The Issue Whether the Respondents violated Section 112.313(6), Florida Statutes, by including certain letters in an official mail-out paid for by the taxpayers of the Flagler Estates Road and Water District and, if so, what penalty is appropriate.
Findings Of Fact Stipulated Facts Respondent Holman was appointed as a member of the Board of Supervisors of the Flagler Estates Road and Water Control District (the District) on March 20, 1998. She was appointed to complete the second year of another Supervisor's three-year term. Respondent Holman was elected to serve the remainder of that Supervisor's term on June 20, 1998. A letter from Respondent Holman to the District's property owners was included in the District's mail-out prior to the June 20, 1998, election. Respondent Holman provided Ms. Wendy Wilhelm, the District's secretary, with a copy of the subject letter. Ms. Wilhelm integrated the letter into the District's mail-out by typing it into the District's computer. Respondent Rousseau was appointed to the District Board of Supervisors on November 3, 1994. He was later elected to the position on June 18, 1995, and then re-elected on June 20, 1998. Respondent Rousseau acknowledged that he provided a copy of the subject letter to Ms. Wilhelm for the express purpose of including it in the District's office mail-out. The cost of the subject mailings were paid for with funds that were derived from assessments paid to the District by its property owners. The aforementioned mail-out was the last District mailing issued before the June 20, 1998, District election. Findings of Fact From Documentary Evidence On or about May 11, 1998, the District mailed a Notice of Annual Meeting of Landowners of Flagler Estates Road and Water Control District. The notice advised landowners within the District that the annual meeting would be held on June 20, 1998, at 10:00 a.m., at the District office. Moreover, the notice stated that the purpose of the meeting was to elect supervisors, receive annual reports, and consider other business that may properly be brought before the meeting. Enclosed in the aforementioned mail-out were three letters, one from each of the three members of the District's Board of Supervisors, including Respondent Rosseau and Respondent Holman. In his letter, Respondent Rousseau advised property owners of problems faced by the District during the year; provided information about his background; and stated that his "term expired in June" and that he was seeking reelection. In her letter, Respondent Holman provided information about her background, advised landowners that she had only served as a District Supervisor for four months, and detailed the activities in which she had been involved on behalf of the District. Lastly, Respondent Holman wrote, "I have enjoyed my short time on the Board and hope to be elected to fulfill Gerrit Stewart's one-year term." Ms. Calvert Hanson, the District's general counsel, suggested to Respondents Rosseau and Holman that the above- referenced letters be included in the District's official mail- out. Prior to the letters being mailed out to the property owners, Ms. Hanson reviewed the letters but made no modifications, except for correcting some grammatical errors. Ms. Hanson did not believe that the letters were solicitations for votes for Respondents' election or reelection to the District's Board of Supervisors. Respondent Holman's and Respondent Rousseau's decision to include their respective letters in the District's official mail-out was based solely on the suggestion of the District's general counsel. Prior to the letters being sent out, Respondents provided Ms. Hanson with copies thereof for her review. Having received no recommendations for substantive modifications to the letters, Respondents Holmon and Rousseau did not believe that the contents of the letters constituted an improper solicitation for support in the District's election for Supervisors. Notwithstanding Respondents' subjective belief to the contrary, a portion of each of their letters constituted a solicitation for support in the June 1998 election for the District's Board of Supervisors. While Respondents' letters included information regarding the District, the letters also clearly indicated that Respondents were seeking to be elected or reelected to the District Board of Supervisors. Based on the content of the letters and the fact that they were included in the mail-out noticing the annual meeting at which supervisors would be elected, it appears reasonable that Respondents were seeking support for their election. Thus, although the letters did not expressly request that landowners "vote" for Respondents, such request was implicit in the letters.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that a Final Order and Public Report be entered finding that Respondent Robin Holman and Respondent Thomas Rousseau did not violate Section 112.313(6), Florida Statutes. DONE AND ENTERED this 26th day of May, 1999, in Tallahassee, Leon County, Florida. CAROLYN S. HOLIFIELD 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 Filed with the Clerk of the Division of Administrative Hearings this 26th day of May, 1999. COPIES FURNISHED: Eric S. Scott Assistant Attorney General Attorney General's Office The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 Linda Calvert Hanson, Esquire 3501-B North Ponce de Leon Boulevard Suite 342 St. Augustine, Florida 32095 Sheri Gerety Complaint Coordinator and Clerk Ethics Commission 2822 Remington Green Circle Post Office Drawer 15709 Tallahassee, Florida 32317-5709 Phil Claypool, General Counsel Ethics Commission 2822 Remington Green Circle Post Office Drawer 15709 Tallahassee, Florida 32317-5709
Findings Of Fact In May, 1986, Radar Corporation, owned by Ronald Ross, bought the assets of United Water Consultants, Inc., and continued the business of selling water purifiers under the fictitious name, United Water Consultants. As part of the agreement to purchase the United Water Consultants' assets, Ross, who had no experience in the business, insisted that the seller arrange to have an experienced manager agree to stay on and work for Radar at least until either Ross was able to learn the business adequately or could hire another suitable manager. The seller recommended, and Radar hired as manager, a man named Robert Gillette, who had about 30 years experience in the business. One of the first orders of business for Radar and Gillette was to hire staff, including telephone solicitors, the heart of the business. Among-those Gillette hired were the petitioners--Leisha F. Fickes, Petitioner in Case No. 87-2605, hired in early June, 1986; Marian C. Norz, Petitioner in Case No. 86- 2606, hired in late May, 1986; and Eileen A. Warner, Petitioner in Case No. 86- 2607, hired approximately May 20, 1986. Fickes, Norz and Warner (like all other United Water Consultants personnel) signed agreements shortly after they began work stating that they were independent contractors. But the main purpose of those agreements, as Gillette explained to them, was to help justify Radar's failure to take federal income tax withholding and social security out of their pay checks. Functionally, the petitioners had the attributes of employees. They were under the close supervision, direction and control of Gillette in the day-to-day details of their work. They were paid a salary based on an hourly wage, plus commissions on telephone solicitations that resulted in sales. Soon after the petitioners began work, Gillette began making advances towards them. At first, Gillette was not too bold and some of his advances were innocent enough to be in public. He would do things like come up behind one of them and gently massage her shoulders and neck. This type touching was not entirely unwelcome, especially to someone who had been sitting in one place making telephone calls for some length of time. But very quickly, Gillette began to subject the petitioners to coarse and unwelcomed sexual advances in private. On one occasion, Gillette came in the room where Fickes was working and, after massaging her shoulders, began to try to kiss her neck. On another occasion, Gillette loaned Fickes $20 and implied she could pay him back with sexual favors. Later, he began to take opportunities to drop pens and similar articles down her blouse and offer to retrieve them himself. One day Gillette came up behind Warner after posting recent sales and began to rub her breasts, saying "see what I got for you?" Warner pushed him away, and he angrily stormed out of the office. On one Friday, Gillette offered Warner $20 for oral sex and asked her to think about it. On Monday, Gillette followed up his offer and, when Warner declined the offer, said he thought she probably did it for her husband for free. Later, to punish Warner for her refusal to give him sexual favors, Gillette began to give her customer lists for solicitation bearing the names of people who recently had declined to buy a water purifier, and Warner's commissions dropped. When Warner complained, Gillette hold her, "you do for me, and I'll do for you." When Norz asked Gillette for higher commissions, Gillette also told her that he would get her more money in return for sexual favors. He also told her, when she refused his requests that they go out socially together, that he did not know why she was married to an "old man." As Gillette's conduct worsened, all three of the petitioners separately went directly to Ross to complain. Ross said he would look into the allegations and "take care of it." In fact, Ross did nothing. Although most of Gillette's coarser sexual advances were made in private, Norz once observed Gillette rubbing Warner's shoulders as he closed the door of the room they were in, and Warner once observed Gillette drop an article down Fickes' blouse. As they talked with one another, the petitioners began to realize the extent of Gillette's conduct and decided to approach Ross together to see if they could be more persuasive. On July 11, 1986, the petitioners met Ross in the parking lot as he came in to work and demanded to speak to him. They reiterated the facts and demanded that Ross fire Gillette or move him out of the telephone room or they would quit. Ross asked them to come back after lunch. Meanwhile, Ross confronted Gillette for the first time, and Gillette denied the allegations. Gillette demanded a direct confrontation with the petitioners, thinking they would back down. At the meeting after lunch, the petitioners re-asserted their allegations, and Gillette angrily stormed out of the room, expressing an ultimatum that it looked like it would have to be him or them. Ross, whose business would be seriously adversely affected by the departure of Gillette, his manager, told the petitioners that he would have to discuss the situation with his "colleagues" and would get back with them. They told him that they were anxious to hear from him because they (especially Warner and Fickes) needed the work but that they would no longer work under Gillette. When the petitioners did not hear from Ross, Fickes telephoned him and was told that they all had been fired, allegedly because a customer list had turned up missing. (If true, the petitioners had nothing to do with it.) Later, Ross would maintain that the petitioners voluntarily quit on July 11, 1986. Fickes and Warner earned approximately $220 per week and Norz earned approximately $195 per week at United Water Consultants. Norz made no real effort to mitigate damages by seeking other employment after July 11, 1986. Warner and Fickes, both of whom were pregnant, were unable to find other employment before the birth of their babies in August and November, 1986, respectively. Warner took about six weeks off after childbirth and worked three different jobs from late October, 1986, through July, 1987, each of which paid her approximately $140 per week. Fickes did not return to work until March, 1987, when she began earning approximately $170 per week at a restaurant. /1 At least from the time Radar took over the United Water Consultants business through at least December, 1986, at least five employees worked for the business each and every week. Radar operates the United Water Consultants business out of an address located in Largo, a municipality in Pinellas County other than the City of Clearwater.
Recommendation Based on the foregoing Findings Of Fact and Conclusions Of Law, it is recommended that the Community Relations Board of the City of Clearwater, acting as the Commission that administers Pinellas County Ordinance 84-10, codified under Chapter 17.5 of the Pinellas County Code, enter a final order: Holding the respondents, Radar Corporation and United Water Consultants, guilty of having violated Section 2-17.5-3, Pinellas County Code, by discriminating against the petitioners, Leisha F. Fickes, Marian C. Norz and Eileen A. Warner, in employment on the basis of sex; and Ordering the respondents, Radar Corporation and United Water Consultants, jointly and severally, to pay to Leisha F. Fickes $7,740 and to Eileen A. Warner $5,880 as actual damages RECOMMENDED this 6th day of November, 1987, in Tallahassee, Florida. J. LAWRENCE JOHNSON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of November, 1987.
Findings Of Fact Floralino Properties, Inc. is a small utility providing water and sewer service in Pasco County. During the period May 30, 1978 until March 12, 1979, it purchased a substantial portion of its water from the Pasco Water Authority, Inc. (PWA) for resale to its customers. In order to recoup the costs of those purchases, the Public Service Commission authorized the utility to assess a surcharge upon each customer's bill. (See Order No. 7494). However, because the surcharge exceeded the actual charges for water purchased, the utility was required to escrow all excess revenues. Respondent failed to do so thereby precipitating the issuance of Order No. 9320. A subsequent Commission audit reflected the excess revenues to be $2,228.05. Prior to the hearing, but after the issuance of Order No. 9320, the respondent escrowed the funds in a Pinellas County bank. The utility now agrees to make an appropriate refund with interest within 30 days to all customers who received service during the period in question.
Recommendation Based upon the foregoing findings of fact and conclusions of law, the Hearing Officer recommends that respondent be found guilty of violating Order No. 7494, dated November 2, 1976; that a fine of $250 be imposed upon respondent; that respondent make an appropriate refund of $2,228.05 with 6 percent interest to those customers entitled to such refund within 30 days; and that a final report setting forth the disposition of such monies be submitted to the Public Service Commission within 90 days. DONE AND ENTERED this 22nd day of August, 1980, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: M. Robert Christ, Esquire 101 East Gaines Street Tallahassee, Florida 33542 Floralino Properties, Inc. 2320 East Bay Drive Clearwater, Florida 33516 Steve Tribble Commission Clerk 101 East Gaines Street Tallahassee, Florida 32301 Herman B. Blumenthal, III, Esquire 10401 Seminole Boulevard (Alt. 19) Seminole, Florida 33542
The Issue The issues to be adjudicated in this proceeding concern whether Conrock Utility Company's application for a water certificate in Hernando County meets the requirements of Sections 367.041 and 367.051, Florida Statutes, and, therefore, whether it should be granted.
Findings Of Fact 1. Applications and notices of intent to apply for a water certificate for a particular service area are required to be noticed in a newspaper of general circulation in the service area involved. In this proceeding, an affidavit was introduced from the "Sun Coast News," to the effect that Conrock had caused to be published in that newspaper its notice of intent to apply for the water certificate. That newspaper is published on Wednesdays and Saturdays in New Port Richey, Pasco County, Florida. Conrock's proposed service area, or territory, is in that portion of Hernando County lying east of the City of Brooksville. This newspaper is a free publication and states on the front page that it is circulated in Pasco and Hernando Counties. There is some testimony to the effect that the newspaper is only circulated in that portion of Hernando County lying westward of Brooksville near the Pasco County border, which is an area removed from Conrock's proposed service territory. No evidence was presented to the effect that that newspaper actually circulates in Conrock's proposed service territory. 2. Rules 25-30.030(2)(f), 25-30.035(3)(f) and 25-30.035(3)(h), Florida Administrative Code, require that the utility provide evidence that it owns the land where the treatment facilities are to be located or provide a copy of an agreement providing authority for the continuous use of the land involved in the utility operations and that a system map of the proposed lines and facilities be filed with the Commission. It was not established that Conrock owns or has a written lease for the land where the water facilities are proposed to be located. No actual lease has been executed providing for long-term continuous use of the land. It is true, however, that a verbal agreement exists with the Williams family members and/or the Williams Family Trust, who own the land upon which the facilities would be located, authorizing the use of the land for the proposed operations and facilities. That unrebutted evidence does establish, therefore, that Conrock has authorization to use the land where the water facilities, including the wells, are, or will be located. Although there is no extant written agreement, as yet, providing for the continuous use of the land involved, Conrock did establish that such an agreement can be consummated in the near future based on the verbal agreement it already has. Conrock did place into evidence a territorial map of the proposed service area. It did not, however, provide a system map or otherwise provide concrete evidence of where distribution lines and other facilities would be located for its proposed system. It submitted instead a "planning study" directed to the question of whether a water utility is needed for the proposed territorial area. It submitted no design specifications for the proposed system into evidence however. Conrock has not filed any tariff rate schedules for any water service it might conduct, if granted a certificate. Concerning the question of the need for the proposed water service, it was established by Conrock that 900 acres of the proposed service territory are mainly owned by the Sumner A. Williams Family Trust (Family Trust). Additionally, some small tracts are owned by S. A. Williams Corporation, a related family corporation. The majority of the 900-acre tract is zoned agricultural and the S.A.W. Corporation operates a construction/demolition landfill on that property. There is no evidence that it contemplates a real estate development on that 900-acre tract or other tracts in the area which could be served by the proposed water utility. Neither is Conrock attempting entry into the utility business in order to supply water to a development of the above-named corporation or any related party, person or entity. The proposed service area is rural in nature. The majority of people living in the area live on tracts of land ranging from 1 to 200 acres in size. The people living in the proposed territory either have individual wells or currently receive water service from the City of Brooksville or from Hernando County. Both of those entities serve small subdivisions, or portions thereof, lying wholly or in part in the proposed service territory of Conrock. Conrock has not received any requests for water services from residents in the proposed service territory. There is some evidence that discussions to that effect may have occurred with an entity known as TBF Properties, lying generally to the north of the proposed service territory. TBF Properties apparently contemplates a real estate development on land it owns, which also encompasses part of the Williams family property; some of which lies within the proposed service territory. Plans for TBF's residential construction development are not established in the evidence in this case however. There is no evidence which shows when or on what schedule the construction of that development might occur, nor whether it would actually seek service from Conrock if that entity was granted a water certificate. TBF Properties is the only entity or person in Conrock's proposed service territory that has expressed any interest to the City of Brooksville concerning receiving water service from the city. There have been no requests to the county for water service in the proposed service territory, except by Budget Inn, a motel development. The proposed service area includes a number of small subdivisions. These subdivisions are Mundon Hill Farms, Eastside Estates, Cooper Terrace, Country Oak Estates, Chris Morris Trailer Park, Potterfield Sunny Acres, Gunderman Mobile Home Park, and Country Side Estates. Mundon Hill Farms is an undeveloped subdivision. Eastside Estates and Cooper Terrace have limited development and the Country Oak Estates consist of only three homes. The Chris Morris Trailer Park has a small number of mobile homes but is not of a high density. Potterfield Sunny Acres has six to eight homes. Gunderman Mobile Home Park is a minor development. The Country Side Estates development has its own independent water system. Some subdivisions in Conrock's proposed service area already receive water service from the city or the county. Conrock was incorporated in the past year and as yet has not had any active business operations. It currently has no employees. Mark Williams, the President of Conrock, manages the construction/demolition landfill operation owned by the S.A.W. Corporation. The landfill business is the most closely related business endeavor to a water utility business in the experience of Mr. Williams, Conrock's president. If Conrock were granted a water certificate, either Ms. Donna Martin or Mr. Charles DeLamater would be the operations manager. Neither of these persons possesses any license or training authorizing him or her to operate a water utility system. No evidence was presented as to Ms. Martin's qualifications to operate a water utility system. Mr. DeLamater manages a ranch at the present time and also works in a management capacity in the landfill operation for the Williams family. There is no evidence that he has received any training in the operation of a water utility. It is true, however, that the representatives of the engineering and consulting firm retained by Conrock, who testified in this case, do possess extensive water and sewer design and operation expertise. The evidence does not reflect that those entities or persons would be retained to help operate the utility, but Conrock established that it will promptly retain operating personnel of adequate training and experience to operate the water system should the certificate be granted. Conrock has not established what type of system it would install should the certificate be granted, but a number of alternatives were examined and treated in its feasibility study (in evidence). One alternative involves the use of well fields alone, without treatment, storage or transmission lines. In this connection, the feasibility study contains some indication that the water quality available in the existing wells is such that no water treatment is necessary. In any event, Conrock has not established of record in this case what type of facilities it proposes to install in order to operate its proposed water service. Further, that feasibility study, designed to show a need for the proposed water service, is based upon the actual population, density and occupancies in the homes and subdivisions of the proposed service territory, even though those current residents and occupants have independent water supplies at the present time, either through private wells or through service provided by the City of Brooksville or Hernando County. Thus, the feasibility study itself does not establish that the proposed service is actually needed. Concerning the issue of the proposed facility's financial ability to install and provide the service, it was shown that Conrock stock is jointly held between the Williams family and the S.A.W. Corporation. The Conrock Corporation itself has no assets. The president of Conrock owns 100 shares of the utility corporation, but has not yet committed any personal funds to the venture. No efforts, as yet, have been made to obtain bonds, loans or grants. In fact, the first phase of the proposed project, which is expected to cost approximately $400,000, can be provided in cash from funds presently held by the Williams Family Trust and the S.A.W. Corporation. The various system alternatives proposed in Conrock's feasibility study, in evidence, range in cost from $728,200 to $5,963,100. Conrock has no assets and therefore no financial statement as yet. The financial statements of Mr. and Mrs. Sumner A. Williams, the parents of Conrock's president, include approximately $3,069,907. This is the corpus of the family trust mentioned above, and with other assets, amount to a net worth for those individuals of approximately 5.8 million dollars. Mr. Williams, Conrock's president, has an income interest in the family trust. The financial statements of the S.A.W. Corporation indicate it has a net worth of $1,588,739. The Family Trust financial statement shows a net worth of $3,069,907 of which $1,444,165 consists of stock in the S.A.W. Corporation. The Family Trust owns 90.9 percent of the S.A.W. Corporation stock. It is thus a close-held corporation, not publicly traded and thus has no value independent of the corporation's actual assets. In spite of the fact that Conrock, itself, the corporate applicant herein, does not have assets or net worth directly establishing its own financial responsibility and feasibility, in terms of constructing and operating the proposed water service, the testimony of Mr. Williams, its president, was unrefuted and does establish that sufficient funds from family members and the trust are available to adequately accomplish the proposed project. Concerning the issue of competition with or duplication of other systems, it was established that the City of Brooksville currently provides water service to the Wesleyan Village, a subdivision within the Conrock proposed service territory. The City has a major transmission line running from its corporate limits out to the Wesleyan Village. The Wesleyan Village is receiving adequate water service at the present time, although there is some evidence that water pressure is not adequate for full fire flows. The City also has another water main running from US 41 down Crum Road, which is in the proposed service territory of Conrock. By agreement with Hernando County, a so-called "interlocal agreement," the City of Brooksville is authorized to provide water and sewer utility service in a 5-mile radius in Hernando County around the incorporated area of Brooksville. This 5-mile radius includes much of the proposed service territory of Conrock. The City of Brooksville comprehensive plan, approved by the Florida Department of Community Affairs, contains an established policy discouraging "urban sprawl" or "leap frogging"; the placing of developments including separate, privately owned water utilities in predominantly rural areas. It, instead, favors the installation of subdivision developments in areas which can be served by existing, more centralized, publicly owned water and sewer utilities such as the City of Brooksville or Hernando County. Thus, the installation of the separate, privately owned system in a rural area of the county would serve to encourage urbanization away from area contiguous to the municipality of Brooksville which is served, and legally authorized to be served, by the City of Brooksville. Such a project would be in derogation of the provisions of the approved comprehensive land use plan. Further, Conrock's proposed system would be in partial competition with and duplication of the city and county water systems in the proposed service territory. The county provides some water service through its water and sewer district system to some of the subdivisions and residents in the proposed service territory of Conrock and much of Conrock's territory, as mentioned above, lies within the 5-mile radius urban services area of Brooksville, authorized to be served by the city and county interlocal agreement. Such interlocal agreements, including this one, are contemplated and authorized by the comprehensive plan approved by the Department of Community Affairs and the city/county agreement involved in this proceeding was adopted in 1978 in accordance with certain federal grant mandates in Title 201 of the Federal Safe Water Drinking Act. In terms of present physical competition and duplication, Conrock's proposed system would likely involve the running of water lines parallel to and in duplication of the county's lines within the same subdivision.
Recommendation Having considered the foregoing findings of fact, conclusions of law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is therefore RECOMMENDED that the application of Conrock Utilities Corporation for a water certificate authorizing it to operate a water utility in Hernando County, Florida, as more particularly described herein, be denied. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 23rd day of January 1990. P. MICHAEL RUFF 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 Hearing this 24th day of January 1990. APPENDIX Petitioners, City of Brooksville, Hernando County, and Hernando County Water and Sewer District's proposed findings of fact. Accepted. Accepted. Accepted. Rejected as subordinate to the Hearing Officer's findings of fact on the subject matter. Rejected as subordinate to the Hearing Officer's findings of fact on the subject matter. Rejected as subordinate to the Hearing Officer's findings of fact on the subject matter. Respondent's proposed findings of fact. Accepted. Accepted. Rejected as subordinate to the Hearing Officer's findings of fact on this subject matter and as not entirely in accordance with the preponderant weight of the evidence. Accepted. Accepted. Rejected as subordinate to the Hearing Officer's findings of fact on this subject matter and as not entirely in accordance with the preponderant weight of the evidence. Intervenor's proposed findings of fact. Accepted. Rejected as subordinate to the Hearing Officer's findings of fact on this subject matter and not in itself materially dispositive. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted, but not in itself materially dispositive and subordinate to the Hearing Officer's findings of fact on this subject matter. Accepted. Accepted. Rejected as subordinate to the Hearing Officer's findings of fact on this subject matter and as not in itself materially dispositive. Accepted, but not in itself materially dispositive. Accepted, but subordinate to the Hearing Officer's findings of fact on this subject matter. Accepted, but subordinate to the Hearing Officer's findings of fact on this subject matter. Accepted. Accepted. Accepted. Accepted. Copies furnished to: William B. Eppley, Esquire Post Office Box 1478 Brooksville, Florida 34605 Peyton B. Hyslop, Esquire 10 North Brooksville Avenue Brooksville, Florida 34601 James F. Pingel, Jr., Esquire South Ashley Drive Suite 1400, Ashley Tower Post Office 1050 Tampa, Florida 33601 David C. Schwartz, Esquire Florida Public Service Commission East Gaines Street Tallahassee, Florida 32399-0855 Steve Tribble, Director Records and Recording Florida Public Service Commission 101 East Gaines Street Tallahassee, Florida 32399-0850 David Swafford Executive Director Florida Public Service Commission 101 East Gaines Street Tallahassee, Florida 32399-0850 Susan Clark, General Counsel Florida Public Service Commission 101 East Gaines Street Tallahassee, Florida 32399-0850 =================================================================
The Issue The issue is whether the plan amendment adopted by Ordinance No. 2004-026 on August 24, 2004, is in compliance.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Background The County's original Plan was adopted on August 31, 1989, and became effective on September 11, 1989. In 2000, the County amended its Plan by establishing a Managed Growth Tier System, which includes five classifications of land (Urban/ Suburban, Exurban, Rural, Agricultural Reserve, and Glades), along with three classes of service areas within the County to guide delivery of public services: Urban Area, Limited Urban Service Area, and Rural Service Area (RSA). It also assigned different levels of service for potable water and wastewater for each service area. At the same time, the County amended its FLUE to add a new Policy 3.4-c, which provides as follows: The County shall neither provide nor subsidize the provision of centralized potable water or sanitary sewer in the Rural Service Area, unless urban levels of service are required to correct an existing problem, prevent a projected public health hazard or prevent significant environmental degradation, or the areas meet the criteria described in Future Land Use Policy 3.4.b. The County intended Policy 3.4-c to implement the Managed Growth Tier System by limiting the provision of centralized utility service in the Rural Tier. The effect of this new policy was to prohibit the County from providing urban levels of utility services outside its existing service area boundaries in the RSA unless necessary to correct or prevent a public health hazard, existing problem related to urban levels of service, or environmental degradation. In February or March 2003, the County Planning Department began assessing ways to address the problem of overlapping utility service in the RSA. Shortly thereafter, the Florida Legislature passed the Scripps Law (Chapter 2003- 420, Laws of Florida), which took effect on November 3, 2003. Both of these factors led to the development of the Amendments in issue here. In late 2003, the County staff began the actual development of new amendments to its Plan (also known as Round 04-1 Plan Amendments) that would allow the County to provide services into the RSA. More specifically, the staff proposed to add a new FLUE Policy 3.1, which (as finally drafted) read as follows: The Palm Beach County Water Utilities Department shall provide potable water, reclaimed water and wastewater service to all unincorporated areas of the County except those unincorporated areas where the Palm Beach County Board of County Commissioners has entered or enters into a written agreement that provides utility service area rights to a public or privately owned potable water, reclaimed water, and/or wastewater utility, or in areas where the Palm Beach County Water Utilities Department is specifically excluded from providing utility service by Florida law. Palm Beach County Water Utilities Department shall continue to provide utility services to incorporated areas where service is already being provided by the County, or as provided for under utility service area agreements or as allowed for by law. In general terms, the new policy designated the County as a service provider of water and wastewater services for unincorporated areas of the County where the County has, or will enter into, interlocal agreements except where excluded by interlocal agreement or by law. The effect of the amendment is to allow the County to extend potable water and wastewater services to unincorporated areas of the County, particularly "the western communities," where it currently does not do so. The County staff also proposed to delete FLUE Policy 3.4-c, described in Finding of Fact 1, which was previously adopted in 2000. Finally, the County staff proposed to delete another policy adopted in 2000, CAI Policy 1.5-c, which read as follows: Urban levels of service shall not be provided by any governmental entity (outside of its existing service area boundary) within the Rural Service Area of the unincorporated area, except where: The Rural Service Area receives urban services pursuant to Objective 1.1 in the Element, or An urban level of service is required to correct a demonstrated public health, or Development on a parcel in the Rural Tier that is adjacent to water and/or sewer lines which existed prior to the adoption of the Comprehensive Plan in 1989 shall be allowed to connect to those existing lines and shall be allowed to connect to public sewer and/or water when required by the Public Health Department. This policy shall not allow the extension of new water and/or sewer lines into the Rural Tier to serve development without first amending the Service Area Map and the Future Land Use Atlas to reflect a change in the service area boundary. By deleting these two provisions, the County would no longer be prevented from providing utility services in the RSA unless certain conditions were met. (The staff also proposed to delete FLUE Policy 1.4-k, but that deletion is not in issue in these proceedings.) On January 14, 2004, the County initiated the adoption process by transmitting Notice of the Amendments to the Intergovernmental Plan and Amendment Review Committee (IPARC), which is made up of all the local governments and special districts in the County, including the City, Wellington, SID, and ITID. IPARC acts as a clearinghouse for all comprehensive plan amendments prepared by the IPARC members. IPARC in turn distributed the notice to its members, including the City, Wellington, SID, and ITID. After a public hearing on March 12, 2004, before the County's Local Planning Agency (known as the Land Use Advisory Board), by an 11-0 vote it recommended denial of Round 04-1 Plan Amendments and recommended that the County meet with the affected parties to resolve problems voiced by various attendees, including the City, SID, and ITID. On April 2, 2004, the County held a meeting with interested persons in an attempt to resolve objections to the Amendments before they were presented to the Board of County Commissioners. The objections were not resolved. On April 5, 2004, by a 5-0 vote, the Board of County Commissioners approved transmittal of the Amendments to the Department, other commenting agencies, and each unit of local government or governmental agency that had filed a written request for copies of the Amendments. The Amendments were transmitted to the Department on April 15, 2004. Between January 2004 and August 2004, the County held at least 37 meetings with utilities and other interested persons to discuss the Amendments, including three meetings with the City, at least five meetings with SID, at least ten meetings with ITID, and at least two meetings with Wellington. In addition, the County invited all utilities to attend meetings on April 28, 2004, at three locations to discuss utility service area boundaries. These meetings were attended by approximately 25 different utilities, including the City, SID, ITID, and Wellington. As a result of these meetings, the County prepared and distributed utility service area maps in an attempt to demonstrate the necessity for better coordination between utilities. On May 21, 2004, the Treasure Coast Regional Planning Council notified the County of no objection or comments regarding the Amendments. On June 19, 2004, the Department issued its Objections, Recommendations, and Comments Report, which did not identify any objections, recommendations, or comments with respect to the Amendments. On June 22, 2004, the South Florida Water Management District (District) notified the Department of no objections or comments regarding the Amendments. After a public meeting on August 24, 2004, by a 5-1 vote, the Board of County Commissioners adopted Ordinance No. 2004-26 enacting the Amendments, and they were transmitted to the Department on September 14, 2004. On October 29, 2004, the Department issued its Notice determining the Amendments were in compliance. On November 19, 2004, Petitioners (except Wellington) filed Petitions challenging the Amendments. Wellington filed its Amended Petition on December 16, 2004. The Parties and Their Standing The City is a municipality and adjoining local government of the County, operating its own water and wastewater utility system. The City owns the largest water treatment plant in the County and has an extensive wastewater treatment system, including partial ownership in the East Central Regional Water Reclamation Facilty, the largest wastewater plant in the County. It owns property and currently provides bulk service to entities located within the unincorporated area of the County, including ITID. It submitted written objections to the County during the adoption process and has standing to bring this action. SID is an independent special district created by special act of the legislature in 1970. It lies within the unincorporated area of the County and has the authority to provide water and wastewater service within and without its boundaries. At present, SID provides potable water service within and without its boundaries, but only provides wastewater service within its boundaries. SID owns property in the unincorporated area and submitted objections to the County during the adoption process. These facts establish that SID has standing as an affected person to challenge the Amendments. Callery-Judge is a limited partnership, which owns and operates citrus groves on property located within the unincorporated area. It also submitted objections to the County during the adoption process. Callery-Judge is an affected person and has standing to participate in this matter. Mr. Roberts owns property in the unincorporated area, including Callery-Judge, of which he is the General Manager. He submitted objections to the Amendments during the adoption process and is an affected person. ITID is an independent special district created by special act of the legislature in 1957. (In 2002, the Legislature amended and reenacted ITID's enabling legislation.) In 1998, ITID began operating a water and wastewater system within the unincorporated area. ITID does not generate its own potable water or treat its wastewater. It obtains bulk water from the City and SID and bulk wastewater service from the City. ITID owns property within the unincorporated area and submitted objections to the amendment during the adoption process. As such, it is an affected person within the meaning of the law. Wellington is a municipality and adjoining local government of the County and operates a utility providing water and wastewater service within its boundaries and outside to several developments. It also submitted objections to the County during the adoption of the Amendments. Because Wellington does not own property or operate a business within the unincorporated area of the County, in order to demonstrate standing, it must show that the Amendments will produce substantial impacts on the increased need for publicly funded infrastructure or substantial impacts on areas designated for protection or special treatment within its jurisdiction. See § 163.3184(1)(a), Fla. Stat. Wellington bases its standing on alleged increases in traffic and the use of parks within its boundaries, which purportedly will occur as a result of the Amendments. While Wellington could not give a precise amount (in terms of dollars) of those impacts, the testimony of its Director of Community Services established that the availability of centralized water and sewer services in the areas adjoining Wellington will arguably lead to higher density development patterns, which in turn will lead to an increased need for publicly funded infrastructure. As such, Wellington is an affected person and has standing to challenge the Amendments. The Department is the state planning agency charged with responsibility for reviewing and approving comprehensive plans and amendments. The County is a political subdivision of the State of Florida and is responsible for adopting a comprehensive plan and amendments thereto, including the Amendments. The County Water Utilities Department currently serves approximately 425,000 people, making it the largest utility provider in Palm Beach County and the third largest in the State of Florida. The Current Plan As noted above, the County initially adopted its current Plan on August 31, 1989, by Ordinance No. 89-17. The Plan has been amended numerous times since its initial adoption. The original 1989 Plan and all subsequent amendments up to the ones at issue in this proceeding have been found in compliance by the Department. The current Plan is made up of sixteen elements, nine of which are mandatory, and seven of which are optional. The parties have indicated that the Utilities Element, CIE, Intergovernmental Coordination Element, and FLUE are relevant to this controversy; therefore, a brief description of their content and purpose is necessary. The purpose of a Utilities Element is to provide necessary public facilities and services correlated to future land uses. See § 163.3177(6)(c), Fla. Stat., and Fla. Admin. Code R. 9J-5.011. The existing Utilities Element contains potable water, wastewater, drainage, and solid waste sub- elements. The aquifer recharge sub-element is found in the Coastal Management Element. The Utilities Element and the aquifer recharge sub-element of the Coastal Management Element constitute the "general sanitary sewer, solid waste, drainage, potable water, and natural groundwater aquifer recharge element" referenced in Section 163.3177(6)(c), Florida Statutes, and Florida Administrative Code Rule 9J-5.011. The existing Utilities Element has been found in compliance with applicable provisions of statute and rule. Section 163.3177(3)(c), Florida Statutes, and Florida Administrative Code Rule 9J-5.016 contain requirements for the capital improvements element of a comprehensive plan. The existing CIE complies with these requirements. Objective 1.7 and Policy 1.7-a describe how the County implements the CIE. Pursuant to these requirements, the CIE is updated annually at the same time as the County budget. Table 10 of the CIE reflects the water utilities revenue and expenditures for the then current budget year and five years into the future. Table 10 was not updated when the Amendments were adopted because any future changes to the County's capital expenditures resulting from the Amendments would be made through the annual budget update process. The Intergovernmental Coordination Element contains provisions encouraging coordination between the County and adjoining municipalities and special districts in order to more efficiently meet the needs of the County residents. (There are more than 25 municipalities and special districts within the County.) This Element has previously been found in compliance with Section 163.3177(6)(h), Florida Statutes, and Florida Administrative Code Rule 9J-5.015. One of the coordination tools identified in the Intergovernmental Coordination Element is the IPARC, described in Finding of Fact 5, which acts as a clearinghouse for all comprehensive plan amendments prepared by the IPARC members. IPARC distributes notice of plan amendments to all members, who then have the opportunity to provide comments regarding the proposed action. Section 163.3177(6)(a), Florida Statutes, and Florida Administrative Code Rule 9J-5.006 contain requirements for the future land use element of a comprehensive plan, including the future land use map (FLUM). According to the Plan, the FLUE "is the nucleus of the . . . Plan" and "defines the components of the community and the interrelationship among them, integrating the complex relationships between land use and all of the other elements of the Plan that address the physical, social, and economic needs of the people who live, work, and visit Palm Beach County." Both the existing FLUE and the current FLUM have been found in compliance. The Amendments do not alter the FLUM, but they do change FLUE Policy 3.1-c and delete FLUE Policy 3.4-c. As noted above, in 2000 the County adopted a Managed Growth Tier System, which is a planning tool intended to manage growth and protect varying lifestyles in the County. The Managed Growth Tier System consists of five categories or tiers, which are described in Objective 1.1 of the Plan. Objectives 1.2 through 1.6 govern development within the five tiers. FLUE Table 2.1-1 establishes permitted densities for each of the tiers. The Amendments do not modify any Goals, Objectives, or Policies governing the five tiers, with the exception of FLUE Policy 1.4-k. However, Petitioners have not challenged the proposed deletion of FLUE Policy 1.4-k and it is not one of the Amendments at issue in this proceeding. Additionally, the Amendments will not alter the permitted densities for any of the tiers. Concurrency Management refers to the system adopted in the CIE to ensure that infrastructure, which meets or exceeds the established minimum level of service standards, is in place concurrent with development approval. According to FLUE Policy 3.5-a, development orders and permits shall not be approved unless services and facilities meet or exceed the minimum levels of service. FLUE Objective 3.1 establishes three graduated service areas in Palm Beach County -- the Urban, Limited Urban Service, and Rural Service Areas. Each service area corresponds to one or more of the five tiers. The minimum levels of service required for each area are listed in FLUE Table 3.1-1. According to FLUE Table 3.1-1, FLUE Policy 3.5-a, and Utilities Element Policies 1.2-g and 1.3-e, the minimum levels of service in the RSA for potable water and sewage are on-site wells and septic tanks, respectively. With the exception of water and sewer, the other minimum levels of service are the same for all three service areas. The Amendments do not alter the minimum levels of service for any service area. Through its planning expert, Wellington contended that the Amendments will cause a de facto change to the minimum levels of service. However, the extension of centralized water and sewer service into the RSA does not change the established minimum levels of service. Petitioners also argue that the Amendments will increase minimum levels of service in the RSA for traffic and parks. However, the minimum levels established in FLUE Table 3.1-1 for all services and facilities, other than potable water and sanitary service, are County-wide standards. Reasons for Adopting the Plan Amendments Policy 3.4-c did not have its intended effect because it prevented the County from providing service to the Rural Tier. After 2000, repeated efforts by the County to negotiate the service areas of the numerous entities operating utility services in the unincorporated area were unsuccessful. Indeed, "there was not a willingness of many utility providers to agree on anything." This created a lack of coordination and planning as to the provision of services in the Rural Tier. The City, SID, and ITID each have utility service areas which overlap the service area of other utility providers. In particular, portions of the Acreage, a community located in the central-western unincorporated area of the County, fall under the claimed utility jurisdiction of SID, ITID, Cypress Grove Community Development District, and the Village of Royal Palm Beach (Royal Palm Beach). The City is also rapidly expanding service in the unincorporated area by entering into bulk water service agreements with a number of utilities located in the Rural Tier, including Royal Palm Beach, Seacoast Utilities Authority, and ITID. The City intends further expansion of bulk service in the Rural Tier, so as to increase utility revenues. It views the Amendments as affecting its substantial interests by potentially limiting these revenues. Royal Palm Beach claims an exclusive utility service area which overlaps the utility service areas claimed by SID and ITID. Royal Palm Beach is located entirely within the legislative boundaries of ITID and claims all of ITID as its service area. The Amendments support the authority granted to the County by the Scripps Law. That law gives the County the exclusive right to provide water and wastewater service to the Scripps Biomedical Research Facility and to construct utility facilities within and without the boundaries of the Scripps project. The enactment of the Scripps Law reinforced the need for the Amendments, as the Scripps Biomedical Research Facility will be located in the unincorporated area. Existing FLUE Policy 3.4-c is arguably inconsistent with the Scripps Law because it prevents the County from providing utility service in the RSA. Since the Scripps Law supersedes all other contrary provisions of Florida Law, it logically follows that FLUE Policy 3.4-c should be repealed. The Amendments are also supported by the provisions of the County Code of Ordinances Sections 27-16 through 27-22, which codify County ordinances that were adopted in the 1970s and deal with utility service. These ordinances authorize the County to designate a Control Area in the unincorporated area and to require County approval of any water and wastewater facilities constructed in these areas. In summary, the County adopted the Amendments to avoid service area disputes between utility providers such as those described above, to prevent wasteful and duplicative utility services, to implement the Legislature’s mandate regarding the Scripps Biotechnology Park, to ensure a sufficient water supply to meet the reasonable development needs of the unincorporated area, and to enforce the provisions of the County Code of Ordinances. Petitioners' Objections Data and analysis Petitioners contend that the only data and analyses submitted by the County to support the Amendments are contained in a rather brief County Staff Report (Petitioners' Exhibit 5), and that no other documentation was actually forwarded to the Department. They further contend that the Amendments must be based on demographic, economic, and fiscal studies, and that none were utilized by the County. Because of these omissions, they argue that the Amendments violate relevant statute and rule provisions and are not in compliance. Section 163.3177(8) and (10)(e), Florida Statutes, and Florida Administrative Code Rule 9J-5.005(2) require that plan amendments be based on relevant and appropriate data and analyses applicable to each element. In determining whether a plan amendment complies with this requirement, the Department reviews each amendment on a case-by-case basis. In doing so, it does not require the same amount or type of data for all plan amendments. See, e.g., Zemel et al. v. Lee County et al., DOAH Case No. 90-7793 (DOAH Dec. 16, 1992, DCA June 22, 1993)(projections of aquifer thickness and transmissivity do not require the same precision as calculating volume-to- capacity ratios for levels of service on road segments); 1000 Friends of Florida et al. v. Department of Community Affairs et al., DOAH Case No. 04-4492GM, 2005 WL 995004 at *15 (DOAH April 28, 2005, DCA May 9, 2005)("a numeric analysis is not necessary to justify industrial uses since they may be goal- based and aspirational"). For example, if amendments merely represent a policy or directional change and depend on future activities and assessments (i.e., further analyses and decision-making by the local government), the Department does not require the degree of data and analyses that other amendments require. (These amendments have sometimes been referred to as aspirational amendments. See Collier County v. City of Naples et al., DOAH Case No. 04-1048GM, 2004 WL 1909265 at *5 and *6 (DOAH Aug. 24, 2004, DCA Dec. 28, 2004)). Conversely, amendments which are mandatory in nature, that is, amendments which are required to be implemented by Chapter 163, Florida Statutes, or Florida Administrative Code Chapter 9J-5, require more data and analyses. Thus, under Department interpretations of the relevant statutory and rule provisions, if an amendment does not have an immediate impact on the provision of services in the unincorporated area, is policy- based, does not require any capital improvement expenditures at the time the amendment is adopted, and simply represents a directional change in the County's long-term water utility planning, it is similar to an aspirational amendment and can be based on less data and analyses than might otherwise be required. Here, the County’s actual policy regarding utility service areas will depend on future activities and assessments. The Amendments do not require the County to take any immediate action. The Amendments do not mandate that existing utility customers in the RSA switch to the County. The Amendments do not authorize any new development in the Rural Tier, and any future development would have to be approved by the Board of County Commissioners through the normal development approval process. Therefore, the Amendments are akin to an aspirational amendment and do not require the degree of data and analyses that are required for other amendments. The County Staff Report identifies, albeit in brief fashion, data and analyses in support of the Amendments. It provides, among other things, that the Amendments are necessary because "[t]he lack of County participation as a service provider has created a void in effective long-term utility planning, resulting in duplicative service lines, inefficient services in the RSA, overlapping utility jurisdictions and, absence of some written agreements defining service areas." The Staff Report further identifies the County’s authority to provide service and the necessity for the Amendments to allow the County to provide service to the Biotechnology Research Park in northwest Palm Beach County. In addition, a number of documents presented at hearing provide data and analyses in support of the Amendments. In considering these documents, the undersigned notes that all data or analysis available and existing at the time of the adoption of the plan amendment may be relied upon to support an amendment in a de novo proceeding and may be raised or discussed for the first time at the administrative hearing. Zemel, supra; McSherry et al. v. Alachua County et al., DOAH Case No. 02-2676GM, 2004 WL 2368828 at *54 (DOAH Oct. 18, 2004, DCA May 2, 2005); Melzer et al. v. Martin County et al., DOAH Case Nos. 02-1014GM and 02-1015GM, 2003 WL 2150756 at *33 (DOAH July 1, 2003, DCA Sept. 26, 2003 and Oct. 24, 2003). The District's Districtwide Water Supply Assessment identifies future potable water demands for various utilities in the County. The District's Lower East Coast Regional Water Supply Plan describes the available raw water supply to meet future demands in the County. The District's CUP-CERP (Consumptive Use Permit-Comprehensive Everglades Restoration Plan) Guiding Principles lists interim water use permitting guidelines, which indicate utilities may experience problems obtaining permitted allocations beyond what is needed to meet their 2005 demands. District Water Use Permit 50- 00135-W is the County's 20-year water use permit, which confirms that the County is the only utility in the unincorporated area with a guaranteed, long-term potable water allocation. The information contained in these documents confirms the County's ability to act as the default water utility provider in the unincorporated area. The County Linking Land Use and Water Supply Plan, Water and Wastewater Master Plan, Reclaimed Water Master Plan, Raw Water Master Plan, 20-Year Wastewater Collection System Master Plan, and Projected Yearly Capital Expenditures each provide data and analysis, which support the County's ability to serve as the default utility provider in the unincorporated area. As a water management district study, the District's documents are professionally accepted sources, which constitute appropriate data and analyses under Florida Administrative Code Rule 9J-5.005(2)(c). Similarly, the County's reports constitute existing technical studies, which are also appropriate data and analysis. Petitioners contend that the County was required to collect new data and prepare a comparative analysis of the County Water Utilities Department and other utility providers in the unincorporated area. However, according to Florida Administrative Code Rule 9J-5.005(2)(b), local governments are not required to collect new data in support of a plan amendment. Further, neither Florida Administrative Code Rule 9J-5.005(2) nor Section 163.3177, Florida Statutes, requires a comparative analysis. It is at least fairly debatable that the Amendments are supported by relevant and adequate data and analyses. Intergovernmental Coordination Petitioners also contend that in order to comply with the Intergovernmental Coordination Element of the Plan, the County must inventory and analyze the facilities and services provided by other utility providers in the areas affected by the Amendments. In other words, they contend that without data and analysis relative to other providers, the coordination function is incapable of being done and is meaningless and renders the Amendments inconsistent with Florida Administrative Code Rule 9J-5.015. (That rule sets forth in detail the data requirements upon which the element in a local government's comprehensive plan must be based, and the goal statements, specific objectives, and policies which must be found in the element.) Section 163.3177(6)(h), Florida Statutes, and Florida Administrative Code Rule 9J-5.015 set forth requirements for the intergovernmental coordination element of a comprehensive plan. The existing Intergovernmental Coordination Element has been found to be in compliance. The Amendments do not modify this element. Although not required for purposes of compliance, the County followed intergovernmental coordination procedures in the comprehensive plan when adopting the Amendments. The Amendments were submitted to IPARC for review by member governments prior to their consideration by the Board of County Commissioners. The County met with other utility providers and interested persons no less than 37 times to discuss the Amendments. Further, Petitioners' own witnesses concede that their representatives attended multiple meetings with the County regarding the Amendments. Such efforts demonstrate that the County substantively complied with the Intergovernmental Coordination Element. Petitioners' contention that these meetings were not conducted in good faith has been rejected. Petitioners implicitly suggest that intergovernmental coordination means acquiescing to the position of an objector. If this were true, adjacent local governments would have veto power over the County's ability to enact plan amendments, a result not contemplated by the statute. The intergovernmental coordination requirements of Section 163.3177(6)(h), Florida Statutes, and Florida Administrative Code Rule 9J-5.015 do not require that local governments resolve all disputes regarding a comprehensive plan and its amendments to the satisfaction of all interested persons, but only that the local government take into consideration input from interested persons. See, e.g., Department of Community Affairs et al. v. Lee County et al., DOAH Case Nos. 89-1843GM and 90-7792GM, 1990 WL 749359 (DOAH Jan. 7, 1993, Admin. Comm. Feb. 10, 1994). The numerous meetings held by the County demonstrate adequate consideration of opposing views. It is at least fairly debatable that the County satisfied the intergovernmental coordination requirements of Section 163.3177(6)(h), Florida Statutes. Economic Feasibility/Comparative Analysis Petitioners argue that the Amendments fail to comply with Section 163.3177(2), Florida Statutes, which requires that "the comprehensive plan shall be economically feasible." Petitioners claim that in order to establish economic feasibility, the County first should have conducted a comparative economic analysis of the cost of utility service in the unincorporated area by various existing and hypothetical service providers. However, this construction of the statute is at odds with the Department's interpretation. The Department does not interpret the economic feasibility requirement of Section 163.3177(2), Florida Statutes, as requiring such a comparison. Instead, it construes the statute as only requiring that a plan amendment be realizable in financial terms, that is, that the local government has the financial ability to achieve what is specified in the amendment. See Resolution Trust Corp. v. Department of Community Affairs et al., DOAH Case No. 94- 5182GM, 1995 WL 1052797 *6 (DOAH April 19, 1995, Admin. Comm. Sept. 4, 1998)("Economic feasibility means plans should be realizable in financial terms."). Compare Southwest Fla. Water Mgmt. District et al. v. Charlotte County et al., 774 So. 2d 903, 916 (Fla. 2d DCA 2001), where the Court interpreted the use of the term "economically feasible" in a proposed Basis of Review provision as meaning "financially feasible or financially 'doable' . . . [and the] financial ability of a WUP applicant to institute reuse." The Department's interpretation of the statute was not shown to be unreasonable or clearly erroneous. The evidence shows that the Amendments are financially realizable. The County Water Utilities Department is one of the financially strongest utilities in the nation. It has the highest municipal bond rating (AAA) granted by the three major rating agencies. As of August 24, 2004, no other utility in the State of Florida had achieved an AAA rating from the three bond rating agencies, and the County Water Utilities Department is among only a handful of utilities nationwide to have achieved that status. Petitioners have acknowledged that the County is a very strong utility from a financial perspective. Given the County's strong financial state, it is qualified and able to serve as the default provider in the unincorporated area. In summary, it is fairly debatable that the Amendments are economically feasible as the term is used in Section 163.3177(2), Florida Statutes, because the County has the financial ability to extend utility service to the unincorporated area. Urban sprawl Wellington (but not the other Petitioners) essentially contends that the Amendments will promote urban sprawl because the County will now allow new urban services (water and wastewater) into undeveloped areas thereby resulting in urban development. Florida Administrative Code Rule 9J-5.006(5) contains standards discouraging the proliferation of urban sprawl. Existing provisions in the Plan, including the Managed Growth Tier System, prevent urban sprawl within the County. Florida Administrative Code Rule 9J-5.006(5)(k) provides in part that "if a local government has in place a comprehensive plan found in compliance, the Department shall not find that plan amendment to be not in compliance on the issue of discouraging urban sprawl solely because of preexisting indicators if the amendment does not exacerbate existing indicators of urban sprawl within the jurisdiction." The Amendments do not affect existing growth management provisions in the Plan and thus will not exacerbate urban sprawl. Although not required, the amendment of FLUE Policy 1.4-k, which Petitioners did not challenge, will also have the effect of maintaining the status quo with respect to urban sprawl. At the same time, the Amendments do not directly or indirectly authorize new development and are only aspirational in nature. Any extension of water and sewer lines into the unincorporated area does not necessarily create urban sprawl because development is not automatically authorized by these activities. Even Wellington's planning expert concurred that urban sprawl is not caused by the provision of utility services, but by the Board of County Commissioners' approval of development orders. It is at least fairly debatable that the Amendments will not encourage urban sprawl in contravention of the Plan.2 Internal consistency Petitioners next contend that the Amendments fail to comply with Sections 163.3177(2), 163.3177(10)(a), and 163.3187(2), Florida Statutes, and Florida Administrative Code Rule 9J-5.005(5), which require that all elements of a comprehensive plan be consistent with each other. In addressing this objection, only those inconsistencies expressly alleged in their Petitions and Amended Petition will be considered. See, e.g., Heartland Environmental Council v. Department of Community Affairs et al., DOAH Case No. 94- 2095GM, 1996 WL 1059751 at *19 (DOAH Oct. 15, 1996; DCA Nov. 25, 1996). Future Land Use Element Petitioners first contend that the Amendments are inconsistent with Goal 3, Objective 3.1, and Policies 3.1-a and 3.1-b of the FLUE. These provisions require that the County "define graduated service areas for directing services to the County's diverse neighborhoods and communities in a timely and cost-effective manner"; that the County establish graduated service areas "to distinguish the levels and types of services needed within a Tier, consistent with the characteristics of the Tier," which include "the need to provide cost effective services"; that the County establish Urban, Limited Urban Service, and Rural Service Areas based on several factors in Table 3.1.1, including "[t]he cost and feasibility of extending services"; and that the County review minimum levels of service "during preparation of the Evaluation and Appraisal Report [EAR] and the Comprehensive Plan as amended." The latter provision also requires that each service provider determine the maximum and available capacity of their facilities and services for this review. The first broad goal is implemented through the County's existing Managed Growth Tier System and is not affected by the identity of the utility provider. Also, the Amendments do not alter the Managed Growth Tier System, nor do they alter the existing minimum levels of service required for the RSA. Similarly, FLUE Objective 3.1 is not affected, as the Amendments only have the potential to change the utility provider in certain areas, and not the level of service provided within the RSA. Further, the Amendments do not change the existing service area boundaries and established service area definitions. As to Policy 3.1-a, the service areas have been established and found in compliance and the Amendments do not alter the service area designations or Table 3.1-1. Therefore, they are not inconsistent with Policy 3.1-a. Finally, Policy 3.1-b is not affected by the Amendments because the minimum levels of service are not altered and the Amendments are not the product of an EAR. Capital Improvements Element – Table 10 Table 10 of the CIE describes water and sewer revenues, operating revenues, federal/state grants, other revenues, bond/ loan proceeds, fund balances, total water and sewer revenues, water and sewer operating expenditures, water and sewer capital projects, annual surplus/deficit, and cumulative surplus/deficit for fiscal years 2004-2009. Petitioners contend that the Amendments are inconsistent with this provision because the Table has not been amended to reflect the expenditures that will be made by the County as a result of the Amendments. This Table is not affected because the Amendments do not require any changes to the County's capital expenditures. If changes do occur as a result of the County's planned extension of utility service into the unincorporated area, the capital improvements associated with extension of service will be addressed in subsequent annual updates of Table 10. Intergovernmental Coordination Element Petitioners contend that the Amendments are inconsistent with Goal 1 and Objective 1.1 of the Intergovernmental Coordination Element, which require the County to "provide a continuous coordination effort with all affected governmental entities" and to "utilize existing mechanisms to coordinate planning efforts with the plans of school boards, other units of local government providing services, adjacent municipalities, adjacent counties, the region, the State, and residents of Palm Beach County." Petitioners essentially claim that the Amendments were adopted and transmitted without coordination with other local governments, as required by the goal and policy. As explained above, the evidence shows that the Amendments were submitted to IPARC for review by each of the local governments and special districts located in the County, these entities were given ample opportunity to comment or object to the Amendments, and the County utilized existing mechanisms to coordinate planning efforts. Therefore, the Amendments are consistent with these portions of the Intergovernmental Coordination Element. Petitioners also contend that the Amendments conflict with Goal 4, Policy 4.1-a, and Policy 4.1-b of the Intergovernmental Coordination Element. The broad goal relates to coordination of "service provision to assure the most effective and efficient service delivery for the residents of Palm Beach County and its municipalities," while the two policies require that the County coordinate with special taxing districts and each municipality within the County during "the concurrency management and development review processes" and in defining the "ultimate boundaries of that entity's sewer and water service areas." The Amendments are consistent with the goal because their purpose is to create more effective and efficient service delivery by encouraging utility providers to enter into agreements which establish exclusive service areas and eliminate overlapping service areas. For similar reasons, the Amendments are consistent with Policy 4.1-a because the County coordinated with each of the special taxing districts through IPARC and numerous subsequent meetings relating to the Amendments. Finally, the main purpose of the Amendments is to prevent overlapping utility service areas and to encourage utility providers to enter into agreements defining service areas. Therefore, they are not inconsistent with Policy 4.1- b. Treasure Coast Regional Planning Council Plan Petitioners next allege that the Amendments are inconsistent with Goal 8.1, Regional Strategy 8.1.1, and Regional Policies 8.1.1.3 and 8.1.1.4 of the Treasure Coast Regional Planning Council's Regional Policy Plan (Regional Policy Plan). In order for a plan amendment to be consistent with a regional policy plan, Section 163.3177(10)(a), Florida Statutes, requires that plan amendments be consistent with the regional plan "as a whole," and that no specific goal or policy be "applied in isolation from the other goals and policies in the plans." Because the Petitions and Amended Petition do not allege that the Amendments are inconsistent with the Regional Policy Plan as a whole, their challenge must necessarily fail. See, e.g., 1000 Friends of Florida, Inc., supra at *38. Even if a provision in the Regional Policy Plan could be viewed in isolation, the Amendments are consistent with Regional Goal Regional Goal 8.1, which requires "public facilities which provide a high quality of life." Nothing in the Amendments would impair the provision of a high quality of life. One of the purposes of the Amendment is to more efficiently provide utility service by defining service areas and improving the provision of services. Regional Strategy 8.1.1 relates to the provision of "levels of public service necessary to achieve a high quality of life cost-effectively." The Amendments are not inconsistent with this strategy, as they are designed to help the County implement the existing objectives and policies relating to this strategy. The purpose of Regional Policy 8.1.1.3 is to "encourage patterns of development which minimize the public cost of providing service, maximize use of existing service systems and facilities and take into full consideration environmental/ physical limitations." As stated above, one purpose of the Amendments is to provide more efficient and cost-effective utility service by encouraging providers to enter into agreements that prevent overlapping service areas and avoid duplication of services. Finally, the purpose of Regional Policy 8.1.1.4 is to "develop local Capital Improvement Programs which maximize development of existing systems before allocating funds to support new public facilities in undeveloped areas." Because the Amendments do not alter the County's Capital Improvement Programs, they do not implicate this policy. State Comprehensive Plan Petitioners further allege that the Amendments are inconsistent with two goals in the state comprehensive plan, which are codified in Section 187.201, Florida Statutes. Like regional policy plans, Section 163.3177(10)(a), Florida Statutes, provides that for purposes of determining consistency, the state plan is to be construed as a whole, with no specific goal or policy applied in isolation from the other goals and policies. If a plan appears to violate a provision of the state plan, a balanced consideration must be given to all other provisions of both the state and local plan to determine whether a local comprehensive plan is consistent with the state plan. Petitioners have not alleged that the Amendments are inconsistent with the state comprehensive plan as a whole. Therefore, their challenge to the Amendments must necessarily fail. See 1000 Friends of Florida, Inc., supra; Heartland Environmental Council, supra. Assuming that a provision within the state comprehensive plan can be viewed alone, Section 187.201(17)(a), Florida Statutes, provides that "Florida shall protect the substantial investments in public facilities that already exist and shall plan for and finance new facilities to serve residents in a timely, orderly, and efficient manner." Petitioners contend that because the Amendments fail to protect the public facilities that already exist in the unincorporated area of the County, the Amendments conflict with this goal. The Amendments are not inconsistent with this goal because their purpose is to implement the Plan provisions in a timely, orderly, and efficient manner. Further, the Amendments are consistent with the specific provisions of Section 187.201(17)(b), Florida Statutes. Petitioners also allege that the Amendments contradict the requirements of Section 187.201(20)(a), Florida Statutes, which deals with cooperation between levels of government, elimination of needless duplication, and promotion of cooperation. Again, the purpose of the Amendments is to eliminate duplication and promote cooperation between entities by encouraging utility providers to enter into interlocal agreements with the County that define exclusive service areas and prevent duplication of services. Further, the Amendments are consistent with the specific provisions of Section 187.201(20)(b), Florida Statutes. Other Objections Finally, any other contentions raised in the Petitions and Amended Petition not specifically addressed herein have been considered and found to be without merit.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Community Affairs enter a final order determining that the Amendments adopted by Ordinance No. 2004-026 on August 24, 2004, are in compliance. DONE AND ENTERED this 18th day of July, 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 July, 2005.
Findings Of Fact The Utility's water plants are operating satisfactorily and are under no citations or corrective orders promulgated by the Department of Environmental Regulation. One customer service problem exists with regard to frequency of service outages and low pressure. The Utility had not previously been informed of the particular customer's problem and gave assurances that it would be corrected immediately. As demonstrated by a report of the Department of Environmental Regulation incorporated in Exhibit 1, the Utility provides good quality water that meets all pertinent standards of the Florida Safe Drinking Water Act of 1977, and in every way the quality of water service provided by the Utility was shown to be satisfactory. Rate Base In order to present a truer picture of the Utility's average rate base, and taking into account the factor of recent growth of the system, Commission expert engineering and accounting witnesses recalculated the Utility's figures for plant in service based upon a thirteen-month average as opposed to the twelve-month test year employed by the Utility. Thus equipment accounts and equipment retirement accounts were recalculated on a thirteen-month average in arriving at a total plant in service figure, based upon which the actual rate base was calculated. These calculations as well as adjustments to reclassify certain expenses which should have been capitalized in the plant accounts and then based on a thirteen-month average, demonstrated a total plant in service adjustment figure of $7,770. These, together with an adjustment for additional total accumulated depreciation of $2,807 and other relatively minor adjustments to the Utility's capital accounts, none of which were contested by the Utility, result in a rate base, or net investment figure, of $90,173. The adjustments and calculations supportive of this figure, all of which were uncontroverted by the Petitioner, appear attached hereto and are incorporated by reference herein as Schedule 1, Attachments 1 and 2. Operating Statement The Utility seeks to increase its revenues to the above- stated amount. Determination of an appropriate revenue figure necessitate re-allocations and adjustments to operation and maintenance expenses to add in necessary employee salaries and to reclassify and delete certain operation and maintenance expenses properly attributable to water systems not involved in this rate case. Additional, depreciation expense on contributed property must be disallowed and an adjustment for increased revenues necessary to result in an agreed upon 12.45 percent rate of return on rate base with concomitant adjustments to allow for increased gross receipts tax and income tax, established an appropriate revenue requirement of $35,922 per year. The Respondent's accounting witness established that the 12.45 percent rate of return on the Utility's rate base is the minimum necessary to insure a reasonable, compensatory rate of return to the Utility and to assure the company's financial viability in order that the quality of service to customers does not deteriorate. These adjustments to the initial operating statement accounts depicted in Exhibit 2, were not refuted by the Utility. The adjustments and calculations supportive of this revenue figure are set forth in greater detail in Schedule 2 of Exhibits 2 and 2A attached hereto and incorporated by reference herein. There was no dispute regarding the appropriate cost of capital for the company. The weighted cost of capital was shown to be 12.45 percent, based upon the Utility's undisputed cost of equity at 14 percent, as well as its imbedded debt cost of 9.47 percent. The rate structure should be predicated upon a base facility charge rate design. The base facility charge type of rate structure will insure that each customer, even seasonal residents who do not use a minimum amount of water per month sufficient to defray their portions of the cost of service, actually pay the minimum necessary for the Utility to meet its fixed costs which are attributable to their connections. In the case of the systems involved in this proceeding, a base facility charge of $3.35 for a 5/8" x 3/4" meter and a gallonage charge of 88 cents per 1,000 gallons will produce the revenue requirement of $35,922. Both the Petitioner and the Respondent agree to the feasibility and appropriateness of this base facility charge rate design and these amounts.
Recommendation Having considered the competent, substantial evidence of record, the foregoing findings of fact and conclusions of law, it is RECOMMENDED that John V. Smith Water Company should be authorized to receive gross annual revenues for its water service to customers in Walton County, Florida of $35,922 and that the Utility be authorized to file revised tariff pages containing rates designed to produce annual water revenues in that amount. It is further RECOMMENDED that the $4,000 letter of credit previously required to be filed by the Public Service Commission be returned to the Utility for cancellation. DONE and ENTERED this 20th day of November, 1980, in Tallahassee, Florida. P. MICHAEL RUFF 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 20th day of November, 1980. COPIES FURNISHED: John V. Smith 234 Deer Avenue Niceville, Florida William H. Harrold, Esquire 101 E. Gaines Street Tallahassee, Florida 32301 Robert T. Mann Chairman Public Service Commission 101 East Gaines Street Tallahassee, Florida 32301 Steven C. Tribble Commission Clerk Public Service Commission 101 East Gaines Street Tallahassee, Florida 32301
The Issue Whether the Respondent committed the acts alleged in the Administrative Complaint.
Findings Of Fact District is a governmental agency of the State of Florida created and empowered by Chapter 373, Florida Statutes, to regulate permitting and construction of water wells, and to regulate well contractors. William Bedard, Post Office Box 545, Branford, Florida 32208, is a water well contractor with license #2830. Bedard constructed a water well for Wendell Forsythe in Three Rivers Estate, Township 6 South, Range 15 East, Section 25 in Columbia County, Florida. This is within the District. Said well was a four inch water well. Said well was constructed sometime prior to July 11, 1991. Bedard applied for a permit from the District on July 11, 1991. District requested additional information from Bedard by telephone on July 11, 1991, and followed up with a letter which was mailed March 23, 1992. The additional information in the form of a survey was provided to the District on May 22, 1992. The District issued a permit for said water well on June 16, 1992, approximately 11 months after the well was drilled. Bedard had one previous violation for drilling a water well without a permit. He applied for and received an after-the-fact permit in that instance. In mitigation, Bedard offered the following facts: Wendell Forsythe (Forsythe) lives in South Florida and only comes to his property in Columbia County on weekends. Forsythe met with Bedard on the site to discuss the proposed well. Forsythe said he wanted to go forward, and Bedard advised Forsythe that he would begin on Monday after he obtained a permit from the District Office which was closed. Forsythe wanted to see the work done, and told Bedard that he would get another contractor if Bedard would not start the well right away. Bedard constructed the well and applied for a permit on the first working day after construction of said well. Before Bedard constructed the well, Forsythe told him that the site was not within the flood plain and a survey would not be required. The site was within the flood plain, and a topographic survey was required. The District asked Bedard for a survey. Bedard passed the request for the survey on to Forsythe, however, Forsythe did not provide this information until May of 1992 when he became aware that he might be liable. The District's attorney's fees and administrative costs were $970.00.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that: A penalty be assessed against the Respondent in the amount of $275, and and Two and one half points be assessed against the Respondent's license, No attorneys fees or costs be assessed through this administrative hearing process. DONE and RECOMMENDED this 3rd day of November, 1992, at Tallahassee, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings The De Soto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of November, 1992. COPIES FURNISHED: Janice F. Bessinger, Esquire 10 North Columbia Street Lake City, FL 32056-1029 William Bedard Post Office Box 545 Branford, FL 32208 Jerry Scarborough, Executive Director Suwannee River Water Management District Route 3 Box 64 Live Oak, FL 32060
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: Return on Investment The respondent Lake County Service Corporation is a private water and wastewater treatment system which provides water and sewer service to residents of Valencia Terrace near Leesburg in Lake County, Florida. The respondent utility is entirely owned by First Federal Savings and Loan Association of Lake County, which is the sole supplier of funds to the utility. The respondent utility has not had a rate increase since 1972 and has been operating at a loss. Inasmuch as the First Federal Savings and Loan Association is the sole supplier of funds and the 100 percent owner of the utility, it is appropriate to use the capital structure of that Savings and Loan Association to determine a reasonable and proper cost of capital or rate of return on investment for the respondent utility. However, adjustments should be made to the capital structure of the Savings and Loan institution by removing short-term debts and liabilities (such as customer savings of less than one year) since they are subject to demand withdrawals and would be inappropriate for inclusion. After short-term maturities or debts are adjusted out, the capital structure of the financial institution resembles more closely that of a utility. After adjustments, the capital structure of the parent company was made up of 85.04 percent debt and 14.96 percent equity. The average cost of debt was 9.29 percent and the appropriate cost of equity was 17 percent, based upon a leverage scale developed by the PSC in Order No. 10603, Docket Number 820006-WS, issued on February 17, 1982. Based upon the adjusted capital structure of the Savings and Loan Association and the utilization of the leverage formula, the appropriate weighted cost of capital for the respondent utility is 10.44 percent. A rate of return on investment of 4 percent, as suggested by the petitioner, is not reasonable or appropriate in today's market place. A totally riskless investment would render a return from 8 percent (short-term) to 11 percent (long-term). Quality of Service The respondent utility's plant facilities were inspected by a PSC engineer. The utility has two wells, a primary well and an auxiliary or backup well. The auxiliary well was found to contain a small amount of dissolved iron. This well is not used as a primary water source, but is used only for fires, etc. Both wells comply with the Department of Environmental Regulation's (DER) water quality standards and requirements. Neither the water nor the sewer plants operated by the utility are under citation by the DER, and there are no outstanding corrective orders against these plants. The water tank is "blown out" twice a month and all pipes utilized by the utility are of PVC material. Three customers testified that they had problems with the quality of water and service provided by the utility. On occasion, they have found the water coming into their homes to be greatly discolored. Rust spots or stains have been observed on sidewalks and driveways and water pressure has varied. Ms. Holland has experienced problems with her laundry, primarily with white articles of clothing turning a yellow color after a period of time. She has also noticed a "pesticide smell" in her water, and now buys bottled water for consumption by her family. The caretaker for the respondent's water and sewer system, who spends six days a week in Valencia Terrace, has heard no complaints from the residents regarding service or quality of water.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that a Final Order be entered finding that an overall return on investment in the amount of 10.44 percent is reasonable and appropriate; the quality of water and sewer services provided by the utility to its customers is safe, efficient and sufficient; and the respondent utility be authorized to increase its rates for water and sewer services in accordance with the PSC's Notice of Proposed Agency Action. RESPECTFULLY SUBMITTED and ENTERED this 15th day of March, 1983, in Tallahassee, Florida. DIANE D. TREMOR 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 15th day of March, 1983. COPIES FURNISHED: Fredric W. Holland 1619 Sailfish Avenue Leesburg, Florida 32748 M. Roberta Christ, Esquire Florida Public Service Commission 101 East Gaines Street Tallahassee, Florida 32301 Paul K. Mueller Lake County Service Corporation Post Office Box 420 Leesburg, Florida 32748 Steve Tribble, Clerk Florida Public Service Commission 101 East Gaines Street Tallahassee, Florida 32301 Joseph P. Cresse, Chairman Florida Public Service Commission 101 East Gaines Street Tallahassee, Florida 32301
