The Issue Did Respondent, Excel Building Services (Excel), discharge Petitioner, Tenesia Whiteside, on account of her sex in violation of chapter 760, Florida Statutes (2012)?1/
Findings Of Fact The hearing was set for June 18, 2013. The hearing convened as scheduled. Neither party appeared. Counsel for Excel filed a Notice of Appearance and Motion to Continue Hearing on June 18, 2013, alleging that Excel was unaware of the hearing, although neither the Notice of Hearing or the Amended Notice of Hearing mailed to Excel's representative had been returned. The administrative assistant of the undersigned contacted Ms. Whiteside by telephone. Ms. Whiteside reported that she was unable to locate the address for the hearing location. The undersigned continued the hearing until July 25, 2013. On July 18, 2013, the undersigned conducted a pre-hearing conference in this matter. Ms. Whiteside and counsel for Excel participated in the hearing. The undersigned reminded both parties of the duty to exchange exhibits and witness lists and pre-file exhibits with the Clerk of the Division and of the deadline for these actions. The undersigned also reminded the parties of the importance of attending the hearing on time. The hearing convened as scheduled at 9:00 a.m. on July 25, 2013. Counsel for Excel and Excel's representative appeared. Excel had previously timely filed and served its witness and exhibit list. Ms. Whiteside did not appear or contact the office of the undersigned. The hearing was recessed until 9:25 a.m. When the hearing re-convened Ms. Whiteside had not appeared or contacted the office of the undersigned. Ms. Whiteside presented no evidence. Excel presented no evidence. The hearing was adjourned.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations deny the Petition for Relief of Tenesia Whiteside. DONE AND ENTERED this 26th day of July, 2013, in Tallahassee, Leon County, Florida. S JOHN D. C. NEWTON, II Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 26th day of July, 2013.
Findings Of Fact The Petitioner (Foley) is a large construction company, a Florida corporation. It has extensive experience in government contracting for construction projects for various government agencies. The Respondent (DBC) is an agency of the State of Florida responsible for the procurement, operation and maintenance, of office facilities for use by the various agencies of the government of the State of Florida. In the situation at hand, the Respondent engaged in a bid procurement process by which the Petitioner was awarded a contract to construct an office building project, which would be occupied by the Department of Health and Rehabilitative Services. On November 17, 1992, the above-named parties entered into a contract calling for the construction of a facility or office building known as the "Fort Pierce Regional Service Center" (Project). The contract called for a price of $5,063,000.00. The architect's initial budget for the construction Project, excluding professional fees, was $6,454,150.00. The Petitioner provided a payment and performance bond on the Project, in accordance with Section 255.05, Florida Statutes, in the amount of $5,063,000.00 for the benefit of DBC to insure the Petitioner's performance. An additional bond in the same amount, to insure payment to subcontractors, was provided. Early in the procurement process before the formulation and execution of the contract, DBC entered into an agreement with an architect/engineer to act as its architect, agent and project manager. That firm was Anstis, Ornstein Association, Architects and Planners, Inc., a Florida corporation. The individual architect for the Project was James Anstis (the Architect). Mr. Anstis' services consisted of the preparation of construction documents, including plans and specifications and contract administration for the Project. His duties included site visits, observations and inspections, approval of the contractor's pay requests, attendance at construction progress meetings, reporting on the status of the Project to the owner, determination of quantity and quality of the work for compliance with the contract documents, issuance of certificates of substantial completion, and final completion. The Architect was assisted by certain consultants in preparation of contract documents and in administering the contract itself, on behalf of DBC. These persons included a structural engineer, electrical engineer, mechanical engineer, civil engineer, and landscape architect. Over 146 planned visits to the site were required by the Architect's contract with DBC during the anticipated thirteen-month period of construction. The Architect visited the site on the average of at least once per week, at which time he conducted his weekly inspection. On a monthly basis, he held construction progress meetings with DBC and the Petitioner's representatives, with others in attendance, as well. The Architect filed monthly status reports to the owner concerning the quantity and quality of the work as it progressed. Thomas Young is an architect and employee of DBC, with extensive experience in both private and governmental projects. He was appointed project manager on behalf of DBC. He was designated as the on-site representative for the agency and had the responsibility of working as a full-time consultant on the site. When the Architect visited the site on a weekly basis, he inspected the Project in the company of Mr. Young, conferred with him, and used Mr. Young's office. Under the contract with the Petitioner, the Architect was declared to be the exclusive agent for the owner; and the chain of command required both DBC, through Mr. Young, and the contractor, to communicate through DBC's Architect, Mr. Anstis. Under the Petitioner's contract, the Architect was required to report deficiencies to the Petitioner, approve payment requests, including approval of quantity and quality of work prior to payment, to inspect the Project prior to the issuance of the certificate of substantial completion, and to determine final completion and approve final payment. On April 6, 1993, the parties executed a "partnering charter", in which both parties and the Architect agreed to complete the Project in a cooperative, efficient, and expeditious way by promoting the following positive steps in carrying out the contract by all concerned: Open and honest communication. Follow the schedule for early completion. Use objective, open-minded cooperation and consideration. Timely response. Proper coordination. Contract document compliance. Involve everyone in the process. Anticipate problems. After execution of the contract, DBC issued certain change orders to the Petitioner requiring the Petitioner to do additional work beyond the scope of the original contract. This increased the contract price by $598,485.00 and added additional time to the contract term to complete the Project. DBC approved, in writing, time extensions of 21 days and 90 days for change order numbers 4 and 5, which were accepted by the Petitioner. On May 8, 1995, change order number 10 was belatedly approved and issued by DBC, adding additional money and approving, in effect retroactively, an additional 50-day time extension. The new contract time for substantial completion, after adding 161 days for change order numbers 4, 5 and 10, thus, became September 14, 1994. However, under the contract, the Petitioner had the option of scheduling completion earlier than the contract completion date. A notice to proceed was provided from DBC to the Petitioner in January of 1993. The Petitioner's initial construction schedule showed an expected substantial completion date of the Project of January 11, 1994. Indeed, the Petitioner's bid for the Project was based upon an October 28, 1992 estimate, in which the Petitioner anticipated 12 months would be required to complete the Project. Various items of the bid in Exhibit 2.4.3 show that the Petitioner anticipated a 12-month construction date based upon its estimate that superintendent services, office manager services, telephone, temporary electric, and other cost items would be of approximately 12-months' duration. DBC recognized this initial schedule by paying the Petitioner for an extension of these "general conditions" beyond 12 months by virtue of change order numbers 5 and 9. Throughout the course of the Project construction, the Petitioner submitted monthly construction schedules in the form of bar charts. Each schedule submitted was accepted by DBC and the Architect at monthly construction progress meetings. The construction schedule submitted on March 29, 1994 reflected an anticipated substantial completion date of May 23, 1994. At the construction progress meeting of March 29, 1994, the Petitioner reported that it anticipated a substantial completion date of "about June 1, 1994". On April 4, 1994, DBC's Project Manager, Thomas C. Young, scheduled the installation of the carpet to begin on or about June 6, 1994. On May 9, 1994, the Petitioner submitted a revised schedule to the Architect reflecting the Petitioner's anticipated substantial completion date of June 6, 1994. The May 9, 1994 schedule was revised after the May 6, 1994 construction progress meeting, to reflect DBC's carpet installation as approved by Mr. Young at that meeting. Thus, "carpet by owner", to begin after June 6, 1994, was added to the Petitioner's construction schedule. The May 6, 1994 construction progress meeting minutes, prepared by the Architect reported an anticipated substantial completion date of "about June 1, 1994". At the May 6, 1994 construction progress meeting, the Petitioner was advised for the first time, approximately one month before its anticipated substantial completion date, that the building would be subjected to a formal building "commissioning procedure," a detailed inspection and approval procedure for all building spaces and systems and phasing of occupancy, and that upon completion, the building would be operated and maintained by a private contractor ("privatization". Consequently, the Petitioner was advised at this time that requests for proposals for a commissioning entity and procedure and for "privatization" of the building maintenance and operation functions would be issued for bids as of May 6, 1994, with a mandatory, pre-proposal conference scheduled for May 20, 1994. This was the first occasion where DBC had utilized a building commissioning procedure. It had also never used privatization for the operation and maintenance of a State building by a private contractor. The DBC was unaware, as of May 6, 1994, what the commissioning agent and operation and maintenance privatization firms' duties would be, since negotiations were not entered into as of that date. The Petitioner, on its part, was unfamiliar with the building commissioning procedure and was not clear on what the duties and activities of the commissioning and privatization agents would be. However, it did not anticipate that it would affect the Petitioner's ability to obtain the certificates of substantial completion and final completion for the Project. Likewise, the Architect and Mr. Young had never been involved in such a commissioning procedure, either, prior to this Project and were not aware, as of May 6, 1994, what the precise activities and duties of the commissioning agent would be. The Architect was paid $24,604.50 for additional services required of him in working with the commissioning agent. On May 11, 1994, the Petitioner submitted, at DBC's request, prices for 24 items of additional work, contingent upon DBC's agreement to take over all utilities and service costs at the point of substantial completion of the interior of the building. The Petitioner anticipated that DBC would begin paying all utilities and service costs during the first week of June, 1994 and did not include, as part of the change order price submitted, an amount covering utilities after June, 1994. On May 6, 1994, the Architect scheduled a special construction progress meeting for May 20, because of anticipated substantial completion on or about June 1, 1994. On May 20, 1994, the Petitioner reported at the construction progress meeting that substantial completion was anticipated to occur in the week of June 6-10, 1994. On this date, the parties agreed that a comprehensive list of deficiencies would be sent out by the Petitioner by May This was the list envisioned by section 9.8.2 of the general conditions of the contract for construction (AIA Document A201, 1987 Edition), also known as contractor's "section 9.8.2 punch list". On May 20, 1994, DBC reported that it had anticipated a bid date of June 1, 1994 for the privatization of building operation and maintenance, with award of the contract for June 17, 1994. The commissioning agent, Sun Belt, Inc., submitted its proposal on June 12. Also, on May 20, 1994, at the construction progress meeting, the Architect and DBC reported that all carpeting (not in the Petitioner's contract) was scheduled for installation on June 13, 1994. A construction progress meeting was next held on June 6, 1994. At this meeting, the Architect reported the following: Foley's comprehensive list of deficiencies has been received (section 9.8.2 punch list). The Project was on schedule. The contractor's application for payment number 17 was submitted, received, and approved in the amount of $290,380.00. Substantial completion was anticipated for the week of June 6, 1994. The Project was to be substantially complete as per the current status of the contract notwithstanding RFP No. 10, items which are to be accepted by the owner to be accomplished after substantial completion. "Building is not quite substantially complete as of this date." "Tom Young, Eddie Lawrence, and Jim Anstis will develop a list of items that must be completed prior to Substantial Completion". On May 27, 1994, Robert Kemmer, a Foley superintendent, prepared and submitted to the Architect the Petitioner's section 9.8.2 punch list or "comprehensive list of items to be completed or corrected". A three-page handwritten list, identified as Exhibit P.2.3 in evidence, is the Architect's list, which he completed following his and Mr. Young's inspection of June 6, 1994 ("Architect's section 9.8.2 punch list"). None of the items on the Architect's punch list prevented the DBC from using the building for the purpose for which it was intended at the time the list was prepared. The Architect's punch list was ultimately completed by the Petitioner. Final inspections were accomplished by June 6, 1994 by the City of Fort Pierce Building Official, Engineer, Landscaping Inspector, Electrical Inspector, Plumbing Inspector, as well as the State Elevator Inspector. By that date, the Division of the State Fire Marshal's Office inspected the Project and approved "occupancy of the building." On June 6, 1994, the City of Fort Pierce issued a certificate of occupancy for the Project. The Petitioner, therefore, considered that it had achieved substantial completion on June 6, 1994. The Architect, however, delayed the issuance of the certificate of substantial completion until September 14, 1994. There are substantial differences of opinion concerning the reasons for the delayed issuance of the certificate of substantial completion. There were two reasons stated to the Petitioner by the Architect for the Project not being substantially complete during the summer of 1994. First, the interior railings were purported not to comply with industry standards. The second reason was that exterior landscaping features were deficient. The Petitioner disputed these issues. In fact, the railings initially had been accepted by the Architect and DBC and had been paid for in full in the payment for application for payment no. After initially accepting the railings and then rejecting them, the Architect suggested that the Petitioner retain Jim Bailey, a "railing expert", to review the railings. Mr. Bailey inspected the railings and agreed that they met industry standards. The objections to the railing amounted to dissatisfaction by the Architect with the welds by which the railing bars were fabricated into the various railing sections. In essence, the objection was that the welds were not properly ground and smoothed so that they presented an objectionable appearance. This was purely an aesthetic consideration and had nothing to do with the safety or effectiveness of the railings for the purpose for which they were designed and installed. This objection in no way prevented the Project from being used as an office building on the date the railings were first installed. Throughout the summer of 1994, the Petitioner believed that the interior railings were in compliance with industry standards and with the provisions of the contract. Nonetheless, the Petitioner believed that resolving the railings issue was critical to issuance of the certificate of substantial completion. Therefore, the Petitioner attempted to resolve the issue by several different methods, in an attempt to cooperate with the Architect and DBC. Thus, the railings were removed, taken to a plant, and the welds were re-ground. They were then taken to another plant and repainted, returned to the Project and reinstalled. They were still not accepted. When they were still not accepted, a credit of $12,000.00 was then offered by the Petitioner to the owner. The $12,000.00 credit was not acceptable to the owner, and the Petitioner then offered to remove the railings and replace them with new railings. Despite the Architect's view that the railings prevented a finding of substantial completion, in reality, they should not have been an impediment to that. This was shown by Mr. Young's agreement (in testimony) that they did not themselves impact substantial completion, as well as by the fact that the railings were paid for in full after initial approval by both the Architect and DBC on payment application number 17, although they later reversed their position. Even the Architect ultimately agreed with the Petitioner and recommended to DBC, the owner, after August 25th, that it accept the Petitioner's proposed credit of $12,000.00 for the railings and use the credit to pay for part of late change orders. Instead, DBC rejected its Architect's advice and still insisted on removal and replacement of the railings, an additional withholding of $50,000.00 in monies due the Petitioner until new railings were installed, and a continued holding of approximately $278,000.00 in retainage due Petitioner. When the Petitioner refused to accept DBC's position regarding the railings, DBC later withheld $87,000.00 for railing issues ($40,000.00 for interior railings), in addition to $277,999.00 which it was holding for retainage as of November 4, 1994. Eight months after the Petitioner initially offered the $12,000.00 credit to attempt to satisfy the owner and Architect concerning the railings question, DBC reversed its position and accepted the railings with the Petitioner's credit on April 20, 1995, as part of final approval of change order number 10. The Architect's second and only other stated reason in the summer of 1994 for withholding the certificate of substantial completion concerned "landscape issues". However, there is some evidence that the parties had an understanding or agreement that outside work, such as landscaping, would not impact or delay a determination of substantial completion, as shown by Mr. Kemmer's testimony. In fact, the landscaping issues raised by the Architect had nothing to do with rendering the building and Project suitable for occupancy for the purpose for which it was intended, which is the essence of the definition of substantial completion contained in the contract between the parties. The landscaping issues were essentially about various conditions which the Architect wished corrected, concerning the sod and the soil upon which the sod was planted. These purported deficiencies in sodding and top soil did not, in any way, prevent the occupation and use of the building in normal operation for the purpose for which it was intended by the owner. Final landscaping inspection by the City of Fort Pierce was approved on June 6, 1994, resulting in the issuance by that municipality of the certificate of occupancy on that date. When the Architect complained about sod being placed in a few limited areas on undesirable soil, the Petitioner immediately removed and replaced the sod in those areas complained of. The Architect also complained, in June, about top soil and planting soil not being in conformance with the specifications. The landscape subcontractor, "Atlantic Landscape", retained a horticultural expert to inspect the landscaping and review the specifications for the soil. The expert submitted his report to the Petitioner on July 1, 1994; and the Petitioner submitted it to the Architect shortly thereafter. Finally, four months later, on November 8, 1994, the Architect agreed with the Petitioner's position on this issue. When the Petitioner was advised that a small portion of the soil had cinch bugs in it, the Petitioner replaced the affected sod without protest. Throughout the summer and fall, the Petitioner contended that the sod and landscaping issues raised by the Architect were warranty issues and not related to substantial completion. Warranty issues involve the contractor's obligation to make good on defects in his work regardless of whether substantial completion or even final completion has been reached and, thereafter, so long as the repairs or corrections to be done are within the term and conditions of the warranty as depicted in the contract. Indeed, that is found to be the case, that the sod and landscaping issues were matters related to warranty claims or disputes and did not relate to or affect the question of attainment and time of attainment of substantial completion. These issues have no significant effect on the owner's ability to occupy and use the building as intended (or its tenants). On November 4, 1994, the Architect withheld $2,150.00 from the Petitioner's application for payment representing "sod/landscaping" complaints by the Architect. The Petitioner agreed that some of the items under sod and landscaping were "warranty" items and corrected them. In its letter of November 11, 1994, the Petitioner took issue with most of the other landscaping complaints, some of which it maintains were simply not true. The Architect responded to the November 11, 1994 letter by increasing the amount withheld from the Petitioner's application for payment on landscaping from $2,150.00 to $5,950.00. During the summer of 1994, the Architect wrote a letter dated July 6, 1994 to the Petitioner, in which he contended that all items on the Petitioner's section 9.8.2 punch list, which had to be completed before final completion, had not yet been completed. This was the only written communication to the Petitioner from the Architect between June 8, 1994 and September 6, 1994. However, that July 6th letter did not specifically list what work was considered incomplete. The July 6th letter from the Architect also indicated that "industry standards" would no longer govern relative to approval of the Petitioner's work, as set forth in section 1.4 "Industry Standards" at page A1A95-3 of the Project specifications portion of the contract. The new standard for reviewing the Petitioner's work was set forth by the Architect as follows: The situation is now such that the scrutiny that will be given the facility will be very intense and the final workmanship must then necessarily be absolutely of the highest quality. Coincidentally, this letter was written while Sun Belt, Inc. (Sun Belt), the commissioning agent, was on the site performing its inspections for substantial completion, as per its June 12, 1994 proposal to DBC. Because the July 6th letter was non-specific about what work the Architect claimed needed to be completed, but referred instead to "owner concerns", the Petitioner immediately arranged to meet the owner's representatives on the site on July 8, 1994. On that day, William Scaringe, Harold Barrand, and Thomas Young were present when the Petitioner asked what it needed to do, from the owner's perspective, to get finished with the Project. Mr. Scaringe stated that the ceiling tiles needed work and that the Petitioner's painter was the problem. During the July 8th meeting, the Petitioner was told that the ceiling tiles were his responsibility even though the Petitioner believed and contended that the design, tile system, and the tiles themselves were all to be furnished by DBC; and the scope of the Petitioner's work delineated in the contract did not include the ceiling tile work at issue. However, under protest and without a written change order, the Petitioner completed the ceiling tile work with the expectation that this was a reason for the owner not allowing the Architect to issue the certificate of substantial completion. Later, the additional tile work cost was included in the Petitioner's claim filed with the DBC and the Architect on October 4, 1994, giving rise to this proceeding. In July, the Petitioner believed that the only impediment to receiving the certificate of substantial completion, from the owner's perspective at least, was the ceiling tile work. Harold Barrand, the DBC architect and Projects Manager, testified that he knew on July 8th that the ceiling tile work was not the Petitioner's responsibility but was, instead, additional work not in the Petitioner's contract. More than nine months after completing that work and six months after payment was requested by the Petitioner for the additional ceiling tile work, DBC issued change order number 10 and paid the Petitioner $13,686.00 for the ceiling tile work. The Petitioner has acknowledged, and the parties agree, that the defective paint issue is, indeed, a "warranty issue"; and an expert has been retained to analyze and determine what needs to be done to correct this problem with fading and discoloration on the exterior of the building. The exterior paint issue is not an issue to be resolved in this proceeding by agreement of the parties. It is not an impediment to substantial or final completion. After completing the additional tile work for the owner, providing a landscaping report of July 1, 1994 by the Architect, and re-installing the interior rails on July 19, 1994, the Petitioner believed that all arguments advanced by the Architect and owner, as impediments to substantial completion, had been resolved. Indeed, the Petitioner's application for payment number 18 and the manner in which it was handled by the Architect and paid by DBC likewise indicated that final completion was virtually obtained on July 1, 1994. Application for payment number 18 was submitted on July 15, 1994 in the amount of $143,547.00. However, it was returned by the Architect on August 1, 1994, after Mr. Young noted "too many corrections" on the application. Application for payment number 18 was re-submitted in the amount of $127,547.00 by the Petitioner on August 11, 1994, after deducting $16,000.00 for an interior railings credit, as directed by the Architect. This resulting amount was paid by DBC on August 26, 1994. Application for payment number 18, which was accepted by the Architect and DBC, was for work accomplished by the Petitioner for the period ending July 1, 1994. The Petitioner showed, on its application for payment number 18, a "balance to finish" amount of $115,402.00, which, according to the Petitioner, consisted of: $64,781.00 for change orders numbers 3, 7, 8 and 9. $16,000.00 for interior railings withheld on the direction of the Architect. $16,034.00 for bollards (exterior light fixtures), which the Architect agreed, on August 3, 1994, "will not, in my view, hold up the issuance of the Substantial Completion Certificate". $11,683.00 for work which DBC deleted from the Petitioner's contract ("Asphalt Walks"). None of the foregoing items should be considered as the Petitioner's balance to finish for determining whether the Project was substantially complete as of July 1, 1994 and, consequently, should be deducted from the balance to finish to determine the net amount of work the Petitioner showed, and the Architect and DBC agreed to, as the net balance to finish on July 1, 1994. If one deducts the items (a) through (d) referenced above from the gross figure of $115,402.00, the deduction of those items totals $108,498.00. This leaves a net balance to complete the Project, as of July 1, 1994, of $6,904.00. That $6,904.00 net balance to complete the Project includes the amount of $5,950.00 withheld by the Architect concerning the dispute about sod and landscaping. The amounts withheld for sod and landscaping were subject to dispute by the Petitioner and, in any event, were exterior warranty items and did not relate to substantial completion issues. Substantial completion could occur even if the Architect was correct and those items were undone or incorrectly done, as he maintained. After one deducts the $5,950.00 sod and landscaping item withheld by the Architect, the only remaining amounts arguably related to substantial completion issues in application for payment number 18 are $511.00 for site concrete; $133.00 for caulking; and $311.00 for vinyl tile, leaving a net balance to finish the Project of $955.00. This actual net balance to finish of $955.00 represents .0002 or 00.02 percent of the original contract amount of $5,063,000.00. This payment thus represented 99.98 percent completion of the base contract and payment of the base contract amount. The fact that the Architect and owner, after deducting the $16,000.00 for the interior railing issue, paid the $127,547.00 balance of application number 18 indicates that, as to quantity and quality of the work, substantial completion had occurred and, indeed, 99.98 percent of final completion had occurred. This tends to substantiate the Petitioner's position that substantial completion was obtained on June 6, 1994, that a certificate of substantial completion should have been issued by the Architect by June 19, 1994, and that final completion was obtained (not considering late change orders not germane to this proceeding) on July 19, 1994, when the railings had been returned to the site awaiting further approval and/or direction from the Architect and owner as to acceptance and re- installation. During July, August and September, 1994, the Petitioner pursued resolutions of the issues raised by the Architect involving the railing and landscaping disputes, which the Architect claimed were substantial completion issues, as well as the ceiling tile issue raised by DBC. Although it did not agree with the Architect and DBC on these issues, the Petitioner was attempting to cooperate in an effort to secure completion of the contract at the earliest possible date. The testimony of witnesses Barrand, Young and Anstis, shows, however, that Sun Belt's schedule was having an effect of delaying the Project completion. DBC had determined to enter into a "commissioning" services contract on the Project for the first time during early 1994. DBC interviewed Sun Belt on May 18, 1994 and negotiated the scope of its services without informing the Petitioner. On June 23, 1994, DBC issued a notice to proceed for Phase I of the Project to Sun Belt to act as commissioning agent for the Project. See, Exhibit 2.4.34 in evidence. During this same time period, DBC entered into an agreement with Johnson Controls, Inc. providing for that firm to operate and maintain the building. The Project scope for Sun Belt was set forth by Sun Belt in a letter dated June 7, 1994 to the owner. The scope of services proposed by Sun Belt, including among other things, inspections for a normal class of office building, including verification of all the main building systems, such as HVAC, power distribution, hydronic systems, controls, energy management system, life safety systems, and fire protection system, and other inspections. These inspections had all been required by the Architect's contract with DBC, the owner. The Architect and his consultants had conducted more than 146 site visits and had completed their substantial completion inspections before Sun Belt ever began its duties and inspections. Sun Belt's proposal for the work it was to do was sent to DBC on June 7, 1994. Negotiations between DBC and Sun Belt occurred on June 8, 1994. Sun Belt's schedule presented to DBC on June 7, 1994, as part of its proposal, included the following: STEP NUMBER SCHEDULED DATES ACTIVITIES 1 6/17-6/23 Review all contract documents, including plans and specifications 2 6/20-6/27 (a) Meet with DBC (b) Meet with Architect/Design Team (c) Meet with FOLEY 3 7/4-7/8 Return to site "to assist the contractors in achieving substantial completion" 4 7/8-7/31 (a) Meet with DBC to confirm testing, scope of work, etc. (b) Witness and documents tests 5 August to Develop manuals Beneficial detailing system Occupancy schematics, equipment locations, general operations and maintenance procedures 6 End of Phase in occupancy over August to a period of a few weeks Mid-September starting at end of August (P.1.13; P.4.34). The June 7, 1994 proposal submitted by Sun Belt to DBC clearly envisioned that Sun Belt would be significantly involved with the substantial completion determination process: We will return to the site during the week of July 4-8, providing a technician for the entire week, to assist the contractors in achieving substantial completion inclusive of all testing requirements defined in the Contract Documents. See, P.4.34 in evidence. Sun Belt's June 24, 1994 report was provided to the Petitioner by DBC only on September 19, 1994 as an attachment to the certificate of substantial completion. Sun Belt's report had a section entitled "Regional Service Center, Fort Pierce: Recommended Substantial Completion Program". That June 24, 1994 report included the advice that: We would recommend asking that the Contractor review and sign off to his satisfaction all of the items listed below and sign off this document as complete prior to requesting the inspection that would constitute substantial completion. Sun Belt's June 7, 1994 proposal included, without the Petitioner's knowledge, a contemplated mid to late July systems testing regimen on site with the Petitioner and the development of job-specific manuals for Johnson Controls to use during the month of August. Sun Belt also suggested, on June 7, 1994, that DBC should consider phasing in occupancy during several weeks starting in late August, 1994, stating: We are not aware of the program requirements but have experience with turmoil relating to instantaneous full occupancy. Mr. Barrand and Mr. Young, both architects for DBC and actively involved in management of the Project, testified that they were not aware of the above-stated provisions relating to Sun Belt's involvement in the substantial completion process. The Architect testified that he was not aware of Sun Belt's role, as stated above, with respect to substantial completion. Mr. Scaringe, the Director of DBC, established, however, that Sun Belt and the Architect were intended to act as a "team" in carrying out inspections for substantial completion. The Petitioner was unaware of Sun Belt's proposed involvement with substantial completion. The contract between the Petitioner and DBC did not provide for such a commissioning agent to have any involvement in the substantial completion determination and attainment process. Sun Belt was not a party to that contract, nor was the Petitioner a party to Sun Belt's contract with DBC. Sun Belt completed its commissioning report on July 11, 1994, but this report was not provided the Petitioner until September 19, 1994. The Petitioner was aware that Sun Belt and Johnson Controls were conducting inspection and punch list preparation activities on the Project but did not know that substantial completion was being delayed because of Sun Belt's or Johnson Controls' activities. The Petitioner operated under the impression that the interior railings and exterior sod issues were the problems that the Architect felt at the time inhibited substantial completion. The Architect had previously provided his section 9.8.2 punch list to the Petitioner on June 7, 1994, and the Petitioner completed those items within approximately one week. All items on the Petitioner's 39-page punch list delivered to the Architect were completed within four weeks. The Architect did not provide another punch list to the Petitioner until September 19, 1994. Throughout the summer of 1994, the Petitioner operated under the assumption that it had obtained substantial completion, that it had accomplished all punch lists required by section 9.8.2 of the general conditions of the contract, and that all punch lists delivered to it had to be accomplished in order to finally complete the Project and get paid in terms of final completion. Both Mr. Young and Mr. Anstis testified that the only section 9.8.2 punch list for the Project was the Petitioner's list dated May 23, 1994 and supplied to Mr. Anstis, and the Architect's three-page handwritten list of June 7, 1994. Mr. Young testified that upon completion by the Petitioner of the Architect's three-page handwritten list, the Petitioner had obtained substantial completion. The Architect opined that upon completion of both the Petitioner and the Architect's punch lists of June 7, 1994, substantial completion would have been attained by the Petitioner. Neither Mr. Young nor Mr. Anstis knew when the items on both punch lists had actually been completed. The Petitioner, through James Comer, Robert Kemmer, and Tom Squires, all stated that the only item on either punch list, submitted under section 9.8.2, which prevented substantial completion, was a general note that stated "install fire extinguishers prior to substantial completion." Mr. Squires testified that he specifically discussed this item with both the State Fire Marshal and the Architect to advise them that he had the fire extinguishers on site ready to install but that he did not want to install them until DBC (its tenant) was ready to actually occupy the building, because they had a tendency to be stolen if installed too early. Both the Fire Marshal and the Architect agreed that this was an appropriate procedure for installing the fire extinguishers. Consequently, by agreement, the placement of the fire extinguishers on site was delayed and was not a factor in determining when substantial completion occurred. Because the Project could be used for the purpose for which it was intended, as an office building, even while punch list items were being completed prior to final completion, it was unnecessary to call for another substantial completion inspection by the Architect because substantial completion had been achieved. Mr. Young showed that the punch lists and the failure to perform punch list work were not the stated reason given by the Architect in denying substantial completion during June, July and August, 1994, in any event. Rather, the Architect stated that the interior stair railings and the exterior sod conditions prevented the building from being substantially complete. Mr. Young did not agree with the stated reasons enunciated by the Architect for lack of substantial completion. During the months of June, July and August, 1994, the Architect did not issue any further punch lists. He did not report, in monthly reports to DBC, concerning any deficient work nor "correction of previous deficiencies". The Architect did not call any monthly construction progress meetings to discuss any construction issues. The last construction status report to DBC, required monthly by the Architect's contract with that owner, was signed on May 6, 1994. At that time, the Architect noted no contract deficiencies and no correction of previous deficiencies required. The last construction progress meeting for the Project was June 6, 1994; and the Architect reported "building is not quite substantially complete as of this date". The last weekly inspection report, Field Report No. 58, prepared by the Architect on June 7, 1994, stated that the project was not yet substantially complete. Before issuing the certificate of substantial completion, the Architect was contractually required, under section 3.3.3 of its contract, to conduct inspections to determine the dates of substantial and final completion. "Inspections" denotes an obligation to search for deficient or defective work, according to Mr. Anstis. Section 9.8.2 of the general conditions of the contract requires an inspection by the Architect at the time of the issuance of the substantial completion punch list. After that inspection, in which he looked for items to be completed or corrected, the Architect prepared a three- page handwritten list. That list was consistent with the Petitioner's list; and substantially all items indicated by Mr. Kemmer on the Petitioner's 39-page list as being acceptable, or not noted at all, were also not included on the Architect's three-page list, as requiring any additional punch list work. The Architect's certificate of substantial completion indicated a substantial completion date of September 14, 1994, as determined by the Architect. Attached to the certificate of substantial completion were the following punch lists: Punch list prepared by Robert Kemmer dated May 23, 1994. Architect's three-page handwritten punch list of June 6, 1994. John Purcell's list (undated). Johnson Controls' "deficiency list". Sun Belt's June 24, 1994 letter. Anstis' nine-page document dated September 14, 1994. Anstis' two-page list dated September 6, 1994. Johnson Controls was contracted by DFM (not the contracting party, DBC) to be the "privatization" firm to provide operation and maintenance for the building, in the stead of DFM. Johnson Controls' "deficiency list" was provided to the Petitioner for the first time on September 19, 1994, as an attachment to the certificate of substantial completion. At the September 14, 1994 meeting between DBC, the Petitioner, the Architect, Johnson Controls, and DFM, Mr. Comer, of Petitioner Foley, requested a copy of the certificate of substantial completion. He was advised by Mr. Anstis and DBC that it could not receive the certificate until Ed Lawrence, a Project Manager with DFM, and Johnson Controls had completed their inspections of the Project. On September 19, 1994, Johnson Controls' deficiency list was prepared and attached to the certificate of substantial completion, along with all punch lists generated throughout the course of the Project, from June 6, 1994 to September 19, 1994. Included in the punch lists attached to the certificate was Sun Belt's June 24, 1994 list. Sun Belt's July 11, 1994 report, however, which showed that virtually all of the items were either completed or not in the Petitioner's contract to begin with, was not provided to the Petitioner at this time. The Petitioner obtained this updated Sun Belt list through a document production only after filing its claim and beginning this proceeding. The certificate of substantial completion signed by the Architect and DBC specifically stated "a list of items to be completed or corrected is attached hereto." Therefore, Sun Belt's punch list, Johnson Controls' punch list, John Purcell's punch list, and all others attached to the certificate had to be completed or corrected by the Petitioner, in the view of the owner's representative and the Architect/owner's agent. The Petitioner signed the certificate of substantial completion on October 3, 1994, noting thereon that the Petitioner contends that substantial completion was achieved on June 6, 1994, contrary to the owner's position. Ed Lawrence, of DFM, established that Johnson Controls' contract with DMS/DFM required Johnson Controls to complete its inspection prior to issuance of the certificate of substantial completion. The contract between this different division of DMS and Johnson Controls, however, was a separate contract to which the Petitioner was not a party, which did not bind the Petitioner, who is not in privity to a party to this separate contract. After September 14, 1994, until final completion, the Petitioner continued to supervise and work on the various punch lists provided by Sun Belt, Johnson, John Purcell, Thomas Young and Mr. Anstis. Substantially all of the items had either been completed by September 14, 1994 or were new items added for the first time on September 19, 1994, or thereafter. The Petitioner's general practice and its schedule and initial estimate in the Project at issue called for its removing field offices and its superintendent off the Project, upon the obtaining of a certificate of occupancy and achievement of substantial completion. Its practice in the past was to leave an experienced foreman on the Project thereafter to supervise performance of remaining punch list items and change order work that had to be completed after substantial completion and before final completion was achieved. Under the contract, final completion was to be 30 days after substantial completion. Instead, the Petitioner left a superintendent on the Project and continued to direct its own forces and subcontractors on a piecemeal basis as new lists were provided to complete the Project during the summer and fall of 1994, until DBC ultimately declared final completion. Payment Issues The Petitioner prepared drafts of each monthly pay application and submitted them to the Architect several days prior to the monthly construction progress meeting. Through Application for Payment Number 16, the Architect and DBC made no deductions from the Petitioner's proposed monthly application for payment. The payment problems began only after the June 6, 1994 construction progress meeting. Typically, upon submission of a pay application, the Architect would review the quantity and quality of work while on site and at the progress meeting, would sit down with the Petitioner and review each line item. On application for payment number 10, DBC reduced the retainage withheld from the Petitioner from 10 percent of the work accomplished to date to 5 percent, as permitted by the contract when the Project is on schedule and the work is of good quality. Monthly pay request number 17 was submitted by the Petitioner on June 2, 1994 in the amount of $290,380.00. During the construction progress meeting of June 6, 1994, that application was approved. On June 13, 1994, however, Mr. Kemmer received a telephone call from the Architect, who stated that "They won't approve your estimate". This was five days after DBC's negotiations with Sun Belt and ten days prior to DBC's notice to proceed directed to Sun Belt. From that point on, the Petitioner had substantial difficulties receiving monthly payments from DBC. During that June 13, 1994 telephone conversation with the Architect, Mr. Kemmer and the Petitioner were instructed to revise the previously-approved application for payment, reduce $117,856.00 from the previously-approved amount and re-submit it. On June 13, 1994, the Petitioner complied with this instruction and re- submitted application for payment number 17 in revised form in the amount of $172,524.00, reflecting the above-referenced reduction mandated by the Architect. This reduced amount, which included all general conditions (job office and other on-site overhead) was then recognized as complete by the owner and Architect and paid to the Petitioner on July 11, 1994, 39 days after initial submittal. Application for payment number 18 was submitted to the Architect on July 15, 1994 in the amount of $143,547.00. The only reduction mandated by the Architect on application for payment number 18, as found above, was in the amount of $16,000.00 for interior railings, for which the Petitioner had previously been paid 100 percent. The Petitioner, however, re-submitted application for payment number 18, reflecting the $16,000.00 reduction mandated by the Architect, and that resubmittal was subsequently paid on August 26, 1994. Thus, it was paid some 42 days after its initial submission. After the certificate of substantial completion was issued by the Architect on September 19, 1994, the Petitioner submitted its claim on October 4, 1994. This is the claim which ultimately gave rise to this proceeding. Two days later, the Petitioner submitted to the Architect application for payment number 19 on October 6, 1994 in the amount of $102,837.00. On November 4, 1994, 30 days after submission of the claim, the Architect rejected the entire amount of application for payment number 19 (which did not include the claim amounts but only amounts due under the contract). The Architect included with the rejected application a letter of November 4, 1994 and a copy of his letter to Thomas C. Young of November 2, 1994 attempting to justify the reductions. Some of the deducted items and the amount contended included the following: 13. Planter beds need to be weeded through- out. Some areas have been done but this task is not complete. (A $600.00 deduction was made. FOLEY test- ified that this work had been accomplished as of June 6, 1994, and that five months later, some weeds had grown in the planter beds. Notwithstanding, FOLEY testified that this punchlist work was completed by one man working two or three hours for a total of approximately $16.00.) (J. Comer, T.170). 24. Room C-124 - screw missing in kick plate at east door. (A reduction of $50.00 was made for this item. FOLEY testified this was a 50 item.) (J. Comer, T.170). Room 315-B - vinyl base missing. (A $150.00 deduction was made for this item. FOLEY contended this was not in its contract since DBC was to provide the carpet and did not want vinyl bases installed in those areas. The May 20, 1994 construction progress meeting minutes, Item 22A, 6, clearly identify this as one of the rooms in which "contractor is not to install the rubber base in those rooms where HRS is to install carpet".) (P.4.22). 49. Testing, training and documentation required by various sections of the specifica- tions need to be completed. ($10,000.00 was held for this item. FOLEY contended that DBC had no one to train on June 6, 1994, and FOLEY was there with its subcon- tractors to provide testing and training. Ultimately this was accomplished, but FOLEY objects that this price was outrageously high.) (J. Comer, T.171). The Petitioner contested each item, as explained in the Petitioner's letter of November 11,1994 to the Architect. The $21,700.00 held for "other items" primarily related to the sod/landscaping dispute ($2,150.00) and testing, training, and documentation categories ($10,000.00), all of which the Petitioner contested. The major amounts being withheld, however, as indicated by the Architect's calculations included with his letter to Mr. Young of November 2, 1994, included $87,875.00 for railings: Item 38. Steel railings (interior) 200 L/F x $200.00/L/F = $40,000.00. (The Architect had previously recommended to DBC to accept these railings in exchange for a $12,000.00 credit from FOLEY to DBC.) Item 7. Bridge railings 383 L/F x $125.00/ L/F = $47,875.00. Item 7 concerned aesthetic, minor problems related to the exterior railings, primarily those involving change order work requested late in the Project due to the raising of the slope and height of the bridge from the elevation originally depicted in the Petitioner's contract documents. The two railing problems amounted to a total of $87,875.00 in withheld money from the Petitioner. DBC, at this time, was also holding $277,999.00 in retainage. The additional withholding of $102,837.00 (for application for payment number 19) resulted in DBC actually withholding from the Petitioner, as of November 4, 1994, the sum of $380,836.00, which excludes the additional amount claimed by the Petitioner in its claim filed with the owner on October 4, 1994. On November 18, 1994, after explaining to the Architect its position in its November 11 and 17, 1994 letters, the Petitioner re-submitted application for payment number 19 for the identical amount of $102,837.00. This time, the Architect and DBC agreed with virtually all of the Petitioner's November 11 and 17, 1994 comments by letter and reduced only $21,950.00 from the re-submittal. This consisted of a landscaping reduction of $5,950.00 and the railings reduction of $16,000.00. The reduced amount of $87,887.70 for application for payment number 19, which had been withheld on November 4, 1994, was finally paid to the Petitioner on December 12, 1994. The initial application for this payment had been submitted on October 6, 1994 and, consequently, partial payment was made 66 days after initial submission. Application for payment number 20 was the application for final payment on the contract. It was submitted to the Architect on October 14, 1994 in the amount of $241,204.00. This included the amounts subject to the claim filed initiating this proceeding. The Architect rejected this application in its entirety and returned it to the Petitioner. The Petitioner re-submitted it on November 18, 1994 in the identical amount and, again, this was returned by the Architect without comment. In March, 1995, DBC finally agreed to accept the $12,000.00 credit for the interior railings, which the Petitioner had offered to accept as a voluntary reduction to its contract price with regard to the railings and which the Architect had recommended to the owner seven months earlier. DBC also agreed, in March of 1995, finally, to pay the Petitioner for the ceiling tile work as a change order. This had previously been claimed by DBC as defective or deficient work by the Petitioner, when, in reality, it was not within the Petitioner's contract. The Petitioner re-submitted application for payment number 20, for the third time, for the total amount of $318,883.30. On May 8, 1995, DBC paid the Petitioner $16,385.93, withholding $24,500.00 for liquidated damages for claimed delays by the Petitioner "after substantial completion of the Project". DBC also released to the Petitioner at this time the "securities" of $277,993.30 (retainage), which enabled the Petitioner to then request payment in that amount from the State of Florida. This was ultimately paid on May 30, 1995. None of the other amounts of the Petitioner's claim have been paid. Claim for Damages The Petitioner presented the testimony of James Foley, James Comer, Robert Kemmer and Tom Squires as to the amount of additional time and out-of- pocket expenses incurred on the Project after the Petitioner's substantial completion date of June 6, 1994. This related to additional work performed and expenses incurred over and beyond those relating to the section 9.8.2 punch list work required by the general conditions of the contract. Mr. Molsick, Chief Financial Officer of the Petitioner, established that none of the amounts claimed included duplicate charges for late-ordered change order work that continued separately throughout the summer of 1994. The Petitioner planned for an experienced foreman to remain on the project to complete punch list items and change order work required by section 9.8.2 of the contract documents. Instead, Superintendent Squires remained on the Project throughout the summer, along with Superintendent Robert Kemmer, who had to devote substantial time to the Project. The Petitioner and Mr. Comer continued to devote substantial time on the Project to complete it over and beyond that called for by the contract documents. Mr. Molsick described the additional "home office overhead" incurred as a result of interference and delay in the Petitioner's ability to complete the Project as planned. Using the "Eichleay formula", Mr. Molsick compared the contract billings for the Project with the total Petitioner billings for the period of time from January 6, 1993 to June 6, 1994. He then determined the total overhead incurred for the Fort Pierce Project from January 6, 1993 to June 6, 1994 and the days of performance and determined that the allocated overhead of the company to the Project was $354.59 per day or $35,459.25 overall. Concerning the issue of interest on unpaid and late payments, Mr. Molsick established that the Petitioner was entitled to $30,932.00 for late payments and unpaid amounts at the rate of 12 percent on all claims, except retainage. The retainage portion was calculated at 8 percent since the State had already paid the Petitioner 4 percent interest on its retainage, for a total of $30,932.00, as of May 15, 1995. An additional $84.46 per day for amounts after May 15, 1995 was due. In addition to the above-referenced time and expense items described by Mr. Molsick, there were other cost amounts incurred by the Petitioner as a result of DBC's interference with its ability to obtain substantial and final completion of its contract on a timely basis. These amounts are as follows: ITEM Project Office $ AMOUNT 61.00 Warehouse 150.00 Temporary Toilets 246.00 Water 10,891.00 Power 30,334.00 Telephone 3,385.00 Mail 387.00 Gas/Oil 1,112.00 Travel 4,056.00 Subsistence 3,771.00 Office Supplies 78.00 Temporary Cleanup 2,894.00 Punch List 14,266.00 Builders Risk 1,538.00 Vehicle 4,000.00 Payroll Burden 6,263.00 Landscaping 1,492.00 Key Blanks 85.00 SUB-TOTAL $85,009.00 In summary, amounts due the Petitioner pursuant to its claim and based on the above-found facts are as follows: FOLEY Cost-Coded Expenses $ 85.009.00 Squires 30,584.00 JLF/JC/RBK 47,778.00 Interest 30,932.00 Overhead (Eichleay) 35,459.00 Additional Liability Insurance 976.00 Additional Bond Premium 1,673.00 TOTAL CLAIM PORTION $232,411.00 Balance of Contract (adding liquidated damages withheld by DBC) + 24,500.00 TOTAL OUTSTANDING AMOUNTS DUE $256,911.00 Interest at 1 percent per month from 05/15/95 to date of Payment of Claim by DBC 456.98 $257,367.98 ($277,999.00 retainage paid 5/30/95: 15 days (from 5/15 to 5/30); $277,999.00 x 490 x 15 days = $456.98) + 84.46/day (after 5/30/95)
Recommendation Based on 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 RECOMMENDED that a Final Order be entered by the Department of Management Services, Division of Building Construction, consistent herewith and awarding the Petitioner the sum of $257,367.98, plus the per diem amount referenced in the above Findings of Fact, as such amounts due and owing are more particularly explained in the Findings of Fact herein. DONE AND ENTERED this 29th day of December, 1995, in Tallahassee, Florida. 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 Hearings this 29th day of December, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-7070 Petitioner's Proposed Findings of Fact 1-35. Accepted. 36-43. Accepted. 44. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter. 45-54. Accepted, but subordinate to the Hearing Officer's specific findings of fact on this subject matter. Accepted. Rejected, as subordinate to the Hearing Officer's specific findings of fact on this subject matter. 57-70. Accepted. 71. Accepted, but subordinate to the Hearing Officer's specific findings of fact on this subject matter. 72-91. Accepted. Accepted. Rejected, as unnecessary and immaterial. 94-98. Accepted. Respondent's Proposed Findings of Fact 1-28. Accepted, but not as materially dispositive. 29-30. Accepted, in terms of a description of the terms of the contract concerning liquidated damages. Accepted, as a general proposition, although not materially dispositive in itself; however, in any event, this is more of a conclusion of law. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter. Accepted, in terms of what this portion of the contract provides but not for its material import. 34-37. Accepted, but not necessarily for their purported material import. 38. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter. 39-43. Accepted, but not necessarily as materially dispositive of the issues presented. 44-46. Accepted, but not itself materially dispositive. Accepted, in terms of there being this general, non- specific information provided to Foley concerning commissioning, but subordinate to the Hearing Officer's findings of fact to the effect that Foley was not informed that the commissioning and privatization firms or agents would have an unavoidable influence over the substantial completion attainment process. Accepted. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter. What Mr. Scaringe felt was shown not to be correct as a matter of fact and law. 50-51. Rejected, as contrary to the preponderant weight of the evidence and subordinate to the Hearing Officer's findings of fact on this subject matter. Accepted. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter, and not entirely in accord with the preponderant weight of the evidence, although it is observed as the Hearing Officer has found in the Recommended Order that the delaying of the issuance of the certificate of substantial completion was not due to intentional misleading of Foley. Accepted, but not itself dispositive of the material issues presented for resolution. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter, and as not entirely in accord with the preponderant weight of the evidence. While DMS obviously intended that Foley's work conformed to the specifications, it was not shown that a commissioning procedure was necessary to accomplish that goal. Accepted, but immaterial. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter. Rejected, as not entirely in accord with the preponderant weight of the evidence, and as subordinate to the Hearing Officer's findings of fact on this subject matter. Whatever DMS' intention may have been concerning Johnson Controls' inspection process, substantial completion was delayed until Johnson Controls' and other inspecting persons and entities had submitted their deficiency lists, which was an effort outside the bounds of the contract between the Petitioner and DBC, the Respondent. Rejected, as not dispositive of the material issues presented for resolution, and as subordinate to the Hearing Officer's findings of fact concerning substantial completion. Work on punch list and warranty items is expected to continue after the substantial completion date, whether or not it may delay carpet installation, which effort was not part of Foley's contract in the first place. Accepted, in terms of a statement of Mr. Anstis' responsibilities concerning the substantial completion determination under the contract terms. Rejected, as contrary to the preponderant weight of the evidence, and as subordinate to the Hearing Officer's findings of fact on this subject matter, even though it may be an accurate statement of Mr. Anstis' position or thought process at the time. 62-64. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter, as not entirely in accord with the preponderant weight of the evidence, and as immaterial to resolution of the issues presented in and of themselves. 65. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter, and not itself materially dispositive. 66-67. Accepted, but not itself materially dispositive. Accepted, in terms of this being a statement of Mr. Anstis' viewpoint, but rejected in that it is subordinate to the Hearing Officer's findings of fact on this subject matter predicated on the preponderant weight of the evidence and the Hearing Officer's determination of witness credibility. Accepted, in terms of why Mr. Anstis concluded to increase retainage, but rejected as subordinate to the Hearing Officer's finding of fact concerning the factual circumstances and legal rights of the parties as to this subject matter. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter, which are based upon the preponderant weight of the evidence determined by weighing the credibility of witnesses and evidence. 71-72. Accepted, but not itself materially dispositive. Rejected, as contrary to the preponderant weight of the evidence and the Hearing Officer's findings of fact on this subject matter. Accepted, only in terms of its being a statement of Mr. Anstis' position in this regard, but not accepted as to its legal or factual correctness. Rejected, as immaterial and, in part, as not in accord with the findings of fact made by the Hearing Officer after his determination of the preponderant weight of the evidence based upon the credibility of witnesses and evidence. Rejected, as contrary to the preponderant weight of the evidence, and as subordinate to the Hearing Officer's findings of fact on this subject matter. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter. Rejected, as contrary and subordinate to the Hearing Officer's findings of fact on this subject matter, and rejected as to its purported material import and subordinate to the Hearing Officer's findings of fact on this subject matter. 79-86. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter, and as not entirely material to the resolution of the issues presented. Accepted. Accepted, but immaterial. Accepted, but subordinate to the Hearing Officer's findings of fact on this subject matter, and not materially dispositive. Accepted, but not materially dispositive. Accepted, but not for its purported material import. 92-95. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter. Accepted. Rejected, as contrary to the preponderant weight of the evidence, and as subordinate to the Hearing Officer's findings of fact on this subject matter. COPIES FURNISHED: S. LaRue Williams, Esquire KINSEY, VINCENT, PYLE, P.A. 150 South Palmetto Avenue, Box A Daytona Beach, FL 32114 Davisson F. Dunlap, Jr., Esquire PENNINGTON & HABEN, P.A. Post Office Box 10095 Tallahassee, FL 32302-2095 Stephen S. Mathues, Esquire Department of Management Services Knight Building, Suite 312 2737 Centerview Drive Tallahassee, FL 32399-0950 William H. Lindner, Secretary Department of Management Services 4050 Esplanade Way Tallahassee, FL 32399-0950 Paul A. Rowell, Esquire General Counsel Department of Management Services 4050 Esplanade Way Tallahassee, FL 32399-0950
The Issue The central issue in case no. 91-7302 is whether the Respondent is guilty of the violations alleged in the administrative complaint dated October 14, 1991; and, if so, what penalty should be imposed. The central issue in case no. 91-8259 is whether the Respondent is guilty of the violations alleged in the administrative complaint dated November 11, 1991; and, if so, what penalty should be imposed.
Findings Of Fact Based upon the testimony of the witnesses and the documentary evidence received at the hearing, the following findings of fact are made: At all times material to this case, Respondent has been licensed as a land surveyor in the State of Florida, license no. LS Respondent signed and sealed three surveys for property belonging to Mr. and Mrs. Michael Lengfellner. Those surveys (received in evidence as Petitioner's exhibits 2, 3, and 4) were prepared and certified by Respondent to be in compliance with the Minimum Technical Standards found in Section 472.027, Florida Statutes, and Chapter 21HH-6, Florida Administrative Code. With regard to Petitioner's exhibit 2, the survey drawing shows a 90 degree right angle corner at the northeast property corner when that angle should have been depicted at the southeast corner. The plat for the property shows the 90 degree corner at the southeast corner. Further, the survey reflects incorrect bearing and distances along the easterly property line. Additionally, the angular data provided for the non-radial side of the property lines is not shown on the survey. When a non-radial line is shown, additional information must be given to clarify the dimensions. Such information is not shown on Petitioner's exhibit 2. With regard to Petitioner's exhibit 3, the Respondent, again, did not provide the non-radial line angular data. More specifically, no data was depicted showing the delta, radius, and arc, or chord bearing or angle. With regard to Petitioner's exhibit 4, the Respondent, again, omitted the non-radial line data described above. Further, while Respondent's field notes state the survey was tied to a permanent reference monument, that information was not depicted on the survey drawing. Bearings for the well- defined line relied upon by Respondent were not indicated on the drawing. The survey drawing also did not compare the measured direction and distances in relation to the recorded direction and distances. Finally, this survey failed to provide a legend for abbreviations used in the drawing. Any abbreviation not listed by rule must be explained in a legend. Respondent signed, sealed and certified the survey drawing identified as Petitioner's exhibit 7. With regard to Petitioner's exhibit 7, the Respondent failed to depict the partial lot distances in the survey drawing. The fractional parts of the lots (lots 14 and 15) were not shown on the drawing. Fractional parts of a lot excluded from the surveyed description should be dimensioned. Respondent did not show the distance to the nearest street line or identifiable reference in Petitioner's exhibit 7. Nor did the survey drawing depict the distance to a well defined corner or block corner. In short, the survey did not reference an identifiable point. The Respondent did not provide a legend for the survey drawing, Petitioner's exhibit 7, which explained all abbreviations used on the drawing. The fence depicted on the west boundary of the lots is not related to the boundary lines. Since the fence is pertinent to the survey, the relationship of the fence to the boundary lines should be explained on Petitioner's exhibit 7. Respondent failed to refer Petitioner's exhibit 7 to a specific well- established line. Respondent did not disclose the type of survey performed on Petitioner's exhibit 7. Respondent signed, sealed, and certified the survey drawing identified as Petitioner's exhibit 9. With regard to Petitioner's exhibit 9, Respondent failed to identify the type of road (public or private) depicted on the survey. Further, the first course of the legal description was not shown on the survey drawing. Even if the first course were an easement, it should be depicted on the drawing to reflect the property's access interest as that property is described in the legal description for the parcel. The errors or omissions noted above catalog the instances where Respondent failed to comply with the minimum technical standards for surveys.
Recommendation Based on the foregoing, it is RECOMMENDED: That the Board of Professional Land Surveyors enter a final order finding the Respondent guilty of having violated Section 472.033(1)(h), Florida Statutes, and imposing an administrative fine in the amount of $1500.00. DONE and ENTERED this 30th day of June, 1992, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of June, 1992. APPENDIX TO CASE NOS. 91-7302 AND 91-8259 RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY PETITIONER: Paragraphs 1 through 4 are accepted. Paragraphs 5 and 6 are rejected as comment, argument, or irrelevant. The first sentence of paragraph 7 is accepted, the remainder rejected as conclusion of law or recitation of rules. Paragraphs 8 through 11 are accepted. Paragraph 12 is rejected as a conclusion of law. Paragraphs 13 through 17 are accepted. Paragraphs 18 and 19 are rejected as conclusion of law. Paragraph 20 is accepted. Paragraph 21 is rejected as statement of the rule, not fact at issue. Paragraph 22 is accepted except as to the conclusion of law of the violation. Except as to the conclusion of law and the recitation of the rule, paragraph 23 is accepted. Paragraphs 24 and 25 are accepted. Except as to the conclusion of law regarding a violation and the recitation of the rule, paragraph 26 is accepted. Except as to the conclusion of law regarding a violation, paragraph 27 is accepted. Except as to the conclusion of law regarding a violation and the recitation of the rule, paragraph 28 is accepted. Paragraph 29 is rejected as irrelevant or contrary to the weight of the evidence; the paragraph is vague as it does not specify to which "above abbreviations" it refers. Paragraphs 30 and 31 are accepted. Paragraph 32 is rejected as comment, not fact in dispute. Except as to the conclusion of law regarding a violation, paragraph 33 is accepted. Except as to the conclusion of law regarding a violation, paragraph 34 is accepted. Except as to the conclusion of law regarding a violation and the recitation of the rule, paragraph 35 is accepted. Except as to the conclusions of law regarding violations and the recitation of the rule, paragraphs 36 through 42 are accepted. Paragraph 43 is rejected as comment or irrelevant. Except as to the conclusions of law regarding violations and the recitation of the rule, paragraphs 44 through 51 are accepted Paragraphs 52 and 53 are rejected as repetitive, comment, or irrelevant. Except as to the conclusions of law regarding violations and the recitation of the rule, paragraphs 54 through 65 are accepted. Paragraphs 66 through 71 are rejected as argument, conclusion of law or comment. RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY RESPONDENT: 1. None submitted. COPIES FURNISHED: William S. Cummins Senior Attorney Department of Professional Regulation 1940 North Monroe, Suite 60 Tallahassee, Florida 32399-0792 Gary D. Hunt 247 Lake Ellen Drive Casselberry, Florida 32707 Jack McRay General Counsel Department of Professional Regulation 1940 North Monroe, Suite 60 Tallahassee, Florida 32399-0792 Angel Gonzalez, Executive Director Board of Professional Land Surveyors 1940 North Monroe, Suite 60 Tallahassee, Florida 32399-0792
The Issue There are three issues to be determined in this case: (1) whether the Petitioner, Arlington Ridge Community Association, Inc. (Arlington Ridge), demonstrated standing to challenge the proposed agency actions; (2) whether the terms of Consent Order OGC No. 18-0077 (proposed Consent Order) constituted a reasonable exercise of the Respondent, Department of Environmental Protection's (Department), enforcement discretion; and (3) whether the Department's notice of intent to issue minor source air construction permit 0694866-009-AC (009 Permit) to the Respondent, GI Shavings, LLC (GI Shavings), met the applicable rule and statutory criteria for issuance.
Findings Of Fact The Parties The Arlington Ridge community is located in Lake County comprising approximately 500 acres. The community is a 55-year- old plus active adult community with approximately 730 homes. The community includes an 18-hole golf course, swimming pool, tennis courts, pickle ball courts, walking trails, conservation areas, and common areas. Arlington Ridge is a Florida not-for-profit community association governed by its Declaration of Restrictive Covenants for Arlington Ridge, recorded on April 15, 2005, at Official Records Book 2809, Page 1622, of the Public Records of Lake County, Florida, as amended. Arlington Ridge's Articles of Incorporation demonstrate that it was formed, in part, to promote the health, safety, and welfare of the owners within its community and to provide for the ownership, operation, maintenance, and preservation of the common areas. Arlington Ridge is made up of the Declarant, CB Arlington Ridge Landco, LLC, as long as the Declarant still owns lots and the residents who own lots. Robert Salzman is vice president of the Declarant. He serves as president and is a member of the board of directors of the community association. The Declarant still owns 170 undeveloped lots and 91 lots that are under development. There are 730 existing homes that are owned by individual residents who are members of the community association along with the Declarant. The community association owns a section of the roadway and land around the rear gate of the subdivision. GI Shavings is a Florida limited liability company and is the applicant for the minor source air construction permit at issue in this proceeding. The GI Shavings property is located adjacent to the Arlington Ridge community. The address is 26444 County Road 33, Okahumpka, Lake County, Florida 34736. GI Shavings also signed the proposed Consent Order at issue in this proceeding. The Department is the administrative agency of the state having the power and duty to protect Florida's air and water resources and to administer and enforce the provisions of chapter 403, Florida Statutes, and rules promulgated thereunder in Florida Administrative Code Title 62 regarding activities which have the potential to cause air pollution. Facility History of Permitting and Operations On February 7, 2014, GI Shavings' predecessor, Quality Shavings of South Florida, LLC, applied to the Department for an initial air construction permit. The application described the proposed project as a wood chip dryer that included a 30 million British thermal unit per hour (mmBtu/hr) burner fueled by wood chips and sawdust. The burner provided heat to the rotary kiln chip dryer and exhausted to a cyclone dust separator prior to venting to the atmosphere through an exhaust stack. The application materials contained information about the United States Environmental Protection Agency's (USEPA) AP-42 emissions factors for combustion of wood products, with estimations of regulated air pollutant potential and estimated actual emissions from the wood chip drying process. The potential emissions for each pollutant and group of pollutants were listed in tons per year (TPY), and were based on a 30 mmBtu/hr facility running 8,760 hours per year, i.e., no hourly limit. The estimated actual emissions were based on the facility running a typical production schedule of 3,600 hours per year. The listed air pollutants were carbon monoxide (CO), nitrous oxides (NOX), particulate matter (PM), volatile organic compounds (VOCs), sulphur dioxide (SO2), carbon dioxide (CO2), and hazardous air pollutants (HAPs). Although there were potential emissions and estimated actual emissions for each pollutant and group of pollutants, the major source thresholds were not triggered. Therefore, the facility would be classified, from a regulatory standpoint, as a minor source of air pollution. The only air pollution control device was the cyclone dust separator that was rated at 99 percent removal efficiency for PM10, i.e., particulate matter of grain size 10 microns or less, from the exhaust airstream. The application reflected that there were no controls proposed for CO, NOX, VOCs, SO2, CO2, or HAPs. The application was silent as to control of fine particulates or PM2.5, i.e., particulate matter of grain size 2.5 microns or less. The application contained a site location map based on an aerial map. The proposed location of the facility was on a parcel adjacent to the Arlington Ridge community's golf course, and further east a road labeled as Arlington Ridge Boulevard. Other roads, in what appeared to be a not fully built-out subdivision, were White Plains Way and Manassas Drive. The facility plot plan in the application located the wood drip dryer, rotary kiln, cyclone dust separator and exhaust stack on the eastern end of the parcel closest to the boundary with the Arlington Ridge community's golf course. On April 4, 2014, the Department issued minor source air construction permit 0694866-001-AC (001 Permit). The 001 Permit established a visible emissions (VE) limit of five percent opacity, which is the limit specified under the materials handling rules. Like all air permits issued under the Department's rules, the 001 Permit was also subject to certain general conditions. These included the prohibition against "objectionable odor" as defined in the Department's air pollution rules. At the time the 001 Permit was issued, neither GI Shavings nor the Department recognized that the rules for carbonaceous fuel burning equipment were applicable to GI Shavings and that there should also have been a limit for PM in the 001 Permit. Instead, the rules for a materials handling operation were applied to the facility, which required a VE limit of five percent opacity. The 001 Permit required GI Shavings to demonstrate initial compliance and apply for an operating permit no later than 60 days before it expired on June 30, 2015. On December 18, 2014, the Department issued an amendment of the 001 Permit to grant a transfer of ownership from Quality Shavings of South Florida, LLC, to GI Shavings (002 Permit). On May 11, 2015, GI Shavings submitted a request for additional time to demonstrate initial compliance. The reason given for the request was that operations had not started because GI Shavings was waiting on a certificate of occupancy from Lake County, which was expected within the next 60 days. On May 28, 2015, DEP granted the request and issued a permit amendment (003 Permit), which extended the expiration date from June 30, 2015, to December 31, 2015. On November 24, 2015, GI Shavings submitted a second request for additional time to demonstrate initial compliance. The reason given for the request was coding issues at the new warehouse. The request noted that "[a]ll the equipment has been up and runs." On December 7, 2015, the Department granted the request and issued a permit extension (004 Permit), which extended the expiration date from December 30, 2015, to June 30, 2016. In the 004 Permit extension, the Department reminded GI Shavings that there must be notification to the Department within five days of commencing operations, compliance testing within 30 days of commencing operations, 15 days notification to the Department prior to compliance testing, and application for an initial air operation permit no later than 60 days prior to the new expiration date. On April 27, 2016, GI Shavings submitted a third request for additional time to demonstrate initial compliance. There was not any reason given for this 120-day extension request. On May 11, 2016, the Department granted the request and extended the permit's expiration date to October 31, 2016 (005 Permit). The Department reiterated the same reminders as in the 004 Permit extension. On October 24, 2016, the Department conducted its first formal site inspection of GI Shavings in response to complaints from Arlington Ridge residents about smoke, airborne PM, and odor. The Inspection Report confirmed it was a complaint inspection. The Inspection Report also stated that the Department's permitting engineer, Jeff Rustin, had made a previous site visit at which time he had requested to review facility records. The inspection revealed that GI Shavings had commenced operations without notifying the Department, and had not scheduled or submitted a VE compliance test to demonstrate compliance with the permit's five percent opacity limit. During the site inspection, Jeff Rustin and his supervisor, Tom Lubozynski, also a professional engineer, noted that GI Shavings was emitting white smoke from the exhaust stack that did not dissipate quickly and that the smoke may have both moisture and particulates. As they stood 60 feet from the burner and the burner's smoke stack, there was the odor of burning smoke, and particles fell onto Mr. Lubozynski's notepad. Based on their observations, the Department's engineers concluded that the cyclone dust separator was not adequately controlling PM emissions, that the method of operations was unlikely to keep emissions below the five percent opacity VE limitation, and that the equipment should not be operated, except for test purposes. On October 26, 2016, GI Shavings submitted a fourth request for additional time to demonstrate initial compliance. The request was for a 180-day extension with no reason given for the request. On November 23, 2016, the Department granted the request and extended the expiration date from October 31, 2016, to April 4, 2017 (006 Permit). The Department specifically stated in the 006 Permit that the facility was not authorized for normal operations and suggested the alternatives of adding another pollution control device in the form of a bag house, or replacing the cyclone dust separator. Despite the Department's limitations on operations stated in writing at the times of issuing the 004 and 005 Permit extensions, the credible and persuasive evidence was that GI Shavings operated throughout 2016 up until it hired Bruno Ferraro in late November 2016. Actions Taken Before Rerating the Burner Mr. Ferraro is the president of Grove Scientific and Engineering Company, and an expert in air emissions, combustion and visible emissions testing, and air permitting. Mr. Ferraro contacted the Department in early December 2016, stating that he was hired by GI Shavings to evaluate emissions and hoped to visit the facility that month. He requested the original emissions calculations and was provided the original air construction permit application, which contained that information. On December 22, 2016, Mr. Ferraro provided to the Department a report of his initial investigation of the GI Shavings facility. He conducted a site visit on December 20, 2016, accompanied by three representatives from the Department that included Jeff Rustin, Brianna Gowan, and Wanda Parker- Garvin. Ms. Parker-Garvin was the environmental manager for the Central District Office's compliance assurance program. Of particular relevance in the report was the following statement: The cyclone works as designed by separating the dry wood shavings and sawdust from the hot combustion air. However, the cyclone is not designed to remove fine particulates from the combustion of wood. The particulate matter (PM) emitted from the combustion of wood is unburned carbon and too small a particle size to be removed by the cyclone. This carbonaceous PM is best controlled by increasing the efficiency of combustion or through the use of post combustion control equipment. (Emphasis added). J. Ex. 1 at DEP 1-360. Mr. Ferraro recommended certain actions to increase the efficiency of combustion, such as changing the starter fuel to wood logs and varying the sawdust feed rate. He also recommended that GI Shavings seek a permit modification to allow excess emissions during startup, shutdown, and malfunction. He also recommended seeking a permit modification to allow a higher VE limit, such as 20 percent opacity, for normal operating conditions. He recommended, as a last resort, the use of post combustion control equipment. This would involve the installation of a bag house, which he described as a "very costly alternative and an excessive measure for controlling carbonaceous PM from the combustion of clean wood." The Department responded to Mr. Ferraro's report on January 5, 2017. Ms. Parker-Garvin provided the Department's comments and response in a lengthy email that also approved a two-week experimental testing phase. The email specifically limited opacity to no more than 20 percent for a smoke plume that would be carried by a west wind in an easterly direction toward the adjacent residents and golf course in a 90-degree quadrant designated on an aerial map as the area of concern or "AOC." The email summarized an expectation that a future air operation permit would require a showing of reasonable assurance that the relevant carbonaceous fuel burning rules for a 30 mmBtu/hr burner could be met. This would include a VE limit of 30 percent opacity and a PM limit of 0.2 pounds per mmBtu of heat input of carbonaceous fuel. Both limitations would need to be initially demonstrated before an air operation permit could be issued. On January 8, 2017, Mr. Ferraro provided a draft startup, shutdown, and malfunction operation plan (SSMOP) to the Department. In his email, Mr. Ferraro stated that the facility would start the two-week experimental testing phase the next day, on January 9, and keep the Department updated. He also stated that they would submit an application to modify the air construction permit. On January 17, 2019, GI Shavings applied for a permit modification, specifying only a change in VE limit from five percent opacity to 30 percent opacity. On March 8, 2017, the Department met with Mr. Ferraro, and an attorney for GI Shavings who attended by telephone. The meeting summary documented a discussion of issues that included requirements for annual PM testing, annual VE testing, and the SSMOP's restrictions on hours of operation and wind direction. The Department's response referred to "health concerns of the complainants," "adverse impacts off property," "numerous complaints," and "proximity to a retirement-age community" as reasons for the SSMOP's restrictions. On March 31, 2017, the Department's intent to modify GI Shavings' air construction permit was published. Arlington Ridge residents made verbal comments and filed complaints with the Central District Office regarding the draft air construction permit. The residents also filed a petition for administrative hearing that was eventually resolved in some manner, because the evidence showed that the final permit was issued on June 26, 2017. On June 26, 2017, the Department modified the air construction permit (007 Permit). The 007 Permit authorized a change in the VE limit, added a PM limit, added a SSMOP, added initial compliance requirements, and extended the expiration date to November 30, 2017. The 007 Permit also included a separate hours of operation agreement (HOA) between the Department and GI Shavings. The HOA initially provided for "[t]wo consecutive 8-hour shifts per day, between the hours of 6:00am and 10:00pm, Sunday thru Friday." These hours could be increased based on lack of compliance issues and lack of complaints over a 90-day period after the 007 Permit was issued. Mr. Ferraro testified that one of the permit requirements was to do a PM compliance test using EPA Method 5. This involved establishing a protocol that would be approved by the Department prior to conducting the compliance test. He testified that during June and July of 2017, the facility started having operational problems that made it difficult to calibrate the fuel feed system to establish the maximum fuel rate and the maximum shavings production rate. During calibration, the sawdust feed system motor kept burning out. Finally, he was able to schedule and conduct the PM compliance test on August 25, 2017. Mr. Ferraro testified that he ran the burner at maximum capacity during the test, which turned out to be an average of 18.252 mmBtu/hr. That is when he observed that this burner's maximum capacity was not 30 mmBtu/hr. The facility failed the PM compliance test with a three-run average PM of 0.531 pounds per mmBtu of heat input of carbonaceous fuel. The facility complied with the VE limit using the EPA Method 9 test, with the highest six-minute average of 13.33 percent opacity. The compliance test results were reported to the Department on September 8, 2017. In his report, Mr. Ferraro concluded "[i]t is our opinion that the PM caused by the burning of carbonaceous fuel, plus the process emission from the wood shavings dust combined in the method 5 sample filter to cause the observed PM emission rate." He stated that GI Shavings wanted to resolve the situation by exploring a change to the PM limit in the permit. Mr. Ferraro testified that there continued to be startup and operational difficulties at the facility. At maximum operation, the facility was not able to get the burner to the specified heat output of 30 mmBtu/hr. After multiple calibrations and tests, the facility was still unable to function as originally specified by the manufacturer. After consulting with the Department, Mr. Ferraro designed a demonstration test in which the sawdust fuel was fed into the burner without the drying of wood shavings. The demonstration test's purpose was to address the PM and VE from the combustion of sawdust. The test was conducted on October 11, 2017, and reported to the Department on October 30, 2017. The facility failed the PM test with a three-run average PM of 0.824 pounds per mmBtu of heat input of carbonaceous fuel. The facility complied with the VE limit using the EPA Method 9 test, with the highest six-minute average of 5.6 percent opacity. Mr. Ferraro concluded that the October test confirmed the PM measured was a result of unburned carbon or incomplete combustion of the carbonaceous fuel, i.e., sawdust. He stated that the cyclone dust separator appears to do a good job of removing all large PM. However, the burner was not designed for complete combustion, i.e., did not burn hot enough for long enough. This resulted in the black soot deposited on the method 5 filters during the compliance tests. Meanwhile, on October 10, 2017, Mr. Ferraro forwarded an email to the Department with a request from GI Shavings to increase its hours of operation since it was "commencing our six months busy season," and was negotiating with additional clients. After receiving the initial October 10, 2017, test results from Mr. Ferraro, the Department's permitting program administrator at the time, Kimberly Rush, responded that "[b]ased upon the requirements outlined in the [HOA], the Department cannot approve the request[ed] hours of operation change at this time due to the pending compliance test and the complaint received on 8/16/17." Mr. Ferraro testified that GI Shavings decided to bring in Energy Unlimited Inc., the equipment manufacturer, to commission the facility. At this time, GI Shavings, through Mr. Ferraro, also requested an extension of the air construction permit that was set to expire in December of 2017. The reason given was that more time was needed to conduct and complete the commissioning process and continue working on facility compliance. On November 20, 2017, the Department extended the expiration date of the air construction permit to November 30, 2018 (008 Permit). The 008 Permit did not make any other changes to the provisions and requirements of the 007 Permit. In January 2018, the manufacturer did significant work to the facility's systems including reworking the fuel feed system, installing a new programmable logic controller and temperature controllers, as well as mechanical and programmatic changes. Upon completion of the commissioning process, Energy Unlimited, Inc., certified and rerated the equipment at a design rate maximum of 26 mmBtu/hr and an actual rate of 21 mmBtu/hr. Mr. Ferraro testified that typical operation was between 15 and 18 mmBtu/hr depending on the temperature outside and the amount of moisture in the air. Impacts to Arlington Ridge Residents Dennis Hartman lives on Arlington Ridge Boulevard and has been a member of the community association since early 2018. Mr. Hartman testified that GI Shavings is located on a diagonal from his home adjacent to the 11th fairway of the golf course. He testified that the smoke and smell from GI Shavings irritates his lungs, throat, and nasal passages. Mr. Hartman testified that he is impacted by the facility, in this manner, at least twice a week. Notably, he does not experience these impacts when he is away from Arlington Ridge. James Piersall has been a member of the community association since July 6, 2018, when he closed on his home in Arlington Ridge. Mr. Piersall testified that on November 27, 2018, while playing golf on the 11th hole, a dark blue wave of smoke came across and covered the green. The smell was prevalent, which he equated to burning wood. Mr. Piersall captured the smoke on video with his cell phone. He testified that it was common knowledge that GI Shavings was located on the other side of the 11th hole. The 150-yard marker and a cell tower serve as landmarks that help the residents locate the GI Shavings facility. Mr. Piersall also testified that this was the time of year to open the windows and doors, and let the breeze blow through the house. However, it was not possible to do so, as there was "sediment and soot that comes out on the patio." Rhonda Lugo has lived in Arlington Ridge since August of 2014, and has been a member of the community association. She testified that GI Shavings began operating two years after she moved to Arlington Ridge. She lives on Arlington Ridge Boulevard, where her home is directly behind GI Shavings and her backyard is approximately 300 yards from the facility. Ms. Lugo testified that her first two years in her home were great. She used her lanai and enjoyed her home. She now describes her home as "unlivable." She does not open any doors or windows, and has not used the lanai for almost two years. The soot and ash covers her lanai furniture. She testified that her eyes burn, and described the odor as more than "just a wood burning smell." Ms. Lugo testified that over the last two years, the residents as a group, have gone to the City of Leesburg and to Lake County, have written senators and state representatives, and have contacted the Department many times. Cheryl Thomack has lived on Arlington Ridge Boulevard since August 2017, and has been a member of the community association. She experiences headaches and breathing difficulties, and uses an inhaler, which she attributes to smoke and soot from the GI Shavings facility. She testified that she went on vacation for a week away from her home and did not experience any headaches or breathing problems while away from Arlington Ridge. She also testified that the GI Shavings facility has operated when the wind is blowing in the direction of the community. Michael Becker has lived on Manassas Drive in the Arlington Ridge community since August 4, 2017. Mr. Becker enjoys the outdoor activities at the Arlington Ridge community and is a member of the softball team. He testified that the operations of the GI Shavings facility are disruptive to himself and his wife, and that they stay indoors with all windows and doors closed. He testified that they only enjoy their lanai in the late hours of the night, when GI Shavings is not operating. He described the smoke fumes as "pretty toxic" when the wind is blowing their way, with a scorched wood type of smell. Mr. Becker testified that he and his wife have taken several videos of dark smoke billowing from the GI Shavings facility, and provided them to the community association representatives. Mr. Becker also testified that he was aware of the location of at least two industrial facilities near the Arlington Ridge subdivision. He testified that Covanta, a clean waste facility, was located outside the subdivision's gate, and, what he believed was a cement plant, was located off Rogers Industrial Park Road. Douglas Deforge has lived on Manassas Drive since December 2017. He testified that when he first moved in, there was "a lot of noise and I saw a lot of smoke coming out of the trees that are behind us." Eventually, he figured out that it was the location of the GI Shavings facility. Mr. Deforge testified that his wife likes to go out on the lanai to drink her coffee and read the paper, but she is not able to do so on certain days when the machinery is running. Particles on the lanai have to be removed frequently. Mr. Deforge testified that the smoke has a pungent odor like a paper mill. He expressed concern that he may eventually have respiratory issues because of the particles he inhales when out on his lanai. Mr. Deforge testified that since late November 2018, up until the morning of the final hearing, "[i]t seems more frequently that I'm seeing plumes coming out of GI Shavings." Sherry O'Brien lives on Arlington Ridge Boulevard and has been a member of the community association since October 2014. The GI Shavings facility is directly behind her home across the 11th fairway of the golf course. She has even walked the fence line at the 11th fairway to locate GI Shavings' smoke stack. Ms. O'Brien testified that the dark smoke and odor from the GI Shavings facility prevents her from enjoying the lanai and from golfing. She experiences a more hoarse and raspy voice and sinus problems. Ms. O'Brien testified that even with the windows closed, inside her home smells like burning wood. She testified that she observed the smoke directly behind the 11th green, which is directly behind her home. In her testimony, Ms. O'Brien distinguished between the location of smoke from the GI Shavings facility and the Covanta facility. Robert Salzman has been at Arlington Ridge for several years, four to five days per week, 10 to 12 hours per day. He is involved with the day-to-day activities of the sales office, community association management; and he is on the architectural control committee. He testified that GI Shavings' operations impact the 11th and 12th holes of the golf course, which is still owned by the Declarant. Mr. Salzman testified that resident complaints about GI Shavings have increased over the years, particularly in the months of October and November when the operations increase from five to seven days per week and into the night. He testified that while GI Shavings is operating, the residents are not active outdoors, they do not seem to leave their homes, and golfers skip the 11th and 12th holes. Mr. Salzman testified that he was familiar with the industrial facilities around Arlington Ridge. He testified to the locations of an adjacent peat facility, an aggregate company, and the Covanta waste-to-energy facility. He testified that there was not a cement plant nearby, but that it was a concrete mixing company. Mr. Salzman also testified that Covanta has a giant stack that puts out steam, but it is not located in the same direction as the GI Shavings facility. All the residents who testified stated that they get "black stuff" on their lanais when there is smoke coming from GI Shavings. The residents also testified that they cannot open their windows and cannot enjoy their lanais. All the residents believed that an increase in hours of operation and no restriction on wind direction for GI Shavings would negatively impact their quality of life. Complaints to the Department The preponderance of the competent and substantial evidence showed that the residents lodged complaints with the community association, the Department, and the local governments about GI Shavings' operation for most of 2016, 2017, and 2018. The complaints increased in October of each year when GI Shavings increased operations to meet business demands. The complaints varied from the operations being a nuisance and affecting their quality of life in their retirement community, to genuine concerns for their health and well-being. During the hearing, GI Shavings tried to suggest that its facility was not the source of the smoke seen and videoed by the residents. Although the Arlington Ridge subdivision is adjacent to an industrial park, the residents' description and observation of GI Shavings' location behind the tree line at the 11th hole of the golf course was consistent and was supported by the preponderance of the competent and substantial evidence. Arlington Ridges' expert witness, Mitchell J. Hait, Ph.D., and GI Shavings' expert witness, Mr. Ferraro, both provided similar descriptions of the atmospheric conditions during the summer and winter months. They explained that during the winter months, when the atmospheric conditions are cooler, the plume from the exhaust stack does not dissipate as quickly as during the warmer summer months. Thus, the plume would tend to remain visible and be carried by the wind. The increase in residents' complaints starting in October of each year could be explained by a combination of the cooler atmospheric conditions and GI Shavings' increased operations to meet business demands. GI Shavings tried to suggest that the plumes were only comprised of steam from the drying process and that PM was removed at 99 percent efficiency by the cyclone dust separator. However, the preponderance of the competent and substantial evidence established that the cyclone dust separator did not remove fine PM identified as "unburned carbon . . . too small a particle size to be removed by the cyclone." In other words, the "black stuff" that the residents found on their lanais, and the odor that irritated their noses, throats, and lungs. Enforcement and Consent Order Despite overwhelming lay and expert evidence of ongoing objectionable odor violations, the Department sought only to resolve the August and October 2017 PM emission limit exceedances with the proposed Consent Order. Even though both Mr. Ferraro and Ms. Rush agreed that the October 2017 test was not run under normal operating and compliance conditions, the Department decided to label it as a violation in the proposed Consent Order. The proposed Consent Order gave GI Shavings a choice of corrective actions, and did not impose any monetary penalty. The choice given was to either install a pollution control device, such as a bag house, or perform a rerating of the burner. The preponderance of the competent and substantial evidence established that the cyclone dust separator did not remove the fine PM that was the source of the residents' objectionable odor complaints. The adequate and reasonable course of action would be to order GI Shavings to both install a bag house and perform the rerating of the burner. Instead, GI Shavings was allowed to rerate the unit and apply for the associated permit that would remove the requirement of a PM emission limit. Notably, the proposed Consent Order was not finally executed until April 20, 2018, at which time GI Shavings had already rerated the facility, applied for a permit, and received a notice of intent to issue with the draft 009 Permit. These completed actions were even stated in the proposed Consent Order. The Department's expert witness, Ms. Rush, testified that considering the difficulties with the facility's operations at its original specifications, rerating the burner was a viable option for obtaining compliance. However, giving GI Shavings a choice of corrective actions, which allowed it to avoid addressing the objectionable odor complaints, was not an adequate and reasonable exercise of the Department's enforcement discretion under the facts and circumstances described above. 009 Permit Application On January 31, 2018, Mr. Ferraro, on behalf of GI Shavings, submitted the 009 Permit application to the Department. Mr. Ferraro testified that the purpose of the application was to apply the correct part of the carbonaceous fuel burning equipment rule to the facility. The switch would be from the standards applicable to a 30 mmBtu/hr burner to the standards applicable to a less than 30 mmBtu/hr burner. This switch would entirely remove the PM limit and change the VE limit to 20 percent opacity. Mr. Ferraro testified that the application did not request any other change, and the Department did not request any additional information. The application described its purpose as "to update emission limiting standard for carbonaceous [fuel] burning equipment with a rating of less than 30 mmBtu/hr." The emissions unit control equipment was described as a single cyclone device that "separates wood shavings and sawdust from airstream, but does not control products of combustion." Although the inability of the cyclone dust separator to "control products of combustion" was acknowledged, the application indicated that PM would not be synthetically limited, and that a PM limit would not apply to the facility. The application did not propose a pollutant control device for the continuously acknowledged unburned carbon described as "too small a particle size to be removed by the cyclone." Ms. Rush testified that the only PM expected from the facility was PM10. However, as Mr. Ferraro pointed out in his testimony, actual site specific information and data should be considered whenever it is available, instead of simply relying on what is expected based on the literature from the USEPA. The 009 Permit's notice of intent to issue also stated that "the operational hours agreement has been removed from the permit," although GI Shavings did not apply for any change to the 008 Permit beyond the rule switch. Ms. Rush testified that the HOA was voluntary and the Department did not have the authority to require GI Shavings to incorporate these terms into future permits. However, the HOA continues to be a condition of GI Shavings' current 008 Permit. The Department and GI Shavings did not present any persuasive evidence to show that this condition was now obsolete and should not be carried forward into the 009 Permit. The 009 Application did not request any revision to the current SSMOP. Ms. Rush testified that any minor source air permittee may request to revise its SSMOP at any time. However, such a request would be subject to Department approval as specified in condition A.15. of the draft 009 Permit. Although Dr. Hait testified that the facility should be reviewed as a 30 mmBtu/hr burner, the more persuasive evidence was that the rerating by the manufacturer established a design fire rating of 26 mmBtu/hr and an actual rating of 21 mmBtu/hr. Ms. Rush testified that the draft 009 Permit would contain a feed rate limitation that would restrict the facility to a maximum firing rate of 21 mmBtu/hr. Thus, the carbonaceous fuel equipment burning rule was the most appropriate category for this facility, and it was appropriately regulated as a minor source of air pollution. The preponderance of the competent and substantial evidence proved that GI Shavings did not provide reasonable assurance that the facility would control the cause of the objectionable odor violations, i.e., fine PM identified as "unburned carbon . . . too small a particle size to be removed by the cyclone." In other words, the "black stuff" that the residents had constantly and consistently complained about. Ultimate Findings The preponderance of the competent and substantial evidence established that the GI Shavings facility emits fine PM or "black soot" into the outdoor atmosphere, which by itself or in combination with other odors, unreasonably interferes with the comfortable use and enjoyment of life or property at the Arlington Ridge community, and which creates a nuisance. The preponderance of the competent and substantial evidence established that the cyclone dust separator did not remove the fine PM that was the source of the residents' objectionable odor complaints. Therefore, it was an unreasonable exercise of enforcement discretion for the Department to not require that GI Shavings directly address the objectionable odor issue. In addition, the utility of entering the proposed Consent Order was diminished by the fact that the October 2017 alleged violation was not an appropriate compliance test. Also, by the fact that the proposed Consent Order was not finally executed until April 20, 2018, at which time GI Shavings had already rerated the facility, applied for a permit, and received a notice of intent to issue with the draft 009 Permit. The preponderance of the competent and substantial evidence proved that GI Shavings did not provide reasonable assurance that the facility would control fine PM, which the evidence established was the source of the residents' objectionable odor complaints. All other contentions that Arlington Ridge raised in this proceeding that were not specifically discussed above have been considered and rejected.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter a final order denying GI Shavings' application for minor source air construction permit 0694866-009-AC, and disapproving Consent Order OGC No. 18-0077. DONE AND ENTERED this 19th day of June, 2019, in Tallahassee, Leon County, Florida. S FRANCINE M. FFOLKES Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 19th day of June, 2019. COPIES FURNISHED: Stephen "Toby" Tobias Snively, Esquire Law Offices of John L. Di Masi, P.A. 801 North Orange Avenue, Suite 500 Orlando, Florida 32801 (eServed) John L. Di Masi, Esquire Law Offices of John L. Di Masi, P.A. 801 North Orange Avenue, Suite 500 Orlando, Florida 32801 Dorothy E. Watson, Esquire Foley & Lardner, LLP 111 North Orange Avenue, Suite 1800 Orlando, Florida 32801 (eServed) Matthew J. Knoll, Esquire Department of Environmental Protection Office of the General Counsel Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 (eServed) Peter A. Tomasi, Esquire Foley & Lardner, LLP 777 East Wisconsin Avenue Milwaukee, Wisconsin 53202-5306 Lea Crandall, Agency Clerk Department of Environmental Protection Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 (eServed) Justin G. Wolfe, General Counsel Department of Environmental Protection Legal Department, Suite 1051-J Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 (eServed) Noah Valenstein, Secretary Department of Environmental Protection Douglas Building 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 (eServed)
The Issue Whether the Respondent committed the violations alleged in the Amended Administrative Complaint filed May 22, 2006, and, if so, the penalty that should be imposed.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the stipulation of the parties, and the entire record of this proceeding, the following findings of fact are made: Ms. Blackwood has been employed by the School Board as a construction project manager on July 2, 1996. On July 1, 1997, Ms. Blackwood was made Senior Supervisor of Inspections and Code Compliance in the School Board's Building Department; the title of her position changed in 2001, and at the times material to this proceeding, Ms. Blackwood's position was Senior Supervisor for Building Inspectors in the Building Department. Her job responsibilities included supervising building inspectors whose function it was to inspect School Board construction projects for compliance with the various building codes governing such construction. Ms. Blackwood earned a bachelor's degree in design and a masters degree in construction management from the University of Florida. At the times material to this proceeding, she held a Florida building inspector's license, a building code administrator's license, a building contractor's license, and an interior designer's license. She has approximately 20 years' experience in building design and construction. Prior to becoming Senior Supervisor for Building Inspectors, Ms. Blackwood had no experience as a building inspector; her experience in the construction field was as a project manager. Ms. Blackwood is a member of the Broward Teachers Union - Technical Support Personnel ("BTU-TSP"). The BTU-TSP and the School Board entered into a Collective Bargaining Agreement that includes sections setting forth the rights of the School Board and the procedures that must be observed with respect to due process and discipline. The provisions defining "Management Rights" are found in Article Four of the Collective Bargaining Agreement and provide in pertinent part: It is understood and agreed that the District possesses the right and responsibility to operate and manage all schools, departments and programs and to direct the work forces. The rights, powers, authority, and discretion necessary for the District to carry out these rights and responsibilities shall be limited only by the express terms of this Collective Bargaining Agreement and shall be exercised in a manner consistent with this Collective Bargaining Agreement and Florida. In matters not covered by this Collective Bargaining Agreement, the District shall have the clear right to make administrative decisions. Consistent with this Collective Bargaining Agreement, these management rights shall include, but not be limited, to the following: * * * Direct its employees and establish standards of performance and conduct, including the right to make reasonable rules and regulations for the purpose of efficiency, safe practices and discipline. Take disciplinary action for just cause.[2] The provisions governing "Due Process & Discipline" are found in Article Nine of the Collective Bargaining Agreement and provide in pertinent part: Progressive Discipline: The parties agree to the principles of progressive discipline. Disciplinary action, for the most part, shall be administered in a manner to correct behavior that is in violation of policies, procedures and established practices. Discipline shall be administered for just cause and not in a manner that is demeaning or degrading. b. Meetings and Notifications: Disciplinary action shall be administered within twenty (20) working days from the date the violation occurred or when the violation was first known to have occurred. For any meeting scheduled for the purpose for taking disciplinary action, the department shall provide the employee with written notification of the violation and schedule a meeting where the circumstances surrounding the violation shall be discussed. This meeting shall be scheduled no sooner than three (3) working days after the employee receives such notification. . . . * * * During the Meeting: 1. The conference is intended to provide the employee with an explanation of the charges and the basis for the charges. Any relevant questions that the employee asks shall be answered to the best of the supervisor's ability. The employee shall be given an opportunity to respond, including their own explanation of the incident or mitigating circumstances, either verbally or in writing. * * * Discipline: Any discipline of an employee shall be for just cause. Disciplinary action may be taken in the form of a verbal reprimand, written reprimand, suspension, demotion or discharge. No action against an employee shall be taken on the basis of a complaint by any individual nor any notice of such action or complaint shall be included in the employee's personnel file, unless the matter is first reported to the employee in writing and the employee has had the opportunity to discuss the matter with his/her supervisor.[3] Ms. Blackwood's immediate supervisor in the Building Department was the Chief Building Official ("CBO"). The CBO is the final authority who is responsible, at the local level, for interpreting the Florida Building Code ("Code") as it applies to School Board construction projects. During her time as Senior Supervisor, Ms. Blackwood was supervised by Robert Goode, except for a period of four or five months when Alan Gilbert served as the CBO, and by Lee Martin.4 Ms. Blackwood had a difficult relationship with each of the CBOs; she considered Mr. Goode unqualified for the position of CBO; she did not like Mr. Gilbert's allowing the building inspectors under her supervision to avoid the chain of command and go directly to him with any concerns they might have; she did not agree with many of Mr. Martin's policies and decisions and she thought he was an ineffective leader. In September 2001, Ms. Blackwood and two of her subordinate building inspectors, Maria Rouco and Sarah Kanner, filed suit against the School Board, alleging, among other things, that they should be accorded whistle-blower status and that they had been subjected to discrimination, harassment, and failure to promote. The lawsuit caused a split among the building inspectors under Ms. Blackwood's supervision, with some supporting the lawsuit and others opposing it. At or about the time the suit was filed, some of Ms. Blackwood's subordinates noticed that Ms. Blackwood's behavior in the workplace changed and that the atmosphere in the Building Department's offices became strained, tense, and chaotic. The lawsuit was finally resolved in November 2004, and resulted in a verdict against Ms. Blackwood. From the summer of 2001 until she was reassigned in February 2005, Ms. Blackwood's effectiveness as a leader and her conduct in the workplace was called into question in evaluations, letters of reprimand, informal communications from her supervisors, non-disciplinary counseling sessions, and formal and informal complaints submitted by several of her subordinates. Ms. Blackwood's relationship with Mr. Goode Both Ms. Blackwood and Mr. Goode applied for the position of CBO with the School Board in 2001, and Mr. Goode was ultimately chosen for the position. Their working relationship was somewhat confrontational when he first became her supervisor, but the level of confrontation escalated as time progressed. Ms. Blackwood believed that Mr. Goode had misrepresented his qualifications for licensure to the Department of Business and Professional Regulation and was not qualified to hold either the license that was issued to him or the position of CBO. Mr. Goode issued a written directive that building inspectors should stop doing any plan reviews for the projects for which they were responsible. Several months after the directive was issued, Mr. Goode learned that building inspectors under Ms. Blackwood's supervision continued to be involved in plan review. Mr. Goode discussed this with Ms. Blackwood and told her to follow the directive and send it to all of the employees under her supervision. On or about August 7, 2002, Ms. Blackwood directed one of the building inspectors under her supervision to take a dispute with an architect over an inspection to the Florida Department of Education. This instruction was inconsistent with the procedures Mr. Goode had established for resolving disputes between building inspectors and architects, which procedures required that the issue first be considered at the local level. In an e-mail dated August 7, 2002, Mr. Goode wrote Ms. Blackwood to advise her that he considered this an act of insubordination and that he intended to schedule a meeting with her in the near future to discuss the matter. This incident did not, however, result in disciplinary action being imposed against Ms. Blackwood. On or about August 23 and 26, 2002, Ms. Blackwood become involved in a heated e-mail exchange with Israel Rodriguez-Soto, a project manager, regarding the accessibility requirements of the Americans With Disabilities Act being met at Elementary School X and the procedure for resolving disputes over whether a building met the requirements of the Florida Accessibility Code for Building Construction. Ms. Blackwood noted in her e-mail to Mr. Rodriguez-Soto that "MR. GOODE'S PROCEDURE [for resolving disputes over code interpretation] ONLY REFERS TO THE DEPARTMENT OF EDUCATION INTERPRETATIONS."5 (Emphasis in original.) Both Mr. Rodriguez-Soto and Ms. Blackwood sent a copy of their e-mails to Mr. Goode, who responded in an e-mail to Ms. Blackwood dated August 27, 2002: Please refrain from critiquing procedures I have issued with statements such as "Mr. Goode's procedures only refers to the Department of Education interpretations." This is the second recent incident regarding misinformation you provided related to the Code Interpretation Dispute Procedure and I consider such action to be insubordinate conduct. . . . [I]t troubles me that you, as a senior supervisor, did not instruct Mr. Fallon to follow the procedure . . . . I plan to meet with you soon to discuss this matter in greater detail.[6] Mr. Goode considered Ms. Blackwood's job performance to be consistently unacceptable in several areas, specifically in her failure to implement his policies regarding building inspectors not being involved with plan reviews and regarding the dispute resolution procedures. Mr. Goode prepared draft evaluations of Ms. Blackwood's performance for the 2001-2002 and 2002-2003 school years, but he was advised by the School Board's personnel office not to finalize the evaluations because a poor performance evaluation could be considered retaliation for the lawsuit she had filed against the School Board and an attempt to tarnish her employment record. Mr. Goode, therefore, never finalized these two performance evaluations. On two or three occasions, Mr. Goode met with Ms. Blackwood and told her that he expected her to follow his directives, policies, and procedures. He was also concerned because he perceived that she had a confrontational relationship with the general contractors, architects, and engineers who worked on School Board projects. Mr. Goode did not, however, initiate formal disciplinary proceedings against Ms. Blackwood during the time he was her supervisor. During the period extending from October 2002 through mid-January 2003, Ms. Blackwood corresponded by e-mail with Charlotte Greensbarg, an assistant to a member of the School Board, and with Jilda Unruh, a reporter for a local television station, and provided them with documents she obtained from the Building Department. Ms. Blackwood did not inform Mr. Martin, her supervisor, that she was providing these documents and information about the inner workings of the Building Department. Dr. Frank Till, the Superintendent of Schools for Broward County, became aware of Ms. Blackwood's correspondence and asked for an explanation of her intention. Ms. Blackwood responded with a lengthy memorandum about the problems she believed existed with the backlog of punch lists for School Board construction projects that had not been completed and with other matters handled by the Building Department. This memorandum did not provide an answer acceptable to Dr. Till, and he again requested an explanation in a memorandum dated May 27, 2003, but Ms. Blackwood refused to provide any additional explanation. Ms. Blackwood was not disciplined for her actions. Ms. Blackwood's relationship with Mr. Martin Both Ms. Blackwood and Mr. Martin applied for the position of CBO after Mr. Gilbert left the position. Although Mr. Goode returned as acting CBO, Mr. Martin was ultimately offered the position. The working relationship between Mr. Martin and Ms. Blackwood was initially amicable but eventually deteriorated and ultimately became contentious and adversarial. In May 2003, shortly after he became CBO, Mr. Martin requested a non-disciplinary meeting with Ms. Blackwood. He was aware that there was hostility among some of the building inspectors under her supervision, and he called the meeting to discuss ways she could improve the working relationships with these employees. Mr. Martin asked Marilynn Strong, who was at the time coordinator of evaluations in the School Board's Human Relations Department, to attend the meeting. The meeting started out well, but, according to Ms. Strong, Ms. Blackwood began shouting at Mr. Martin, telling him that she was disappointed in his leadership. She appeared very angry, and Ms. Strong was shocked at Ms. Blackwood's behavior. Ms. Strong received a number of complaints from several of the building inspectors under Ms. Blackwood's supervision, and, in the fall of 2003, she, Mr. Martin, Ms. Blackwood, and Gary Itskowitz, Ms. Blackwood's BTU-TSP representative, met to discuss these complaints. Ms. Strong shared with Ms. Blackwood that the complaints involved perceived harassment and intimidation, creation of a bad working environment caused by Ms. Blackwood's yelling, and interference with the building inspectors' work. Ms. Strong advised Ms. Blackwood that the employees felt that their work environment was adversely affecting them personally and professionally and that Ms. Blackwood's behaviors were continual, pervasive, and offensive. Finally, Ms. Strong advised Ms. Blackwood that several of building inspectors under her supervision had asked for transfers from her section. On January 28, 2004, Mr. Martin issued two letters of reprimand to Ms. Blackwood, in which he advised her that if her actions were repeated, she would be subject to discipline, "up to and including termination." One letter was a reprimand for "Failure to Know or Disclose Information" and referred to a letter dated August 29, 2003, in which Ms. Blackwood challenged Mr. Martin's decision to issue Temporary Certificates of Occupancy for buildings at McArthur High School. The second letter was a reprimand for "Exceeding Authority" and referred to Ms. Blackwood's directing the principal of an elementary school to occupy portable buildings before a Certificate of Occupancy, which could be signed only by the CBO, had been issued. In addition to issuing the letters, Mr. Martin held a counseling session with Ms. Blackwood on January 28, 2004. Ms. Blackwood filed grievances with respect to the two reprimands, asserting that they were untimely under the 20-day rule in the Collective Bargaining Agreement; the grievances were successful, and the letters of reprimand were rescinded. In an e-mail dated January 20, 2004, to John Hamrich of the Florida Department of Education, Ms. Blackwood complained that Mr. Martin had "reassign[ed] all of the building inspectors to other construction projects replacing [building] inspectors at all on-going capital construction" and instituted a policy to rotate building inspectors from one project to another every 60 days.7 Ms. Blackwood pointed out what she perceived to be a number of problems with Mr. Martin's new policy, and, under the guise of asking for clarification of what she considered to be the negative effect of these changes, Ms. Blackwood included numerous charges of irregularities in the running of the Building Department. Ms. Blackwood also accused Mr. Martin of allowing new facilities to open "with outstanding life safety violations" by issuing Temporary Certificates of Occupancies [sic]."8 In a memorandum to Ms. Blackwood, dated February 18, 2004, sent through Kenneth Klink, the School Board's Chief Operating Officer, and carrying the heading of "Reprimand - Rotation of Inspectors," Mr. Martin stated that he considered the e-mail message to Mr. Hamrick "extremely insubordinate, and detrimental to the school district" and that "[i]n the future, continued insubordination will result in disciplinary action, up to and including termination." Ms. Blackwood received the letter on March 8, 2004.9 Ms. Blackwood filed a grievance with respect to the March 8, 2004, letter of reprimand on the grounds that it was untimely under the 20-day rule in the Collective Bargaining Agreement. A meeting was held on June 9, 2004, with Mr. Martin, Ms. Blackwood, Mr. Itskowitz, and Linda Wetzel, Director of the School Board's Employee Relations Department. The letter of reprimand and the grievance were discussed, and Mr. Martin stated that he had sufficient grounds to issue Ms. Blackwood a letter of reprimand. It was determined, however, that the letter of reprimand had not been issued timely under the provisions of Article 9 of the Collective Bargaining Agreement. The grievance was, therefore, successful, and the letter of reprimand was rescinded. During the June 9, 2004, meeting, Mr. Itskowitz stated that the BTU-TSP had received a number of complaints from employees in Ms. Blackwood's department, and he asked if he could bring in a mediator to work with Ms. Blackwood and the employees that she supervised in an attempt to resolve some of the conflicts. Ms. Wetzel and Mr. Martin agreed that this would be beneficial, but the mediation was never held. Ms. Blackwood filed a complaint with the Inspector General of the Florida Department of Education on October 4, 2004, in a letter headed "Hurricane Shelters and Other Outstanding Construction Issues at Broward County Schools." In the complaint, she criticized Mr. Martin in particular and the district administration in general for the failure to complete hurricane shelters with proper safeguards and to turn them over to local emergency organizations for use. Ms. Blackwood pointed out that she had brought the problems to the attention of Mr. Martin and others for several years and that no action had been taken. The Inspector General wrote to Mr. Till and requested that the matter be investigated at the local level and a report prepared for his office no later than March 31, 2005. The results of the investigation are not included in the record of this hearing. When Mr. Martin first assumed the position as CBO, he was advised by the central office that Mr. Goode and Mr. Gilbert had had problems with Ms. Blackwood and that he should consider having a series of counseling sessions to attempt to resolve any problems Ms. Blackwood was having. Mr. Martin had a number of non-disciplinary counseling sessions with Ms. Blackwood, which were arranged by the School Board's personnel department or its employee relations department and were attended by either Linda Wetzel or Marilyn Strong. Mr. Martin's purpose in conducting these counseling sessions with Ms. Blackwood was to address what he perceived as her ongoing insubordinate, subversive, and argumentative conduct in the workplace. The counseling sessions were not productive, however, because Ms. Blackwood was confrontational and argumentative. Mr. Martin believed that Ms. Blackwood's way of conducting herself in the workplace had not altered at the time he left his position as CBO in February 2005. Mr. Martin memorialized one non-disciplinary counseling session that was held on December 9, 2004, with Ms. Blackwood regarding "her attitude toward her job role in the Building Department, and the specific parameters of her job responsibilities."10 Lynn Strong, of the School Board's Department of Human Resources, also attended the meeting. Mr. Martin summarized Ms. Blackwood's conduct during the meeting as follows: During the meeting, Ms. Blackwood dominated the conversation and continually turned it around to a discussion of various people not meeting her expectations or managing the Building Department in the manner she thinks is appropriate. Given that the purpose of the meeting, as stated at the beginning, was to discuss how the Building Department could move forward in a unified manner toward common goals, it is significant that at no time during the conversation, which lasted for roughly an hour and fifteen minutes, did Ms. Blackwood ever make any comments pertaining to the effective functioning of the organization, or reducing the levels of stress and animosity that exist in it as a result of her insistence on having her own way. All of her comments were directed at how people, me included, should change to conform to her way of thinking and performing their job duties. Until Ms. Blackwood chooses to help unify and improve the Department rather than criticize and undermine it, she will not be an effective supervisor.[11] Mr. Martin scheduled another meeting with Ms. Blackwood for December 14, 2004, in order to discuss the parameters of her job responsibilities, but the evidence does not reflect that this meeting was held. At some point during Mr. Martin's tenure as CBO, Ms. Blackwood filed a complaint against him with the Department of Business and Professional Regulation, the agency responsible for issuing and regulating the licenses held by Mr. Martin. In her complaint, Ms. Blackwood accused Mr. Martin of having issued Temporary Certificates of Occupancy for school buildings that were in violation of the Code. The Department of Business and Professional Regulation investigated the complaint and found that there was no probable cause to institute disciplinary proceedings against Mr. Martin. Ms. Blackwood also filed complaints against two other co-workers in the Building Department. Mr. Martin prepared performance appraisals for Ms. Blackwood for the 2003-2004 and 2004-2005 school years, with an overall rating of effective.12 Mr. Martin rated Ms. Blackwood "effective" in all areas of each appraisal except "leadership"; Mr. Martin rated Ms. Blackwood "ineffective" in this category in both appraisals, commenting in the 2003-2004 school year appraisal that Ms. Blackwood "[a]ctively challenges and undermines decisions and authority of Chief Building Official" and in the 2004-2005 school year appraisal that "Ms. Blackwood is frequently argumentative rather than collaborative with respect to coworkers and stakeholders; contributes to a departmental atmosphere that is strained, and where communication is impeded."13 Even though Ms. Blackwood's overall appraisal rating was "effective," she filed grievances with respect to both performance appraisals. The grievances had not been resolved as of the date of final hearing in this case, so the performance appraisals have not been finalized. On or about February 15, 2005, Mr. Martin discovered a copy of an anonymous document identified as "Letter to the Editor" circulating around the employees of the Building Department. The letter purported to be a response to comments by Mr. Martin to the press to the effect that the Building Department was dysfunctional. The letter included comments critical of the School Board, School Board construction project managers, "influential builders, architects and engineers," and district, area, and school site staff for "preventing the School Board Building Department from performing their duties as required by State Statute/law, including the opening of safe schools for occupancy," and it implied that Dr. Till had a conflict of interest to the extent that he directly supervised the Building Department and was also responsible for ensuring that the Broward County schools opened on time.14 The author of the letter, whose identity was not known in February 2005 but who was later revealed to be Ms. Blackwood, included details of specific incidents that she considered inappropriate and a number of complaints regarding the way certain issues were handled by the School Board or the school district's administration. Mr. Martin considered the allegations in the letter to be sufficiently serious that he wrote an e-mail to the Building Department staff trying to reassure them and encourage them to continue doing their jobs to the best of their ability. The "Letter to the Editor" that was circulating around the Building Department on or about February 15, 2005, was a draft that Ms. Blackwood provided only to the union for comment and to the Building Department's union steward; Ms. Blackwood did not put the document in general circulation. Ms. Blackwood wrote the letter because of her frustration over quotes attributed to Mr. Martin that appeared in a newspaper and because she thought that Mr. Martin was one of the reasons the Building Department was dysfunctional. At the time she provided the document to the union, Ms. Blackwood did not know whether she would send it to the newspaper for publication, and she did not, in fact, do so. Ms. Blackwood's relationship with building inspectors under her supervision Ms. Blackwood's working relationship with the building inspectors under her supervision was generally good when she first became Senior Supervisor of Building Inspectors in 1999. In late 2001 and early 2002, several of the building inspectors under Ms. Blackwood's supervision began experiencing problems in their working relationship with her. The working environment became very strained, and friction developed between Ms. Blackwood and some of the building inspectors. The tense atmosphere apparently coincided with the hiring of Susan Kanner and Maria Rouco and the filing of the lawsuit against the School Board by Ms. Blackwood, Ms. Kanner, and Ms. Rouco. Several building inspectors felt intimidated by Ms. Blackwood and believed that they faced the threat of retribution if they disagreed with Ms. Blackwood or her co- litigants. A rumor circulated among the building inspectors that Mr. Goode had been personally named as a defendant in the lawsuit, and several of the building inspectors under Ms. Blackwood's supervision feared that, if they did not agree with her interpretation of the Code, they would be included as defendants in the lawsuit. As it turned out, the rumor regarding Mr. Goode's being named a do-defendant was false, but it nonetheless had the effect of increasing the tension in the Building Department. Building inspectors must be licensed by the state as building inspectors, and they often hold several additional licenses relating to the construction trades. They must use their own judgment to determine whether particular construction satisfies code requirements and to determine how a violation should be corrected. The perception of several of the building inspectors was that Ms. Blackwood expected them to perform inspections and fail any work that did not conform to Ms. Blackwood's interpretation of the Code. After they learned that Ms. Blackwood had filed a complaint with the Department of Business and Professional Regulation against Mr. Martin, several of the building inspectors under Ms. Blackwood's supervision feared that, if they did not conform to Ms. Blackwood's interpretation of the Code, their licenses would be in jeopardy. In fact, several of the building inspectors feared retribution from Ms. Blackwood because they believed she was implicitly threatening to report them to the Department of Business and Professional Regulation when she emphasized during staff meetings that their licenses and their jobs would be jeopardized if they failed to enforce the applicable statutes, rules, and codes according to her interpretation. Several of the building inspectors also experienced stress and felt intimidated because Ms. Blackwood, Ms. Kanner, and Ms. Rouco routinely sent accusatory e-mails that required responses from the building inspectors to defend their decisions and because Ms. Blackwood frequently yelled at some of the building inspectors in front of other employees. In a letter dated August 13, 2003, Jerolie Strong, a building inspector supervised by Ms. Blackwood, wrote a letter to the director of the School Board Office of Equal Educational Opportunities complaining of ongoing problems with Ms. Blackwood. Although Ms. Strong indicated in the letter that the problems she had with Ms. Blackwood were of long duration, she focused on an incident that occurred on August 13, 2003, in which Ms. Blackwood wrongly accused Ms. Strong of not following the appropriate procedures when doing inspections and, according to Ms. Strong, yelled at her in front of the office staff and some of Ms. Strong's fellow building inspectors and continued yelling at her in a conference room. Ms. Strong felt that, at least in part, Ms. Blackwood's behavior towards her was the result of discrimination on the basis of race. Ms. Strong is not aware of anything that was done in response to her complaint. In an e-mail dated February 4, 2004, Robert Hamberger, a building inspector under Ms. Blackwood's supervision, wrote a letter of complaint to Mr. Martin about misinformation Ms. Blackwood provided to the building inspectors under her supervision. Mr. Hamberger summarized information purportedly provided by Ms. Blackwood in staff meetings held between June 3, 2003, and December 3, 2003, that he considered incorrect. Mr. Hamberger concluded the e-mail with the following concerns: One, we are being coerced and intimidated to perform our inspections contrary to the intent of the [Florida Building] code resulting in added expense and delays to projects based on incorrect interpretations. Two, it is more than apparent that Ms. Blackwood's objectivity and that of Ms. Kanner's and Ms. Rouco's has been lost. Three, all three have demonstrated numerous times in the field and at staff meetings a gross lack of experience, which lead to some of these errant interpretations. We see a true conflict of interest in how these three function. They are undermining the very system that they are paid to service for the purposes of personal gain. The bottom line is the creation of disharmony and confusion amongst the building inspectors.[15] In Mr. Hamberger's view, the Code could be interpreted several ways, and building inspectors had the discretion to interpret gray areas of the Code in the way they thought appropriate. Mr. Hamberger believed that the goal of Ms. Blackwood, Ms. Kanner, and Ms. Rouco was to bring the School Board's building program to a halt to further their chances of prevailing in their lawsuit and that Ms. Blackwood insisted on overly-strict interpretations of the Code in order to slow down construction. Mr. Hamberger prepared a memorandum dated February 27, 2004, directed to Michael Garretson, the School Board's Deputy Superintendent of Facilities and Construction Management. The memorandum was signed by Mr. Hamberger, Al Jackson, Valeria Oscheneek, Jose Sadin, Gigi (Jerolie) Strong, and Irv Tutunick, who were all building inspectors under Ms. Blackwood's supervision. In the memorandum, these individuals complained about the deterioration of the working conditions and the extremely low morale in the Building Department, which they attributed to the Ms. Blackwood's management style. They pointed out that, in their view, "retribution and intimidation are status quo" for anyone opposing Ms. Blackwood, pointing out the she routinely reminds anyone disagreeing with her that their licenses could be in jeopardy if they failed to enforce the Code, statutes, and rules.16 The building inspectors accused Ms. Blackwood of using bullying tactics, of discriminating against building inspectors who do not agree with her, of attempting to undermine the CBO, Mr. Martin, by standing over his shoulder "hoping he will make an error in judgment, so that she can report him to the Department of Business and Professional Regulation or the DOE [Department of Education]."17 Finally, the building inspectors stated that they could not understand why the situation with Ms. Blackwood had been allowed to continue, and they requested that "some action . . . be taken soon to correct the abhorrent working conditions prevalent in our Department."18 On March 3, 2004, Mr. Martin submitted a Personnel Investigation Request to the Special Investigative Unit of the School Board's Office of Professional Standards and referred the complaint of the six building inspectors for investigation. The report of the investigator from the Special Investigative Unit found no evidence that Ms. Blackwood "ha[d] created a hostile work environment by requiring inspectors to follow state guidelines."19 The inspector did, however, note that his investigation revealed some issues that needed to be addressed by a labor relations expert or senior management. Mr. Hamberger complained to Mr. Martin of a negative encounter with Ms. Blackwood on November 19, 2004. On that date, Ms. Blackwood accused Mr. Hamberger of perjuring himself in his testimony at the trial of Ms. Blackwood's lawsuit. Ms. Blackwood made the accusation in a loud voice in the presence of at least one other employee of the Building Department. This encounter was one of the items addressed in the non-disciplinary meeting Mr. Martin held with Ms. Blackwood on December 9, 2004; according to Mr. Martin, Ms. Blackwood denied in this meeting that her comments to Mr. Hamberger had been heated or acrimonious. In late 2004, Mr. Hamberger found the working conditions created by Ms. Blackwood so stressful and onerous that he requested and was given a transfer to the Building Department section supervised by Ron Morgan. Ms. Oscheneek, one of the building inspectors who signed the February 24, 2004, complaint against Ms. Blackwood, found working under Ms. Blackwood's supervision to be very stressful. She felt fearful, very uncomfortable, and intimidated by Ms. Blackwood's "screaming" at her in the office in front of others, and she felt threatened and was afraid that Ms. Blackwood would report her to Department of Business and Professional Regulation if she made a mistake in her inspections or disagreed with Ms. Blackwood or Ms. Kanner or Ms. Rouco. Ms. Oscheneek felt that her effectiveness as a building inspector was negatively influenced by Ms. Blackwood, and, in December 2004, on the advice of her doctor, Ms. Oscheneek transferred to the group of building inspectors supervised by Ron Morgan. Irving Tutunick, a long-time building inspector with the School Board, considered Ms. Blackwood a very good supervisor until approximately 2001, when he perceived that the hiring of Ms. Kanner and Ms. Rouco created a split among the building inspectors supervised by Ms. Blackwood. In Mr. Tutunick's view, the workplace became very uncomfortable for him, especially since he believed that Ms. Blackwood did not approve of the way he carried out his job responsibilities. In particular, Ms. Blackwood treated as a major offense any criticism of Ms. Kanner's or Ms. Rouco's Code interpretations, and, in Mr. Tutunick's view, the "wrath of god" would rain down from Ms. Blackwood if any building inspector disagreed with their interpretations. Mr. Tutunick also was uncomfortable in the workplace because of Ms. Blackwood's tendency to, in Mr. Tutunick's words, "fly off the handle and chastise [his] co- workers" in front of the entire office. Mr. Tutunick also felt that Ms. Blackwood's management style adversely affected his ability to do his job because he perceived that Ms. Blackwood considered the building inspectors who did not agree with her or Ms. Rouco ignorant about construction and the process of inspections and Code interpretation. Mr. Tutunick signed the February 27, 2004, memorandum to Mr. Garretson complaining about the hostile working environment created by Ms. Blackwood. He retired from the School Board in February 2005. Several of the building inspectors supervised by Ms. Blackwood considered her an excellent supervisor who supported her staff, tried to improve her staff's performance, and took seriously her responsibility to ensure that the buildings constructed for the School Board met the requirements of the Code and ensured the life health and safety of the students and staff who would be using the buildings. They agreed that there was a great deal of yelling in the Building Department because that type of behavior is typical for the construction industry. All of the building inspectors under Ms. Blackwood's supervision agreed that building inspectors are under a great deal of stress trying to deal with the competing goals of ensuring that school buildings meet Code requirements but are constructed in a cost-effective way and meet deadlines for opening. At times, building inspectors are under pressure to pass inspections in order to avoid delays in project completion. Ms. Blackwood frequently addressed Code interpretation in staff meetings because she was concerned with inconsistency among the building inspectors in their Code interpretations. Ms. Blackwood's working relationship with clerical and secretarial staff During his exit interview in February 2005, Mr. Martin told Donnie Carter, Deputy Superintendent of Operations for the School Board, of the problems he had experienced with Ms. Blackwood and of his concern about the negative effects of Ms. Blackwood's conduct. Mr. Martin believed that Mr. Carter decided to initiate a preliminary investigation into the Building Department as a result of the information he provided to Mr. Carter during his exit interview. On February 16, 2005, Mr. Carter was visiting the Building Department offices, when several members of the Building Department's clerical staff requested a meeting with him. Eight individual staff members met with Mr. Carter for approximately one and one-half hours, and they advised Mr. Carter of concerns they had regarding their working relationship with Ms. Blackwood and of the negative impact Ms. Blackwood was having on their job performance and, in some cases, their health. There were, among others, specific complaints that Ms. Blackwood frequently yelled at co-workers and staff in the workplace; caused some employees to cry because of her harsh treatment of them; engaged in tyrannical actions as supervisor; repeatedly belittled management, and was often disrespectful to her supervisor, Mr. Martin. As a result of this meeting, Mr. Carter initiated a full investigation of the overall operation of the Building Department but did not specifically target Ms. Blackwood. Mr. Carter's purpose in conducting the investigation was to determine the cause of the negative working environment in the Building Department and the reasons for the delays in opening new buildings. Mr. Carter asked the employees in the Building Department to complete a questionnaire that contained eight questions that inquired about their perceptions of the leadership and the working environment in the Building Department; any statements or actions of a supervisor that they wanted to point out; whether they had witnessed unprofessional or abusive conduct by a supervisor or co-worker and, if so, why they had not previously come forward; whether the working environment was supportive or hostile to productivity and employee satisfaction; whether supervisors encouraged good working conditions and cooperation and teamwork among employees; what could be done to improve the working environment and quality of supervision; and whether the employee's supervisor treated him or her in a supportive, professional manner. After he received responses to the questionnaires, Mr. Carter interviewed each of the individuals. Either Ms. Wetzel or Ms. Strong was present at these meetings. The information Mr. Carter received from the Building Department staff indicated to him that Ms. Blackwood was responsible for the low morale and the negative performance in the Building Department because of her perceived unprofessional conduct, her extreme lack of leadership, her lack of support for her staff, the confrontational way she conducted herself in the workplace, the tone of voice in which she spoke to people, the demeaning manner in which she spoke to staff, and her disrespectful attitude toward her supervisor, Mr. Martin. In or around February 16, 2005, Mr. Carter was advised of three specific instances of alleged misconduct by Ms. Blackwood involving three employees of the Building Department. The first incident occurred on February 16, 2005, and involved Jerolie Strong. During a conversation with Ms. Blackwood, Ms. Strong told her that she intended to ask Mr. Martin to sign an application for her to receive a provisional license to perform plan reviews. At the time of her discussion with Ms. Strong, Ms. Blackwood was writing an e-mail to the BTU-TSP about certain matters at the Building Department, and she included in the e-mail the statement that Mr. Martin was "signing certifications for inspectors to get provisional licenses" to perform plan reviews.20 Ms. Strong saw the statement and became very upset because this was not what she had told Ms. Blackwood. In Ms. Strong's view, Ms. Blackwood's behavior in this instance was typical and part of an ongoing pattern of misinterpreting and passing along a distorted version of something that she had been told. Ms. Strong told Ms. Blackwood that the statement she had made in the e-mail about Mr. Martin was incorrect, and Ms. Blackwood corrected the statement in a subsequent e-mail. Ms. Strong reported this incident to Mr. Carter as part of an ongoing pattern of misrepresentation on Ms. Blackwood's part. The second incident occurred on or about February 4, 2005, and involved Diane Clark, a secretary who worked in Ms. Blackwood's section. Ms. Clark reported this incident to Mr. Carter in an e-mail dated February 18, 2005. Ms. Clark's encounter with Ms. Blackwood occurred when Ms. Clark passed along to Ms. Rouco some concerns Mr. Martin had regarding the way Ms. Rouco had filled out a "Property Pass" form and regarding Ms. Rouco's request for compensatory-leave time. Ms. Clark gave Ms. Rouco Mr. Martin's message, and Ms. Blackwood interjected her opinion that Mr. Martin was incorrect with respect to both the request for compensatory-leave time and the procedure for completing the "Property Pass" form. Ms. Clark explained the rationale for Mr. Martin's interpretation of the requirements for the "Property Pass" to Ms. Blackwood, and Ms. Blackwood continued disagreeing with Ms. Clark in what Ms. Clark perceived to be a loud voice. Ms. Clark got up from her desk and started to walk away, and Ms. Blackwood began to yell at her. Ms. Clark responded to Ms. Blackwood in a raised voice and left the building. The incident was overheard by everyone present in the office at the time. Ms. Clark reported another incident to Mr. Carter in e-mails dated February 17 and 18, 2005, involving Ms. Blackwood's reaction to a negative comment about Irene Kuziw, Mr. Martin's secretary, that Ms. Rouco made to Dean Heminger, a building inspector that Ms. Blackwood supervised. At Mr. Martin's request, Ms. Kuziw approached Mr. Heminger's desk, which was next to Ms. Rouco's desk, and asked Mr. Heminger to do two inspections as a special assignment from Mr. Martin. After Ms. Kuziw left their work area, Ms. Rouco questioned Mr. Heminger about his willingness to take an assignment from Mr. Martin when Ms. Blackwood was his supervisor. Ms. Rouco then commented to Mr. Heminger that Ms. Kuziw was "a serpent with two legs" or a "two-legged serpent." Ms. Kuziw did not hear the remark, but Ms. Clark overheard the comment. Ms. Blackwood was not present when Ms. Rouco first made the comment, but, approximately 15 minutes later, Ms. Rouco repeated the comment about Ms. Kuziw in Ms. Blackwood's presence, and Ms. Blackwood chuckled at the remark. Ms. Clark witnessed this incident and reported it to Mr. Martin and to Ms. Kuziw. Disciplinary procedures followed by Mr. Carter Based on the information he gathered during his investigation and on the incidents that occurred in February 2005, specifically the February 15, 2005, incident involving Ms. Strong and the February 4, 2005, incident involving Ms. Clark, Mr. Carter decided that Ms. Blackwood had committed misconduct in office and insubordination and that the appropriate discipline for her actions should be termination of her employment with the School Board. Mr. Carter reached the conclusion that termination was the appropriate discipline by considering the history of Ms. Blackwood's employment with the School Board over the previous five years, and he concluded that the behavior complained of by the staff and building inspectors in February 2005 was ongoing and formed a consistent pattern of behavior on Ms. Blackwood's part in her position as a supervisor. On February 17, 2005, Mr. Carter removed Ms. Blackwood from her duties as a Senior Supervisor of Building Inspectors and advised her in a memorandum that, effective immediately, she was assigned to administrative duties. Mr. Carter notified Ms. Blackwood in a letter dated March 10, 2005, that she was to report to his office on March 15, 2005, for "a pre-disciplinary meeting regarding your inappropriate supervisory conduct."21 No other conduct or specific incident was included in the notice dated March 10, 2005. Ms. Blackwood and her union representative attended the meeting on March 15, 2005, and Mr. Carter presented Ms. Blackwood with the materials he had collected during his investigation. These materials were quite extensive, and Ms. Blackwood asked if she could have additional time in which to study the information and formulate her response. They agreed that the pre-disciplinary meeting would be re-convened on April 5, 2005, and that the 20-day time frame in the Collective Bargaining Agreement for imposing discipline would be extended accordingly. At the meeting on April 5, 2005, Mr. Carter identified several areas of concern, which were discussed with Ms. Blackwood and to which Ms. Blackwood was allowed to provide an explanation. Specifically, Mr. Carter advised Ms. Blackwood of problems with her failure to demonstrate an appropriate leadership style, that she demonstrated a divisive leadership style, that she acted in a loud and threatening manner towards her co-workers, that there was evidence of her favoritism with regard to certain employees under her supervision, that her behavior was having a psychological and medical impact on some of her subordinates, that she engaged in threatening behavior regarding reports to the Department of Business and Professional Regulation, that her behavior resulted in multiple employees having to seek medical attention and/or requesting to be removed from under her supervision, that she failed to demonstrate a leadership style that supported the School Board's strategic plan, and that as a result of all of these behaviors, she had lost response among the employees in the Building Department such that it was limiting her ability to lead.[22] Mr. Carter also discussed with Ms. Blackwood the "Letter to the Editor" that circulated in the Building Department in February 2005 because, by the time of that meeting, it was known that Ms. Blackwood was the author.23 Ms. Blackwood was given the opportunity to respond to the charges presented by Mr. Carter, and she requested that Mr. Carter do a follow-up investigation with some of the employees he had previously interviewed. Mr. Carter met again with the employees pursuant to Ms. Blackwood's request. In a letter dated April 29, 2005, and addressed to Jerrod Neal, Field Staff Representative for the BTU-TSP, with a copy sent to Ms. Blackwood, Mr. Carter advised Ms. Blackwood that the letter constituted the 20-day notice of the intent to impose disciplinary action, as required by the terms of the Collective Bargaining Agreement. Mr. Carter continued: This letter is to inform you that, after completing the investigation regarding the allegations of inappropriate supervisory conduct by Ms. Blackwood, advising Ms. Blackwood of the charges and the basis for them, and meeting with you to consider Ms. Blackwood's position, I have decided to recommend that Ms. Blackwood be terminated/discharged from employment with the School Board of Broward County. This recommendation is based upon my determination that Ms. Blackwood has engaged in misconduct including, but not limited to, problems with effective communication, a leadership style inappropriate for a supervisor, violations of the School Board's workplace violence policy, and harassive [sic] conduct which has interfered with the ability of other individuals to perform their work responsibilities and resulted in emotional harm to some employees.[24] In a letter dated May 27, 2005, Mr. Carter transmitted to Ms. Blackwood a letter from Dr. Till advising her that Dr. Till was recommending to the School Board that she be terminated from her employment. An Administrative Complaint was attached to the May 27, 2005, letter, and Ms. Blackwood was told that the allegations in this complaint set forth the charges on which the recommendation was based. The School Board voted on June 7, 2005, to initiate termination proceedings with respect to Ms. Blackwood. Summary and ultimate findings of fact Pursuant to the provisions of Article Nine of the Collective Bargaining Agreement, Ms. Blackwood can only be disciplined if the discipline is imposed within 20 days of the date on which a violation occurred. In this case, the evidence presented by the School Board is insufficient to establish that Ms. Blackwood committed misconduct in office or insubordination as a result of her conduct occurring on or about February 15, 2005. The incident involving Ms. Blackwood and Ms. Clark occurred on February 4, 2005, outside the 20-day time period. Although the incident involving Ms. Strong occurred on February 15, 2005, Ms. Blackwood's including in an e-mail information that inaccurately conveyed the statement Ms. Strong made to her about Mr. Martin signing an application for a provisional license does not rise to the level of misconduct, even if it was part of a pattern of distortions by Ms. Blackwood. Ms. Blackwood's conduct on this occasion also failed to constitute gross insubordination because there was no evidence presented by the School Board to establish that she acted in violation of an order given by anyone with proper authority. Finally, to the extent that the draft "Letter to the Editor" formed a basis for the School Board's decision to terminate Ms. Blackwood's employment, there is no evidence that Ms. Blackwood committed misconduct by drafting the letter, nor was there any evidence that Ms. Blackwood had been ordered not to communicate to the press regarding the problems that she perceived with the Building Department and the School Board's building program in general. The evidence presented by the School Board regarding Ms. Blackwood's employment history is sufficient to establish that, between 2001 and February 2005, she engaged in acts of misconduct that were sufficiently serious that her effectiveness as a Senior Supervisor of Building Inspectors was severely impaired. The evidence presented by the School Board regarding Ms. Blackwood's employment history is also sufficient to establish that she engaged in numerous acts of insubordination that, taken in the aggregate, rose to the level of gross insubordination. Indeed, the evidence submitted by the School Board is sufficient to establish that, without doubt, Ms. Blackwood's conduct in the workplace and as a Senior Supervisor of Building Inspectors was totally unacceptable for an extended period of time. Pursuant to the undersigned's interpretation of the provisions of Article Nine of the Collective Bargaining Agreement, however, Ms. Blackwood cannot be disciplined for events occurring outside the 20-day time period set out in the Collective Bargaining Agreement; but for this conclusion, Ms. Blackwood's ongoing misconduct and insubordination would more than justify termination of her employment with the School Board. In their various attempts to discipline Ms. Blackwood, School Board personnel did not adhere to the disciplinary procedures set forth in the Collective Bargaining Agreement and were, therefore, unable to prevail against the grievances Ms. Blackwood filed with respect to each attempt to subject her to discipline. Because the School Board did not submit evidence sufficient to establish that Ms. Blackwood committed misconduct in office or insubordination within the 20-day time period set out in Article Nine of the Collective Bargaining Agreement, she cannot now be disciplined for these previous violations.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Broward County School Board enter a final order dismissing the Amended Administrative Complaint against Charlene Rebecca Blackwood. DONE AND ENTERED this 7th day of March, 2007, in Tallahassee, Leon County, Florida. S PATRICIA M. HART 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 7th day of March, 2007.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: In February 1989, petitioner, Michael J. Millillo, Jr., was a candidate on the certified building contractor examination. The test is prepared and administered by respondent, Department of Professional Regulation, Construction Industry Licensing Board (Department or Board). Petitioner later received written advice from the Department that he had made a grade of 63 on Part II of the examination. According to agency rules, a score of at least 69.1 is required for passing. Petitioner then filed an appeal of his examination results contending that question 8 was ambiguous and that question 20 contained more than one correct answer. That prompted this proceeding. As a result of a stipulation by counsel at hearing, petitioner was given credit for his answer to question 20 and his grade was raised to 67. Accordingly, the appeal is now limited to question 8. The examination was prepared by the National Assessment Institute and requires an examinee to use "entry level" knowledge in formulating his responses. Question 8 was a mathematics question having a value of four points on a candidate's overall score. It is undisputed that if Millillo had received four additional points he would have passed the examination. Question 8 was a multiple choice question containing four possible answers. Although the question cannot be repeated verbatim here because of confidentiality constraints, it required a candidate to make nine separate mathematical calculations in order to arrive at the correct solution. Petitioner's challenge is limited to the first calculation, and more specifically, to the wording in the question. He contends that the wording was so ambiguous that a candidate could easily arrive at a different answer than suggested by the Board. In general terms, the subpart in dispute provided a candidate with an annual payroll cost for a general superintendent who was the supervisor on a project taking one hundred fifty days to complete. The candidate was required to calculate the superintendent's cost assuming he spent 15% of his time on the project. The solution was derived by multiplying a .15 factor X 150/360 X the annual payroll cost. Petitioner testified on his own behalf and suggested that the question assumed the superintendent devoted 15% of his total time for the entire year to the project, and that the appropriate cost would be obtained by multiplying that percentage factor times the individual's annual payroll cost. The resulting number was approximately twice as great as the Board's correct solution. Respondent's consultant, George Bruton, is a licensed contractor and assisted in the preparation of the examination questions. He considered the question to be clear and unambiguous and required a student to recognize that the superintendent spent 15% of his total time on the project for five months, which was the life of the project. This interpretation is logical and reasonable, consistent with the wording in the question, and is found to be correct. The witness added that because 78% of all candidates on the examination obtained the correct answer, it reinforces his contention that the question was not ambiguous.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered denying petitioner's request to receive a passing grade on the February 1989 certified building contractor's examination. DONE and ORDERED this 6th day of November, 1989, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of November, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-4312 Respondent: 1. Substantially adopted in finding of fact 1. 2-4. Substantially adopted in finding of fact 2. 5. Substantially adopted in finding of fact 5. 6-7. Substantially adopted in finding of fact 6. COPIES FURNISHED: Frederick F. Rudzik, Esquire One Fourth Street, North Suite 800 St. Petersburg, Florida 33701 E. Harper Field, Esquire 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0792 Fred Seely Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32202 Kenneth E. Easley, Esquire 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0792
