Findings Of Fact Respondent Janice Prather lives in a subdivision in unincorporated Bay County, Florida. She owns her house, which faces Brookins Road and stands on a lot 135 feet long and 100 feet wide. STAR In April of this year Ms. Prather acquired a six-year old sorrel mare, a Tennessee Walking Horse named Star, who stands 15.2 hands high. Ms. Brunty, whose horse trailer was used to bring the horse to Ms. Prather's home, described Star and Rhonda, Ms. Prather's teenaged daughter, as a "beautiful combination." Star is a gentle horse and small children, including Mr. Serpas grandchildren, have petted her. Some days Rhonda and her friend Michelle take Star riding and let her graze in Michelle's back yard before bringing her back. She spent one night at Michelle's. But most of the time she is confined to the Prathers' fenced back yard, although she was not there for a week or two around the time of the fair. SIX POUNDS A DAY Star produces manure at a rate of about six pounds a Day. Ms. Prather has taken some of this manure to church and to the parsonage for use on shrubbery and gardens there. Over an unspecified period, she has also taken horse manure to Mr. Harold B. Taylor of Millville about three times a week. It has made his gardens green. Thelma King has also used Star's excrement in her garden. Not all of the manure Star has deposited in the Prather back yard has left the premises. Trenches have been dug along the fence line and manure has been buried there. Before removing the manure that she has given away, Ms. Prather or others have gathered it in buckets which are kept in a child's wagon in the back yard, and which may stand there for several days. Nor do the droppings reach the buckets every day. There was testimony that Star's excrement lay where it fell for weeks on end, and Ms. Prather, who holds a full- time job, conceded that she did not remove the manure daily, although she insisted that there was almost daily removal. Sometimes the manure would be covered over with an inch or two of sand. When it rains, some of the waste leaves in the water that flows across the Prather back yard, turns brown and smelly, and covers the neighbors yards. By the time of the hearing, the ground in the Prather back yard, which has a high water table, was saturated with horse urine. Subdivision residents depend on individual wells and septic tanks. A CONGREGATION OF FLIES Most witnesses conceded that there were houseflies in the area long before Star's arrival, but there was overwhelming agreement that the horse bought with it a significant increase in their number. Mr. Serpas, whose house stands directly behind Ms. Prather's testified to the increase and reported, without contradiction, that a "tremendous number" of these flies enter his house whenever a door is opened. The Atwells, whose house is 100 feet from Ms. Prather's lot line also have more flies inside their house than before Star came to live in the neighborhood. The Clarks, whose house is next door to Ms. Prather's, installed an electronic fly killing device from which they regularly remove handfuls of dead flies. It was Mr. Clark who testified that Star's presence has meant "a congregation of flies" in and over his yard as well as Ms. Prather's. The housefly (Musca domestica) is a real, if familiar, health hazard. Because houseflies eat the same things people do, their control is a crucial element in food hygiene. When they land on food intended for human consumption, they bring with them germs they have picked up elsewhere. Horse manure is among the very best breeding grounds for houseflies. Adult houseflies deposit eggs in horse manure where larvae then pupae thrive before emerging as a new generation of adult houseflies seven to ten days later and flying from dung to food. Houseflies are capable of transmitting diseases to human beings and are a major factor in the transmission of some diseases. The wooden fence Ms. Prather has begun building around her back yard has not diminished the number of flies or the "barn yard odor," also attributable to Star's excrement. Both the flies and the excrement were the basis for the neighbors' repeated complaints to the Bay County Health Department (BCHD). ACTION BY THE AUTHORITIES With the neighbors' complaints, there began a series of visits by BCHD employees. BCHD records reflect that the inspector concluded that the neighbors' complaints were "invalid" on April 13, 1983, and reached the same conclusion on April 18, 1983, when the "yard was clean." Respondent's Exhibit No. 3. On May 2, 1983, the BCHD inspector found "[e]ight piles of horse manure in yard. One wagon full of manure also," Respondent's Exhibit No. 3, which, however, was at the BCHD's request, "cleaned up" by May 6, 1983. Before visiting thereafter, the BCHD inspector called ahead, as Ms. Prather had requested. On May 13, 1983, a BCHD employee took pictures of the horse manure he found on that visit. On May 24, 1983, two BCHD employees found "[s]ome manure" but "no flies." Respondent's Exhibit No. 5. Early on BCHD employees suggested to Ms. Prather informally that she board Star somewhere else. They eventually directed her in writing to remove the horse and threatened to initiate the present proceedings to impose an administrative fine if she did not. She received the administrative complaint on or before August 4, 1983. Photographs taken on November 19, 1983, Petitioner's Exhibit No. 1 show an accumulation of dung that must have been at least four days in the making. Star was in residence on November 5, 1983, and, indeed, during the whole period between August 4, 1983, and the time of the hearing, with the possible exception of a two-week period.
Recommendation Accordingly, it is RECOMMENDED: That petitioner impose a fine against respondent in the amount of one hundred dollars ($100.00). DONE and ENTERED this 6th day of January, 1984, in Tallahassee, Florida. ROBERT T. BENTON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of January, 1984. COPIES FURNISHED: JOHN PEARCE, ESQUIRE SUITE 200-A 2639 NORTH MONROE STREET TALLAHASSEE, FLORIDA 32303 JANICE PRATHER 3013 BROOKINS ROAD PANAMA CITY, FLORIDA 32405 DAVID PINGREE, SECRETARY DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES 1323 WINEWOOD BOULEVARD TALLAHASSEE, FLORIDA 32301
The Issue The issues raised in this action are pursuant to an administrative complaint brought by the State of Florida, Department of Professional Regulation against the Respondent, accusing him of violations of Chapter 489, Florida Statutes, related to the failure to obtain a necessary electrical permit for work being done in Ormond Beach, Florida, and the further contention that the work demonstrated negligence, incompetency and misconduct in his practice of electrical contracting. The details of that administrative complaint are more completely discussed in the Conclusions of Law.
Findings Of Fact Respondent is a licensed electrical contractor, licensed by the State of Florida, Electrical Contractor's Licensing Board, operating under license number ER0008106. He held that license at all relevant times in this cause and was appropriately licensed by Ormond Beach, Florida, as an electrical contractor in that same time sequence. This case is presented for consideration based upon the administrative complaint identified in the Issue statement and the timely request for formal hearing made by the Respondent. On January 7, 1983, Respondent contracted with Hugh Upton, owner/trustee of Outrigger Beach Club to do certain electrical work, to include the wiring of a whirlpool or jacuzzi to the extent of two pump motors and a blower with associated disconnect switches. Another phase of the agreement had to do with wiring of bathrooms in the area of a swimming pool which is part of the residential complex known as the Outrigger Beach Club. The whirlpool phase of the electrical work to be done by the Respondent did not include lighting for the jacuzzi or timer-switches for the operation of the pumps and blower related to that jacuzzi. The agreement between Respondent and Upton was to the effect that the disconnect switches associated with the work done on the jacuzzi or whirlpool/spa would be installed on the inside walls of the pool pumphouse. Following a disagreement on this aspect of the contract, this matter was clarified in an amendment to the contract proposal entered into on January 27, 1983, between Respondent and Mark A. Shader, another owner of Outrigger Beach Club. That clarification also indicated that timing switches were not included in the project work related to the whirlpool/spa. The work on the bathhouses was in keeping with an electrical permit which had been obtained by the general contractor who was doing other work at the Outrigger Beach Club. No electrical permit was obtained for electrical work which the Respondent did on the whirlpool/spa. This permit was not obtained from the point of view of the Respondent because he was of the opinion that Upton, whom he knew to be the owner, had obtained the necessary permit. Upton had said this to the Respondent. Ormond Beach, Florida Ordinance No. 69-44 Section 13(c) requires that permits be obtained for electrical work done in the City of Ormond Beach and that those permits be obtained by a master electrician. Respondent was aware that the work related to the whirlpool/spa or jacuzzi could not be done without obtaining the necessary electrical construction permit from the City of Ormond Beach. In addition, it is reasonable to assume that he either knew or should have known that a master electrician, such as the Respondent, would need to apply for such permit. Finally, in keeping with the electrical contracting licensing requirements set forth in Section 489.503, Florida Statutes, the only occasion within which an owner could make application for such a permit would be related to single family or duplex residences and the Outrigger Beach Club was not such a residence. In doing the electrical work at the Outrigger Beach Club, the panel box to which the Respondent "tied in" was perceived by him to be a main panel as opposed to a subpanel. His impression was gained based upon the fact that he found neutral and ground wires tied together in that panel box and the fact that he discovered that the panel was bonded to the neutral and ground bars. Respondent thought this was a main panel notwithstanding the fact that there were 20 or 30 breakers within the panel without a main disconnect, which would indicate that it was a subpanel and not a main panel, in that a main panel may not have more than six breakers without having an associated main disconnect. In fact it was a subpanel. In the area of the neutral and ground bars or bussbar in the panel, Respondent attached the green or ground wires related to the pumps and blowers associated with the installation of the whirlpool/spa. These were attached to the top portion or smaller of the two-piece bussbar arrangement. In addition, neutral return white wires related to the blower and one of the pump motors for the hot tub installation were also placed on that top strip of the bussbar, which bussbar was constituted of the two strips with attached wires. Respondent had also run a neutral and a ground wire from the bathhouse work and project site and attached them to the two-strip bussbar arrangement. The bathhouses ground was located on the top bussbar or smaller of the two strips in the bussbar. Other items on this bussbar at the time of Respondent's installation of his wires on the top strip included a neutral white wire related to an overhead light fixture in the pool pumphouse, and a white neutral wire related to a pump motor which was a circulating pump system for the main swimming pool as contrasted with the whirlpool/spa. Thus, the Respondent had tied together neutral and ground wires on the same strip of the bussbar in the subpanel. The City of Ormond Beach by its Ordinance No. 82-34 had adopted the National Electrical Code, and the 1981 edition of the national Electrical Code, which has application at Section 250-23 to this case, prohibits the attachment of neutral and ground wires on a common bussbar in a subpanel. By contrast, such installation is allowed in a main panel per the National Code. With appropriate inquiry, which inquiry was not undertaken by Respondent, he could have ascertained that this was a subpanel and not a main service panel and avoided this violation of the National Electrical Code. Nonetheless, at the time of the matters in dispute, the City of Ormond Beach in its enforcement function, did not require compliance with that provision of the National Electrical Code which would not allow for the placement of neutral and ground wires on a common bussbar in a subpanel. Enforcement of the ordinance commenced after March 5, 1983. In late February, the Respondent was still at odds with Upton on the subject of the placement of the disconnect switches associated with the two pumps and blower, i.e., Respondent desired to place them on the inner wall and Upton wished the placement on the outside wall of the pool pumphouse. Respondent was also concerned that Upon wished to have him undertake work not required by the contract and for which he would not be paid, and expressed further concern to Upton about the safety of some of the wiring within the pool pumphouse. Being unable to resolve this dispute, Respondent sought final approval of the work which he had concluded related to the bathhouses and a partial final inspection by the City of Ormond Beach related to the work which he had done on the whirlpool/spa. Respondent did not return to the project following his conversation with Upton and the request to the City of Ormond Beach building officials. The inspection which Respondent had requested was not performed. A plumbing contractor, Herbert Weems, had been contacted by Upton to perform the installation of the whirlpool/spa proper. He also installed the underwater lighting fixture that was involved in this process to the extent of threading appropriate wires from the preassembled light fixture leaving a stub- out or pigtail for future hookup of electrical power. The general contractor, a Rick Sita, was to pour the concrete apron around the whirlpool/spa in keeping with his contractual responsibility with the owner of the Outrigger. When this decking was poured, Sita had failed to install the handrail to the whirlpool/spa. Consequently, Weems grouted out an area and installed the handrail. No electrical grounding was placed by Weems in the installation of the handrail. At one point in his work, Weems tested the pipes associated with the whirlpool/spa by turning on the motors which Respondent had wired. After the dispute between the Respondent and Upton, Upton hired another electrician, one Daniel Collins, to do other work related to the whirlpool/spa. This work was done on March 2, 1983. It included the installation of timer switches on the outside wall of the pool pumphouse pertaining to the pump motors and blower in the whirlpool/spa. The switches were grounded by the placement of a green wire on the larger section or bottom of the two bussbar strips in the subject panel within the pump poolhouse. This installation of the timer switches was otherwise tied in with the work which Respondent had done in hooking up the pumps and blowers remote from the panel. Collins was also involved with the hooking up of the light in the whirlpool/spa and in doing so, he connected his green wire ground to the green wire grounding conductor which Respondent had placed in the panel to ground the bathhouses. This did not require any installation at the bussbar proper but was a matter of splicing in at a junction box. The hot wire portion of the light fixture was tied in with an existing timer within the poolhouse which dealt with some tree lights on the property. Collins also operated on the assumption that necessary permits had been obtained. When he left the job on March 2, 1983, he was not of the impression that his work was ready for final inspection. A couple of items remained that needed to be attended before such inspection could be done. As with Collins, Weems was not of the impression that the plumbing was ready for final inspection in that a part related to the whirlpool/spa skimmer had not been obtained and the whirlpool/spa was not ready for public use, either from the point of view of the plumbing contractor or Collins, the second electrical contractor. Although he had no reason to believe the whirlpool/spa was ready for public use based upon discussions held with his contractors, Upton conveyed the impression to one J. Sebring, an employee at the Outrigger, that the whirlpool/spa could be used by the public and it was opened on March 4, 1983. On that date, people used the whirlpool/spa to include the handrail. On the next day, members of the Tennison family, a mother and her sons, entered the whirlpool/spa. The two children entered the jacuzzi first, seating themselves in the bucket seats in the apparatus. Their mother went around to the side where the handrail was located and entered the whirlpool/spa while holding onto the handrail. At that time, the circulation pump and associated jets were operating in the whirlpool/spa. When Mrs. Tennison entered the water, she received an electrical shock. One of the sons then left the whirlpool/spa while the other son grabbed his mother's leg and was also the victim of an electrical shock. The two victims were subsequently removed from the whirlpool/spa and the child died as a result of the exposure to the electrical shock. By way of explanation, the smaller strip or top strip in the area of the two-strip bussbar in the pumphouse had become partially dislodged from the larger strip or bussbar. The set screws holding the strips together had loosened. As a consequence, the flow of power related to the running equipment that was connected to the disloged smaller bussbar, either the pool pump motor, pool pump light, or a motor involved with the whirlpool/spa connected to the small buss bar, was no longer involved in a complete circuit, in that 120 volts off the breaker was going through what was then a floating bussbar, the small bussbar, and out the green ground wire associated with the whirlpool/spa light, which originally was placed for the benefit of the bathhouses, through the shell of the whirlpool/spa light that was in contact with the water in the whirlpool/spa, thence into the water through the initial victim onto the handrail and then to ground thus completing the circuit. In effect, the female victim's foot was at 120 volts and her hand was at ground. With the current flowing through her foot, when her son grabbed her, the current went through him and then to ground. Subsequent testing done to arrive at an explanation of why the accident occurred revealed that return voltage from the main pool circulating pump motor that has been discussed, transmitted through the neutral wire to the small bussbar strip did not achieve a ground, it went back out on the green wire which went to the light in the whirlpool/spa before achieving a ground at the whirlpool/spa. Once this phenomenon was observed in the post accident testing, no other tests were made related to neutral wire items found on the smaller bussbar for motors for the whirlpool/spa tub and light in the pool house. Even though the other items were not tested, they could have been part of the accident scenario, since they were in operation when the accident occurred and were of similar electrical function. Whatever the explanation as to the agency which combined with the green grounding wire going from the pool pumphouse to the whirlpool/spa light to cause this problem, the facts are clear that both the Respondent and Collins had left the two bussbar strips attached firmly together and without the green ground wire splicing for whirlpool/spa light which Collins made to the green grounding wire installed by the Respondent to the bussbar from the bathhouses, and the unexplained separation of the bussbar strips, the accident would not have occurred. In this connection, even had the green and white wires been placed in a main panel in series as allowed by the National Electrical Code, had they become separated, in the underlying fact pattern of this case, the accident would have still occurred. Therefore, the implications of mixing these wires on the common bussbar in other than a main panel becomes less significant in terms of the implications of such action.
The Issue Whether the permit Harbor Woods seeks should be denied lest effluent from a sewage treatment plant enter the proposed basin? Whether the proposed project will cause odors and degradation of water quality in contravention of DER standards and rules, as a result of stormwater runoff?
Findings Of Fact On Merritt Island in Brevard County, Harbor Woods owns an 80-acre parcel on the western shore of Newfound Harbor. From the north, Sykes Creek flows into Newfound Harbor, which opens into the Banana River to the south. The parties stipulated that Newfound Harbor, which is navigable, contains Class III waters. Paralleling the northern boundary of the Harbor Woods property is a ditch through which 800,000 gallons or more of effluent from a sewage treatment plant operated by Brevard County pours into Newfound Harbor daily, at a point about 400 feet north of the proposed flushing channel. A mile or so south of the proposed flushing channel is the nearest boundary of the Banana River Aquatic Preserve. PETITIONER'S INTEREST Robert B. Sampson, Carl Seidel and Betty Holcombe have all been boating in Newfound Harbor and expect to use the waters of Newfound Harbor in the future. Ms. Holcombe is an avid angler and has fished those waters often. MAN vs. MOSQUITO At one time an arm of Newfound Harbor extended onto the property Harbor Woods now proposes to develop. As a means of mosquito control, the authorities caused a dike to be built along the eastern edge of the property, wailing off the shallows and interdicting the tidal flow. The impoundment was then filled with fresh water in an effort to keep the bottom covered. The idea was to deprive mosquitoes of mud they need for depositing eggs. The effort was not completely successful, and the area continues to be sprayed with insecticides. The mosquitoes that now breed in the vicinity of the impounded fresh water are capable of transmitting encephalitis and other diseases and constitute a more serious problem than the mosquitoes whose larvae formerly hatched on the salt mud flats. The area of the original impoundment was reduced some time after 1967 by filling in conjunction with development to the north of the Harbor Woods property. PARTIAL RESTORATION PROPOSED Barber Woods, which owns the bottom landward of the dike, proposes to drain the fresh water to an unspecified upland site, uproot some seven and a half acres of cattails, remove the muck, and fill with clean sand so as to reshape the perimeter of the impoundment and its bottom contours; and consolidate four small islands into a single "recreational" island within the newly formed basin, which would only then be connected to Newfound Barber by dredging a flushing channel through the dike. Unplugging the dike would entail removal of about a quarter acre of productive wetlands, mainly mangroves, which would be transplanted inside the basin. The project would improve the property aesthetically and result in more land area for the "mid-rise" condominium buildings Barber Woods intends to erect. Although the project would not restore the site to its precise pro-impoundment state, the proposed basin is designed, in part, to fill the ecological role the pristine embayment once played. The level bottom of the new basin would lie at 1.5 feet NGVD; once the dike was breached, saltwater would fill the basin to a uniform depth of one and one half feet, and spill over to submerge five acres of cordgrass (Spartina alterniflora) which would be planted along the northern and southern shores of the basin. The unplanted bottom of the basin would comprise another five acres. After removing 330 feet of the dike, and in order to insure the movement of water in and out of the basin, a channel 150 feet wide would be dug out into Newfound Harbor 92 feet waterward of the mean high water line. Turbidity curtains would be used during dredging. If the cordgrass and the mangroves, which are to be planted in the same area, take hold and flourish, white mangroves would dominate in five years' time, and the quarter acre strip along the dike which would be lost would then have been replaced by an area twenty times as large. Eventually red mangroves should become dominant. The uncontroverted evidence was that, because of all the new vegetation proposed, the project would ameliorate water quality in Newfound Harbor and provide a new food source, habitat and nursery area for various organisms, including mosquitophagous fish. AMBIENT POLLUTION The objectors raised the question whether any plantings in the new basin could be expected to survive in light of the poor water quality in Newfound Harbor. The waters of Newfound Barber do not meet minimum standards for Class III waters now, and would not be brought up to those standards by any project like the one proposed. Brevard County's Fortenberry Sewage Treatment Facility, the source of the effluent pouring into Newfound Harbor, has been the object of administrative proceedings in which DER has alleged that the facility is discharging excessive amounts not only of nutrients like phosphorous but also of copper, mercury, lindane, and malathion. Petitioners Exhibit No. 4. Excess nutrients in the water would foster, not retard, the growth of submerged plants, but some of the substances DER itself claims are being introduced into Newfound Harbor could be lethal to plants. DER has alleged in a notice of violation that effluent from the Fortenberry Sewage Treatment Facility "is acutely toxic." Petitioners' Exhibit No. 4. Reese Kessler, a DER employee, noted "a six inch layer of black ooze" along the Newfound Barber side of the dike in September of 1981, which, he reported, "Presumably resulted from a recent heavy discharge of sewage effluent." DER's Exhibit No. 2. If constructed as proposed, the basin would exchange waters with Newfound Barber, primarily under the influence of the wind. Southeast winds predominate at the site. When the wind blows from the southeast, a clockwise gyre in Newfound Barber takes the effluent due east from the mouth of the ditch and away from the proposed flushing channel, but a northeast wind would result in sewage effluent entering the basin, if it blew hard enough. Runoff entering the basin from upland would also be a motive force, as would the ebb and flow of the tide, to a lesser extent; the tidal range in the area is on the order of one-tenth of a foot. Ninety percent of the water in the basin would leave it and enter Newfound Barber in 30 days' time, even without any wind. The flushing channel is fairly wide and not much deeper than the surrounding bottom; natural circulation should be enough to keep it clear of siltation. Because water quality in Newfound Harbor is so bad, the water in the proposed basin would also fall below minimum standards for Class III waters. According to uncontroverted testimony, however, the new basin would not cause or aggravate water quality standard violations. The new vegetation would be protected from most boat traffic by being planted in shallow beds. The experts unanimously predicted it would thrive and ameliorate a bad situation. STORMWATER RUNOFF The dike not only keeps the waters of Newfound Harbor out; it also prevents any additional pollution of Newfound Harbor from upland source. Harbor Woods intends to construct parking lots, in conjunction with the multi-story condominium buildings it plans to build around the proposed basin. The precise location and dimensions of the buildings and parking lots have not been decided upon but it is clear that rainwater draining over the parking lots would make its way to the proposed basin and, eventually, to Newfound Harbor. Harbor Woods has proposed to encircle the new basin with grassy swales large enough to hold the first half inch of rain that would otherwise drain directly into the basin. Water overflowing the swales could reach the basin only by passing through a sand filter, which would remove all oil. Gasoline is not ordinarily split in most parking lots and quickly evaporates, in any case. But rain washing over parking lots picks up oils, greases and heavy metals. Bow badly water traversing a parking lot Is polluted depends principally on what the parking lot surface is. The optimal parking surface is concrete block, which allows for some percolation. The first inch of rainfall washes off 90 percent of the substances that pollute runoff The evidence was uncontroverted that the runoff would meet Class III standards before it entered the proposed basin. PROPOSED FINDINGS CONSIDERED Respondent DER filed proposed findings of fact, conclusions of law and recommended order. DER's proposed findings of fact have been considered and in large measure adopted, in substance. To the extent they have been rejected, they have been deemed unsupported by the weight of the evidence, irrelevant, immaterial, cumulative or subordinate.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That DER grant petitioner's application on the conditions proposed and on the additional condition that any parking lots over which draining water would eventually reach Newfound Harbor be paved with concrete block. DONE and ENTERED this 10th day of November, 1983, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of November, 1983. COPIES FURNISHED: Joe Teague Caruso, Esquire Post Office Box 757 Cocoa Beach, Florida 32931 Dennis R. Erdley, Esquire Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 Robert B. Sampson Post Office Box 431 Merritt Island, Florida 32952 Carl Seidel c/o Robert B. Sampson Post Office Box 431 Merritt Island, Florida 32952 Betty Holcombe c/o Robert B. Sampson Post Office Box 431 Merritt Island, Florida 32952 Victoria Tschinkel, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301
Findings Of Fact Petitioner proposes to erect a hyacinth fence at the entrance to Canal number 4 in Lake Istokpoga. The fence will consist of 4' x 4' posts six feet apart extending approximately 100 feet from each marsh bank of the canal toward Lake Istokpoga with an opening at the entrance of 12 to 14 feet to allow boat access. The fence will be attached to these 4' x 4' posts and extend about 2 feet below the surface of the water to prevent hyacinths from entering the canal and blocking navigation. Three other canals leading into Lake Istokpoga have been equipped with hyacinth fences and to date no problems have occurred. The fence does not extend to the bottom of the lake, is of a type approved by DER and will not materially effect the movement of water into and out of the canal. There is less water turnover in the canals than in the lake. This results in the canals having less oxygen than the lake and therefore are in a more stressed condition. As a result, from an ecological point of view, it is preferred to keep the hyacinths in the lake as opposed to the canals. Hyacinths which die and sink to the bottom take from the water oxygen that is needed to sustain aquatic life. From a navigational standpoint the 12 to 14 feet opening in the proposed fence is adequate for the boats that use the lake and canal. Erection of the fence will have no adverse effect on the ecology or biological resources of the area, and will result in keeping out many hyacinths that otherwise would enter the canal.
The Issue Whether Respondent violated Subsections 481.325(1)(g), 481.325(1)(j), 481.325(1)(k), and 455.227(1)(a), Florida Statutes (2001), and, if so, what discipline should be imposed.
Findings Of Fact At all material times relevant to this proceeding, Maestre was licensed as a landscape architect in the State of Florida, having been issued license number LA 00001744. Maestre provided landscape architectural services through Tropicare Landscape, Inc. (Tropicare). Tropicare has never possessed a certificate of authorization for the practice of landscape architecture in the State of Florida. Stephen Kidd (Kidd) and his wife Jaqueline Hansen (Hansen) contacted Maestre to help them with a landscaping project in their backyard. Hansen found Maestre using the yellow pages in the telephone directory. Maestre came to the Kidd/Hansen residence sometime in June 2001 to discuss the project. Hansen provided Maestre with a sketch for the design of the project, which included a deck, a koi pond, a stream, and a waterfall. Hansen paid Maestre $40 for the consultation, although she and Kidd understood that the initial consultation was to be free. On June 15, 2001, Kidd and Hansen entered into a contract with Maestre for landscape architectural design services. The cover letter which accompanied the contract was on Tropicare letterhead. The contract provided that Maestre was to "examine surrounding conditions, locate and identify all existing amenities for the purpose of producing the necessary site plan." After the owners approved the preliminary phase, Maestre was to prepare working plans, which were to include the following: Planting: Shall name quantity and size all plantings {proposed & existing}, as well as depicting all proposed site amenities (sitting areas, walkways/deck, pond . . .) for various areas of the project site. Lighting: This plan shall show the location and type of light fixture to be used as decorative landscape lighting. Wiring and routing of electrical circuits are not part of this plan. If practical, this information will be depicted on the captioned planting plan. Layout & Details: As required, for all proposed hard-scape items referenced above, and such elements of the design solution proposed, shall be provided as needed for construction. The contract provided that Maestre may provide other services as requested by the owners such as obtaining subcontractor bids and making changes to completed working drawings. Maestre's role during the project installation was set forth in the contract as follows: Upon authorization of budgets & estimates by Owner, Tropicare Landscapes, Inc., shall implement and contract the Project, as phased by the Owner. The Landscape Architect shall oversee all work in progress. [50% of the Professional Fees disbursed by Owner as shown in Section II.b, shall be credited appropriately towards project installation.] Maestre's hourly fees were to be billed at $45 per hour for the preliminary work and other services and $65 per hour for the working plans. Hansen and Kidd provided Maestre with a copy of the deed restrictions for the subdivision in which the Kidd/Hansen residence was located. Kidd and Hansen received a statement from Maestre dated June 26, 2001, for $287.50, which represented 3.5 hours for site analysis and conceptual plan at $45 per hour and two hours for working drawings and base sheets at $65 per hour. Hansen paid Maestre $300 based on this statement. On his second meeting with Hansen, Maestre provided her with a conceptual plan, which was similar to the drawing that Hansen had originally provided to Maestre, except that Maestre had included gravel in some open areas where Hansen had wanted sod. Maestre sent Kidd and Hansen a statement dated July 5, 2001, for $393.75, which represented 6.25 hours for working drawings of the layout and planting design. Hansen paid Maestre $400 based on this statement. Kidd and Hansen provided Maestre with a copy of the survey of the property after the first site plan was completed. Maestre sent a statement to Kidd and Hansen dated July 10, 2001, in which he charged them $2,391.25, representing a project implementation deposit of $2,115 and 4.25 hours for working drawings for a new layout. Hansen paid Maestre $3,000 based on this statement. By letter dated July 11, 2001, Maestre advised Kidd and Hansen that the $2,115 deposit would be applied toward implementation of the project and that 50 percent of the professional fees paid for the working drawings would be credited toward project implementation. By statement dated July 23, 2001, Maestre charged Kidd and Hansen $650 for the working drawing of the final plan, representing ten hours of work. Hansen paid Maestre $650 based on this statement, bringing the total amount paid to Maestre to $4,390. By mid-August 2001, Hansen became nervous because no physical work was being done on the project. Maestre had not given her a project schedule, and she was uncomfortable with his work on the project. On August 20, 2001, Hansen advised Maestre by telephone that she and her husband no longer desired to continue with the project due to their financial circumstances. Kidd and Hansen were not having financial problems, but Hansen did not want to tell Maestre that they did not trust him. By letter on Tropicare letterhead dated August 20, 2001, Maestre advised Kidd and Hansen that the deposit that had been made for the installation had been applied towards an oriental wooden bridge and bamboo plants. Neither the bridge nor the purchase of the bamboo had been authorized by Hansen or Kidd. The letter included a statement of the costs for the bamboo and bridge and for six hours of additional services for meeting with potential subcontractors and for blueprints. The charge for the bamboo was $2,016, and the charge for the bridge was $372.80. As of the final hearing, Kidd and Hansen have not received either the bridge or the bamboo. By letter dated August 22, 2001, Hansen and Kidd advised Maestre that they were terminating the contract and wanted their money returned minus the money that had been paid for the plans. The correspondence and statements from Maestre to Kidd and Hansen were either on Tropicare's letterhead or a hybrid letterhead which showed both Maestre and Tropicare. It is clear that Tropicare was offering landscape architectural services with Maestre as the registered landscape architect. Maestre produced a layout plan dated August 2, 2001, and a plan with a plant list and construction notes (plant plan) dated June 5, 2001, with revisions on July 10 and 23, 2001. The plans were not in conformance with the deed restrictions for the subdivision in which the Kidd/Hansen residence is located. The deed restrictions required that "no structure of any kind, including but not limited to dwellings, garages, swimming pools, and screened cages, shall be erected nearer . . . than 8 feet from any side lot line, nor nearer than 15 feet from the rear lot line of any lot." The planting plan last revised on July 23, 2001, shows a mansard screened enclosure with eight-foot set backs from the rear lot line and a side line. The layout plan shows a setback of less than five feet from the mansard enclosure and the rear lot line. Both plans are in violation of the deed restrictions which require a 15-foot set back from the rear lot line. The waterfall structure has a five-foot set back from the rear lot line on the layout plan and an eight-foot set back on the planting plan. Both plans are violations of the deed restrictions requiring a 15-foot set back. The planting plan should contain the common names and the botanical names of the plants to be used in the project. The planting plan prepared by Maestre did not contain both the botanical and common names of the plants. The planting plan should specify the size, spacing, quality, and quantity of the plants. Maestre's planting plan did not specify the size, spacing, quality, or quantity of the plants to be used. The inadequate plant and planting specifications would not have permitted contractors to bid appropriately in the interests of Kidd and Hansen. Maestre's plans should have included specifications of location or of the type, size, and spacing of beams, joists, decking, and fasteners necessary for the construction of the deck structure. The plans prepared by Maestre did not include this information, which would be necessary to bid the deck portion of the project. Plans for water features such as the waterfall for the Kidd/Hansen residence should consider spray height or water fall, free board and operating water levels, water depth, water level and wave action, pool shape, color, materials for pipes and fittings, water volume and pressure, pump sizing, pump types and filtration systems. Maestre's plans did not specify or inadequately specified the characteristics of water flow, the water depth of the pond, pool shape, weir elevations, height of the waterfall, waterfall structure and components, pumping requirements, characteristics of the piping, and pump specifications. Maestre's plans for the deck were inadequate. The plans did not include specifications or details such as type, size, and spacing of beams, joists, decking, and fasteners for the construction of the deck structure. Additionally, the plans did not include the type of deck finish that would be applied after construction. The plans were inadequate in that they did not show how the bamboo screens were to be constructed or the height of the structures. This information would have been necessary to bid the bamboo structure portion of the project. Maestre met with potential subcontractors. The evidence does not clearly and convincingly show that these meetings were improper. However, Maestre did improperly charge Kidd and Hansen for the time he spent meeting with the subcontractors. Maestre charged Kidd and Hansen six hours for meeting with potential subcontractors at the rate of $65 per hour. The contract specified that the rate for such services was $45 per hour.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Manny F. Maestre violated Subsections 481.325(1)(g) and (j), Florida Statutes (2001); finding that he did not violate Subsections 481.325(1)(k) and 455.227(1)(a), Florida Statutes; imposing an administrative fine of $1,000 for a violation of Subsection 481.325(1)(g), Florida Statutes; imposing an administrative fine of $1,000 for a violation of Subsection 481.325(1)(j), Florida Statutes; issuing a written reprimand; and imposing two years of probation with conditions as the Board of Architecture and Interior Design deems necessary. DONE AND ENTERED this 23rd day of February, 2004, in Tallahassee, Leon County, Florida. S SUSAN B. KIRKLAND 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 23rd day of February, 2004. COPIES FURNISHED: Manny F. Maestre, Jr. Post Office Box 20816 Bradenton, Florida 34204 Charles J. Pellegrini, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 Nancy Campiglia, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202 Sherry Landrum, Executive Director Board of Architecture and Interior Design Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact Antonios Markopoulos, Appellant, applied for seven variances on property located at 200 Coronado Drive, Clearwater, Florida, to allow the construction of a 7 to 9 story parking garage covering the property from lot line to lot line. The property in question is a 95 feet x 105 feet parking lot adjacent to a hotel, shops and restaurants owned by Appellant. The first waiver requested was of the minimum lot size of 150 feet on which to build. Since this property was unique in that regard and could never attain the 150 feet minimum dimension, the Board granted that variance. The other six requests for variances involved setbacks and open space requirements. Appellant proposes to build a parking garage with two elevators to lift cars to the various parking levels with the building extending to the lot lines in all four directions. The hotel, restaurants and stores located at this site and owned by Appellant are nonconforming uses. The hotel has 86 rooms and if built today would require a minimum of 86 parking spaces. The stores and restaurants would require additional parking spaces that are now not available. Appellant proposes to construct a garage with approximately 340 parking spaces which he contends are the minimum needed to provide adequate parking for patrons at the hotel, stores and restaurants. At the hearing before the Board, Appellant contended that the parking garage would also serve to relieve parking problems at other establishments in the vicinity. Appellant proposes to have parking customers drive up a ramp through a ticket machine which will dispense a ticket which can be validated at the hotel, restaurants or shops. The car will then be parked by attendants who will drive the car onto an elevator to lift the car to a floor with parking space. This clearly indicates that Appellant is proposing to construct a parking garage which will be open to the general public. Appellant presented testimony that if the setbacks required by the Code were followed on all sides, there would be insufficient square feet per floor to make the parking garage financially feasible. He also presented testimony of the City of Clearwater Traffic Engineer to the effect that construction of a parking garage at this location would not create a traffic problem. Although most, if not all, of the property surrounding Appellant's property are nonconforming with less setbacks than are required by the existing code, none of these properties have been covered lot line to lot line with a structure or structures. The primary emphasis of the evidence submitted by Appellant is that there is insufficient parking at Clearwater Beach, and erection of a parking garage will do much to alleviate this problem.
Findings Of Fact David Gangelhoff operates a boat sales and service facility on property he owns at 405 North Fort Harrison Avenue. This property is divided into two parcels by Hart Street, which dead end at the back of a building facing North Fort Harrison. For the past few years the Appellant has been buying lots in two parcels separated by Hart Street and intends to acquire all the lots in the entire two blocks. After acquiring all of the lots he proposes to request the City to vacate Hart Street. Appellant currently owns the property abutting both sides of Hart Street and the setback requirements for Hart Street will disappear if the City abandons its right- of-way over Hart Street. Building and zoning regulations require a 17' 3" side setback on a building siding on Hart Street, a 3' buffer zone between parking and the property line, landscaping in the 3' buffer zone between the parking area and the north property line, and a 3' setback in the fence parallel to the south property line along Hart Street. Variances (1) and (4) involve the property line abutting Hart Street and variances (2) and (3) involve the north property line of the property where parking is to be provided. Appellant apparently stores some of his boats in an open area toward the back of the property. He proposes to erect a one-story building on a portion of the property north of Hart Street and to construct the south side of this building one foot from the property line abutting Hart Street. This will provide more inside storage. A proposed canopy area along the main building on the north side of the property is to be used for additional storage and to provide better security in the high crime area in which this business is located. The property is zoned CG. The variance in setback in buffer zones for landscaping which are requested by Appellant are such that practically no setback would remain nor would there be a buffer zone if the variances are granted. Allowing Appellant use of his property to the boundary lines would be beneficial to Appellant's business as it would provide a better facility with more enclosed space to provide security for the boats and equipment. No evidence was presented that other property owners in the vicinity have been granted variances similar to those denied to Appellant or that the special conditions and circumstances exist which make this property unique so that denial of the variance would create an undue hardship on the Appellant.
The Issue Whether Petitioner, Gateway Farms, LLC, is entitled to payment from Landscape Service Professionals, Inc., and the Gray Insurance Company, as Surety, pursuant to sections 604.15 through 604.34, Florida Statutes (2015), for the purchase of trees; and, if so, in what amount.
Findings Of Fact The Parties Gateway is a producer and seller of agricultural products, including slash pine trees. Gateway operates tree farms on 200 acres in five different locations in Columbia, Alachua, and Suwannee Counties. David Hajos is the owner and principal operator of Gateway. Mr. Hajos has 17 years of experience in growing, harvesting, and selling pine and other species of trees in Florida. Respondent Landscape is a Florida licensed dealer in agricultural products, pursuant to chapter 604. Landscape is a full-service landscape business located in Tamarac, Florida. Sandy Benton has been the president of Landscape for 18 years. Respondent, Insurance Company, filed a denial of the claim and was represented at hearing by Landscape’s counsel. Gateway has been doing business with Landscape for many years, with no indication of prior problems relating to the quality of trees provided. Lynn Griffith, Landscape’s plant and soil expert, considers Gateway to be a competent and professional grower. The Setting At all relevant times, Landscape was a contractor responsible for installing landscaping at the Palm Beach County Solid Waste Authority (SWA) site on Jog Road in Palm Beach County, Florida. Pursuant to orders placed by Landscape, Gateway sold a total of 148 slash pines for use at the SWA site. The invoices for those pines are dated January 22 and 23, and February 9 and 16, 2015. Upon their arrival at the site, authorized personnel of Landscape received, inspected, and accepted the 148 slash pine trees. No problems or concerns were expressed regarding the delivery or condition of the slash pines. The Dispute Giving Rise to this Proceeding Between 20 and 30 of the trees ordered from Gateway were intended as replacement trees for the approximately 150 slash pines provided by six other vendors that had been planted by Landscape, and then died. When the dead trees were removed by Landscape, pine beetles were observed infesting the trees. Within several weeks of planting, 58 of the slash pines purchased from Gateway began to show signs of decline, resulting in their eventual death. Landscape consulted with the Palm Beach County Extension Service and industry professionals as to the cause of the death and decline of the slash pine trees, who undertook an investigation into the same. Slash pine trees are very sensitive and can be easily stressed. Stress can be caused by a variety of factors including: transplanting; harsh handling; bark exposure to sunlight, including superficial wounds to the bark; too much or too little water; or planting too deeply. The stress will cause a tree to emit chemicals that attract beetles, which inhabit the trees and may kill a stressed tree within a week or two of the infestation. In March 2015, Lynn Griffith, an agricultural consultant, conducted an SWA site visit. Mr. Griffith noted that a majority of the planted pines were healthy, but there were some that were not doing well; some had holes in them indicative of a pine beetle infestation. In his report dated March 12, 2015, Mr. Griffith opined on the impact of the ambrosia (pine) beetle infestation on the slash pines: The quantities of boreholes in some of the dead or declining pines would lead me to conclude that borers could be a primary cause of death, but in other cases the number of holes was low, indicating the pine decline was initiated by other factors. In an e-mail dated April 24, 2015, Ms. Benton advised Gateway (and JWD Trees, another supplier of slash pines to the SWA site) that the cause of the death and decline of the slash pine trees were because the two suppliers failed to properly prepare them in the nursery, and had sold them to Landscape with root systems inadequate to support the normal performance of the plant. At hearing, Ms. Benton’s opinion regarding the cause of death of the pines was echoed by John Harris, accepted as an expert in landscape economics and arborism. Mr. Harris’s opinion centered on only one possible explanation for the trees’ demise: a failure to have an adequate root system or an inability of the roots to generate new growth. Typically, this is caused by improper “hardening off” of the root system by the grower. However, on cross-examination, Mr. Harris acknowledged that while pine beetles typically infest stressed trees, if the beetle population builds up enough in an area they will attack otherwise healthy trees. At hearing, Mr. Hajos testified that the pine trees he supplied to Landscape had been properly hardened off for a period of six weeks: Hardened off is a process when you dig a tree and you hold it until it starts to regenerate new roots, so instead of just digging it up and selling it we dig it up and hold it under optimal irrigation and nursery conditions before we ship the tree. Mr. Hajos further testified that any trees that are going to die due to the stress of being dug out of the ground will die during the hardening off process. Mr. Hajos attributed the death of the Gateway trees to several factors, including stress caused by improper lifting of the trees during loading and unloading, stress caused by a delay in planting the trees after they arrived at the SWA site, and the pre-existing pine beetle infestation. Mr. Hajos examined a photograph received in evidence and explained that it showed a tree being improperly lifted by Landscape personnel during unloading. The photograph showed the strap around the tree trunk doing the primary lifting. The result is that rather than distributing the pressure between the trunk and the strap on the root ball, the root ball will be loosened, which will stress the tree. Mr. Hajos testified that he was aware that the Gateway trees that had been delivered to the SWA site were left on the ground for days before being planted. This testimony was corroborated by Landscape’s Daily Job Report log which reflected the delivery of the first load of Gateway pines to the SWA site on January 23 and 24, 2015, but that planting of those trees did not begin until January 29, 2015. On one occasion, a Landscape truck that had picked up trees from Gateway, broke down in Ocala on its return trip to Palm Beach County and had to return to the Gateway site in High Springs. There, the trees were unloaded, and then reloaded onto a different truck where they were delivered two days later to the SWA job site. This inordinate delay and additional loading and unloading further stressed the trees. Once Landscape became aware that it had a beetle infestation at the SWA site, it began a preventative spray program. However, once a pine beetle has entered the bark of a pine tree preventative spraying will be ineffective at eradicating the pest. Newly planted pine trees at the SWA site were not sprayed on the day of planting, thereby providing the pine beetles an opportunity to infest the new trees. Guy Michaud was Landscape’s job foreman at the SWA site. Mr. Michaud has been in the business of planting trees since 1983, and has worked for Landscape for 14 years. Mr. Michaud could not testify with certainty that the Gateway trees died of inadequate roots, as opposed to a beetle infestation. None of the other species of trees sold by Gateway for use at the SWA site experienced problems. Based on the totality of the evidence, it is more likely than not that a combination of factors contributed to the SWA slash pine deterioration, including delays in planting the trees after delivery, rough handling, and the beetles. None of these causes are attributable to the actions of Gateway. Likewise, the greater weight of the evidence does not support a conclusion that the trees sold by Gateway to Landscape were non- viable nursery stock. Subsequent to filing its claim in the amount of $13,462.30 with the Department, Gateway received a payment of $5,528.84 from Landscape. Thus, the unpaid balance due Gateway for the 58 slash pines is $7,933.46. Gateway is entitled to payment in the amount of $7,933.46 for the slash pine trees it provided to Landscape. Besides the amount set forth above, Gateway claims the sum of $50.00 paid for the filing of the claim against Landscape and its bond. The total sum owed to Gateway by Landscape is $7,983.46.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Department of Agriculture and Consumer Services approving the claim of Gateway Farms, LLC, against Landscape Professional Services, Inc., in the total amount of $7,983.46 ($7,933.46 plus $50 filing fee); and if Landscape Professionals Services, Inc., fails to timely pay Gateway Farms, LLC, as ordered, that Respondent, The Gray Insurance Company, as Surety, be ordered to pay the Department of Agriculture and Consumer Services as required by section 604.21, Florida Statutes, and the Department reimburse the Petitioner as set out in section 604.21, Florida Statutes. DONE AND ENTERED this 18th day of March, 2016, in Tallahassee, Leon County, Florida. S W. DAVID WATKINS 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 18th day of March, 2016.
