleged in the Administrative Complaint?
Findings Of Fact The Respondent is a licensed professional engineer. The Respondent holds license number PE 10214. The Respondent signed and sealed on or about November 15, 2001, a set of plans for the water fire sprinkler system for the new student gymnasium at Gulf Coast Community College consisting of three pages, and a set of calculations consisting of 14 pages for said sprinkler system. All discussions herein of sprinkler systems and the statutes related to such systems is limited to water-based systems. The calculations are intended to show that the performance of the sprinklers is sufficient in the area defined by the National Fire Protection Association (NFPA) standards as the hydraulically most demanding. The hydraulically most demanding area is the 1500 square feet fartherest away and highest from the "fire riser" or the source of water to feed to the system. The area defined as the hydraulically most demanding was identified on the plans as being in the southwest corner of the building, taking the top of the plan as pointing due north, or that portion of the building on the bottom, left corner of the building consisting of the women's showers and women's toilets. The calculations were generated by a computer based upon data provided on the size, height, length, and diameter of the pipes servicing the system and the number of sprinkler heads required in the hydraulically most demanding area. These calculations assume all the sprinkler heads in the hydraulically most demanding area will be activated, but no other sprinkler heads in the system will be activated. The calculations, Joint Exhibit 1, contained an error regarding the nodes and their length. See page 3 of Joint Exhibit 1, Nodes 20 and 25 at the bottom of the page. The best demonstrative evidence of the nature of the error is contained in Petitioner's Exhibit 3 in the diagram marked Piping Isometric. In sum, there should have been another node in the calculation of 61 feet. Testimony was received regarding the plans, their modification and actual construction of the system. The best presentation of the ultimate construction is represented in Respondent's Exhibit 1, which clearly shows two service pipes into the women's shower area. According to the uncontroverted testimony of the contractor, the intent was always to have two pipes servicing this area, one suspended under the other on the same set of supports, each pipe servicing the same number of heads in the area of the women's shower room. This was not adequately shown in the original drawings, and a second drawing clearly showing the two pipes was prepared to satisfy the general contractor. The calculations for the second pipe would be essentially the same as the first pipe because they are the same length and both have the same "load." There was testimony regarding new calculations supporting the plans, R-1, these calculations were introduced as R-2. They also show the pressure was adequate. The plans were approved by the State Fire Marshall's Office, by the Department of Education, and the Petitioner's expert witness opined that two pipes would supply sufficient water to service the area. Credible testimony was received that the quality and performance standards for valves, alarm checks, and switches were contained in the specifications provided to the bidders by the general contractor. These were not necessary in the Respondent's plan. Credible testimony was received that the entire project had one classification of hazard occupancy, as stated on the calculations, Joint Exhibit 1. No credible evidence was received that electrical or mechanical rooms have a different hazard occupancy and should have been treated any differently. The Board's witness testified that one of the design approaches is hydraulic calculation, See Tx 75-75. It is clear from the calculations, Joint Exhibit 1, that this was the method used. The installation of the backflow preventer was the responsibility of the general contractor and not part of the Respondent's responsibility. Further, pipes, valves, etc., were contained in the general contractor's specifications. Lastly, there is a four-inch check valve shown in the detail for the fire riser, which is a four-inch pipe and is the responsibility of the Respondent. The source of water is city water, which is treated. There would be no microbial corrosion concerns. The first page of the plans marked Petitioner's Exhibit 1, shows the fire riser as being located in the northwest corner of the building. The second and third pages show the fire riser as being located in the northeast corner of the building. Testimony was received concerning the modification of the plans to conform to the location of the fire main. Except for computation of the hydraulically most demanding area, location of the riser is not particularly important. The location of the fire riser was in fact, on the northeast corner, and this was the location used for calculation of the hydraulically most demanding area. The "as built" drawings, Petitioner's Exhibit 2, clearly show the riser in its proper location. To the extent that page one fails to reflect the same location as pages two and three, it is of no real significance. Under the contract for the sprinkler system, the general contractor was responsible for providing water to the fire riser and the sprinkler contractor was responsible for the system from that point. In sum, the plans incorporated those specifications given. Section 633.021(18), Florida Statutes, defines the "point of service" as the point at which the underground piping for a sprinkler system using water as the extinguishing agent becomes used exclusively for the sprinkler system. The statute provides that the point of service is designated by the engineer who sealed the plans for a system of more than 50 heads. The Respondent was not responsible for designing or presenting plans for the underground water service "mainward" of the fire riser. The riser by definition is not underground service. Therefore, the Respondent was not responsible for that portion of the total system at which the point of service would have been designated. No evidence was presented to establish that the definition of point of service creates a requirement for an engineer designing sprinkler design to control the system design to that point. No evidence was presented regarding the practices of the profession when this factual situation arises. No evidence was presented on the importance of the point of service in terms of a sprinkler system, and no testimony was offered regarding how an engineer would sign and seal plans that were beyond the scope of the work he was engaged to do. Special Findings Regarding the Various Sets of Plans As stated above, there were several sets of plans introduced at hearing. Petitioner's Exhibit 1 was identified as the set of plans signed and sealed by the Respondent; however, there was no evidence that these plans were used to build any portion of the project. In fact, the testimony was to the contrary, that these plans were expected to be modified and were modified prior to construction. Petitioner's Exhibit 2 was identified by Mr. Caldwell as a set of plans which he "red lined" as "as built" drawings after the construction was completed. He did not identify what iteration of the original plans he used; however, inspection and comparison show that they are virtually identical to the set, Petitioner's Exhibit 1. Mr. Caldwell qualified his additions to the plans to state that they reflected only what he could see without removal of tiles or materials. Respondent's Exhibit 1 was identified by Chris Thomas as being plans that were amended to address the concerns of Mr. Schmidt. These plans show two pipes where the original plans showed one pipe servicing the women's shower room. Because of the delay in prosecuting this case and the losses due to storms these plans are received and accepted as definitive because to do otherwise would raise due process issues the Petitioner having been aware of the alleged problems since before the plans were executed. No evidence was received regarding the customary practice in signing and sealing multiple versions of plans. There was no evidence presented regarding amended calculations in support of the drawings. In the absence of such testimony, it is concluded that only one set of calculations were prepared, and they were determined by the approving authorities to be sufficient. The Respondent admits that he did not date the calculations or the plans.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED that the Board dismiss the complaint against the Respondent. DONE AND ENTERED this 13th day of October, 2005, in Tallahassee, Leon County, Florida. S STEPHEN F. DEAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of October, 2005. COPIES FURNISHED: Leon Biegalski, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 Bruce A. Campbell, Esquire Florida Engineers Management Corp. 2507 Callaway Road, Suite 200 Tallahassee, Florida 32303 Alvin L. Petters, Esquire Peters and Scoon 25 East 8th Street Panama City, Florida 32401 Doug Sunshine, Esquire V.P. for Legal Affairs Florida Engineers Management Corp. 2507 Callaway Road Tallahassee, Florida 32303-5267 Paul J. Martin, Executive Director Florida Engineers Management Corp. 2507 Callaway Road Tallahassee, Florida 32303-5267
The Issue This matter began when Respondent, a certified air conditioning contractor, was charged by Petitioner in an administrative complaint with violation of Section 489.129(1)(m), Florida Statutes, through the commission of gross negligence, incompetence, or misconduct in connection with a certain job undertaken by the air conditioning business for which Respondent was responsible as the qualifying agent. Respondent requested a formal administrative hearing. This proceeding followed. At hearing, Petitioner presented testimony of two witnesses and six evidentiary exhibits. Respondent presented testimony of two witnesses, including himself, and three evidentiary exhibits. Petitioner was granted leave to submit a post hearing exhibit no later than March 3, 1989. Proposed findings of fact submitted by Petitioner are addressed in the appendix to this recommended order. No proposed findings were received from Respondent by the required deadline or at the time of the preparation of this recommended order. Based upon all of the evidence, the following findings of fact are determined:
Findings Of Fact Respondent is Steven E. Taucher, a certified air conditioning contractor and the qualifying agent for Discount Air Conditioning & Heating Services, Inc., at all times pertinent to these proceedings. He has been licensed by Petitioner since 1985 and holds license CA-CO36835. His address of record is Tampa, Florida. In May of 1987, Janet Daniels contracted with Respondent's company for the installation in her home of a heat pump system. The system was to consist of one supply duct and a filter back return; a three ton condenser heat pump; a three ton air handler; a 3 ton coil; and a heat strip, thermostat and outdoor slab. The unit was to fulfill heating and cooling functions. Installation work was to be completed in a "substantial and workmanlike manner"; using existing ductwork and electrical connections. Upon execution of the written agreement, Daniels paid Respondent $2,000. A sales rebate of $525 was also signed over to Respondent by Daniels, leaving a total owed to Respondent of $125. This amount was to be paid by June 30, 1987. Daniels never paid this final sum to Respondent because she was not satisfied with his work and eventually had to pay another contractor $420 to make certain repairs to the system. Respondent, by his own admission, failed to timely pull the permits for the project; however, he did install the system, connecting it to existing ductwork and electrical connections as specified in the contractual agreement. Within two and a half hours after installation, the temperature gauge reflected that the unit was not cooling the Daniels' house to the desired 76 degree thermostat setting. Respondent informed Daniels that the unit's capacitor wasn't functioning. Respondent replaced the capacitor. The unit did not function properly and Respondent attempted other repairs at later dates varying from replacement of the thermostat to installation of a sump pump for removal of condensation from the unit. Daniels was still unable to get the unit to cool the residence to the desired thermostat setting. Further, there was a disparity in the temperature between rooms in the residence. On July 23, 1987, Respondent, accompanied by a factory representative from the manufacturer of the heat pump system, returned to the Daniels home. It is undisputed by the parties that the factory representative found that a portion of the unit, the vertical air handler, was not level and not well mounted and, as a result, was poorly installed. He further determined that the unit contained an excess amount of freon, a refrigerant gas. Respondent maintains that he performed the installation task strictly in accordance with the contract between the parties. It is his position that the installation of the air handler without a new wooden support base under it or replacement of the leaking existent return air plenum was in compliance with the parties' agreement to use existing ductwork. Respondent's position as to compliance with contractual terminology is supported by testimony of Petitioner's expert that the meaning within the trade of the terminology "use of existing ductwork" ordinarily includes the existing return air plenum as part of that ductwork. However, testimony of Petitioner's expert also establishes that Respondent's failure to realize and advise Daniels that the existing ductwork was obviously inadequate and might not permit the system to function effectively, demonstrated incompetence with regard to his ability to properly design and install a relatively simple system. The overall sloppiness of the workmanship in the system installation also reflects incompetence on the part of Respondent.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered assessing the Respondent an administrative penalty of $500 in accordance with disciplinary guidelines set forth in section 21E-17.001(19)(b), Florida Administrative Code. RECOMMENDED this day of March, 1989, in Tallahassee, Leon County, Florida. DON W. DAVIS 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 15th day of March, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-5193 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 1.-6. Addressed and adopted in substance. COPIES FURNISHED: David Bryant, Esquire 220 East Madison Street, Suite 530 Tampa, Florida 33617 Steven E. Taucher Post Office Box 271581 Tampa, Florida 33688 Fred Seely, Executive Director Department of Professional Regulation Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32201
The Issue The principal issues to be resolved in this proceeding concern whether certification should be issued to the City of Lakeland, Department of Electric Utilities (Lakeland or Lakeland Electric) to construct and operate the steam electric equipment needed to create a nominal 350-megawatt combined-cycle generating unit located at Lakeland’s McIntosh Power Plant site in Lakeland, Florida in accordance with the provisions of Section 403.502, et seq., Florida Statutes. The related issues concern whether the site for the McIntosh Unit 5 Steam Cycle Project is consistent and in compliance with the applicable land use plans and zoning ordinances of the City of Lakeland, pursuant to Section 403.508(2), Florida Statutes.
Findings Of Fact Project Operations and Impacts Project Overview The City of Lakeland, Department of Electric Utilities is a municipal utility that supplies electric service to approximately 106,000 customers, which represents approximately 200,000 residents in its service area within Polk County. Lakeland’s electric utility commenced operation in 1891, making Lakeland one of only three Florida cities with electricity at that time. Lakeland currently operates power plants at two locations in the City of Lakeland with a combined generating capacity of 785 megawatts (MW). The McIntosh Power Plant site is the larger power plant site and contains six electrical generating units. McIntosh Unit 3 is a 365-megawatt, coal-fired electrical generating unit, which was originally certified under the Florida Electrical Power Plant Siting Act in 1978. In 1998, Lakeland obtained approvals to construct a new 250-megawatt, simple-cycle combustion turbine (CT) at the McIntosh site. These approvals consisted of a modification of the site certification for McIntosh Unit 3 and a separate Prevention of Significant Deterioration (PSD) Permit, both issued by FDEP. That modification of the site certification for the new Unit 5 CT was required because the new CT was to be located within the site certified for McIntosh Unit 3. Pursuant to FDEP rules, the approval for that new unit was required to be obtained under the PPSA’s modification rules. The new McIntosh Unit 5 CT is completing construction and will be placed into service in the near future. The original permits for the Unit 5 CT anticipated that the CT would later be converted to a combined cycle configuration. The City of Lakeland considered a number of generating options before selecting the Unit 5 project to meet the City’s required 15 percent reserve margin. Siemens Westinghouse submitted a proposal to the City that Lakeland be the host site for the first 501G simple-cycle combustion turbine. The City concluded that this proposal was the best alternative available to meet the City’s needs for additional electricity. The conversion of Unit 5 to combined cycle operation will expand Lakeland’s natural gas-fired generating capacity to 76 percent of Lakeland’s total electrical generating capacity. No energy conservation measures exist that would affect the need for the plant. The 250-megawatt CT in Unit 5 is one of the most efficient generating units currently operating. In the CT, compressed air is introduced into a combustion zone and fuel, typically natural gas, is combusted within the forward portion of the CT. The resulting hot gases expand in the turbine and turn an electrical generator. For Unit 5, this electrical generator produces approximately 250 MW of electricity. The hot exhaust gases then are exhausted out the existing stack. Under the proposed Unit 5 Steam Cycle Project, the combined cycle configuration for Unit 5 involves the construction of a heat recovery steam generator (HRSG), which captures the exhaust gas from the CT and produces steam by extracting the heat from the flue gases. In the HRSG, the hot gases are used to convert water into steam in a closed system of piping. The steam is then used to turn a new steam turbine, which then turns an electrical generator. Other equipment required for the steam cycle project includes: a new, taller exhaust stack; a new cooling tower; and other plant equipment. The addition of the new HRSG steam turbine and electrical generator to McIntosh Unit 5 will produce an incremental 100 MW of electricity produced through the use of steam. The PPSA requires an increase of steam-generating capacity at the McIntosh site to undergo the full permitting proceedings of the PPSA. Therefore, Lakeland was required to submit its application for site certification to add the steam cycle to Unit 5. The McIntosh Unit 5 will be located on a 3-acre tract of land within the larger 530-acre McIntosh Power Plant site. The site is located in the eastern portion of the City of Lakeland, along the northern shore of Lake Parker. The McIntosh plant site is generally surrounded by undeveloped lands, including reclaimed and vacant phosphate lands used, in part, as a recreational and fishing area managed by the Florida Fish and Wildlife Conservation Commission (FWCC). There are no residential or commercial properties adjacent to the project site. The nearest residence to the project site is over one mile away. The site for the McIntosh Unit 5 contains no significant environmental features. No wetlands are found within the site. The Unit 5 site is an open field, containing grasses and low-quality, weedy vegetation. Further, no archaeological, or historical resources were found on the site. No sensitive local, regional, state or federal parks, wilderness areas, forests, or areas of critical concern are located within 5 miles of the site. No threatened, endangered, or protected plant or animal species are known to be present at or near the project site. The combined cycle unit will be fired primarily with natural gas, with fuel oil as a backup fuel. Natural gas is supplied by a 10-mile long pipeline owned by the City of Lakeland, which connects to the Florida Gas Transmission gas pipeline system. No alterations to those pipelines are required for the project. Fuel oil for the unit will be delivered by truck and stored in an existing on-site fuel storage tank. The capture and utilization of waste heat from the CT exhaust in the new heat recovery steam generator will significantly increase the efficiency of the electrical generation process for Unit 5. Use of the waste heat will not require any increase in fuel use and will not result in any increase in air emissions from the power plant. When considered on the basis of electrical output, the amount of emissions per megawatt hour of electricity will actually decrease by approximately 30 percent. All of the air emissions from Unit 5 are associated with the operation of the combustion turbine; and the addition of the heat recovery steam generator does not result in any increase in those emissions. Water Use, Wastewaters and Other Impacts The addition of the HRSG requires the use of a cooling tower to remove the heat from the circulating steam. Once the steam exits the steam turbine, it passes through a condenser in which the heat from the steam is transferred to circulating cooling water. The steam is condensed back to water and then recycled into the HRSG in a closed loop system. The heated cooling water is then routed to the cooling tower where forced air evaporation removes the heat. Periodically, a portion of the cooling water in the cooling tower system is removed to prevent the buildup of solids and other constituents which could impair the performance of the cooling tower. Replacement of this "blowdown water" and of the water lost through evaporation will be achieved through the use of treated domestic waste water (reuse water) supplied from the City of Lakeland’s wastewater treatment plants, including a plant adjacent to the McIntosh plant site. The cooling tower will require approximately 3.24 million gallons per day (mgd) to replace water lost in the cooling process. FDEP adopted Rule 62-610, Florida Administrative Code, to encourage the beneficial use of reuse water from domestic wastewater systems as a means of water conservation. The rule sets out certain treatment and design criteria that must be met when reuse water is used, including water used in cooling towers. The Lakeland Unit 5 cooling tower meets these rule requirements because the cooling tower is located more than 300 feet from the nearest property boundary, and the reuse water receives secondary treatment by the City of Lakeland. In the event reuse water is not available because of supply or quality problems, groundwater from on-site wells will be used as a backup source of cooling water makeup until reuse water is available again. The needed quantity of groundwater, up to 3.24 mgd, has been approved by the Southwest Florida Water Management District (SWFWMD) under the existing consumptive use permit issued by SWFWMD for the McIntosh plant site. That quantity of water has been shown to not have adverse effects on area users of groundwater. In addition to cooling water, the plant requires high quality service water to replace water lost in the operation of the HRSG and for other plant processes, including control of nitrogen oxide (NOx) emissions during oil firing. This water is obtained from groundwater wells and is treated in on-site water treatment facilities. Conversion of Unit 5 to combined cycle operation will reduce the use of groundwater by approximately 250,000 gallons per day during normal operations due to increased recycling of water within the unit. Wastewater from the plant is generated from the cooling tower, as a result of the periodic blowdown of the water in the cooling tower. This blowdown water is routed to an on-site collection sump and then routed to the City of Lakeland wastewater treatment system. Industrial-related wastewaters from plant operations, including wastewaters from plant water treatment, are also collected and routed to the City of Lakeland Wastewater Treatment system. There is no direct discharge of wastewater from McIntosh Unit 5 to adjacent surface waters. The project will not have any effect on area surface waters. There will be no increase in the need for potable water or domestic wastewater treatment. The addition of the new HRSG and related equipment for the steam-cycle project will not require an increase in permanent employment at the project site. The on-site stormwater management system is already sized to accommodate the addition of the steam-cycle equipment Minor amounts of solid and hazardous wastes will be generated by the project, mainly during construction. Any hazardous wastes will consist mainly of small amounts of spent solvent. Systems are already in place to dispose of these wastes in an approved manner. Electricity generated at the site is distributed from an on-site switchyard into the City of Lakeland transmission system. This system is interconnected to other Florida utilities. The addition of the Unit 5 Steam Cycle Project will not require any changes to the existing electrical transmission system. The McIntosh Unit 5 will be compatible with the other surrounding land uses in the vicinity of the project site. The project represents a logical expansion of the existing power plant site. It is well buffered from residential land uses. Noise from Plant construction and operation will not adversely impact nearby residents. Existing noise levels in the residential areas near the plant are low, even with the existing generating units at the McIntosh site in operation. Noise levels during construction and operation will comply with the applicable local noise ordinance, as well as the existing noise limitations in the McIntosh site certification conditions. Construction will generally occur during daylight hours, and construction equipment has to comply with noise limits set by the manufacturers. Addition of the new HRSG and other equipment will act to buffer noise from the existing CT. Operation of the plant will not be noticeable at the nearest residence, which is almost one mile away. Air Quality Analyses Required Polk County has not been designated by the U.S. Environmental Protection Agency (EPA) or FDEP as a nonattainment area for any federal or Florida ambient air quality standards. Federal and state Prevention of Significant Deterioration (PSD) program requirements applied to the simple cycle portion of McIntosh Unit 5. Because it was a major source of air pollution Because there were no significant net emission increases of any regulated air pollutants due to the conversion of McIntosh Unit 5 to combined-cycle operation, the PSD requirements did not apply to the addition of the steam cycle to Unit 5. Under the PPSA, air quality impacts associated with the new, taller stack and the new cooling tower associated with the combined-cycle operation of Unit 5 were required to be evaluated. However, no changes to the PSD permit itself were necessary to address the addition of the steam cycle to Unit 5, although some updated information reflecting the increased stack height and the addition of the cooling tower was provided to FDEP. Emission Impacts Under FDEP’s rules, air emissions from McIntosh Unit 5 must not cause or contribute to a violation of federal and state ambient air quality standards or PSD increments. Polk County is classified as a Class II area for PSD purposes. The nearest Class I area to the McIntosh Power Plant is the Chassahowitska National Wilderness Area, located approximately 90 kilometers (60 miles) from the Plant. The ambient air quality analysis demonstrated that McIntosh Unit 5's emissions, including operations in combined- cycle mode with the taller stack and cooling tower, will not have a significant impact on air quality near the McIntosh Plant or in the Chassahowitska Class I area. The maximum predicted impacts from Unit 5 in combined-cycle mode are below the EPA and FDEP significant impact levels. Unit 5's emissions will not cause or contribute to an exceedance of any state or federal ambient air quality standards. The 250-foot stack height for McIntosh Unit 5 in combined-cycle mode represents "good engineering practice" (GEP), calculated in accordance with FDEP and EPA rules. McIntosh Unit 5's air emissions are not expected to cause any adverse impacts on vegetation, soils, or visibility in the McIntosh Power Plant site vicinity or in the Chassahowitska National Wilderness Area, the nearest PSD Class I area. Air emission impacts of McIntosh Unit 5 on water bodies in the vicinity of the McIntosh Power Plant will be insignificant. No adverse air emission impacts are expected to result off-site during the construction of the steam cycle portion of Unit 5, and appropriate control methods will be used to minimize emissions during construction activities. The cooling tower plume could cause temporary and localized ground-level fog on occasion. The majority of these relatively rare instances will be of short duration and occur when fog is already naturally occurring. BACT and Emission Rates A Best Available Control Technology (BACT) analysis, required under the PSD program, is intended to ensure that the air emissions control systems selected for a new project reflect the latest in control technologies used in a particular industry based on a cost-benefit approach, taking into account technical, economic, energy, and environmental considerations. A BACT determination was made for emissions from Unit 5, including operation of the unit in combined-cycle mode, as part of the PSD permit previously issued for the simple-cycle operation on the Unit 5 CT. High efficiency drift eliminators are being installed on the McIntosh Unit 5 cooling tower to minimize particulate matter emissions from solids contained in the water released from the cooling tower. While the NOx emission limits in the PSD permit will not change due to the addition of the steam cycle portion of Unit 5, the projected emission rate in terms of pound-per-megawatt- hour (lb/mwhr) are actually lower when in combined-cycle mode because of the increase in electricity generated with no additional emissions being created. Compliance McIntosh Unit 5 in the combined-cycle mode will comply with all applicable federal and state air quality standards, including the conditions contained in the PSD Permit for Unit 5 and in FDEP is proposed conditions of certification. Consistency with Local Land Use Plan and Zoning Ordinances The Lakeland McIntosh Unit 5 project site, as well as the entire McIntosh Plant Site, is located in a future land use map designation of "Industrial" on the City of Lakeland’s Future Land Use Map. That map is part of the locally-adopted Comprehensive Plan for the City of Lakeland. Electrical power plants are a permitted use in that Industrial land use category. McIntosh Unit 5 meets the locational criteria in the future land use element, in that it is well buffered and served by adequate, available public facilities. The McIntosh Unit 5 Steam Cycle project site is zoned I-3, or Heavy Industrial under the City of Lakeland’s zoning regulations. That zoning district allows electrical power plants, subject to further review under the City’s zoning requirements. This additional zoning review consists of a conditional use permit, which is intended to provide an additional layer of review for these types of facilities. On September 7, 1999, the City of Lakeland City Council issued a conditional use permit for the entire McIntosh plant site, which includes the site for McIntosh Unit 5. McIntosh Unit 5, when converted to combined-cycle operation, will be consistent and in compliance with the City of Lakeland’s land use plans and zoning designations for the project. Further, the project will be consistent with the conditional use permit issued for the project site. McIntosh Unit 5 will also be consistent with the other provisions of the City of Lakeland Comprehensive Plan. The project meets the local Plan’s concurrency requirements, promotes the use of treated wastewater for cooling of power plants, and meets the provisions for protection of local air quality. Agency Positions and Stipulations The FDEP, the Florida Department of Community Affairs, the Southwest Florida Water Management District, the Florida Department of Transportation and the Fish and Wildlife Conservation Commission each prepared written reports on the project, and all recommended approval of the City of Lakeland McIntosh Unit 5 Steam Cycle Project. (Amended FDEP Exhibit 3). FDEP has proposed Conditions of Certification for the project, which Lakeland agrees to accept and comply with in plant construction and operation. The Department of Community Affairs determined that the project, if certified, would be consistent with the State Comprehensive Plan. The Central Florida Regional Planning Council (CFRPC) did not submit a report to FDEP as part of its review of the project. However, CFRPC entered into a prehearing stipulation with the City of Lakeland in which it stated that the project would be consistent with the CFRPC’s Strategic Regional Policy Plan. DCA entered a similar stipulation indicating its agreement that the project was consistent with the State Comprehensive Plan. The Department of Transportation entered into a prehearing stipulations indicating it did not object to certification of the project. No state, regional, or local agency has recommended denial of certification of the project.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that The City of Lakeland, Department of Electric Utilities be granted certification, pursuant to Chapter 403, Part II, Florida Statutes, for the location and operation of the McIntosh Unit 5 Steam Cycle Project, representing an expansion of the electrical generating capacity of the existing McIntosh Unit 5, as proposed in the Site Certification Application and the evidence presented at hearing, and subject to the Conditions of Certification contained in Amended FDEP Exhibit 3, and subject to the Conditions of Certification attached hereto; The Siting Board find that the site of the McIntosh Unit 5 Steam Cycle Project, as described in the Site Certification Application and the evidence presented at the hearing, is consistent and in compliance with the existing land use plans and zoning ordinances of the City of Lakeland as they apply to the site, pursuant to Section 403.508(2), Florida Statutes. DONE and ENTERED this 2nd day of March, 2000, in Tallahassee, Leon County, Florida. J. LAWRENCE JOHNSTON 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 2nd day of March, 2000. COPIES FURNISHED: Mark Carpanini, Esquire Polk County Attorney’s Office Drawer AT01 Post Office Box 9005 Bartow, Florida 33831-9005 Douglas S. Roberts, Esquire Hopping Green Sams & Smith Post Office Box 6526 Tallahassee, Florida 32314 Scott A. Goorland, Esquire Department of Environmental Protection Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Sheauching Yu, Esquire Department of Transportation Haydon Burns Building 605 Suwannee Street, Mail Station 58 Tallahassee, Florida 32399-0450 James V. Antista, Esquire Fish and Wildlife Conservation Commission 620 South Meridian Street Tallahassee, Florida 32399-1600 Andrew S. Grayson, Esquire Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100 Robert V. Elias, Esquire Florida Public Service Commission Gerald Gunter Building 2540 Shumard Oak Boulevard Tallahassee, Florida 32399-0850 Frank Anderson, Esquire Southwest Florida Water Management District 2379 Broad Street Brooksville, Florida 34609-6899 Thomas B. Tart, Esquire Orlando Utilities Commission 500 South Orange Street Orlando, Florida 32801 Andrew R. Reilly, Esquire East Lake Parker Residents Post Office Box 2039 Haines City, Florida 33845-2039 Norman White, Esquire Central Florida Regional Planning Council 555 East Church Street Bartow, Florida 33830 Kathy Carter, Agency Clerk Office of the General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard, Mail Station 35 Tallahassee, Florida 32399-3000 Teri Donaldson, General Counsel Office of the General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard, Mail Station 35 Tallahassee, Florida 32399-3000
The Issue Whether the Respondent should have his fire sprinkler contractor license disciplined for violations of the statutes and rules as alleged by the Petitioner’s Second Administrative Complaint, and Whether, if the Petitioner does not prove the allegations against the Respondent, the Respondent should recover his attorney’s fees and costs.
Findings Of Fact The Department of Insurance and State Fire Marshall is charged with the licensure and regulation of fire protection system contractors. Ralph Hamm is now and was at all times relative to this case a certified fire protection system contractor holding certificate number 437539000188. Ralph Hamm is the president of W.F.P. Company, Inc. (WFP). As the certified contractor, he is responsible for the work done by the company. The Petitioner may discipline his license for violation of the code and statutes; however, the Petitioner does not license and has no jurisdiction over the company. The Department of Correction (DOC) let bids to install fire sprinkler systems in several of its facilities. WFP won several of these bids. These bids called for the design and installation of the systems based upon drawings of the facilities provided by DOC. The drawings accompanying the bid for Tomoka Correctional Institution (Tomoka) were incorrect, showing a structure similar to the Marion Correctional Institution, a job on which WFP had been the successful bidder. Tomoka’s maintenance and construction superintendent upon seeing the drawings prior to the receipt of bids, advised DOC’s project manager of the discrepancy in the drawings. The project manager acknowledged the problem, but advised that the bid would be published. It was the superintendent’s understanding that the contractor that won the bid would be permitted to build the system to fit the actual structure, and thereafter the work memorialized in “as built” drawings. This process was misleading to a bidder who accepted the drawings as accurate knowing that the Department had several prototype building designs which it replicated at its institutions based upon the nature of the facilities and topography. WFP, which had already designed a system for an identical building, could anticipate reusing its previous design, saving design costs, and presenting a lower bid. WFP won the contract. The record reveals that during the course of construction at Tomoka additional changes were made to include sprinkling rooms not originally indicated as being protected, altering the height of the pipes, changing the nature of the sprinkler heads from standard to institutional, and from hanging down (pendent) to being upright. NFPA 13, 1991 Edition, (NFPA) was the standard for the installation of the Tomoka sprinkler system. The bid for the Tomoka job called for all labor, materials, supervision equipment, services equipment, design and installation to comply with NFPA 13. In October 1995, Mr. Victor Higgs, a fire safety inspector with the State Fire Marshall’s Office (SFMO) with experience in general fire safety inspections, inspected Dorm B and Dorm E on the Tomoka job at the request of WFP during construction. Following his inspection, Higgs wrote a report finding essentially the same conditions in both dorms. Higgs found that the sprinkler installation was not in accordance with the on-hand drawings which had been approved by the SFMO; that hydraulic requirements for the systems as installed had not been recalculated; that there were no test certificates for the hydrostatic pressure of the above ground or below ground piping; that there was no indication of the type of sprinkler head to be used in the halls; and that smoke barriers had not been re-established where the pipes penetrated walls between areas. Of the observations made by Higgs, only the failure to re-establish the smoke barriers constituted a life threatening hazard prior to the conclusion of the job. The other conditions may have indicated an incomplete system, but did not increase the threat of fire. His other findings related to and were the result of having to do large portions of the job by change order. Higgs notified Ralph Hamm of his findings in October 1995. Subsequently, a conflict arose between the SFMO and WFP about the metal clamps being used by WFP to hold the pipe up against the ceilings and walls of the job. The personnel of the SFM advised WFP that the clamps were not to NFPA standard. The NFPA lists a number of approved clamps which a contractor may use or the contractor may use a clamp that has been tested and shown to hold five times the weight of the pipe with water in it plus 250 pounds. WFP asserted that the clamps it was using met the latter standard, but the SFM personnel wanted evidence of the testing. WFP wrote several letters regarding the clamps, but did not provide evidence of testing until after the administrative complaint was filed. In the meantime, WFP had replaced all of the clamps with a clamp listed in the NFPA, a Grinnel 262 pipe clamp, prior to the final approval of the job by the SFM. The test of the clamp originally used was conducted in accord with the standards provided to WFP’s engineer by Underwriter’s Laboratories, and showed that the clamp originally used met the strength requirements of the NFPA. A video of the test conducted by Foy Hamm was made and reviewed which shows the clamp holding a weight exceeding the NFPA standard. A conflict appears in the deposition testimony of WFP’s engineer, Gary West, regarding whether the clamp tested was the one originally used or the Grinnel 262. Foy Hamm, who conducted the test, testified that the clamp tested was the clamp WFP had originally used, and was not a Grinnel 262. The video was reviewed, and the clamp appears to be identical to those introduced at hearing and identified as clamps originally used by WFP. The test establishes that the original clamps met the NFPA standard when they were installed. Mezzapella, a fire safety inspector from SFMO, testified about as-built drawings, and stated that they had not approved by the SFMO. According to Mezzapella, as-built drawings are prepared by a contractor, approved by the SFMO and delivered to an owner who maintains them as a historical record. Gary West also testified about the procedure for approving as-built drawings of a job and re-certification of the drawings after changes have been made. The as-builts are not approved by the SFMO. Upon completion of the construction phase of the job, the as-built drawings are reviewed by the engineer, who makes new calculations as necessary, recommendations as necessary, and certifies the plans. Another of the alleged violations committed by WFP was failing to provide for drains in sections of the pipe installed that were lower than rest of the pipe. This condition resulted from DOC’s request that the height of the pipe be raised in the halls to prevent inmates from grabbing the pipes and swinging on them. As a result, in other places, such as the dayroom where the pipe had to be run under a major structural element of the building, the lower run of pipe would trap water. The NFPA provides that if more than five gallons of water can be trapped in such a low area, a drain must be provided; however, a pendent head may serve as such a drain. Ralph Hamm, the Respondent, drained the water in the dayroom area that was trapped, and it contained less than five gallons.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is, RECOMMENDED: That the Department enter a final order finding that the Respondent violated Section 633.539(1)(c), Florida Statutes, and fine the Respondent $1,000 for each of the three reported violations proven plus cost not to exceed $1,000. Further, that the Respondent be required to attend continuing education courses on the NFPA, and be placed on probation for one year from the date of the completion of said courses. And, further Respondent is not entitled to attorney's fees and costs. DONE and ENTERED this 6th day of June, 1997, in Tallahassee, Florida. STEPHEN F. DEAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 6th day of June, 1997. COPIES FURNISHED: Marc S. Nash, Esquire Department of Insurance 612 Larson Building Tallahassee, FL 32399-0333 M. Lee Fagan, Esquire Suite 31 One San Joe Place Jacksonville, FL 32257 Bill Nelson, State Treasurer and Insurance Commissioner The Capitol, Plaza Level Tallahassee, FL 32399-0300 Daniel Y. Sumner, General Counsel Department of Insurance The Capitol, LL-26 Tallahassee, FL 32399-0300
The Issue The issues are whether Respondent discriminated against Petitioner by not providing a reasonable accommodation, steam cleaning the apartment after the sprinkler head broke, that Petitioner was entitled to, and Respondent was required to provide, and, if so, whether Petitioner should receive damages as a result of Respondent's failure to provide Petitioner with a reasonable accommodation.
Findings Of Fact On December 8, 2009, Amadiz applied to become a tenant at Sunbeach. Amadiz informed Sunbeach at the time of her application that she had lupus. Sunbeach approved Amadiz's application and she became a tenant of unit 417, a studio apartment having approximately 400 square feet of living spaces. The apartment came furnished with a bed, dresser, nightstand, stove refrigerator, and desk. On April 11, 2010, Amadiz arrived home to her apartment at approximately 1:30 a.m., from volunteering at a fundraiser held by Miami Beach Veiled Wine Society. After Amadiz entered her apartment and closed the door, the sprinkler system started and an outpour of brownish water came out of the sprinkler because the cover was not on the sprinkler and the sprinkler head was not in place. The water wet Amadiz. Amadiz left the apartment and went to report the incident to the property manager Miguel Echemendia ("Echemendia"). Although Echemendia and Amadiz had a difficult time communicating with one another because she didn't speak his language (Spanish), Echemendia got dressed and went upstairs with Amadiz to assist her. Enchemendia looked at the water in Amadiz's apartment. He tried to locate the shut off but was not able to find it to cut off the running sprinkler. After about 45 minutes, Amadiz's neighbor helped Echemendia find the sprinkler shut-off and turned it off. Water covered Amadiz's tiled floors in the bathroom, closet, and main living area. After the sprinkler was turned off, Amadiz pumped water out of her apartment for about three hours. Amadiz threw out a lot of personal items the next day while trying to clean up from the water. A friend came over and assisted Amadiz with the clean up. They cleaned the tiled floor with bleach, dried the floors, and discarded wet and damaged goods. Amadiz and her friend were able to dry up most of the water. At about 3:45 p.m. on April 11, 2012, the same day as the sprinkler incident, Amadiz wrote Respondent a letter, which she sent certified, detailing the sprinkler outpour situation of earlier that morning. In the letter, Amadiz informed Sunbeach that she "cleaned the floors to the best of her ability." Amadiz also informed Sunbeach that "as water has seeped under the dresser, the refrigerator and stove, I am unable to complete the process without any assistance" and she requested "complete maintenance review for sprinkler systems, clean up of the areas I noted, fair reparations for the items [listed] damaged." By April 12, 2010, the water under the bed had dried up. However, the dresser had some brown water around it. Amadiz moved the dresser as far as she could and removed the water that she saw and cleaned the floor with bleach. Amadiz was concerned that there might be more water under the dresser that she couldn't get to left over from the sprinkler outpour. Amadiz also had a concerns about water she had discovered when she reached under the stove and refrigerator that she could not reach to clean. Amadiz dried up the areas around the appliances she could reach in the floor area. Amadiz was worried about water residue because the grout in her apartment was brownish, not white, after the outpour of water. Amadiz concluded that a mold-type condition existed even though mold does not colonize on tile floors. The areas that Amadiz couldn't access underneath the stove, refrigerator, and behind the floorboards concerned her. Amadiz neither asked nor sought anyone to help her access any of the areas. And, she was never able to determine if there was water behind the floorboard, stove, and refrigerator. On April 12, 2010, Sunbeach's repairman, Erique Perez ("Perez"), went to unit 417 with Echemendia to evaluate the water damage. He checked both the floors and walls with his hands. He checked underneath the refrigerator and stove by pulling it forward and did not find any water. Perez determined that there was no water damage in the apartment. On April 13, 2010, Amadiz sent Sunbeach a second letter requesting that Sunbeach come "check out the damage of her apartment, provide steam cleaning support or speak with her about the next steps." She also stated in the letter that she had been given antibiotics and a steroid cream for a rash and set up another doctor's appointment. On April 15, 2010, Amadiz called Garcia to follow up on her requests from the letters. Garcia indicated that she would speak to her supervisor and get back in contact with Amadiz the next week. Soon thereafter, code compliance visited Amadiz's apartment. On April 27, 2010, Amadiz sent a third letter to Respondent notifying Sunbeach that she was going to withhold rent if repairs weren't made in seven days and requested the following: Steam cleaning of the unit in which I reside as soiled water residue still remains under the appliances and furniture and within the grout of the tiles in the main living area as well as the bathroom An inspection of the two remaining sprinklers in the unit The rug directly in front of door remains and has begun showing signs of mold and mildew enough in fact that the smell can be ascertained from the elevators. Amadiz further detailed the items for which she wanted to be reimbursed and stated: These addressed issues coupled with my own health issues (on SSA Disability for systemic lupus erythematosus) cited in my previous correspondence lead me to assume the habitability of the unit is of little concern. I have made you aware of the need for antibiotics and steroid creams to offset the effects of the soiled water . . . the presence of mold and mildew within and without the unit creates inhabitable living conditions. Amadiz paid rent up to April 27, 2010, then withheld rent payments per her attorney's advice. On or about May 17, 2010, Amadiz received a three-day eviction notice from Sunbeach. Amadiz responded with a fourth letter dated May 17, 2010, which chronicled her previous letters, requested steam cleaning and inspection, and reparations for lost items, and listed her health issues identically as she had in the letter of April 27, 2010. Amadiz remained in the apartment from April 11, 2010, to June 29, 2010. She vacated the unit 417 on July 3, 2010, pursuant to the final judgment of eviction by Sunbeach entered against her for non-payment of rent.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing Petitioner's Petition for Relief filed by Judith Amadiz in its entirety. DONE AND ENTERED this 16th day of August, 2012, in Tallahassee, Leon County, Florida. S JUNE C. McKINNEY 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 16th day of August, 2012.
The Issue Whether a fine of $5,000.00 should be imposed by the Respondent upon the Petitioner.
Findings Of Fact The Petitioner, Florida Christian Health Center, is a nonprofit corporation operating a nursing home in Jacksonville, Duval County, Florida. The home is regulated by the Respondent, Department of Health and Rehabilitative Services. The Respondent issued an administrative complaint against the Petitioner, Florida Christian Health Center, dated December 15, 1978. The complaint notified the Petitioner that after thirty (30) days from the receipt of said complaint the Department intends to impose an administrative fine in the amount of $5,000.00 on the Florida Christian Health Center. As grounds for the fine the Department alleged that the Florida Christian Health Center had failed to: "provide adequate safeguards and procedures to protect the safety of patients while being bathed, as evidenced by the fact that at approximately 8:30 p.m. on December 13, 1978, a patient received second and third degree burns which resulted in hospitalization of the patient." The Petitioner, Florida Christian Health Center, requested an administrative hearing. Ms. Inez Johnson is an 80-year-old patient at the Florida Christian Health Center. At approximately 8:30 p.m. on December 13, 1978, Ms. Johnson was given a bath by Ms. Delray Evans Scales, a nurse's aide employed by the Petitioner. Ms. Johnson was lowered into the bath with buttocks submerged by means of a hydraulic lift while the water was still running into the tub from a hose connected to the hot and cold water faucets. Ms. Scales testified that she tested the water with her hand, using her own judgment as to the temperature, and then proceeded to bathe Ms. Johnson. After the bath, while Ms. Scales was drying the patient, she observed skin peeling from Ms. Johnson's buttocks. Initially, Ms. Scales and the other nurses thought the peeling was from urine, but later Ms. Johnson became restless. Ms. Scales again called the nurse on duty, Ms. Torio, a licensed practical nurse, who examined the patient and tested the temperature of the bath water. A second nurse on duty, Mr. Hayao, was also called. Ms. June King, the Director of Nurses, was notified by Ms. Torio of the patient's condition, and Dr. Tripp Jones, a medical doctor and house physician for the Florida Christian Health Center, was called. Dr. Jones prescribed medication for Ms. Johnson by telephone. At the time she bathed Ms. Johnson, Ms. Scales had had no training other than that received in a former position in Georgia. She was first employed on a night shift which usually did not bathe patients and had not seen the bathing procedure described in the nursing manual. Ms. Scales was not familiar with the use of the hose in the bathtub, and no thermometer was used to test the water. Ms. Scales was frightened, knowing the patient had probably been burned, and she was remorseful and worried. On the next morning, December 14, 1978, at approximately 5:30 a.m., the charge nurse on duty examined Ms. Johnson and discovered blisters on her buttocks, thighs and legs. She immediately notified Ms. King, the Director of Nurses, and Dr. Jones. Dr. Jones came to the nursing home and examined Ms. Johnson at approximately 6:30 a.m. He diagnosed her injuries as burns and made arrangements for Ms. Johnson to be hospitalized at St. Vincent's Hospital and to be seen by a specialist, Dr. Frederick Schert. Dr. Schert subsequently examined the patient and was of the opinion that the burns were water burns and typical scald burns. Ms. King, the Director of Nurses, called a friend of Ms. Johnson, listed as a responsible party for her, and requested that she come to the nursing home. The friend, Nathelia Johnson, came to the home and talked with Mr. William C. Wheatly, Jr., the Administrator of the Florida Christian Health Center. Mr. Wheatly had arrived at the Florida Christian Health Center at approximately 7:45 a.m. on December 14, 1978, after having been notified of the incident involving Ms. Johnson. He talked to the Director of Nurses and went to see the patient. Mr. Wheatly checked the bathroom where Ms. Johnson had been bathed to determine the temperature of the water used in bathing the patient. After running the water from the hot water heaters for some twenty (20) minutes and finding it hotter than he would want to get into, Mr. Wheatly turned down each of the thermostats. He then questioned Ms. Scales about the incident and also Mr. O'Barr, a maintenance man employed by the Petitioner, about the hot water settings. Two days prior to the incident a water softener had been installed, and thereafter personnel at the nursing home had complained of the lack of hot water. Mr. O'Barr had adjusted the water temperature. Mr. Wheatly called the Department of Health and Rehabilitative Services' licensure office and reported the incident to Mr. Ivan Owen, an employee of Respondent Department. The Respondent Department sent to the facility its investigative team, Mr. Robert L. Hartley and Mrs. Hattie King. Mr. Hartley inspected the facility, including the facility's hot water system, and questioned a number of the employees. Ms. King, a registered nurse, questioned the nursing staff concerning the incident and personally examined the patient, Ms. Johnson. A report was made to Mr. Ivan Owen and to Mr. Joseph D. Dowless, the Director of the Office of Licensure and Certification. Thereafter, Mr. Wheatly visited Mr. Dowless' office at approximately 11:30 a.m. on December 14, 1978, to discuss the incident. At the termination of the meeting, Mr. Dowless announced his intention to fine the facility $5,000.00. In the evening of December 14, 1978, the water temperature of the facility was checked, and it was discovered that after approximately 6:00 p.m. the temperature of the water rose. Mr. Wheatly, the Administrator, turned it down again. The Administrative Complaint, dated December 15, 1978, was drafted and served upon Mr. Wheatly. On December 20, 1978, Mr. Dowless sent a letter to the Florida Christian Health Center regarding the burn incident together with a Statement of Deficiencies and a Plan of Correction form. A report as to each deficiency of the home was required within ten (10) days from the date thereof. On December 29, 1978, the completed form was returned to Mr. Dowless by Mr. Wheatly. Each of the stated deficiencies were reported to have been completed on December 21, 1978. Subsequently, the Petitioner installed thermostatically controlled check valves and an alarm system on the hot water system, and several water thermometers were purchased. After the burn incident, and before the date of this hearing, Ms. Scales had received training from the Petitioner in the use of the hose and in bathing procedures. The Petitioner and the Respondent have submitted proposed findings of fact in this proceeding together with memoranda of law. These instruments were considered in the writing of this Order. To the extent the proposed findings of fact have not been adopted in, or are inconsistent with, the factual findings in this Order they have been specifically rejected as being irrelevant or not having been supported by the evidence.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that the Respondent, Department of Health and Rehabilitative Services, assess a civil penalty of $1,000.00 DONE and ORDERED this 22nd day of June, 1979, in Tallahassee, Leon County, Florida. COPIES FURNISHED: Robert Eisenberg, Esquire Department of HRS Post Office Box 2417 F Jacksonville, Florida 32231 B. Thomas Whitefield, Esquire Post Office Box 479 Jacksonville, Florida 32201 DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of June, 1979.
