Findings Of Fact At all times here involved Respondent held a general contractor's license No. CG C011375 and a pool contractor's license No. CP C010307 issued by Petitioner. Respondent was the owner and qualifying contractor for Player Pools, Inc. In late 1975 Player Pools, Inc. entered into a contract with Robert Pereux, a general contractor, to construct a pool at a residence Pereux was building for Carl Reichenbach. Plans submitted with application for permit were approved by the City of Coral Springs Building Inspection Department and construction of the pool was commenced early in 1976 and completed in May 1976. The pool passed all inspections except the electrical inspection, which has not passed on 3-26-76. Had. the electrical discrepancies been corrected immediately, the pool would have passed final inspection. Respondent completed the major portion of the construction and, while the general contractor was backfilling the pool, a large vertical crack some 4 inches wide appeared in the wall of the pool adjacent to the house. The general practice in Broward County is for the general contractor to back-fill the pool after' the floor and walls of the pool have been completed by the pool contractor. No evidence was presented showing who corrected this large vertical crack or what caused the crack. Respondent's contention that this crack was caused by the vertical weight of the tractor used to back-fill, while adjacent to the wall, is not credible. Had the tractor hit the wall while back-filling, a crack could have resulted. Apparently this large vertical crack from the floor to the coping was repaired by someone and the pool was subsequently filled with water in June 1976. When this occurred, hairline cracks near the cove of the pool appeared and the pool leaked. Cove was defined as the part where the wall joins the floor of the pool. Respondent, pursuant to a verbal agreement with Pereux, attempted to repair the cracks but apparently without success. Pereux died early in 1977 and the provisions of this verbal agreement were not presented. A dispute between Pereux and Respondent arose regarding payment for the work Respondent had done on the pool and Respondent filed a mechanic's lien against the property. A copy of release of lien against Reichenbach's property was admitted as Exhibit 8. The amount satisfied by Exhibit 8 is the same amount Respondent claims was owed him by Pereux in his demand for payment dated May 7, 1976 (Exhibit 7). Following receipt of a complaint, the City of Coral Springs issued Notice of Violation to Respondent, charging violations of sections 2301.1(b) and 5001.2(b) South Florida Building Code (Exhibit 2).
The Issue Whether Respondent committed the offenses alleged in the Amended Administrative Complaint and, if so, what penalties, if any, should be imposed.
Findings Of Fact At all times material, Respondent was licensed as a certified pool/spa servicing contractor, having been issued license no. CP C053918, and Respondent was the qualifying agent of Sun Technical Systems, Inc., a Florida corporation. In 1981, Nancy Morasch moved to Florida and purchased a single-family home, which did not contain a pool, at 1210 Sunshine Tree Boulevard in Longwood, Seminole County, Florida. The following year, she had a swimming pool built without a spa. On or about February 2, 1998, Morasch sought to have her pool refurbished and add a spa. She received a written proposal by Larry Boles to perform the work, including the addition of a spa, for $22,479.00. Morasch declined to contract with Mr. Boles. Shortly thereafter, Morasch received a written proposal from Respondent to perform the refurbishment and build the spa. Respondent bid $18,800 to complete the job and indicated that he would finish by December 25, 1998. On October 17, 1998, Morasch entered into a written contract with Respondent on behalf of Pleasure Pool Services, Inc., a Florida corporation, for a price of $18,800.00. Morasch was informed by Respondent that he was licensed to construct the spa. The contract included a one-year warranty for defects in workmanship. Respondent's license number did not appear in the contract, and the contract did not contain a written statement explaining the consumer's rights under the Construction Industries Recovery Fund. Pursuant to the contract, Morasch made payments to Pleasure Pool Services, Inc., on or about the following dates and in the following amounts: October 17, 1998, $2,000.00; November 27, 1998, $5,500.00; and December 12, 1998, $7,500.00; for a total of $15,000.00. On November 27, 1998, Respondent began performing work pursuant to the contract. By Christmas Eve 1998, the work remained substantially incomplete. In December 1998, Respondent hired Anthony Keegan to remove the existing tile in Morasch's pool and install new tile around the perimeter of Morasch's pool and spa. Although Keegan usually required payment in advance, due to his long-standing relationship with Respondent, Keegan accepted a partial payment of $500.00 from Respondent and bought materials for the job on credit. Respondent never communicated to Keegan that he considered Keegan's work unsatisfactory in any way, nor did Morasch consider Keegan's work unsatisfactory in any way, and Keegan's work was a necessary part of the project. Respondent refused to pay Keegan the balance so in late January 1999, after a threat of lien by Keegan, Morasch paid him $965.68, the total balance owed him by Respondent. In January 1999, Respondent sub-contracted Magic Marcite to perform the plastering work on Morasch's pool and spa. Magic Marcite performed the work over three days ending on January 25, 1999. Respondent never communicated to Magic Marcite that he considered its work to be unsatisfactory in any way, nor did Morasch consider Magic Marcite's work unsatisfactory in any way, and Magic Marcite's work was also a necessary part of the project. Again, Respondent was threatened with a lien by Magic Marcite and paid them the $1,500.00 balance due from Respondent in three installments, on or about April 28, May 30, and June 25, 1999. From late January 1999, until August 1999, Respondent neglected to perform further work despite complaints by Morasch that the pool and spa were losing substantial amounts of water and the pool deck concrete was cracking and sinking. Furthermore, and contrary to the contract negotiations between Respondent and Morasch, Respondent positioned the spa level to the pool deck and not elevated. In addition, the jets in the spa as built by Respondent were positioned too low. In June 1999, Morasch retained counsel to assist her in her efforts to have Respondent complete the project. In July 1999, with her attorney's assistance, Morasch succeeded in getting Respondent to agree to perform further work to address the cracked tile and deck concrete. In August 1999, Respondent hired a leak specialist to repair various water leaks. In September 1999, Respondent replaced some of the cracked tile and removed some of the cracked deck concrete. In October 1999, Respondent repaired more tile. Thereafter, Respondent abandoned the project. Morasch complained to the National Spa and Pool Institute and Petitioner. Thereafter, she hired Acryla-Crete to repair the pool and spa and paid them $14,135.85 upon completion. Morasch paid attorney's fees totaling $2,304.17. Although Respondent failed to obtain any building permit or inspections for any work on Morasch's swimming pool and spa, Seminole County required them. Sun Technical Systems, Inc., has never been issued a license as a qualified business organization. As of August 8, 2001, Petitioner's cost of investigation and prosecution in this case, excluding costs associated with an attorney's time, totaled $771.77.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Construction Industry Licensing Board enter a final order, as follows: Finding that disciplinary action against Respondent is warranted for the violation of: Count I, Sections 489.129(1)(c) and 455.227(1)(m); Count II, Sections 489.129(1)(c) and 455.227(1)(o); Count III, Section 489.129(1)(f); Count IV, Sections 489.129(1)(i) and 489.119(2); Count V, Sections 489.129(1)(i) and 489.119(6)(b); Count VI, Sections 489.129(1)(i) and 489.1425; Count VII, Section 489.129(1)(j); Count VIII, Section 489.129(1)(m); and Count IX, Section 489.129(1)(o), Florida Statutes, as alleged in the Administrative Complaint. Requiring Respondent to pay an administrative fine in the amount of $5,000.00. Requiring Respondent to pay Petitioner's costs of investigation and prosecution, excluding costs associated with an attorney's time, in the amount of $771.77, plus any such further costs as may have been or may be incurred by Petitioner after August 8, 2001, through the taking of final agency action. Requiring Respondent to pay restitution in the amount of $15,231.70 to Nancy Morasch, this amount of restitution calculated as the total amount paid by Morasch to Pleasure Pools ($15,000.00), Anthony Keegan ($965.68), Magic Marcite ($1,626.00), Michelle Kane ($2,304.17), and Acryla-Crete ($14,135.85), minus the $18,800.00 contract price. Permanently revoking Respondent's certified swimming pool/spa servicing contractor license number CP C053918. DONE AND ENTERED this 29th day of October, 2002, in Tallahassee, Leon County, Florida. WILLIAM R. PFEIFFER 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 29th day of October, 2002. COPIES FURNISHED: Theodore R. Gay, Esquire Department of Business and Professional Regulation 401 Northwest 2nd Avenue Suite N-607 Miami, Florida 33128 Dave Hopkins 4441 North Fort Christmas Road Christmas, Florida 32709 Hardy L. Roberts, III, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202 Robert Crabill, Executive Director Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issue is whether Petitioner was an employee of Respondent rather than an independent contractor, thereby giving the Florida Commission on Human Relations jurisdiction over Petitioner's amended charge of discrimination against Respondent.
Findings Of Fact Based upon the testimony and evidence received at the hearing, the following findings are made: Parties Petitioner is a white female. At the time of the events giving rise to the amended charge of discrimination, Petitioner was 35-years-old. Respondent Central Florida Investments, Inc. (CFI), is a corporation which, either itself or through related legal entities, owns and operates the Westgate timeshare resorts in the Orlando, Florida, area. The resorts include Westgate Lakes and Westgate Vacation Villages. One of the related legal entities is CFI Sales and Marketing, Ltd. (CFI Sales). CFI Sales is referred to as a "division" of CFI on at least one of the forms received into evidence. CFI's human resources department processed Petitioner's benefits forms. Those forms designated Petitioner as an employee of CFI; they did not reference CFI Sales even though that was the entity through which Petitioner was paid. The human resources department also processed a salary increase for Petitioner in August 1999. David Siegel is the president of CFI. Mr. Siegel controls the operation of the Westgate resorts through CFI and its related legal entities. Petitioner reported directly to Mr. Siegel in her position as Executive Spa Director even though she was "employed" by and paid through CFI Sales. Petitioner's "Employment" With Respondent 1. Selling Timeshare Units Petitioner first started working for Respondent2 in 1986 as a salesperson. In that position, she was responsible for selling timeshare units at the Westgate resorts owned by Respondent. Petitioner worked as a salesperson for Respondent continuously from 1986 through 1998, except for a period of a couple of years that she worked at a spa in Winter Park. Petitioner was an independent contractor during the period that she was a salesperson. She had a written contract with Respondent which expressly designated her as an independent contractor, and she was paid commissions from the timeshare units that she sold. Petitioner did not receive any insurance or other benefits from Respondent during the time that she was a salesperson. 2. Executive Spa Director At some point after she left the Winter Park spa and returned to work as a salesperson for Respondent, Petitioner approached Mr. Siegel regarding the establishment of a spa as an amenity at Westgate Lakes. Mr. Siegel directed Petitioner to put together a business and marketing plan for the spa, which she did. After some period of time, Mr. Siegel approved the spa and put Petitioner in charge of its development. During the initial period that Petitioner was working on the development of the spa, she continued to sell timeshare units for Respondent. In January 1998, Petitioner was placed on salary with Respondent and given the title of Executive Spa Director. From that point through the opening of the spa in 1999, Petitioner focused exclusively on the development of the spa. Petitioner oversaw the construction of the spa and, among other things, Petitioner was responsible for the spa's interior design and its name, Papillon the Spa at Westgate Lakes (Papillon). The spa was considered an amenity of the Westgate resorts. It was available for use by Westgate timeshare unit owners and their guests. It was also used by salespersons as a tool to close sales to prospective purchasers of Westgate timeshare units. The spa offers a variety of services, including nail care, hair care, spa body treatments, body wraps, waxing, skin care, and massage therapy. The spa also includes a fitness center. After the spa opened, Petitioner continued in the position of Executive Spa Director. In that capacity, she was responsible for all aspects of the day-to-day management and operation of the spa, including supervision of the spa's staff. Petitioner reported directly to Mr. Siegel. The managers of other resort amenities reported to the general manager of the resort, not to Mr. Siegel. When Petitioner was put on salary as the Executive Spa Director, she was also given benefits by Respondent. Those benefits, which became effective on April 1, 1998, included health, life, dental and long-term disability insurance. Petitioner's benefits were terminated effective December 31, 1999. The reason that Petitioner was given for the termination of her benefits was that Mr. Siegel "could get into a lot of trouble" for giving her employee benefits while treating her as an independent contractor for tax purposes. Petitioner did not have set days or hours which she was required to work at the spa, but she was expected by Mr. Siegel to be there all of the time. Because Petitioner was most familiar with the spa's operation, that expectation is not entirely unreasonable. Petitioner did not accrue vacation time or retirement benefits from Respondent in her position as Executive Spa Director. Petitioner rarely took time off and, when she did, she had to obtain Mr. Siegel's personal approval to be away from the spa. A lawsuit is pending between the parties in circuit court in Orange County regarding Mr. Siegel's alleged agreement to pay for repairs at Petitioner's home as compensation for the vacation time that she was not given as Executive Spa Director. Petitioner was required to personally perform her duties as Executive Spa Director; she could not delegate them to another member of the spa's staff. Petitioner did not have a written contract with Respondent during the period that she was in the Executive Spa Director position. As a result, there was nothing to preclude her from leaving the position at any time, nor was there anything to preclude Respondent from firing her at any time. Petitioner was told by Mr. Siegel that she could not consult with other spas or provide her services to others during the period that she was in the Executive Spa Director position. Petitioner did not work for any other entity during the period that she was Executive Spa Director. Petitioner was not authorized to make purchases for the spa without approval of Mr. Siegel or someone else in Respondent's management team. However, as discussed below in connection with Petitioner's tax returns, that did not stop Petitioner from expending her own money on the spa. Petitioner was required to provide Mr. Siegel with monthly reports detailing the operation of the spa. The reports included information such as the number of spa treatments given, the number of unit owners and guests who utilized the facility, and the amount of income produced during the period. Petitioner wanted to market Papillon to the general public as a "day spa" rather than just limiting its use to Westgate unit owners. However, Mr. Siegel would not approve outside marketing. When Petitioner did outside marketing of the spa on her own with her own money, Petitioner was reprimanded by Mr. Siegel and another member of Respondent's management team. Petitioner did not employ the staff at the spa. They were employees of and paid by Respondent. Petitioner participated in the hiring and firing of the staff, but she did not have autonomy over that process. Prospective staff were screened by Respondent's human resources department before they could be interviewed by Petitioner, and Petitioner's decisions to hire and fire staff had to comply with policies adopted by the human resources department. Petitioner was paid on a weekly basis as Executive Spa Director. No taxes or other amounts were withheld from Petitioner's weekly paychecks. Petitioner's salary was not tied to the profitability of the spa. Her salary was established by Mr. Siegel based upon the information presented to him by Petitioner regarding the salaries of directors at spas comparable to Papillon. Petitioner has a cosmetology license which allows her to perform all of the services in the spa except massage therapy. Petitioner paid the fee for the license and, because she was not reimbursed by Respondent, she reported the fee as a "business expense" on her tax return. On occasion, Petitioner performed services (such as nail care) at the spa. Petitioner was not compensated for performing those services, so the cost of the service went directly into the spa's profit. In December 2000, Petitioner was placed on a five-day suspension while Respondent audited the spa. Thereafter, on December 15, 2000, Petitioner was terminated from her position as Executive Spa Director. After Petitioner was terminated, Respondent brought in the Nicki Bryant consulting firm to manage the spa. The firm was on a 90-day contract with Respondent, the specific terms of which are not part of the record. Petitioner's Tax Returns from 1998 Through 2000 At the end of each year that she worked for Respondent, including 1998 through 2000 when she was Executive Spa Director, Petitioner received a 1099 tax form from Respondent rather than a W-2 tax form. Petitioner was not given the option of the type of tax form that she received from Respondent. The 1099 form designated Petitioner's earnings from Respondent as "nonemployee compensation." In 1998, Petitioner received compensation from Respondent in the amount of $78,030.00 In 1999, her compensation from Respondent was $87,115.44, and in 2000 her compensation from Respondent was $102,223.14. Petitioner used the 1099 forms she received from Respondent to complete her federal income tax forms. The only income that Petitioner reported for the 1998, 1999, and 2000 tax years was the compensation that she received from Respondent. In each tax year, that compensation was reported on Schedule C of Petitioner's tax return. That schedule, as its title indicates, is used to compute "profit or loss from business (sole proprietorship)." Each tax year, Petitioner deducted a significant amount of expenses on Schedule C. In 1998, she deducted expenses of over $48,000; in 1999, she deducted expenses of over $63,000; and in 2000, she deducted expenses of over $64,000. The following table identifies some the categories in which Petitioner reported expenses, and the amount of such expenses reported in the 1998, 1999 and 2000 tax years: Category 1998 1999 2000 Advertising $ 625 $ 2,400 $ 5,418 Car expense $ 7,767 $ 7,855 $ 6,102 Office expense $ 625 $ 2,200 $ 2,895 Supplies $11,355 $10,500 $11,524 Travel $ 2,630 $ 2,538 $ 6,125 Meals and entertainment $13,531 $13,540 $14,285 Postage / Fed Ex Gifts 8,107 N/A3 $ 4,323 $ N/A $12,946 $ 6,528 Cellular phone N/A $ 3,108 $ 2,856 Uniforms Seminars / N/A $ 1,490 $ 2,175 Continuing education N/A $ 888 $ 2,354 These expenses reflect the expenses that were not reimbursed by Respondent. Petitioner testified at the hearing that she was reimbursed for her travel to several seminars for some of her other expenses as well. However, corroborating evidence of those reimbursements was not introduced at the hearing. Petitioner gave her accountant receipts for all of these expenses. Petitioner, not her accountant, was responsible for categorizing the receipts into the "appropriate" category. The significant amount of expenses reported by Petitioner and the categories in which amounts reported call into question her testimony at the hearing that she was not permitted to advertise the spa or make independent decisions regarding the spa's operation, and that she was required to be at the spa all day, every day. However, the tax returns do not entirely undermine the credibility of Petitioner's hearing testimony. In addition to the $2,400 in advertising expenses reported in 1999, Petitioner also reported expenses of $1,150 for "promotion." The postage and Fed Ex expenses also related to the advertising of the spa since they were for mailings from Petitioner to the owners to whom Petitioner had sold timeshare units. The car expenses, which Petitioner attributed to her travel around the state and around the Orlando area to talk about the spa and learn about the spa industry, suggest that there were significant amounts of time that she was not at the spa. In 1999 alone, Petitioner reported that she drove more than 25,000 miles (not including commuting miles) on business. That mileage is different from the travel expenses that Petitioner reported on her tax returns and, at hearing, attributed to her attendance at spa industry trade shows and conferences. The amounts reported as "supplies" were for items that Petitioner bought through conferences, trade shows, and spa industry publications to try out at the spa such as bath salts, oils, and spa equipment. The day-to-day supplies necessary for operation of the spa were provided by Respondent. The amounts reported as "gifts" were for services (such as nail care) rendered at the spa by Petitioner for which Petitioner was not compensated, as well as gifts that Petitioner purchased for vendors or other Westgate department heads who had done something nice for Petitioner. The amounts reported as "office expense" related to a home office that Petitioner used to complete work that she brought home from the spa. Petitioner also had an office at the spa which was furnished by Respondent with a desk, computer, telephone, and other items essential to the operation of the spa. Petitioner also promoted the spa through word-of- mouth. The amounts reported as meal expenses were for lunches or dinners paid for by Petitioner at which she discussed or mentioned the spa. After deduction of expenses, Petitioner reported "business income" of $29,987 in 1998, $23,714 in 1999, and $38,207 in 2000 on her tax returns. Petitioner paid self-employment tax in each of those years. Above Petitioner's signature on the tax returns for 1998, 1999, and 2000 is the following statement: "Under penalties of perjury, I declare that I have examined this return and accompanying schedules and statements, and to the best of my knowledge and belief, they are true, correct, and complete." Petitioner testified at the hearing that she intends to amend her returns to reflect her status as an employee rather than an independent contractor and, presumably, eliminate those expenses which would not be deductible by an employee. However, as of the date of the hearing, Petitioner had not taken any formal action to amend her returns.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order which: determines that Petitioner was an employee of Respondent rather than an independent contractor for purposes of the Florida Civil Rights Act of 1992; and directs the Commission staff to re-open its investigation into the merits of Petitioner's amended charge of discrimination against Respondent. DONE AND ENTERED this 17th day of April, 2003, in Tallahassee, Leon County, Florida. T. KENT WETHERELL, II 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 17th day of April, 2003.
The Issue The issue in these cases is whether Respondent, the Florida Department of Environmental Protection, has provided Respondent, Southwest Florida Water Management District, with reasonable assurances that the activities proposed in its Noticed General Environmental Resource Permit No. 4715785.00 meet the conditions established in Section 373.413, Florida Statutes, and Rules 40D-400.215 and 40D-400.485, Florida Administrative Code, for issuance of general environmental resource permits.
Findings Of Fact The Parties. Big Blue Springs, Inc., owns property located adjacent to Big Blue Springs. Big Blue Springs, Inc., acquired its interest from Big Blue Springs Property Owners' Association, Inc. (hereinafter referred to as the "Property Owners' Association"). The individual Petitioners in these cases own property located along the current water flow from Big Blue Springs with the exception that the evidence failed to prove whether Mr. and Mrs. Manfred Rietenbach own property in proximity to Big Blue Springs. Respondent, the Department of Environmental Protection (hereinafter referred to as the "Department"), is an agency of the State of Florida. Respondent, Southwest Florida Water Management District (hereinafter referred to as the "SWFWMD"), is a public corporation with regulatory jurisdiction over the administration and enforcement of surface water management system rules pursuant to Part IV, Chapter 373, Florida Statutes. Big Blue Springs. Big Blue Springs (hereinafter referred to as the "Spring"), is a moderately sized freshwater spring located in Citrus County, Florida. The pool of the Spring is approximately 75 feet in diameter. Water flows from the Spring at rates which vary between 11.1 and 19.6 cubic feet per second. The Spring is located immediately adjacent to the Withlacoochee River, an "Outstanding Florida Water." The Spring is located within the State of Florida's sovereign lands. Therefore, the Spring comes under the jurisdiction of the Department. Prior to the 1960's, the Spring connected directly with the Withlacoochee River only a few feet from the location of the pool of the Spring. The natural flow of water from the Spring was in an east-northeast direction. Water also flowed in a northwesterly direction into wetlands which surrounded the Withlacoochee River. The Diversion of the Spring's Natural Flow. During the 1960's a developer constructed a dike around the Spring damming up the Spring's natural connection with the Withlacoochee River. The dike was illegally placed on state sovereign lands under the Department's jurisdiction. The developer also dredged a canal (hereinafter referred to as the "Spring Run") in a northwesterly direction from the Spring. The Spring Run connected the Spring with the Withlacoochee River. The distance from the pool of the Spring to the Withlacoochee River is approximately one half mile. The dredging of the canal and the damming of the natural connection with the Withlacoochee River diverted the portion of the water discharge from the Spring that had flowed directly into the Withlacoochee River down the Spring Run. As a result of the damning of the Spring, all water from the Spring has flowed down the Spring Run since the 1960's. The construction of the dike around the Spring and the dredging of the Spring Run was carried out without a permit or sovereign land-use authorization. The Spring Run Today. The Spring Run is not of a uniform depth or width. At places, the Spring Run is 15 to 20 feet wide. The depth of water in the Spring Run also varies throughout the year. At times, the area surrounding the Spring and Spring Run is flooded. At other times, water in the Spring Run is of minimal depth. The Spring Run has developed into a functioning ecological wetland system consisting of various marine species and habitats. A small one-lane bridge spans the Spring Run approximately a quarter of a mile from the Spring. Access to the Spring Today. There is no legal access by land to the Spring. Even if access by land were legally available, such access would be difficult because the dike is approximately 10 feet tall and has steep slopes. Access by water to the Spring is limited to access through the Spring Run. Access along the Spring Run to the Spring is, however, not possible for many boats due to the lack of water depth. When water levels are low, access is further reduced. Access along the Spring Run during times of high water is also limited due to the small bridge that spans the Spring Run. At times, the water is too high for even small boats to pass under the bridge. Despite its limitations, the Spring Run is navigable, at least to small boats, the majority of the year. The Board of Trustees of the Internal Improvement Fund's Decision to Remove the Dike. In March 1990, the dike around the Spring was mysteriously breached, reconnecting the Spring and the Withlacoochee River. The Property Owners' Association obtained permission from the Army Corps of Engineers and the Department to repair the breach. After repairing the breach in the dike, the Property Owners' Association applied to the Governor and Cabinet, sitting in their capacity as the Board of Trustees of the Internal Improvement Fund (hereinafter referred to as the "Trustees"), for an easement allowing them to maintain the dike for 25 years. In response to the request of the Property Owners' Association for an easement, a public meeting was held by the Department in Inverness, Citrus County, Florida, in the summer of 1993. The meeting was advertised in the local newspaper as an opportunity for the public to discuss the Spring and what should be done about public access to the Spring. That meeting was well attended by members of the public, including several Petitioners. Following the public meeting and after discussions with the Property Owners' Association, the Department initially indicated that it would recommend to the Trustees that the easement application be approved. That recommendation was based upon negotiations with, and an offered settlement from, the Property Owners' Association: Staff believed that the homeowners' offer represented a reasonable compromise for this issue on the condition that the homeowners' association agreed to hold the state harmless for any liability arising out of the continued presence of the dike and to issue a quitclaim deed to the Board of Trustees for all lands located below the historic ordinary high water line of the spring. DEP Exhibit 16. Throughout the period of time during which the Department considered the Property Owners' Association's requested permission to maintain the Spring dike, the Property Owners' Association was aware of the Department's concern over the need to ensure public access to the Spring. On October 21, 1993, the Property Owners' Association informed the Department that it would not agree to all the terms of the settlement the Department desired. In particular, the Property Owners' Association was unwilling to give the Department assurances concerning public access to the Spring. As a consequence, the Department decided not to support approval of the easement application. The Property Owners' Association was informed of the Department's decision by letter dated October 27, 1993. A copy of the letter was also sent to Ms. Spence. The Department informed the Property Owners' Association that it was going to make the following recommendation to the Trustees: RESCIND STAFF'S APRIL 6, 1993, LETTER, DIRECT STAFF TO HAVE THE DIKE REMOVED, AND HAVE THE SPRING RESTORED TO ITS NATURAL FEATURES. The meeting at which the Trustees was to consider the Property Owners' Association easement application was scheduled for November 9, 1993. The meeting was advertised in Vol. 19, No. 43, Florida Administrative Weekly (October 29, 1993). The notice did not specifically indicate that the Trustees would consider the removal of the dike or the permit which is the subject of this proceeding at the meeting. The Property Owners' Association easement application and the Department's recommendation concerning the easement and removal of the dike were included on the agenda for the November 9, 1993, meeting of the Governor and Cabinet. The November 9, 1993, meeting of the Governor and Cabinet was held in Tallahassee. The meeting was open to the public and recorded. The Property Owners' Association was represented at the meeting. Ms. Spence also attended the meeting. During the meeting a number of issues concerning the fate of the Spring were discussed, including whether an easement should be granted to the Property Owners' Association and whether the Department's recommendation should be approved. Public access to the Spring was discussed by, and constituted a primary concern of, the trustees. The Trustees also discussed the impact which boats would have on the Spring if allowed into the Spring, the impact on the Spring Run if the restoration of the Spring was ordered, and the intrusion of tannic-stained water from the Withlacoochee River into the Spring. A copy of the permit at issue in this proceeding was not available at the November 9, 1993, Trustees' meeting. Nor were conceptual plans for the restoration of the Spring available. The Trustees denied the requested easement and directed the Department "to have the dike removed and the spring restored to its natural features." The Trustees' decision was subsequently challenged before the Division of Administrative Hearings by the Property Owners' Association. A Final Order was entered by the Trustees on November 16, 1995, rejecting the challenge. The Department's Efforts to Carry Out the Trustees' Decision. In February and May 1996, following entry of the Final Order, the Deputy Secretary of the Department met with Department staff. Pursuant to delegated authority, the Deputy Secretary directed staff to proceed with the removal of a section of the dike in order to restore the flow of the Spring into the Withlacoochee River at the approximate location of the natural flow from the Spring into the river. On or about September 23, 1996, the Department submitted an application to the SWFWMD for a permit to restore the Spring. The application included the proposed removal of a portion of the dike adjacent to the Withlacoochee River and the stabilization of the dike with limestone rip-rap. On October 22, 1996, the SWFWMD issued Noticed General Environmental Resource Permit No. 4715785.00 to the Department approving the Big Blue Springs Restoration Project, subject to the general conditions of Rule 40D-400.215, Florida Administrative Code, and the special conditions of Rule 40D- 400.485, Florida Administrative Code. At the suggestion of some of the Petitioners, the Department retained Paul Pilney, a soil scientist with the Soil Conservation Service of the United States Department of Agriculture. Mr. Pilney conducted soil soundings, soil borings, and surveys of the area in an effort to estimate the location and elevation of the original Spring runoff. Using Mr. Pilney's findings, the Department modified its proposed location of the breach in the dike and reduced the width of the breach. The depth of the proposed breach was not, however, modified. The Department submitted modified plans and an amendment to its permit application to the SWFWMD on July 27, 1997. The SWFWMD reviewed and approved the modifications and incorporated them into the permit. The Department held at least one public meeting on the proposed restoration project. The proposed restoration project was approved by the Secretary of the Department. The Proposed Restoration Project. The Department's proposed restoration project (hereinafter referred to as the "Restoration Project") is technically simple: it entails the removal of a portion of a water control structure, a dike, in order to partially restore the natural flow of water between the Spring and the Withlacoochee River. In order to carry out the Restoration Project, the Department has proposed breaching the dike by removing approximately 500 cubic yards of earth from the dike between the Spring and the Withlacoochee River. The Department has proposed that the breach be graded to an elevation of 31 feet above mean sea level. This depth was based upon Mr. Pilney's findings of the estimated natural depth of the Spring runoff. The depth is only an estimate, however. There is no absolute way of determining the precise depth of the natural Spring runoff into the Withlacoochee River. The Department has proposed the use of floating barriers and turbidity screens while the Restoration Project is being carried out. The Restoration Project will be completed by the placement of limerock rip-rap along the slopes and back of the Spring to control erosion. The limerock rip-rap will consist of limerock boulders and/or rubble, weighing approximately 135 pounds per square foot. Limerock will be used because it occurs naturally along the Withlacoochee River. The disturbed areas around the Spring will also be revegetated immediately after construction. "No Motorboating" signs will be erected around the area in the interest of public safety and in an effort to limit prop dredging by boats that enter the Spring. I. Impacts from the Restoration Project. The Restoration Project will not cause pollution. Water quality and health standards will not be violated. The Restoration Project will not degrade water quality or cause a violation of state water quality standards, including special standards set for Outstanding Florida Waters. Although dark, tannic-stained water from the Withlacoochee River will mix with the nearly crystal clear water of the Spring on occasion, the water quality of the Spring will not be degraded or adversely impacted. Water from the Spring already mixes with the Withlacoochee River. After the breach, it will just mix with the Withlacoochee River a little sooner. The Restoration Project will improve public access to the Spring. The need to access the Spring by locating and traversing the Spring Run will be eliminated. Accessing the Spring illegally by land will also be eliminated. Access to the Spring will be available by the larger boats which can navigate the Withlacoochee River. The 31-inch depth to which the Department has proposed that the new access channel be cut is lower than the current depth of the Spring Run. As a consequence, the amount of water which will run down the Spring Run will be dramatically reduced by the Restoration Project. The impact of the reduced water flow in the Spring Run will reduce the already somewhat limited navigability of the Spring Run. The Spring Run will remain navigable only on an intermittent basis. The limited flow of water through the Spring Run will also reduce the extent to which the Spring Run currently is a functioning ecological wetland system. If the depth to which the breach is graded were less than the 31 inches proposed by the Department and were limited to a depth no more than that of the flow from the Spring into the Spring Run, there would be no appreciable decrease in the public access to the Spring which the Department and the Trustees wish to insure is provided by the restoration of the Spring. Public access would still be readily available, and the negative impact on the ecological wetland system of the Spring Run and the navigability of the Spring Run would be decreased.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered by the Southwest Florida Water Management District authorizing the Department of Environmental Protection to proceed with construction under Noticed General Environmental Resource Permit No. 4715785.00, modified to provide that the depth of the breach between the Spring and the Withlacoochee Rive being limited to a depth of no more than that of the flow from the Spring into the Spring Run. It is further RECOMMENDED that the request for hearing filed by Mr. and Mrs. Manfred Rientenbach be Dismissed. DONE AND ENTERED this 17th day of August, 1999, in Tallahassee, Leon County, Florida. LARRY J. SARTIN 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 17th day of August, 1999. COPIES FURNISHED: Clark A. Stillwell, Esquire Brannen, Stillwell and Perrin, P.A. Bank of Inverness Building 320 Highway 41 South Inverness, Florida 34451-0250 Peter A. Grant 7325 North Spring Run Terrace Hernando, Florida 34442 Guy Marwick 12950 Northeast First Street Road Silver Springs, Florida 34488 Norma L. and Thomas Spence Post Office Box 246 Holder, Florida 34445 Judith K. Hall and Russell D. Hall 6875 East Halls Spring Path Hernando, Florida 34442 Janifer Carlson and Richard Carlson Post Office Box 450 Marble, North Carolina 28905 Mr. and Mrs. Manfred Rietenbach 10825 Nina Street Largo, Florida 33778 Margaret M. Lytle, Assistant General Counsel Southwest Florida Water Management District 2379 Broad Street Brooksville, Florida 34609-6899 Andrew J. Baumann, Assistant General Counsel Keith L. Williams, Assistant General Counsel Florida Department of Environmental Protection 3900 Commonwealth Boulevard, Mail Station 35 Tallahassee, Florida 32399 Kathy Carter, Agency Clerk Florida Department of Environmental Protection 3900 Commonwealth Boulevard, Mail Station 35 Tallahassee, Florida 32399-3000 F. Perry Odom, General Counsel Florida Department of Environmental Protection 3900 Commonwealth Boulevard, Mail Station 35 Tallahasee, Florida 32399-3000
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered finding respondent, Arthur Scott, guilty of exploiting a professional relationship with a student for personal gain or advantage, reprimanding him for his conduct and placing him on a three year term of probation subject to such terms and conditions as the Department deems appropriate. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 21st day of October, 1988. WILLIAM J. KENDRICK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1050 Filed with the clerk of the Division of Administrative Hearings this 21st day of October, 1988. APPENDIX Addressed in paragraph 1. Addressed in paragraph 2. Rejected as not a finding of fact Addressed in paragraph 3. Addressed in paragraphs 5 and B. Addressed in paragraph 11. 7-14. Addressed in paragraphs 7-15, otherwise rejected as not a finding of fact or not material. 15. Addressed in paragraphs 5-7, 11, 13-18 and 19. 16-17. Addressed in paragraph 13 and 16. Addressed in paragraphs 17-20. Addressed in paragraph 23. Addressed in paragraph 8. Addressed in paragraph 6. Addressed in paragraph 8. Addressed in paragraphs 8 and 11. Addressed in paragraph 21. Addressed in paragraph 16. 26-27. Addressed in paragraph 21. 28. Addressed in paragraph 7-9. 29-30. Addressed in paragraph. COPIES FURNISHED: Betty J. Steffens, Esquire Nabors, Giblin, Steffens, & Nickerson, P.A. Post Office Box 11008 Tallahassee, Florida 32302 Thomas L. Rolle, Esquire Cassidy & Rolle, P.A. Post Office Box 1164 West Palm Beach, Florida 33401 Karen B. Wilde, Executive Director Education Practices Commission 125 Knott Building Tallahassee, Florida 32399 Martin Schaap, Administrator Professional Practices Services 319 West Madison Street, Room 3 Tallahassee, Florida 32399
