Findings Of Fact The Respondent Dennis Soucek is a licensed dentist in Florida. On April 11, 1981, Ms. Elaine Yarbrough consulted the Respondent Soucek concerning dental treatment for extreme protrusion of her four front teeth. The Respondent and Yarbrough discussed various treatment plans including fixed and removable prostheses and orthodontics. On June 23, 1981, the Respondent Soucek extracted Yarbrough's four protruding teeth and provided her with a temporary bridge. The Respondent intended for Yarbrough to wear the temporary appliance until her gums had receded sufficiently to receive a permanent fixed bridge. In normal cases, a six-week period is advised after extraction and before impressions are taken for a permanent bridge to allow gum recision to take place. In this case, however, the Respondent allowed a period of approximately three months to transpire before the permanent impression was made. The added period of time was taken by the Respondent as a precautionary measure due to the extreme protrusion which was present in Yarbrough's mouth prior to the extractions. However, notwithstanding the three-month period, Yarbrough's gums continued to recede after the impressions were made and the bridge was installed, which caused a pronounced ledge to form around the gum line and the pontics. Approximately two months after permanent placement of the bridge, Yarbrough returned to the Respondent's office and asked him to solve a problem that had developed of air entering under her bridge. The Respondent attempted to solve the problem by using a porcelain repair kit. When the Respondent could not get the kit to properly bond to the teeth, he suggested to Yarbrough that more time be allowed for the unforeseen shrinkage to end before further repair attempts were made. The Respondent never saw Yarbrough again after this final visit. The Petitioner's expert, Dr. Mervyn Dixon, D.D.S., who examined Yarbrough, was primarily concerned that the pontics installed by the Respondent showed poor adaption to tissue in that the gingival facial aspect of the pontics exhibited the "heavy ledge" referred to previously and that the labial tissue surfaces of the central pontics were pressing against the incisive papilla to the extent that there was a blanching due to lack of circulation. Additionally, Dr. Dixon testified that it is not acceptable to use filling material to repair a new bridge.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That a Final Order be entered by the Board of Dentistry finding the Respondent Soucek guilty of violating Section 466.028(1)(y), Florida Statutes (1981) in his treatment of the complainant, placing him on probation until such time as he furnishes evidence of completion of thirty (30) hours of continuing education in bridge work, and imposing a $1,000 administrative fine. DONE and ORDERED this 24th day of June, 1983, in Tallahassee, Florida. SHARYN L. SMITH, 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 24th day of June, 1983. COPIES FURNISHED: Julie Gallagher, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Hugh Maloney, Esquire PATTERSON & MALONEY 790 East Broward Boulevard Post Office Box 030520 Fort Lauderdale, Florida 33303 Fred Varn, Executive Director Florida Board of Dentistry Old Courthouse Square Building 130 North Monroe Street Tallahassee, Florida 32301 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 ================================================================= AGENCY FINAL ORDER ================================================================= DEPARTMENT OF PROFESSIONAL REGULATION BOARD OF DENTISTRY DEPARTMENT OF PROFESSIONAL REGULATION Petitioner, vs. CASE NOS. 0024080 (DPR) 82-2947 (DOAH) DENNIS SOUCEK, D.D.S., Respondent. /
Findings Of Fact Peter C. Swebelius, Sr., holds certified residential contractor's license no. CRC005629. On or about February 12, 1975, Mrs. Betty Banko and Andrew Banko, of Cardinal Boulevard and Major Street, Daytona Beach, Florida entered into a contract with Peter C. Swebelius for the construction of a home at a cost of $42,496.19 (See Petitioner's Exhibit 1). The contractor agreed to construct a Nobel Home package 7365-B (a prepackaged home) as the second floor of a conventionally constructed first floor, as per revised plans drawn by Luis C. Geil and submitted by Schutte-Mochan, Inc. The licensee agreed to complete construction within sixty (60) days, subject to an extension of time for strikes, accidents or delays beyond the licensee's control. Licensee agreed to construct the home according to the specifications and cost estimates submitted to First Federal Savings and Loan Association of New Smyrna, who arranged construction financing. Luis C. Cell, the manager of the architectural firm who drew the Banko's house plan testified that flashing, a moisture barrier, should have been used to prevent vapor and water leakage from the first and second floors. He further testified that while the plans called for a metal flashing, other flashing such as felt paper would have been acceptable John H. Swebelius, the carpenter employed by Peter C. Swebelius testified that he installed black felt paper as a flashing and vapor barrier for the second floor around the entire home. He testified that in view of the fact that the Banko home was constructed by component and conventional methods, the contractor had to improvise in many areas in order to construct an acceptable home based on the plans submitted. He further testified that while the plans called for a step or spread footers for the floor, the specifications submitted to the lending institution called for a monolithic slab which was, in fact, used in this case. He testified that when there is a conflict between the written specifications and the plans, the written specifications control. Robert G. Howard, an architect registered since 1968 testified that the drawing plans submitted by the Banko's were incomplete. For this reason, he testified that a great deal of discretion was given to the general contractor and that it was common practice in the building trades that specifications govern plan drawings in the event of a conflict He therefore voiced his opinion that the contractor committed no wrong by utilizing a monolithic foundation as opposed to a spread footer foundation based on the conflicts. While he admitted that a written change order would have been a better procedure, he also stated that this procedure is seldom used in a single family dwelling Respecting the shape of the chimney which was upright with no curvatures, he stated that was merely a design preference and based on the overall design plan, the upright shape did not, in any material way, alter the salability or design of the Banko home Roy E Ransom, the mason contractor for the Banko residence, testified that Mrs. Banko visited the construction site frequently and voiced no complaint regarding the chimney. Evidence adduced during the course of the hearing revealed that during the construction of the Banko residence, heavy rainfall occurred and that in this regard, approximately 72 inches of rain fell during the time the Banko's home was under construction (See Respondent's Exhibit 6). Peter C Swebelius therefore offered his opinion that the water leakage problem resulted from standing rain which entered the Banko residence through a threshold, a problem which has now been corrected He testified that due to Mrs. Banko's directions to the lending institution to halt all construction draws, he was unable to complete the home and in essence that he was fired from the project. Arthur Eiland, an inspector for Volusia County testified that the Banko home was given a final inspection on April 22, 1977, and at that time, there were no deficiencies and in fact the house passed the inspection He further testified that this was the first final inspection request by Mrs. Banko and that no violations exist at this time. He testified further that when Mrs. Banko requests a certificate of occupancy, it will be issued by the building inspection department.
Recommendation Based on the foregoing findings of fact and conclusions of law, I hereby RECOMMEND: That the Respondent be issued a written reprimand for his deviation of the building plans respecting the chimney design in his construction of the Banko residence. RECOMMENDED this 29th day of July, 1977, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Barry Sinoff, Esquire 1010 Blackstone Building Jacksonville, Florida 32202 Paul Hagglund, Esquire 1055 North Dixie Freeway Post Office Drawer J New Smyrna Beach, Florida 32069 ================================================================= AGENCY FINAL ORDER ================================================================= BEFORE THE FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD, Petitioner, vs. DIVISION OF ADMINISTRATIVE HEARINGS, DOCKET NO. 76-784 PETER C. SWEBELIUS, SR. CR C005629, Route 1, Airport Road, New Smyrna Beach Florida 32069, Respondent. /
The Issue The issue in this administrative proceeding is whether the Florida Department of Transportation’s ("DOT" or "the Department") denial of Petitioner’s, Network Engineering Services, Inc. d/b/a Bolton Perez & Associates ("BPA"), 2019 application for qualification pursuant to section 337.105, Florida Statutes, and Florida Administrative Code Chapter 14-75, was for good cause due to Petitioner’s participation in the construction of the Florida International University ("FIU") City Prosperity Project ("FIU Bridge project").
Findings Of Fact DOT is the state agency responsible for coordinating the planning, construction, and maintenance of a safe, viable, and balanced state transportation system. DOT relies on qualified contractors and professional consultants to provide services for Florida’s transportation needs. Section 287.055(3), Florida Statues, requires that any firm or individual desiring to provide professional services to a governmental agency must first be certified by the agency as qualified, pursuant to law and the regulations of the agency. The agency must find that the firm or individual to be employed is fully qualified to render the required service. Among the factors to be considered in making this finding are the capabilities, adequacy of personnel, past record, and experience of the firm or individual. Each agency is also required to evaluate professional services, including capabilities, adequacy of personnel, past record, and experience of the firm or individual. Section 337.105 and Florida Administrative Code Chapter 14-75 also governs the qualifications of professional consultants and other contractual services providers to DOT. Section 337.105 authorizes DOT to deny or suspend an application for qualification based upon a determination of "good cause," which includes, but is not limited to, nine illustrative examples specified in section 337.105(1)(a)–(i). DOT may, for good cause, deny or suspend for a specified period of time a person or firm from consideration for award of a professional service contract for a particular type of work. BPA is a multidiscipline engineering firm specializing primarily in transportation related engineering services, including bridge design, roadway design, civil works, construction engineering inspection ("CEI"), and program and construction management. At the time of the hearing, BPA had approximately 38 employees. BPA was formed by Joaquin "Jake" Perez, P.E., and John Bolton, P.E., in 1997 to provide transportation-related engineering services. BPA’s CEI qualifications are independent from, and do not necessarily mirror, BPA’s design qualifications. In some instances, BPA was qualified to serve as a CEI for categories of structures that the firm was not qualified to design. This is because BPA was internally divided into two core groups: design and CEI. Since inception, BPA’s design group was and continues to be headed by Mr. Perez, and the CEI group headed by Mr. Bolton. The operations of BPA’s CEI and design groups were completely segregated within the firm. CEI personnel did not work on design projects, and design personnel did not work on CEI projects. As President, Mr. Perez was involved in pursuing contracts for CEI services, but CEI services were provided only by CEI personnel. In or about 1999 or 2000, BPA first became qualified to respond to DOT’s request for qualifications to provide professional services to DOT. Mr. Bolton qualified the firm to provide CEI services, and Mr. Perez qualified it to provide design services. BPA remained qualified with the Department on an annual basis for both CEI and design work for nearly 20 years until July 2019. At that time, DOT issued a NOID removing BPA from consideration for award of professional service contracts with DOT for 2019- 2020. DOT issued the NOID based solely upon a report issued by OSHA and the investigation of NTSB regarding the collapse of the FIU Bridge project on March 15, 2018. THE FIU PEDESTRIAN BRIDGE PROJECT In 2014, DOT entered into a Local Agency Program ("LAP") Agreement with FIU for its pedestrian bridge project, a Category II, complex bridge, that would be constructed along Southwest 109th Avenue and Southwest 8th Street in the City of Sweetwater, Florida (the "project"). As the supervising agency of the LAP program, DOT was responsible for supervising and authorizing work by the local agency. The design of a Category II structure required an independent peer review by a firm with no other involvement in the project, which was prequalified with DOT. In September 2016, FIGG Bridge Engineers, Inc. ("FIGG"), the Engineer of Record ("EOR") for the project, hired Louis Berger to review FIGG’s plans for bridge foundation, substructure (end bents and center tower), and superstructure. Those plans included construction sequencing (including construction sequence drawings), the covered main span pre-casting, transport of main span, and placement of the main span between end bent 1 (south pier) and the pylon pier. The plans also included the post-tensioning stressing and destressing sequences. As the Local Agency, FIU was in responsible charge of the day-to-day activities, including project safety issues. Alfredo Reyna, P.E., was the Department’s LAP Coordinator for the project. Mr. Reyna is a licensed professional engineer, although he is not a structural engineer. In January 2016, FIU entered into a design-build contract1 with Munilla Construction Management, LLC ("MCM"), to design the bridge and to perform all work and furnish all materials, equipment, supplies, and labor necessary to construct the project. The bridge was designed by FIGG, a member of the MCM design-build team and the EOR. FIGG is a reputable designer who has been recognized internationally for its work. FIGG has experience in designing complex bridges, such as the Sunshine Skyway Bridge near Tampa, Florida. On September 23, 2016, FIU entered into a Standard Professional Services Agreement with BPA for CEI services (the "CEI Contract"). At the 1 The interaction of the local agency, contractor, designer, EOR, DOT, and the CEI is different between a "conventional" and a "design build" bridge project. In a conventional project, the designer is hired by DOT or owner to create a new bridge. The design goes through a review process at DOT and a final set of plans goes to bid for a contractor. By the time the contractor is selected, the EOR has completed the plans. The EOR is essentially "on call" for the construction phase of the project because the design work is complete. The CEI begins its work when the contractor begins construction. If there is a question in the field, the CEI makes a request for information from the EOR. DOT supplies design and construction managers throughout the process. In contrast, for a "design build" project, the owner has a conceptual plan for the project. The designer and contractor bid for the job based on the preliminary conceptual plan. The Designer/EOR and contractor work hand in hand from the beginning of the project and are in constant communication. The CEI begins work when the contractor starts work on the project. The CEI facilitates the resolution of any issues between the EOR/designer and the contractor who continue to plan throughout the duration of the project. Like a conventional build project, DOT has construction managers and design project managers involved from the beginning of the project. If concrete cracking occurs, it is the CEI's obligation to document the cracking and speak to people in the process who can assess and address the cracking. For a conventional build bridge, if cracking is observed, the CEI documents it, copies DOT, and sends it to the EOR for assessment. The EOR provides an assessment by conducting a site visit. The EOR then prepares an Engineering Assessment Report (EAR) for the project team. In a design build bridge job, if cracks are observed, they are documented by the CEI who notifies the EOR. The EOR, who is already on the job site, assesses the cracks and works with the contractor to devise a solution. time, John Bolton was the CEI qualifier for BPA. As CEI, BPA was to act as the liaison between the project owner (FIU) and the contractor (MCM). The CEI handles quality control, materials, schedules, payments, documents the entire process, and monitors the project. Jose Morales, P.E., worked under John Bolton as the Senior Project Engineer for the project. Mr. Morales first obtained his professional engineer’s license in 2006. He had approximately 12 years of CEI experience at the time of the collapse. Although he was the Senior Project Engineer for the project, Mr. Morales had little-to-no design experience. Mr. Morales was first involved in the early stages of pursuing the CEI Contract for the project. After the project was awarded, BPA was not involved in the design phase, but was later brought back into the fold beginning in October 2016, when BPA received the Notice to Procced and fully staffed its CEI scope of services when construction was scheduled to begin in or about March of 2017. The "Scope of Services" section (Exhibit B) to the CEI Contract required BPA to be prequalified with the Department in the following work categories: Work Type 10.1--Roadway CEI; Work Type 10.4--Minor Bridge and Miscellaneous Structures CEI; and Work Type 10.5.1--Major Bridge CEI- -Concrete. For the FIU bridge project, Categories 10.1 and 10.4 were considered to be the "major" type of work while 10.5.1 was considered to be the "minor" type of work. As expressly permitted by the Standard Professional Services Agreement, BPA satisfied the 10.5.1 prequalification requirement through its sub-consultant, The Corradino Group, Inc. ("Corradino"). BPA’s scope of services for the project did not include any design responsibilities. BPA performed constructability review of the plans as part of its CEI scope of work, but it did not review the plans or drawings on a technical level. The FIU bridge was a Complex Category II structure as defined by the Department’s Design Manual. The structure had a unique, complex design that was meant to be a signature, architectural feature for the area. The relevant construction sequence for the main span (Span 1) of the FIU bridge consisted of: casting the main span superstructure in the casting yard; installing post-tension bars in the diagonal and vertical members of the structure; stressing of the main-span post-tensioning while the main span is in the casting yard; removing the temporary formwork and supports; transporting the main span from the casting yard using a self- propelled modular transporter and placing the structure in a "simply supported" condition on the south pier and pylon pier; and de-tensioning truss members 2 and 11. Generally, cracks in concrete are common and are not, in and of themselves, a cause for concern. On a design-build job, when cracks manifest themselves in a concrete element, the CEI must document the cracking and report it to the design-build team, which includes the EOR. Depending on the nature of the cracks, the CEI may request an EAR from the EOR. This process is set out in section 400, subsection 400-21, of DOT’s Standard Specifications for Road and Bridge Construction (the "Standard Specifications"). DOT's Construction Project Administration Manual ("CPAM") includes the procedures to be followed by a CEI in addressing cracks in concrete. The CPAM requires that the CEI identify and document its observations and convey the information to the EOR for a final disposition as to the potential danger of the crack or the need for further evaluation. The FIU Bridge Cracking and Inspections by BPA On or about February 6, 2018, while Span 1 of the bridge was still in the casting yard, BPA became aware of certain cracks that had developed in the structure. Mr. Morales personally inspected the structure after the tendons on truss members 2 and 11 were stressed, and he noted that cracks had developed in other locations on the bridge. The cracks observed were very small, approximately 0.004 of an inch wide. On February 13, 2018, BPA submitted Crack Report #1 to MCM, FIU, and Corradino, documenting the cracks that had developed in the concrete truss members after completing the post-tensioning operations in the casting yard. Despite the small size of the cracks, BPA requested that the EOR provide an assessment of the cracks. FIGG, the EOR, responded to BPA’s request by stating that the current condition observed was temporary in nature and that the cracks were not an issue. BPA exercised independent professional judgment when it exceeded the requirements of section 400 of the Standard Specifications and the CPAM by documenting and reporting these initial cracks. In late February 2018, before the placement of the main bridge span on the permanent pylon and south pier supports, cracks were observed in certain truss members. BPA prepared and submitted Crack Report #2 to FIU and MCM on February 28, 2018, documenting the size and location of these cracks and requested that FIGG evaluate the cracks and provide a disposition. In its report, BPA called attention to certain cracks that were significant in size. As CEI, BPA was not qualified to determine whether these larger cracks posed an imminent danger of collapse. Further, BPA’s design team was not involved in the design of the bridge and was not qualified to evaluate these cracks from a design engineering perspective due to the category and complexity of the bridge. At this point, the cracks were not "structural" as defined by Section 400 of the Standard Specifications. Cracks more than one-half inch in depth are deemed "structural" and trigger the obligation of the CEI to notify the EOR. Nevertheless, BPA, again, exercised its independent professional judgment above and beyond the requirements of the Standard Specifications and CPAM by requesting that the report be forwarded to the EOR and requesting that the EOR provide a response and disposition of the cracks. On March 7, 2018, FIGG replied to Crack Report #2, stating, in part, that the cracks appeared small, that they were not concerned about these types of cracks in the particular region shown in the report, and that MCM would need to seal the cracks in accordance with the Department’s specifications. As the EOR, FIGG did not have any structural concerns regarding the cracks in Crack Report #2. On March 7, 2018, FIGG representatives were on site and observed the cracks referenced in Crack Report #2. After observing the cracks, FIGG did not delay the bridge movement that was scheduled to take place three days later on March 10th. As of March 8, 2018, BPA had no concerns regarding the integrity of the structure or public safety because the EOR had looked at the cracks in- person and assured the project team that the cracks were not a safety issue or structurally significant. These assurances came two to three days prior to the bridge being moved over Southwest 8th Street and placed on the permanent pylon and pier supports. The bridge movement was not delayed due to the cracks observed by the EOR. On March 10, 2018, Span 1 was moved from the casting yard and placed on the permanent pylon and south pier supports. After the placement and de-tensioning of diagonal members 2 and 11, cracks began to appear at the construction joint of diagonal 11, the deck, and at the top of diaphragm II. At approximately 11:00 a.m. on March 13, 2018, two days before the collapse, BPA circulated a draft of Crack Report #3 to MCM, recommending further monitoring and documenting of the cracks to determine whether they were active or dormant, and requesting that BPA be informed of the outcome of the EOR’s EAR and course of action. At 5:18 p.m. on March 13, 2018, the EOR responded to MCM with additional recommendations and stated "[a]gain, we have evaluated this further and confirmed that this is not a safety issue." Because BPA’s design team was not involved in the project, no BPA design personnel were aware of the documented cracking on the structure until sometime after Crack Report #3 was generated. At that time, Mr. Morales provided Mr. Perez with a copy of a draft of Crack Report #3. Mr. Perez briefly reviewed the draft report and confirmed with Mr. Morales that the CEI team had elevated the issue to the EOR. At all times in the documented communication relating to the cracks, the EOR and members of the FIGG design team represented to BPA that the cracks were not a safety concern, without reservation. Starting on March 13, 2018, FIGG directed MCM to implement an initial, temporary measure to address observed cracking in the member 11/12 nodal region. At that time, BPA was not aware of this communication between the EOR and the contractor. To restore the temporary support conditions when the structure was in the casting yard, MCM placed shims between diaphragm II and the pylon on March 13, 2018. FIGG also directed re-tensioning the post-tensioning rods in truss member 11 to begin on March 15, 2018. The re-tensioning operation was made as a "rushed request" to the post-tensioning subcontractor by MCM on March 14, 2018. "FIGG recommends to stress these PT bars as soon as possible but again, this is not a safety concern." MARCH 15, 2018, AND THE BRIDGE COLLAPSE Rather than waiting for the EAR, BPA once again exercised its independent, professional judgment and went above and beyond the requirements of the Standard Specifications, CPAM, and Contract Documents when it further escalated the issue of the cracks by calling for a meeting with the EOR. On the morning of March 15, 2018, a meeting requested by BPA and coordinated by MCM, was held in Miami, Florida. Representatives of FIGG, MCM, DOT, FIU, and BPA were present. At the March 15th meeting, BPA first became aware of the EOR’s instruction to MCM to proceed with a second temporary measure. This subsequent temporary measure was to reinstate the post-tensioning compression force back in member 11 as per the previous construction phase. As explained by the EOR, both temporary measures (shims and re- tensioning) were intended to restore the temporary support conditions when the structure was in the casting yard. Prior to the start of the meeting, the EOR, other FIGG engineers, and DOT’s LAP Coordinator inspected the bridge and the cracks in the nodal region of members 11/12. Only FIGG had structural engineers at the meeting. No other engineers present at the meeting had a background in structural engineering, including those in attendance on behalf of BPA. The meeting was called for purposes of discussing the concrete cracking on Span 1, and specifically the concrete cracking in nodal connection between truss members 11 and 12 and the bridge deck. At this meeting, BPA informed FIGG that the cracks in the bridge were lengthening and growing daily. Though not formally invited, Mr. Reyna attended this meeting in his capacity as DOT’s consultant/Assistant LAP Coordinator. At the March 15th meeting, the EOR presented FIGG's assessment of the cracking after having reviewed the three BPA crack reports and having personally inspected the cracks on at least the following two occasions: (1) prior to the bridge being moved from the casting yard over Southwest 8th Street; and (2) on the morning of the March 15th meeting. The EOR’s presentation consisted of a lengthy and comprehensive PowerPoint slide presentation on the conditions of the bridge, structural analysis by calculations and 3D modeling of the loads and forces the area of member 11/12 nodal region cracks, and an evaluation of the safety of the span over Southwest 8th Street for workers and the public. Throughout the March 15th meeting, BPA exercised its independent professional judgment by actively participating in the EOR’s presentation, questioning and challenging the EOR. For example, BPA: inquired as to whether temporary shoring was needed; sought clarification regarding the mechanism being used to capture the load from the node and whether it would have to be integrated with the pylon diaphragm; requested clarification on the amount of transferred post- tensioning assumed for the nodal shear stability analysis; inquired as to whether there were any restrictions on load; inquired as to whether there would be a crack monitoring plan; requested a copy of the EOR’s presentation; inquired as to whether it had been peer reviewed and commented that it wanted more eyes on the presentation calculations; and BPA requested a copy of the stressing procedure that was being recommended by the EOR. Throughout the presentation, and during the question and answer phase of the meeting, the EOR assured BPA and the other attendees that the structure was safe. These assurances were based on statements made by the EOR as well as its calculations and modeling, which were part of its slide presentation at the meeting. In the presentation on the slide entitled "Safety," FIGG stated that "…[it] had conducted sufficient supplemental/independent computations to conclude that there is not any concern with safety of the span suspended over the road." At the end of the presentation, the EOR concluded the meeting with "[b]ased on conservative calculations, it is concluded that the design meets LRFD strength requirements for this temporary condition and therefore there is no safety concern relative to the observed cracks and minor spalls." During the meeting, the EOR stated that some cracking similar to the ones on the structure, were expected. The EOR further stated during the meeting that the top deck spalls could not be replicated, but that the spalled areas were minor and they should be repaired during the next phase of work when the pylon concrete was to be placed. No engineer at the meeting, including DOT's representative, Mr. Reyna, requested or recommended a complete road closure to protect the public safety or that the bridge be shut down. BPA had no reason to request a full road closure of Southwest 8th Street. There was no preplanned complete road closure, there was no maintenance of traffic ("MOT") deficiency, and, based on the EOR’s presentation, BPA was reasonably satisfied that no safety issues required a road closure. Towards the end of the meeting on March 15th, MCM informed BPA that a specialty contractor, Structural Technologies ("VSL"), was already onsite to conduct the re-tensioning operation. Without BPA’s knowledge, VSL had already mobilized on site to perform the remedial re-tensioning. BPA was not involved in pre-coordination for the re-tensioning operation. Therefore, BPA’s sub-consultant, Corradino, was not onsite to participate in monitoring of the re-tensioning procedure. Corradino’s role, as BPA's sub-contractor, was that of a 10.5.1 CEI (Major Bridge CEI--Concrete). Corradino was responsible for monitoring and documenting the post-tensioning operations. The post-tensioning operation after placement of the span had already occurred and therefore, Corradino was not on-site on March 15, 2018. Based on the safety assurances and conservative calculations presented by the FIGG EOR that the structure was safe, BPA, and the other professional engineers present at the meeting, including those representing FIU and DOT, followed the recommendations of the FIGG EOR to bring the main span condition back to its pre-existing state when the span was in the casting yard. BPA did not have the expertise or the contractual duty to perform its own analysis of the cracking on this complex bridge and override, or even call into question, FIGG’s unequivocal assessment that the bridge was safe. During the restressing operation of member 11, the roadway below the bridge had two westbound lanes closed as per the blanket, two-lane, closure permit issued by DOT. This blanket, two-lane, closure permit was obtained by MCM to provide workspace underneath the bridge to conduct the remedial action. MCM obtained the blanket, two-lane, closure permit from the Department the morning of March 15, 2018, before conducting the remedial action. A CEI’s authority to request a partial or complete road closure is defined by the contract plans and roadway closure permits, which is implemented using the procedures outlined by the CPAM and the CEI Scope of Services of the CEI Contract. A CEI is authorized to request the contractor to either partially or fully close a road if there is an MOT deficiency, as contemplated by CPAM Section 9.1.8--"Recommended Action to Shut Down a Project Due to MOT Deficiencies." Lastly, a CEI has authority to request a partial or full road closure if it is aware of a safety issue. None of these conditions existed on the project in the days leading up to the collapse in light of the EOR’s comprehensive presentation regarding the cracking conditions of the bridge, strength in the area of member 11/12 nodal region, safety of the span over Southwest 8th Street, and repeated, unequivocal reassurances that the structure did not pose a safety concern. Ultimately, BPA’s authority to request a partial or complete road closure on the project was a collective effort with the Department and FIU. BPA did not have the authority or ability to act on its own to close the road. The FIU Pedestrian Bridge collapsed during the re-tensioning of the truss member 11 post-tensioning rods on the afternoon of March 15, 2018. Six people died as a result of the FIU bridge collapse, including one bridge worker and five vehicle occupants. Ten people were critically injured as a result of the FIU bridge collapse, including two BPA employees, Mr. Morales and Carlos Chapman. Mr. Chapman was on the canopy of the bridge during the re- tensioning operation, observing the work being performed by VSL and communicating the progress to Mr. Morales who was on the deck of the bridge. Because of the representations made by the EOR, neither Mr. Chapman nor Mr. Morales was concerned for his own safety or well-being when they went on the bridge on the day it collapsed. BPA’s role, responsibilities, and scope of work on the FIU Bridge project as the CEI was that of a contract administrator, not as a structural engineer with the capability to analyze the structural behavior of the bridge sufficient to determine if the cracks posed any danger of collapse. BPA had no basis, ability, or contractual obligation, to perform its own analysis of this complex structure sufficient to override the FIGG EOR’s unequivocal safety assessment and recommendations. BPA performed its CEI duties and utilized its independent professional judgement when it documented and monitored the cracks and requested an immediate structural evaluation by the FIGG EOR. Ultimately, the bridge collapse was caused by a fundamental design error. THE OSHA AND NTSB INVESTIGATIONS Shortly after the collapse, both OSHA and NTSB began investigating the causes of the collapse. OHSA completed its investigation and released a written report of its findings in June 2019.2 The June 2019 OSHA report was 2 DOT failed to enter into evidence the OSHA report on which it relies. However, prior to the final hearing, DOT filed a Motion for Judicial Notice of Reports Issued by Federal Agencies Concerning the FIU Bridge Collapse ("Motion"). The Motion was opposed by BPA on the basis that the first OSHA report was not final because a second report was issued, and is hearsay. By Order dated January 24, 2020, the undersigned officially recognized both the issued without prior review or comments from all party members who willingly cooperated with and were involved in the investigation, including NTSB and BPA. OSHA released an amended report on the collapse of the FIU Bridge project in July 2019; however, none of the amendments in the report pertained to the actions of BPA on the FIU Bridge project. NTSB completed its investigation and issued its report in October 2019. Significantly, no evidence was presented at the final hearing regarding from whom either agency conducted the investigations or drafted the reports, the qualifications or expertise of the investigators, the methodology used in the investigations, or the ability of any of the participants in the investigation to rebut the findings or conclusions. BPA willingly participated in both the OSHA and NTSB investigations, working with investigators and providing them with information, photographs, and details on the FIU Bridge project. Both OSHA and NTSB also conducted interviews of BPA personnel involved with the FIU Bridge project as part of their investigations. In its report, OSHA found that BPA failed to classify the concrete cracks, which were structural in nature, in accordance with DOT requirements. OSHA determined that BPA, as CEI, was expected to exercise its own independent professional judgment in accordance with their contract with FIU and DOT requirements. With intimate knowledge of extensive initial OSHA report and the NTSB report. Accordingly, references to the report in this Recommended Order are based upon the official recognition. As noted in the Order on the Motion, official recognition of the OSHA and NTSB reports, however, does not make the statements contained therein automatically admissible. "The distinction between noticing the contents of a record and noticing the truth of the contents resembles the distinction in the hearsay doctrine between offering an out-of-court statement simply to show it was said, and offering it for the truth of the matter asserted." C. Ehrhardt, Florida Evidence § 201.1 (2011 Edition)(quoting Wright & Graham, Federal Practice and Procedure: Evidence § 6337). Although the existence of the report and its findings were officially recognized, the greater weight of the evidence supports that the contents were not accurate as to the exercise of independent judgment of BPA. cracking on the bridge, BPA failed to recognize the bridge was in danger of collapsing, and did not recommend to FIU, MCM, or others to close the street and shore the bridge, regardless of the opinion held by the EOR. As a result, OSHA imposed a monetary fine on BPA for its conduct and failure to take appropriate action in the days leading up to the collapse of the main bridge span. In its October 2019 report (issued after the NOID to BPA in this case), NTSB found that beginning with the cracking identified on February 24, 2018, the distress in the main bridge span was active, continued to grow, and was well documented by all parties involved in the design, construction, and oversight of the bridge. Neither FIU, MCM, FIGG, nor BPA took responsibility for declaring that the cracks were beyond any level of acceptability and did not meet DOT standards. Further, NTSB concluded that under the terms and conditions of the CEI Contract, BPA had the authority to direct or authorize partial or complete road closures as necessary, acting in concert with DOT and FIU; however, none acted to close the road under the bridge, contributing to the severity of the impact of the bridge collapse. BPA POST-COLLAPSE ACTIVITIES AND 2018 APPLICATION FOR QUALIFICATION On May 3, 2018, BPA submitted its Request for Qualification for the July 1, 2018, through June 30, 2019, fiscal year ("2018 Application"). BPA’s 2018 Application was for the same Work Groups that would eventually be included in the 2019 Request for Qualification. Each work category is tied to a distinct job function. There is no relationship or similarity between CEI services (Work Group 10) and the other work groups. On June 27, 2018, DOT accepted BPA’s Request for Qualification in all work categories. In processing the application, the Department did not ask BPA any questions regarding its involvement in the project, offer any criticisms of BPA in response to the application, request to interview any BPA employees, or raise any concerns at all regarding BPA’s participation in the project. From the date of the collapse on March 15, 2018, to December 2018, DOT awarded two contracts to BPA directly for CEI and design services, respectively. During the same period, DOT allowed BPA to participate as a qualified sub-consultant on one CEI contract, three design contracts, and one traffic task work order contract. During the 2018-2019 fiscal year, before DOT attempted to suspend BPA’s qualifications, BPA was able to win several jobs in both the prime and sub-consultant role, including projects in which BPA would be providing CEI services. In October 2018, approximately seven months after the collapse, BPA applied to change its CEI qualifier from John Bolton to Jose Morales because John Bolton wanted to retire. DOT approved the request and did not object or raise any concerns with respect to Jose Morales serving as BPA’s qualifier for CEI services. On December 19, 2018, nine months after the collapse, DOT expressed concern for the first time about BPA’s role in the bridge project, staffing of current DOT projects, quality assurance/quality control ("QA/QC") plans, and professional liability insurance. DOT sent BPA a "Qualifications Letter of Concern," stating that it had "serious concerns regarding [BPA]’s involvement as the Construction Engineering Inspection consultant on the Florida International University (FIU) pedestrian bridge project[.]" DOT requested in its letter, among other things, "a detailed explanation of the firm’s actions on the FIU pedestrian bridge project and… any controls or changes in personnel, policies or practices that [BPA] has implemented subsequent to the collapse." On December 21, 2018, BPA responded to the Letter of Concern addressing each concern raised by the Department, in detail, including providing a copy of its Certificate of Liability Insurance demonstrating that there was no lapse in professional liability insurance coverage. On February 12, 2019, DOT responded to BPA’s correspondence dated December 21, 2018, requesting additional detail from BPA relative to its revised QA/QC plan and punctuated the correspondence by stating that DOT would refuse to process any further qualification requests from BPA, including ministerial prequalification name changes, until the matter was addressed to the Department’s satisfaction. Around this time, BPA submitted a request to change its name with DOT to reflect its business name with the Division of Corporations. BPA requested that DOT update this information on its website, but DOT refused to process the request due to its concerns with BPA’s qualifications. On February 20, 2019, BPA provided further detail regarding the specific policies and procedures that have been implemented to its CEI services. Specifically, BPA provided extensive detail regarding its revised QA/QC plan, which included a section dedicated to Category II type bridge structures and included a copy of the revised QA/QC program for DOT review. DOT never responded or requested any additional information in this regard. On March 15, 2019, one year to the day after the collapse, DOT issued a Notice of Intent to Suspend BPA’s existing certificate of qualifications. DOT attempted to suspend BPA’s qualifications in all Work Groups and declare BPA non-responsible for a period of one year for good cause. DOT further claimed that BPA "failed to adequately address the Department’s concerns regarding the firm’s performance of the contract, and the [BPA] staff directly involved with the FIU project who continue to work on other Department structural contracts." No further explanation was provided as to how BPA failed to address these concerns. BPA timely responded to the Notice of Intent to Suspend by way of a Notice of Contest, requesting an administrative hearing on the issues raised therein. Despite the Notice of Contest, DOT suspended BPA’s qualification, and sent written notice to its various offices stating, among other things, that BPA had been removed from DOT’s prequalification list. Ultimately, DOT reinstated BPA’s qualifications, but never formally withdrew the Notice of Intent to Suspend. However, in reinstating BPA’s qualifications, DOT neglected to reinstate BPA’s Small Business Enterprise ("SBE") designation, which negatively affected BPA’s ability to obtain points for SBE participation. The points add value in scoring competing responses to Requests for Proposals for DOT contracts. BPA repeatedly requested that this be corrected. BPA’s requests went largely ignored for nearly two months. On April 2, 2019, after BPA had an in-person meeting with Courtney Drummond, DOT's Assistant Secretary of Engineering and Operations, BPA submitted a qualifications modifications package to replace Jose Morales, P.E., with John Bolton, P.E., as the qualifier for the CEI Work Group to address Mr. Drummond's and DOT’s concerns about BPA staff involved on the FIU project working on other DOT contracts. On April 5, 2019, in response to the Notice of Intent to Suspend, BPA provided specific facts in support of BPA’s proper performance of the CEI Contract. As an accommodation to DOT, BPA further proposed a solution to DOT's concern about the staff involved in the FIU project. BPA stated that it was "willing to immediately remove the BPA staff directly involved in the FIU Bridge project from working on any Department contracts or qualifying the company for CEI services" and resubmitted its qualifications application with those changes. 2019 BPA REQUEST FOR QUALIFICATION REJECTION On May 7, 2019, BPA submitted its 2019 Request for Qualification to the Department early due to the lack of response from DOT on BPA's April 5, 2019, correspondence. BPA sought qualifications for design work and CEI services in the same work categories it was qualified in for the prior fiscal year. On June 10, 2019, BPA’s counsel met with DOT representatives in Tallahassee to discuss several outstanding issues relative to BPA’s current qualification, the upcoming renewal, and DOT’s failure to reinstate BPA’s SBE designation. DOT responded by promising to correct the "mistake" that same day. Inexplicably, it took another two weeks and several reminders from BPA for DOT to finally correct the SBE designation. BPA’s 2018-2019 qualifications expired on June 30, 2019. The next day, on July 1, 2019, DOT untimely responded to BPA’s Request for Qualification with a letter titled "Incomplete Renewal Applications for Pre- Qualification." DOT's letter raised the same concerns regarding BPA’s involvement in the bridge project and, again, requested "a detailed explanation of BPA’s actions on the FIU pedestrian bridge project and…any controls or changes in personnel, policies or practices that BPA has implemented subsequent to the collapse." This is the same request that had been previously made by DOT in its December 19, 2018, Qualifications Letter of Concern, February 12, 2019, Qualifications Letter of Concern, March 15, 2019, Notice of Intent to Suspend, and April 26, 2019, denial of BPA’s Submittal for Modification. BPA had already provided the information requested several months prior to DOT's July 1, 2019, correspondence. On July 11, 2019, DOT issued its Notice of Intent to Deny Request for Qualification directed to BPA’s 2019 Request for Qualification. In issuing its denial of BPA’s Request for Qualification, DOT relied solely on the findings and conclusions of the June 2019 OSHA Report as they relate to the CEI services provided by BPA on the project and referenced the pending NTSB investigation. The Department’s Notice of Intent to Deny was executed by William Watts, the Department’s Chief Engineer. Mr. Watts admitted at final hearing that he does not have the training or experience necessary to evaluate a CEI’s performance on a CEI contract. Moreover, neither Mr. Watts nor DOT retained or consulted with any individuals with CEI expertise prior to issuing the Notice of Intent to Deny. When he issued the Notice of Intent to Deny, Mr. Watts was completely unfamiliar with the following: the terms of BPA’s CEI Contract; BPA’s Request for Qualification; BPA’s past performance on CEI or any other Department contract; and BPA’s professional reputation. Mr. Watts did not evaluate BPA under the criteria required by Florida Statutes and the Florida Administrative Code prior to denying BPA’s Request for Qualification for good cause. Mr. Watts did not receive any analysis from the Department’s prequalification staff regarding their evaluation of BPA’s application under the statutory criteria. Mr. Watts admitted that he was aware that BPA documented the cracking on the bridge, reported the cracking to the design-build firm, and requested an EAR from the EOR--actions which were all in accordance with BPA's obligations as CEI pursuant to the CPAM and its contractual obligations with FIU. Mr. Watts’ only reason for issuing the Notice of Intent to Deny, as Chief Engineer for DOT, was because BPA was under investigation by OSHA and the NTSB, and OSHA’s release of its June 2019 Report. However, Mr. Watts did not know the author of the June 2019 OSHA Report, whether the author of the report was qualified to evaluate the performance of a CEI under Florida Statutes and the Florida Administrative Code, or whether the author of the OSHA report did anything to evaluate BPA’s performance relative to any other CEI, at the same time, and/or in the same community. DOT did not investigate the structure or organization of BPA to determine whether the issues raised in the OSHA report, regarding BPA’s performance of the CEI Contract, would reflect negatively on other groups or divisions within BPA that provided services exclusively under other non-CEI work categories (design services). Prior to issuance of the NOID, Mr. Watts did not undertake a review of BPA’s past performance or professional reputation--both of which were beyond reproach. DOT evaluates its consultants’ performance on all projects approximately every six to eight months. These evaluations produce a score that ranges from one to five, five being the highest possible score. A perfect score of five is uncommon and a score of four is outstanding. In the five years prior to the final hearing, DOT evaluated BPA’s performance on projects involving both design and CEI services. Specifically, DOT scored BPA’s performance in Work Groups 3.1, 3.2 (Highway Design), 4.12 (Bridge Design), 5.1 (Bridge Inspection), 7.2 (Traffic Operations Design), and 10.1 and 10.3 (CEI). During that period, BPA averaged a score of outstanding to nearly- outstanding on all projects, including outstanding and nearly-outstanding scores for inspection services on bridge rehabilitation projects, which involved cracking concrete elements. In May of 2019, prior to denying BPA’s request for qualifications for the fiscal year July 1, 2019, through June 20, 2020, Mr. Drummond personally presented BPA with an award from the American Council of Engineering Companies ("ACEC"), for excellence in major urban reconstruction. Specifically, the award was for CEI services on the State Road 7 project, and the ACEC recognized two-and-a-half-years of excellence in CEI services from late-2016/early-2017 through 2019. DOT's District Construction Engineer, District 6 Secretary, and Headquarters were intimately involved in the selection and vetting process that, ultimately, resulted in BPA receiving the award. In September 2019, after denying its request and three months after the release of the June 2019 OSHA Report, DOT voted that BPA receive another award for excellence in CEI services. As a member of the selection committee, DOT chose BPA to receive an award from the Florida Transportation Builders Association ("FTBA"), for excellence on the Baker’s Haulover Bridge rehabilitation project. By this award, FTBA and DOT recognized BPA’s excellence in CEI services, which spanned from one year before the collapse to one year after the collapse. The Experts 3 Gustavo Quesada, P.E. At the Final Hearing, BPA presented the expert testimony of Gustavo Quesada, P.E., a CEI with over 30 years of experience. The ALJ finds that Mr. Quesada is a qualified expert on the standard of care for a CEI and his opinions in that regard are based on competent substantial evidence. As explained by Mr. Quesada, the role of a CEI with respect to cracks in concrete is to identify the cracks and make sure they do not go unseen or undetected and that an EOR is engaged for purposes of addressing the cracking. Pursuant to the CPAM, when a CEI encounters cracks in concrete, a CEI is required to document the observation and make a disposition on the cracks based on Section 400 of the Standard Specifications. Moving forward, the CEI is also required to monitor any changes in the cracks. A CEI is not responsible for making a determination as to whether a crack is potentially dangerous. This is a determination for the EOR, who has an understanding of the structure, its design, and how the structure is expected to behave. A CEI is not charged with making judgment calls on the design of a structure or whether its integrity has been jeopardized. BPA documented, monitored, and reported the cracks on the project in compliance with the industry standards for CEIs working on Complex Category II Bridges, as well as the relevant sections of the CPAM and Section 400 of the Standard Specifications. BPA’s Senior Project Engineer, Mr. Morales, exercised his independent professional judgment in elevating 3 DOT intended to offer Mr. Watts at hearing as an expert to testify to the "good cause" DOT had when issuing the NOID to BPA. BPA filed a Motion in Limine to exclude or limit the testimony of both Mr. Watts and Mr. Robertson. The motion was argued at the outset of the final hearing. The undersigned precluded Mr. Watts from testifying as an expert in the field of CEI. Mr. Watts was allowed to testify as to DOT's qualification process and did so as a fact witness, rather than an expert. the issue of the cracks to the EOR even before he was required to do so under the CPAM and Section 400 of the Standard Specifications. At the meeting called by BPA on the morning of March 15, 2018, BPA exercised its independent professional judgment and complied with the applicable standard of care when Mr. Morales asked the EOR a series of questions in response to the EOR’s presentation and evaluation of the cracks on the bridge. According to Mr. Quesada, professional engineers are expected to rely on other engineers with superior or specialized knowledge when exercising their independent professional judgment. BPA’s role, responsibilities, and scope of work on the project as the CEI was largely that of a contract administrator, and a liaison between FIU and MCM--not as a structural engineer with the capability to analyze the structural behavior of the bridge sufficient to determine if the cracks posed any danger of collapse. Robert V. Robertson, P.E. DOT presented the testimony of Robert V. Roberson as an expert on the standard of care for CEIs. Mr. Robertson has served as DOT's State Structure’s Design Engineer for 13 years. Mr. Robertson has been a professional engineer for 35 years. Although preliminarily accepted by the undersigned as an expert in this field, it became apparent through cross-examination that Mr. Robertson has no significant CEI experience. Mr. Robertson has not worked in the CEI industry in the last 26 years, nor has he ever graded a CEI’s performance. Mr. Robertson was not involved in the Department’s evaluation of BPA’s performance of the CEI Contract. Accordingly, Mr. Robertson's testimony was of limited value. Mr. Robertson acknowledged that the FIU bridge was a complex concrete bridge structure that required a separate design qualification and that BPA did have such qualification. Mr. Robertson admitted that BPA’s contract with FIU did not require BPA to be qualified to inspect complex concrete bridges because BPA was allowed to satisfy that particular qualification requirement of the contract through a sub-consultant (Corradino). Mr. Robertson testified that any licensed engineer with a college degree in engineering should have known, based on the photographs in Crack Report #3, that the cracks were dangerous and should have acted to stop work on the project and close the road. However, DOT's LAP representative at the March 15, 2018, meeting held prior to the bridge collapse, Mr. Reyna, a licensed professional engineer with a college degree in engineering, failed to raise any concerns at the March 15th meeting or act to cease bridge work, shore the bridge, or close Southwest 8th Street under the bridge. Mr. Robertson opined that the re-tensioning operation of the bridge should have been peer reviewed. In his opinion, BPA failed to use sufficient independent judgment. BPA, as the CEI, should have recognized the bridge was in danger and known to stop traffic and shut down the road. However, Mr. Roberston admitted that he did only a cursory review of the PowerPoint presentation provided on the morning of March 15, 2018, in which FIGG, as the EOR, stated it had no safety concerns. Mr. Robertson stated that he performed no analysis on anything other than BPA's CEI work relative to the FIU bridge. He had no information about BPA's design group or its qualification in any work category. However, he suggested the denial of BPA's application for qualification across the board, in all work categories because he questioned "the culture at BPA." Significantly, concerns regarding "the culture" of BPA was not cited by DOT as a basis for the NOID. Most significantly, Mr. Robertson testified that six months prior to the issuance of the NOID, he had a conversation with Mr. Drummond during which Mr. Drummond recommended that the qualification of all parties involved with the FIU Pedestrian Bridge project should be suspended. Importantly, this was prior to the issuance of either the OSHA or NTSB reports and seemingly with no analysis of the role of any party to the possible prevention of the bridge collapse, injuries, or loss of life. Ultimate Findings of Fact DOT failed to demonstrate that BPA, as the CEI, fell below the standard of care by failing to exercise its independent professional judgment by not acting to cease bridge work, shore the bridge, or close Southwest 8th Street under the bridge in light of the documented cracking on the structure in the days leading up to the collapse. The evidence shows that BPA documented, monitored, and reported the cracks pursuant to the CPAM, Section 400 of the Standard Specifications, and industry standards. BPA involved the EOR in evaluating the cracks even before it was required by the CPAM, Section 400 of the Standard Specifications, and industry standards. BPA was assured time and again by the EOR that the bridge did not pose a danger to the travelling public and that the structure was safe. At the meeting on the morning of March 15, 2018, BPA inquired as to whether temporary shoring was needed, and the suggestion was rejected by the EOR who had inspected the cracks on the structure just moments before the meeting. There is no evidence that BPA deviated from the standard of care for CEIs on design-build projects or that BPA failed to exercise its independent professional judgment. To the contrary, BPA met all of its obligations pursuant to contract and state regulation. DOT failed to demonstrate that BPA, as the CEI, fell below the standard of care by failing to exercise independent professional judgment by not acting to cease bridge work, shore the bridge, and close Southwest 8th Street under the bridge pending a peer review of the re-tensioning plan proposed by the EOR at the March 15th meeting. At the March 15th meeting, BPA was reasonably convinced by the EOR that the structure was safe and that the re-tensioning plan was a temporary measure that should be implemented as soon as possible. BPA had already engaged the EOR to prepare an EAR to address the cracking observed on the bridge, which would have included signed and sealed calculations and a repair protocol that would have been implemented in a later phase of construction. On March 15, 2018, the cracks were not a safety concern such that BPA should have overridden the EOR’s directive to MCM and required that the re-tensioning operation be postponed pending a peer- review of the re-tensioning plan. There is no evidence in the record that BPA deviated from the standard of care for CEIs on design-build projects or allegedly failed to exercise its independent professional judgment by allowing the re-tensioning procedure to proceed as directed by the EOR. Conversely, the evidence supports a finding that BPA acted appropriately in relying on the recommendations of the EOR who was uniquely qualified to evaluate the safety of the structure and who had specialized knowledge of its design. DOT failed to demonstrate that BPA, as the CEI, fell below the standard of care by failing to exercise independent professional judgment by not acting to cease bridge work, shore the bridge, and close Southwest 8th Street under the bridge until the Corradino Group could arrive on the project site to observe the re-tensioning operation proposed by the EOR during the meeting on March 15, 2018. Corradino’s role on the project was to monitor and document post-tensioning operations. By the time the meeting was over, MCM’s specialty contractor, VSL, was mobilized and prepared to proceed with the re-tensioning operation. BPA was not involved in the pre- coordination of this work. Ultimately, the bridge collapsed due to an inherent design error in the plans and not due to Corradino’s absence from the re- tensioning operations. The findings of the OSHA report and the pendency of the NTSB investigation, standing alone, were insufficient "good cause" for DOT to deny BPA’s 2019 Request for Qualification.
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 Transportation finding that good cause does not exist to deny BPA’s 2019 Request for Qualification. DONE AND ENTERED this 17th day of April, 2020, in Tallahassee, Leon County, Florida. S MARY LI CREASY 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 17th day of April, 2020. COPIES FURNISHED: George Spears Reynolds, IV, Esquire Florida Department of Transportation 605 Suwannee Street, Mail Stop 58 Tallahassee, Florida 32399-0450 (eServed) Scott Kirschbaum, Esquire Cole, Scott & Kissane, P.A. 9150 South Dadeland Boulevard, Suite 1400 Miami, Florida 33156 Anthony Lopez, Esquire Cole, Scott & Kissane, P.A. 9150 South Dadeland Boulevard, Suite 1400 Miami, Florida 33156 George Richard Truitt, Esquire Cole, Scott & Kissane, PA 9150 South Dadeland Boulevard, Suite 1400 Miami, Florida 33156 (eServed) John Ashley Peacock, Esquire Department of Transportation 605 Suwannee Street, Mail Stop 58 Tallahassee, Florida 32399-0450 (eServed) Andrea Shulthiess, Clerk of Agency Proceedings Department of Transportation Haydon Burns Building 605 Suwannee Street, Mail Stop 58 Tallahassee, Florida 32399-0450 (eServed) Erik Fenniman, General Counsel Department of Transportation Haydon Burns Building 605 Suwannee Street, Mail Stop 58 Tallahassee, Florida 32399-0450 (eServed) Kevin J. Thibault, P.E., Secretary Department of Transporation Haydon Burns Building 605 Suwannee Street, Mail Stop 57 Tallahassee, Florida 32399-0450 (eServed)
Findings Of Fact Both Hewitt Contracting Company, Inc., (Hewitt), and Vogel Brothers Building Company, (Vogel), submitted a bid on Florida Department of Transportation, (FDOT) project number 105003631, for the construction of a minor bridge in Hillsborough County, Florida. Both Hewitt and Vogel had been pre-qualified by FDOT to bid on its projects, The determination of pre-qualification was done for FDOT by Charles Goodman, a registered professional engineer. Pre-qualification is not done on a project by project basis but instead is determined on a particular work category in advance. Vogel was low bidder for the project in issue and Hewitt was second low bidder. Hewitt timely filed a notice of protest and formal protest based on its claim that Vogel was not properly pre-qualified for minor bridge construction. Vogel has no experience building bridges for FDOT or for any other state and the instant project was the first project for FDOT in which Vogel had bid as a prime contractor. However, the company has been in business in Wisconsin since the 1920's and has performed numerous construction projects at various locations throughout the country. Those that have required heavy pouring of concrete have been primarily parking garages, pedestrian walkways, and wastewater treatment plants. Within those types of categories, several construction techniques were used which are similar if not identical to those used in bridge building. Vogel has, however, no pile driving experience which would be used in this project. Vogel does not own all of the equipment that would be necessary to construct this project. Ownership is not required, however, so long as the applicant is willing and able to provide the equipment through other means such as lease or rental. Though Vogel has presented no evidence of specific rental agreements, it has the financial capacity to rent the required equipment and there is little doubt it could do so. By the same token, Vogel does not currently employ any personnel in Florida who have experience in the construction of bridges similar to the project under consideration nor does the company presently employ any professional engineers totally registered as such in Florida. It does, however, employ professional engineers registered elsewhere with experience that would be pertinent to this project and, as it has done in the past, would, if necessary, bring those personnel to Florida to assist in this project. During the time Mr. Goodman was performing as a qualification engineer, he reviewed all 900 contractors doing business with FDOT at least twice and some, three times. In performing the qualification review, he looked only at the applications of the various contractors and did not talk to any of the company representatives. By the same token, he did not discuss the applications with anyone in the department. The decision on approval was his alone. Mr. Goodman was aware of Vogel's prior experience and the fact that it had constructed several pedestrian overpasses and recognized that the company's experience with the classical type bridge such as is involved here is limited. However, he was satisfied that while Vogel does not own all of the equipment necessary for completion of this project, it does own enough equipment to complete part of the work and the remainder of the items on the FDOT equipment list which it does not own, it can procure from outside sources. He is also aware of the fact that Vogel does not have any experience driving piles of the size required for this project. It does, however; do mass pours of concrete and is involved in larger construction projects such as water and sewage treatment plants. Most of its experience is in the construction of commercial buildings in Wisconsin. In his analysis, Mr. Goodman used an evaluation sheet in conjunction with the table contained in Rule 14-22, F.A.C., to come up with an ability factor. This does not, however, have any substantial impact on approval. In the instant case, out of a possibility of 25 points, Vogel was awarded 0 points on bridge construction as it pertained to both completed and ongoing projects. In fact, Vogel was awarded points only in those experience areas not related to bridge projects. As to organization and management, it received 10 points in each out of a possible 15 points for each. These awards related to the company's skills in general. Since Mr. Goodman's consideration was based only on what was contained in the application, he does not know if any personnel have experience in constructing bridges as are called for in this project. His decision was based on his conclusion that Vogel had done similar work on other projects equivalent to the least of the qualifications for bridges, (pedestrian overpasses, parking garages, and water plants), which involved techniques similar to those used in construction of the least complex bridge. This information upon which Mr. Goodman relied came from Vogel's brochure and he is not personally aware of the projects or when and where they were constructed. The FDOT policy was to require an applicant to meet the equipment and experience even for minor bridges, and in this case, in Mr. Goodman's opinion, Vogel, which had built box culverts which are legally defined as a minor bridge at a low level, qualified. In making their analyses, FDOT evaluators are required to look at minimums, not optimums, and Vogel's experience, in the opinion of Mr. Goodman, satisfied the requirements at the lowest level. Even though this project involved procedures it had not previously done, Vogel's qualification was determined on the basis of general requirements and not on the basis of the specific requirements of this project which had not been identified at the time qualification was established. Mr. Goodman did not verify any of the statements made in Vogel's application with Vogel or any other individual, nor did he attempt to contact any reference or other party to inquire regarding Vogel's ability to construct the project. Mr. Goodman's decision to qualify Vogel was reviewed, prior to the hearing, by Mr. Kayser, the current qualification engineer for FDOT. He looked at Vogel's application and based on what he saw, (their ability to procure the required equipment; the types of projects they have completed in the past; and the intricate techniques involved therein), is of the opinion that Vogel is capable of completing this project successfully. If he were doing a qualification evaluation on Vogel today, he might require some verification of certain items, and request evaluations of the quality of the work they have done, but that would be all. The fact that most of the work Vogel has done is out of the state does not bother him, nor does the fact that the contractor is from out of state. Many of the successful contractors with whom FDOT has done business are in the same category. Had Vogel built only buildings, he might have had some concern. However, the diversity of their projects, including many where the work and techniques used are similar to that used in bridge construction, makes him comfortable with them, and he would not attempt to decertify or disqualify Vogel. In support of Petitioner's point of view, Mr. Andrew Clark, executive vice president of a general contracting firm specializing in heavy bridge construction, feels Vogel does not have the experience to construct bridges, major or minor. While it can pour concrete, it does not have the people qualified and necessary to do bridge work. There is more to building a bridge than pouring concrete and Vogel does not appear, to Mr. Clark, to have the experience or equipment sufficient to properly finish the concrete surface. For example, though it might be able to rent a screed, it does not have the people qualified to use it properly. It does not have the experience to drive piles and it does not have the equipment necessary to do that job nor do its proposed suppliers of rental equipment. Mr. Clark, however, is a competitor and was, in fact, a bidder on this project. In the event the award to Vogel is set aside and a re-bid authorized, Mr. Clark's company would be in a position to bid again. Mr. Clark also looked at the equipment listed in Vogel's brochure and determined that most of the equipment on that list is not used in construction of either major or minor bridges. By the same token, the projects listed on Vogel's experience list do not qualify it to do bridge work since they are not similar and the techniques utilized therein are not necessarily the same. Mr. Clark is of the opinion that the project in issue is not the typical minor bridge project. The design is somewhat different and requires the use of different techniques. He feels Vogel's experience would not prepare it to successfully accomplish the project. Though FDOT follows up its award by numerous inspections during the construction phase, in his opinion these inspections are inadequate since they generally relate to the materials being used by the contractor and not to the contractor's workmanship. Mr. Clark's opinions are supported by those of Mr. Barrett, president of another construction company which deals primarily in bridge construction. In Mr. Barrett's opinion, Vogel's experience in construction of water and sewage treatment plants and parking garages does not qualify it to build bridges since the company has no expertise in the techniques need for that type of construction. Petitioner has been qualified to do minor bridge construction since 1962 and has constructed approximately 75 minor bridges within this state. It's personnel include numerous people who have extensive experience in pouring bridge decks and driving bridge pilings. It has the needed equipment, including cranes, pile drivers, welding equipment, and screeds, and more important, the experienced people who know how to use it properly. Having reviewed Vogel's prior projects and equipment owned, Petitioner's owner, Mr. Hewitt, cannot see where Vogel is qualified by experience or equipment to do bridge construction. In his opinion, Vogel is a building contractor, not a bridge builder. He is satisfied that the skills developed in general contracting do not qualify an individual to do bridge work. These skills are different, and the level of subcontracting is different. In addition, construction standards and tolerances are much stricter in bridge projects than in other general contracting projects. Petitioner raises a legitimate question regarding Vogel's ability to do this particular job. However, it's evidence is in the form of testimony of individuals who, though individuals of long experience in their fields, were not offered as experts in the area. Further, all except one, have an interest in the outcome of this case. On the other hand, Vogel has been shown to be a competent and successful builder and there is no evidence to show that the pre- qualification process utilized by FDOT here was either inappropriate or improperly applied.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that a Final Order be entered awarding the contract on State Project No. 105003631 to Vogel Brothers Building Company. RECOMMENDED this 24th day of August, 1988, at Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of August, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-2898BID The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. FOR THE PETITIONER 1. & 2. Accepted and Incorporated herein 3. & 4. Accepted and Incorporated herein 5. - 8. Accepted and Incorporated herein Accepted except for the statement that letters from rental companies were not submitted & 11. Accepted and Incorporated herein 12. - 14. Accepted and Incorporated herein Accepted but not probative of any material fact & 17. Accepted but not probative of any material fact Accepted but incomplete Rejected as contra to the weight of the evidence Rejected as a comment on the evidence and not a Findings of Fact Accepted but not probative of any material fact Rejected as irrelevant & 25. Rejected as contra to the weight of the evidence Accepted but not probative of any material fact FOR THE RESPONDENT AND INTERVENOR 1. & 2. Accepted and incorporated herein 3. & 4. Accepted and incorporated herein & 7. Accepted and incorporated herein Accepted and incorporated herein Accepted & 11. Accepted and incorporated herein Accepted Accepted and incorporated herein Not established Accepted but not probative of any material fact Accepted and incorporated herein Accepted and incorporated herein COPIES FURNISHED: Crit Smith, Esquire 215 South Monroe Street Tallahassee, Florida 32301 Brant Hargrove, Esquire Department of Transportation 605 Suwannee Street Tallahassee, Florida 32302 Ronald E. Cotterill, Esquire 1519 North Dale Mabry, S-100 Lutz, Florida 33544 Kaye N. Henderson, Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0450 Thomas H. Bateman, III General Counsel Department of Transportation 562 Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0450
The Issue The issue in this case is whether Falconer is authorized to keep finger piers, a wooden deck and an enclosed walkway, which were constructed without permits within the landward extent of Elligraw Bayou, a Class 3 waterbody located in Sarasota County, upon the payment of a $3600 penalty. Specifically, the issue is whether the piers, deck and covered walkway, as built, would have been permitted by the Department if properly applied for, and whether Falconer has provided reasonable assurances that these structures, and the alteration of mangroves in connection therewith, will not violate state water quality standards, and will not be contrary to the public interest as provided in Section 403.918(2), Florida Statutes. POSITION OF PARTIES This controversy between the parties arises out of the entry of a Consent Order between the Department and Falconer, to which the County objects. It is the County's position that the Department abused its discretion by attempting to authorize unpermitted activities without requiring compliance with permitting criteria and standards. Specifically, the County contends that Falconer has failed to provide, and the Department has not required, reasonable assurances based on plans, test results or other information that the structures in or over Elligraw Bayou, as well as Falconer's alteration of mangroves, will not violate state water quality standards, and will not be contrary to the public interest. The Department and Falconer contend this is strictly an enforcement case which settles claims of violations the Department had against Falconer, and that this is not a case involving a permit application. The Department urges that it exercised prosecutorial discretion in the procedure that it followed in settling this enforcement matter.
Findings Of Fact The following findings of fact are based upon the stipulation of the parties: The Department is the administrative agency of the State of Florida charged with the responsibility to protect Florida's air and water resources, and to administer and enforce Chapter 403, Florida Statutes, and the regulations promulgated thereunder contained in Chapter 17, Florida Administrative Code. Falconer is the record owner of real property at the northwest corner of the intersection of Southpointe Drive and U.S. Highway 41 in Sarasota County, being in Section 21, Township 37 South, Range 18 East. Sarasota County is a chartered political subdivision of the State of Florida with all powers provided by law. Sarasota County has standing to bring this action. In May of 1963, Sarasota County acquired from Falconer's predecessor in title a perpetual nonexclusive easement over certain lands upon the property described in Finding of Fact 2. In July of 1973, Falconer acquired title to the property described in Finding of Fact 2, subject to the easement described in Finding of Fact 4. Falconer's property is located within the landward extent of Elligraw Bayou, which is a Class 3 state water as defined in the Florida Administrative Code, but the water does not bear the designation of Outstanding Florida Water as defined in the Florida Administrative Code. Unless exempt, a permit from the Department is required to dredge or fill within the landward extent of Elligraw Bayou, pursuant to applicable law and rules. Falconer received Permit No. DF58-32115-3E, dated March 3, 1981, to construct a commercial floating dock covering approximately 1,856 square feet on Elligraw Bayou. He did not build the floating dock to the size and configuration approved in the permit described in Finding of Fact 7. Falconer caused or allowed the installation of twelve stationary finger piers and one wooden deck within the landward extent of Elligraw Bayou between June 1981 and November 1982. However, he did not have a permit from the Department to construct these twelve finger piers and the wooden deck within the landward extent of state waters and Elligraw Bayou. Falconer caused or allowed the construction of an enclosed walkway over a drainage easement within the landward extent of Elligraw Bayou, and parts of the poured cement base foundation of the walkway are also within the landward extent of Elligraw Bayou. The cement was poured around the base of two mangroves, and a total of four mangroves were altered during construction. He did not have a permit from the Department for any dredging and/or filling within the landward extent of Elligraw Bayou in connection with the construction of the enclosed walkway described in Finding of Fact 11. Falconer did not have a permit to alter mangroves. The Department did not require, and Falconer did not submit any plans, test results or other information regarding the impact of the twelve finger piers, wooden deck, the enclosed walkway or the altered mangroves upon the water quality of Elligraw Bayou. Additionally, the Department did not require, and Falconer did not submit a hydrographic study demonstrating the flow of water within Elligraw Bayou, predicting the effect of dredging and/or filling on the flow of water, or predicting areas of erosion or shoaling. On June 3, 1986, the Department and Falconer entered into a Consent Order regarding the unpermitted activities described in Findings of Fact 8 through 13, above. The County timely filed a Petition for Formal Hearing challenging the entry of the above-referenced Consent Order. Respondent Falconer has complied with the requirements of the Consent Order. The County did not file a petition challenging the original Department permit referred to in Finding of Fact 7. The following findings of fact are based upon the evidence presented at hearing, as well as the demeanor and credibility of witnesses: On February 5, 1986, Eva Bailey of the Department's enforcement section inspected Falconer's property, and she again inspected the site on November 12, 1986. Regarding the finger piers, Bailey observed that there had been no adverse impact on the littoral zone, and no water quality or other environmental damage as a result of their construction. She similarly found that alteration of mangroves during the construction process did not result in any observed environmental damage. Only the columns associated with the walkway encroach upon the Department's jurisdiction, and Bailey found no significant adverse impact on the littoral zone resulting from the walkway construction. In fact, she found that the walkway support columns are providing a habitat for water species. According to Bailey, there has been no shoaling or erosion as a result of Falconer's construction, there has been no adverse affect on fish or wildlife, navigation has not been impeded, and there has been no damage to the public health, safety or welfare. Bailey recommended that the Department enter into an agreement with Falconer after discussing the matter with James R. Brice, a supervisor with the Department at the time. He had inspected the area in April 1985, and concluded that it was permittable. Brice confirmed Bailey's testimony that Falconer's construction has not resulted in erosion, shoaling, damage to the public health, safety or welfare, damage to fish or wildlife, a degradation of water quality, or any impairment to navigation. At the time of his inspection in April 1985, Brice referred the matter to the enforcement section because the walkway footings had been built in state waters without a permit. Neither a violation warning notice, or a formal notice of violation, were ever issued by the Department to Falconer regarding this construction, according to Craig McArthur, Bailey's supervisor in early 1986 when she conducted her inspection and recommended the issuance of the Consent Order. Thus, enforcement proceedings were never formally initiated by the Department against Falconer. Rather, Brice visited the site in April 1985 in response to complaints, and requested the inspection which Bailey conducted in February 1986. Since both Bailey and Brice found conditions which lead the Department to conclude that the construction was permittable, an agreement with Falconer was pursued by the Department which then lead to the Consent Order. Under the terms of the Consent Order, Falconer would be authorized to retain the finger piers and walkway without any modifications, in return for payment of $3600. McArthur testified that the permittability of construction is an essential factor in, and precondition for, any Consent Order which does not require modifications. Falconer's property is located at the enclosed end of Elligraw Bayou. A restaurant, shopping area, and spaces for associated parking are located on the upland portion of the property. Falconer has leased the finger piers, as well as the area surrounding certain floating docks not at issue in this case, to a sailboat sales company for use as a marina. There are no fuel facilities for boats and live-aboard boats are not permitted on the leased premises. Due to the controversy and uncertainty concerning the continued use of the finger piers, the sailboat sales company will not renew its current lease, but Falconer testified he intends to lease the facility to another sailboat sales company. The cost to construct the finger piers was approximately $11,000, and construction costs associated with the enclosed walkway were approximately $75,000. The walkway connects the restaurant with the piers, floating docks and parking area, and was constructed, in part, over the County's drainage easement pursuant to County building permit 114-U in late 1984 and early 1985. Elligraw Bayou was deeply dredged by the County in 1979. Its banks are vertical without any natural sloping. It serves as the receiving body for a 660 acre drainage basin for water flowing from highway culverts and upland drainage ditches. The water in the Bayou is murky and one cannot see the bottom due to runoff from U.S. 41 and surrounding uplands which flows into Elligraw Bayou through an open drainage ditch. During a ten year storm event, 150 to 160 cubic feet per second of runoff would be expected to flow into the Bayou. According to Charles Goode, Sarasota County Engineer and Director of Transportation, the covered walkway which Falconer has constructed will inhibit the County's future maintenance dredging of Elligraw Bayou and the drainage ditch leading to the Bayou. The use of a drag-line for maintenance dredging of the Bayou will no longer be possible, as it was in 1979. Regular maintenance of drainage ditches is essential to maintain the natural flow of runoff and prevent upland flooding. The County will no longer be able to use track mounted equipment to maintain the ditch leading into Elligraw Bayou, but other, more labor intensive, methods are available. The County does not regularly maintain this ditch. Manatees have been sited in the general vicinity of Elligraw Bayou, although there is no evidence of any sitings in the Bayou itself. In approximately 1982, the Department required Falconer to place signs in the Bayou to warn boaters about manatees, and Falconer complied. The manatee is an endangered species and is attracted to fresh water, such as exists in the Bayou. Increased motor boat traffic is a danger to manatees, but there is no evidence of any increase in such traffic due to Falconer's construction. The Director of Natural Resources Management for Sarasota County, Jack Merriam, testified that he has not heard of any reports of navigation problems in Elligraw Bayou, or seen any evidence of accidents since Falconer completed the construction here at issue, despite the fact that there is only a thirty foot width available for navigation in the Bayou at one point. However, as an expert in the impact on navigation of coastal structures, Merriam testified that a thirty foot area would not be a safe area in which to navigate under certain conditions, and that the finger piers present significant-navigational problems. No study has been made of boating traffic in Elligraw Bayou, however, to determine if unsafe conditions actually exist in this Bayou. Falconer cooperated fully with the Department throughout these proceedings in seeking its authorization for the construction here at issue.
Recommendation Based upon the foregoing, it is recommended that the Department issue a Final Order approving the Consent Order which it has previously executed with Ronald W. Falconer. DONE AND ENTERED this 22nd of January 1987 in Tallahassee, Florida. DONALD D. CONN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of January 1987. APPENDIX (DOAH Case No. 86-2462) Rulings on Proposed Findings of Fact filed by Sarasota County: Adopted in Finding of Fact 1. Adopted in Finding of Fact 2. Adopted in Finding of Fact 3. Adopted in Finding of Fact 4. Rejected as cumulative and unnecessary. Adopted in Finding of Fact 5. Adopted in Finding of Fact 6. 5 Adopted in Finding of Fact 7. Adopted in Finding of Fact 5. Adopted in Finding of Fact 9. Adopted in Finding of Fact 10. Adopted in Findings of Fact 11, 24. 13-14 Adopted in Finding of Fact 11. Rejected since this is a conclusion of law. Adopted in Finding of Fact 12. Adopted in Finding of Fact 13. 15 Adopted in Finding of Fact 20. Rejected as irrelevant and unnecessary. Adopted in Finding of Fact 14. 21-22 Rejected as irrelevant and unnecessary. Adopted in Finding of Fact 14. Rejected as irrelevant and otherwise addressed in Finding of Fact 22. 25-34 Adopted in Findings of Fact 14, 21 but otherwise rejected as irrelevant and unnecessary. 35 Adopted in Finding of Fact 23. 36-37 Rejected as irrelevant and otherwise simply a summation of testimony. 35 Adopted in Finding of Fact 7, but otherwise rejected as irrelevant and not based on competent substantial evidence. Adopted in Finding of Fact 14. Rejected as irrelevant and unnecessary. 41-43 Adopted in Finding of Fact 25. 44-46 Adopted in Finding of Fact 26. 47 Adopted in Finding of Fact 25 but otherwise rejected as cumulative and not based on competent substantial evidence. 45-50 Adopted in Finding of Fact 25. 51-56 Adopted in Finding of Fact 27, but otherwise rejected as irrelevant and unnecessary. Rulings on Proposed Findings of Fact filed on behalf of the Department of Environmental Regulation: Adopted in Finding of Fact 1. Adopted in Finding of Fact 2. Adopted in Finding of Fact 3. Adopted in Finding of Fact 6. Adopted in Findings of Fact 7-9. Adopted in Findings of Fact 10-13. Adopted in Findings of Fact 14, 15. 5 Adopted in Findings of Fact 16-19. Adopted in Finding of Fact 20. Adopted in Finding of Fact 21. 11-12 Rejected as irrelevant and unnecessary. Adopted in Finding of Fact 22. Adopted in Findings of Fact 20, 25. Adopted in Finding of Fact 20. 16-17 Adopted in Finding of Fact 27, but otherwise rejected as unnecessary and cumulative. Adopted in Findings of Fact 20, 21, 25. Adopted in Finding of Fact 22. Adopted in Findings of Fact 20-22. Adopted in Findings of Fact 22, 29. Adopted in Finding of Fact 20. Adopted in Finding of Fact 25. Adopted in Findings of Fact 23, 27. Rulings on Proposed Findings of Fact filed on behalf of Ronald W. Falconer: Adopted in Finding of Fact 1. Adopted in Finding of Fact 2. Adopted in Finding of Fact 3. Adopted in Finding of Fact 4. Adopted in Finding of Fact 5. Adopted in Findings of Fact 2, 6. Adopted in Finding of Fact 6. Adopted in Finding of Fact 7. Adopted in Findings of Fact 5, 9. Adopted in Finding of Fact 27, but otherwise rejected as irrelevant and unnecessary. Adopted in part in Findings of Fact 11, 24, but otherwise rejected as irrelevant and unnecessary. 12-13 Adopted in part in Finding of Fact 29, but otherwise rejected as Irrelevant and unnecessary. Rejected as irrelevant and unnecessary. Adopted in part in Findings of Fact 14-16, but otherwise rejected in Finding of Fact 22. Adopted in Findings of Fact 14-16. Adopted in Findings of Fact 15, 20-22, 29. 15-20 Adopted in Findings of Fact 20, 21. Adopted in Findings of Fact 20, 21, 25. Adopted in Findings of Fact 20, 21. Adopted in Findings of Fact 20, 21, 25. Adopted in part in Finding of Fact 24, but otherwise rejected as irrelevant. Rejected as irrelevant and unnecessary. Adopted in Finding of Fact 24. 27-25 Rejected as irrelevant and unnecessary. 29-31 Adopted in part in Findings of Fact 23, 25, but otherwise rejected as irrelevant and unnecessary. Adopted in Finding of Fact 4. Adopted in Finding of Fact 26. Rejected as irrelevant and unnecessary. COPIES FURNISHED: Wallace L. Storey, Esquire David M. Levin, Esquire P. O. Box 5 Sarasota, FL 33575 David K. Thulman, Esquire Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 William M. Hereford, Esquire 1299 South Tamiami Trail, #1233 Sarasota, FL 33579 Dale Twachtmann Secretary Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 =================================================================
Findings Of Fact Petitioners Kayla and Eric Douglas in DOAH Case No. 89-6367 failed to appear or send a qualified representative on their behalf to formal hearing, and, accordingly, their petition is subject to dismissal, pursuant to Rule 221- 6.022 F.A.C. Applicant Ratkovic owns two adjacent rectangular-shaped pieces of property, Lots #5 and #6, located at 19 Magnolia Drive, within the city limits of St. Augustine, Florida. These lots are bounded on the north by Oceanway Street, a dirt road, and on the east by Magnolia Drive. The Ratkovic house is located on the lot which directly abuts Magnolia Drive (Lot #6). Lot #5 is immediately to the east of Lot.#6 and is separated from it by a ten-foot wide alleyway. Oceanway Street deadends into Salt Run, a Class III Water of the State, which is next to Lot #5. Lot #5 is 55 feet wide in a north-south direction and 82.5 feet long in an east-west direction. Lot #5 is completely within the landward extent of Salt Run. Lot #5 may be cnaracterized as a flat, intertidal sand beach and DER's jurisdiction with respect to it extends to the ordinary mean high water line. Salt Run is an embayment off of the Atlantic Ocean which, with the help of a concrete artificial groin, forms a cove in the vicinity of the proposed project. Water flow in the cove is serene enough to allow a tidal marsh to grow along parts of the shoreline of the cove, but there are still two areas of the cove in which no vegetation grows: waterward of Applicant's property and waterward of the property of Petitioners Steger (DOAH Case No. 89-6366). The Steger property is several lots south of the Applicant's property. Marine vegetation grows in the southeast quadrant of Lot #5 and to the north of Lot #5. The proposed project involves the placement of 19 pilings on 4'8" centers along the northern lot line of Lot #5. The proposed pilings would run on a line in the middle of the unvegetated area, approximately halfway between the two areas of tidal marsh growth, out to the waterward edge of Lot #5. 7. The Applicant desires a dock for Lot #5 and has already availed himself of the general permit provisions of Rule 17-312.808 F.A.C. The dock has not been constructed because he has been unable to obtain local approval for its construction. Respondents assert as a legal proposition that a 1,000 square foot (6 foot wide) piling-supported dock, if built on Lot #5, would be exempt from the requirement of obtaining a DER dredge and fill permit such as the one at issue here, and because of Respondents' assertion, it is one of Petitioners' concerns in this proceeding that the Applicant not be permitted to do by indirection that which he has been prohibited by local government (but not DER) from doing directly. However, that dock permit and those peripheral legal propositions need not be resolved in this proceeding for the reasons set out infra. The Applicant intends that the proposed pilings at issue here will serve as the northern support structure of his proposed dock, if local approval is eventually granted for the dock. However, without such local approval of his proposed dock, the Applicant's proposed pilings would still serve as a barrier to vehicular traffic which presently has unrestricted access across the beach and across his private property, Lot #5. The Applicant represented that he wants to install the pilings with or without the dock approval so as to prevent late night driving of cars on his beachfront property. Salt Run is full of docks, and this vicinity of Salt Run is the only area totally unobstructed by docks. This vicinity also has the only bottom area in Salt Run not encrusted with oyster or other bivalve shells. The only water quality standard to be impacted by the proposed project is turbidity. Turbidity results from the resuspension of bottom material and will occur briefly during the placement of the pilings. At the proposed project site, the bottom material is sand, which when resuspended, rapidly falls to the bottom and therefore has little environmental impact under the circumstances of this application. However, turbidity controls have been required by Specific Condition 4 of the DER Draft Permit. The foregoing factors assure that water quality standards will not be violated by the proposed pilings. The testimony of DER's agency representative, Jeremy Tyler, who was accepted as an expert in oceanography and the impacts of dredge and fill projects to wetlands and water quality, is accepted that because the proposed pilings will be located on a flat, intertidal sand beach, and because installation of the pilings requires appropriate turbidity controls, the placement of the proposed pilings will not generate turbidity sufficient to impact the tidal marsh, and, accordingly, their placement will not adversely affect the conservation of fish, wildlife, or their habitats. Similarly, it is found that fishing, marine productivity,- and the current conditions and relative value of functions being performed by the tidal marsh will not be adversely affected by the proposed project. The proposed project will not have any effects upon the public health, safety, or welfare, the property of others, or significant historical or archaeological resources. It will be permanent. The proposed project will not adversely affect the flow of water at the proposed site and will not cause harmful erosion or shoaling. Depending upon the time of the month, the time of the year, and the height of the tide, water could wash up to the landward side of Lot #5, or could leave the lot high and dry. Oceanway Street, the dirt road adjacent to the Applicant's property on the north, has historically been used by the neighbors and general public to drive down to Salt Run. These persons have used the cleared area between the tidal marsh sections described supra for wading, swimming, throwing of cast nets, and launching of boats and windsurfing boards. Because it is within the city limits, the area is also very attractive to those who just wish to stroll up the beach on a north-south tangent. In gaining access to the water of Salt Run, some persons have not differentiated between Lot #5, which is private property, and Oceanway Street. One reason for this lack of discernment seems to be that nearby Ingram Street, also a public access, is in such disrepair that prudent persons avoid it. Also, Applicant either built on Lot #6 or moved into the house on that lot only within the last few years, and while Lot #6 was formerly unoccupied, the neighbors and the public were free to walk dogs, moor and launch boats, and enjoy virtually all recreational activities in public areas and on Lot #5 with impunity. In essence, Lot #5 has been treated as a public beach. In the recent past, the Applicant's attempts to "run off" persons who have utilized his property in these ways have caused bad feelings in the neighborhood. Also, Lot #5 has been inadvertently used for recreation some of the time that it is covered with water, and this seems to be the source of some persons' confusion over where the Applicant's right to "run off" the public begins and ends; however, the evidence is insufficient to establish a public easement across Lot #5. If the proposed piling project were constructed, beach walkers, swimmers, or waders approaching one of the piles (and if local approval is obtained, ultimately the dock) might have to alter their course to avoid a collision. The 4'8" gap between pilings would allow this, but in the event a dock is installed, it might be more prudent to avoid the area altogether. Cast netters would have to alter their net throws so that their backswing or release would not intersect the position of a proposed piling and so that their nets would land along the line of the proposed pilings instead of on the pilings or dock. This could be done. Boaters and windsurfers, after placement of the proposed pilings, would have a far narrower area within which to launch and land their boats and boards. However, this narrowing would not preclude such launching or landing. Boats often start and end their journeys at docks, which, from a boat hull's perspective, are nothing more than a row of pilings. Windsurfing boards are approximately two feet at their widest. When a windsurfer capsizes in open water, he typically rights his board and starts anew. Here, if windsurfers do not wish to launch in the clear area remaining to the north of the last piling, which they could easily do, they would be able to walk their boards out to the last piling and start as they would in open water. The proposed pilings will make it more difficult to launch or land a windsurfing board, but it would not preclude such use of the water. There is also a public boat ramp at Lighthouse Park, the northern boundary of which is four blocks to the south and three blocks to the west of the proposed project site. Boaters or windsurfers who did not choose to use the end of Oceanway Street to obtain access to Salt Run would be able to use that location.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Regulation enter a Final Order Dismissing the Petition in DOAH Case No. 89-6367; Denying the Petitions in DOAH Case Nos. 89-6363, 89-6364, 89-6365, 89-6366, and 89-6368; and Granting the dredge and fill permit application as specifically conditioned by the Department of Environmental Regulation's Intent to Grant. DONE and ENTERED this 19th day of June, 1990, at Tallahassee, Florida. ELLA JANE P. DAVIS, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of June, 1990. APPENDIX TO RECOMMENDED ORDER CASE NOS. 89-6363, 89-6364, 89-6365 89-6366, 89-6367, 89-6368 The following constitute specific rulings pursuant to Section 120.59(2) F.S. upon the parties' respective proposed findings of fact (PFOF): Petitioners Stegers' PFOF filed May 22, 1990: Paragraph 1: Sentences 1, 3, and 4: Accepted as fact, however, the degree of obstruction, the significance of recreational values within the applicable statutory balancing test, and the legal implications of that balance as contained in the Recommended Order more accurately reflect the record as a whole. Sentence 2: Accepted as modified to more accurately reflect the record as a whole. Sentence 5: Rejected as unproved. See what was proved and what was speculated in FOF 9 and 11 and COL 11. Paragraph 2: Rejected as not proved. Respondent DER's PFOF filed May 22, 1990: 1-16 Accepted as modified to more accurately reflect the credible, competent, substantial evidence of record as a whole. To date, no other PFOF have been filed. COPIES FURNISHED: Judson and Annelle West 4 Lighthouse Avenue Anastasia Island St. Augustine, Florida 32084 Virginia Quill Myers Mary Susanna Myers 322 Ponce de Leon Avenue Anastasia Island St. Augustine, Florida 32084 Ronald Asner 37 Magnolia Drive Anastasia Island St. Augustine, Florida 32084 Dan and Sue Steger 25 Magnolia Drive Anastasia Island St. Augustine, Florida 32084 Kayla K. and Eric Douglas 69 Lighthouse Avenue Anastasia Island St. Augustine, Florida Mary H. Acebal 32084 E. V. Acebal 10 Lighthouse Avenue Anastasia Island St. Augustine, Florida 32084 Mr. Jack Ratkovic Post Office Box 4482 St. Augustine, Florida 32085 William H. Congdon Assistant General Counsel, DER Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Dale H. Twachtmann, Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400
Findings Of Fact The property here involved comprises 6.2 acres located in Southeast Clearwater near U.S. 19 and Nursery Road. It fronts on Nursery Road, which is on the north side of the property and the zoning is RM-16 (medium density multifamily). A multifamily HUD project is under construction and approximately two-thirds complete. The issue in this case is the denial of Chateaux de Ville's application for a variance to erect a six-foot wall on the front property line which abuts Nursery Road. Zoning regulations authorize a 30-inch fence along the front property line. Preliminary site plan for this townhouse development was approved by the City Commission on November 19, 1981 (Exhibit 1), as a Final Site plan. A minor amendment to this plan to erect the 30-inch masonry wall in the setback area in the northwesterly corner of the property was approved December 15, 1983 (Exhibit 2). On August 13, 1982, the City of Clearwater Engineering Department approved Final Site plans which showed the proposed six-foot high concrete wall on the front property line running the entire length of the property along Nursery Road (Exhibit 8). That approval was granted subject to compliance with all zoning regulations. No approval from the City Planning Department was obtained for this proposed wall. A second amendment to the site plan to add a bath house adjacent to the swimming pool was approved April 19, 1984, by the City Manager upon recommendation of the Planning Department (Exhibit 3). A third revision to the site plan to provide for a six foot perimeter wood fence along the east, west, and south sides of the property and to provide six-foot fences between the individual townhouse unit rear yards located both internally and along the east, west, and south perimeter of the project area was approved in July 1984 (Exhibit 4). In recommending approval of this amendment, which complied with the zoning regulations, the Planning Director noted that no fencing is being provided for the townhouse units along the north side of the project adjacent to Nursery Road. Without obtaining a building permit for its construction, a six-foot concrete block wall was erected on the front property line (adjacent to Nursery Road) by the developer. No building permit for such construction would have been issued by the City until a variance in permitted fence height had been obtained. The building and zoning regulations provide that no fence higher than 30 inches can be erected in the front setback area without first obtaining a variance. Approximately one-third of the tract being developed is occupied by a lake on the south end of the property. This lake was described as a very attractive lake with good fishing. Appellant contends that this lake constitutes an attractive nuisance and the wall on the front of the property is needed to keep children from entering the property. Appellant also contends that the six-foot wall along the front of the property is needed to protect the residents from burglars, thieves, and other criminal elements who easily could enter the property from Nursery Road if the fence is not there to deter them. The wall also serves to complete the six-foot enclosure around the property.
The Issue The issue is whether Petitioners are entitled to an after-the-fact building permit for work done to their manufactured home on Big Pine Key following Hurricane Irma.
Findings Of Fact On June 24, 2014, Petitioners paid $115,0003 to acquire title to a lot in unincorporated Monroe County bearing the address of 31480 Avenue F, Big Pine Key (Lot). The Lot is in the Avenues neighborhood within the Sands subdivision, which consists of site-built and manufactured homes. The Lot measures 100 feet deep and 40 feet wide. Because the back 20 feet of the Lot is submerged bottom of a canal, the effective area of the lot is 80 feet deep by 40 feet wide. The Lot is at the southern end of Big Pine Key, just north of Route 1. About 400 feet--or six lots--to the east of the Lot is water that connects to the open waters of the Atlantic Ocean about two miles to the south and to the Gulf of Mexico a greater distance to the north. The landward extent of the canal at the back of the Lot extends three or four lots to the west. The Avenues neighborhood features an alternating series of evenly spaced canals and lettered avenues, all running in an east-west direction. The six canals are of roughly equal dimensions. The canal behind the Lot is the second closest to the ocean. The Lot is in Federal Emergency Management Agency (FEMA) flood zone AE, indicative of a relatively high risk of flooding. The base flood elevation of the Lot is nine feet above mean sea level.4 The base flood elevation is the elevation specified for a structure to avoid floodwaters from the base flood event, which is the flooding projected to result in a flooding event with an annual probability of occurrence of 1%.5 The prevailing elevation of the Sands subdivision is only three feet above mean sea level, so that the base flood event would inundate the subdivision by an average of about six feet of water. The AE zone is associated more with rising and wind- driven water. The VE zone, which extends from the water to a point three lots east of the Lot, is associated with the stronger water forces of surging water. These zones reflect the projected relative risks to structures posed by the depth of a flood and the energy of the water column in terms of velocity and, where applicable, wave action. When they acquired the Lot, Petitioners also acquired the title to a 56-foot by 12-foot 1970 Ritz-Craft, Inc., manufactured home located on the Lot (Trailer). Originally purchased for about $2000, the Trailer has been located on the Lot continuously since at least December 28, 1971, when a predecessor-in-interest of Petitioners filed with the Monroe County property appraiser's office a Declaration of Mobile Home as Real Property. When acquired by Petitioners, the Trailer still had many of its original fixtures, including the original Formica counter, bathroom, and trailer tub, and the finished floor was composed of vinyl strips glued together, the walls were covered in wood paneling, and the kitchen cabinets were made of wood. Given practices prevailing in the industry at the time of the manufacture of the Trailer, the subflooring, cabinets, and unfinished counters were likely particleboard, which is highly susceptible to water damage, and the walls were likely plywood, although these components may have been replaced over the years. The front of the Trailer is the 12-foot end facing Avenue F to the north, and the back of the Trailer is the 12-foot end facing the canal to the south. Abutting one side of the Trailer is a freestanding wood deck measuring 16 feet by 8 feet. At all material times, the Trailer's foundation has consisted of stacks of concrete blocks forming piers under the Trailer. These stacks elevate the Trailer so that the finished floors were about three feet above grade. If the elevation of the Lot approximated the average elevation in the Sands subdivision, without regard to wave action and tide, storm surge would need to exceed six feet to submerge the finished floors of the Trailer. In their first three years of ownership, Petitioners performed the usual maintenance on the Trailer, including a paint job, but did not alter the components described above. The only major work took place in May 2017 when Petitioners paid $2210 to Privateer Alliance, a certified general contractor, to disconnect their septic tank and connect to central sewer lines. On September 10, 2017, Hurricane Irma, a category-four storm, made landfall at Cudjoe Key. The storm caused extensive flooding and wind damage in the Florida Keys, but especially in Big Pine Key, which is about ten miles east of Cudjoe Key. The damage along Avenue F indicated that the causative force was moving water more than from rising water, and structures east of the Lot suffered more damage than structures farther from the water.6 In compliance with a mandatory evacuation order, neither Petitioner was in the Trailer when Hurricane Irma struck. The storm inflicted the most damage to the Sands subdivision, among residential areas. On Big Pine Key, floodwaters reached five to eight feet above mean sea level, and floodwaters in the vicinity of the Trailer persisted for about 12 hours, as noted by Respondent.7 Respondent offered into evidence Composite Exhibit L, page 1, which is a map entitled, "Coastal Depth Grid." The map depicts the portion of the Avenues that includes the Lot. The map bears coloring that, according to the legend, is intended to report the flooding depths from Hurricane Irma. Although the variations in color are too slight to differentiate among the varying depths shown in the legend, Respondent construed the Coastal Depth Grid to show nine feet of floodwater over the Lot. Respondent offered no predicate for the Coastal Depth Grid. To the contrary, one of Respondent's witnesses, Mary Wingate, who is a 24-year employee working in Respondent's Floodplain Office of its Building Department, testified to a more reasonable floodwater depth of five to eight feet. A floodwater depth no higher than the low end of Ms. Wingate's estimate is supported by the damage to the interior of the Trailer, as discussed below.8 For these reasons, the Coastal Depth Grid is not credited as a source of a finding of floodwater of nine feet above mean sea level over the Lot. Following a major storm, prior to the order allowing residents to return to their homes, building or safety inspectors visit affected areas and make initial determinations of the safety of individual residences. If a structure is determined to be unsafe, the inspector posts a red card that states, "Destroyed," so as to prevent reoccupation or re-energizing of the residence. Fifty to sixty inspectors for the entire Keys started inspections in the upper keys on September 13 or 14. Reflective of the devastation caused by Hurricane Irma in the Florida Keys, three weeks passed before a building inspector visited the Lot on October 3, 2017. At that time, the building inspector, who is a licensed professional engineer, determined that the Trailer had been destroyed, so the inspector posted a red card on the Trailer. This determination was based on damage to the front of the Trailer, which was visible from the street; the inspector did not examine the interior, the utilities, or the back of the Trailer. From the street, the inspector correctly determined that the walls, windows, and doors had been unaffected, but the siding and trim would require repair. For the roof and roof structure, the inspector checked boxes stating that these elements required repair and replacement; perhaps, the seemingly inconsistent checkmarks were intended to mean that repair would be sufficient for some parts of the roof and some parts of the roof structure, but replacement would be necessary for other parts of these two elements. In fact, neither the roof nor roof structure required replacement, although the roof required the replacement of a damaged roof panel. In a brief narrative, the inspector noted on the inspection form: "Building completely off foundations & separated from entry stairs & deck." Perhaps due to a daunting workload, the inspector failed to notice that the back of the Trailer was still on its concrete block stacks. The front of the Trailer had been driven off its stacks, likely by storm surge, and rested about four feet from its original position, still somewhat above grade because it rested atop debris. On October 14, 2019, a building inspector conducted another inspection of the Trailer and determined that the damage equaled or exceeded 50% of its assessed value, pursuant to the SI/SD ordinance, which is discussed in the Conclusions of Law. Again, this inspection did not include an examination of the interior of the Trailer. The October 14 determination relied on a FEMA-supplied tool, Composite Exhibit L, page 2 (FEMA Tool), for estimating damage based on a "long-duration" saltwater inundation of a manufactured home. Two problems preclude reliance on the FEMA Tool. First, the inspector used the above-described Coastal Depth Grid to determine that the Lot was subjected to a floodwater depth of nine feet--or six feet above the finished floor of the Trailer. Because the actual floodwater depth was substantially less than nine feet, the FEMA Tool produced an excessive estimate of damage. Second, the inspector applied the FEMA Tool to a flooding event that was not shown to be of long duration, as required for use of the tool.9 It is impossible to determine which of the two flaws in the use of the FEMA Tool produced the greater distortion in damage estimates. Even when using a more-reasonable input of three to four feet of flooding above the finished floor--i.e., six to seven feet of floodwaters--the FEMA Tool predicts that the air conditioning unit, subfloor, finished floor, and bottom cabinets would be completely destroyed. The air conditioning unit, which is installed in the wall, was undamaged, as were the bottom cabinets. The flooring components are discussed below, but were not completely destroyed. The FEMA Tool predicts near-total to total destruction of the plumbing, doors, and wall finishes, which, as discussed below, were substantially undamaged. The FEMA Tool predicts damage of 38% to 72% to the electrical system, which was undamaged. In other respects, as well, the FEMA Tool over-estimates the extent of the damage to the Trailer. The failure of the parties to offer into evidence the FEMA tool for short-duration saltwater flooding to a manufactured home precludes a finding as to the extent to which the actual floodwaters were substantially shallower than even Ms. Wingate's estimate or the duration of inundation was very brief. In either case, the repairs undertaken by Petitioners are a good measure of the damage to the Trailer, except for the finished floor. First, Petitioners rented some jacks and, with one or more friends, lifted the front of the Trailer, restacked the concrete blocks, and reset the Trailer atop them. Apparently at the same time, Petitioners also restored the wood deck to its prestorm condition. The retail value of this work was $1000. Second, the storm damaged the weatherhead or cap that shields the electric service line from the elements where the line enters the Trailer. The retail value of the work to replace the weatherhead and perform the electrical safety inspection required before the power company would restore power to the Trailer was $1060. Third, the storm caused minor damage to one or more plumbing lines. The retail value of this repair work was $240. Fourth, various exterior panels required repair or replacement due to damage. The retail value of the repairs was $575, and the retail value of the replacement of 16 outer panels was $1280. Fifth, the storm destroyed the skirting along the bottom of the Trailer. The retail value of this replacement work was $1056. Sixth, the retail value of minor trim repairs necessitated by the storm was $500. The retail value of the above-described work was $5711. During the same time period, Petitioners performed additional work for which they never obtained a permit. The Conclusions of Law explain the relevance of the retail value of this work, which consisted of the installation of five new windows at $1075, the application of window sealant, caulking and hardware totaling $295, and the installation of a new front door for $320. The retail value of this work, which did not address floodwater damage, was $1690. This work plus the previously described work thus totaled $7401. This leaves the finished floor and subflooring and one panel of plywood that had separated from the wall and was flopping. The plywood paneling is de minimis. One panel of wall plywood separated from the wall, although it is unclear how that happened, and the repair would represent an insignificant expense, even if the panel had to be replaced. One of the Petitioners testified that there was water damage on the floor at the front of the Trailer extending across the front room and into the living area, where it discolored the bottom four inches of a sofa cover and left a muddy residue. At the back of the trailer, Petitioner found a water mark about one-half inch high along metal bunkbeds. According to this witness, the walls bore no dirt or mud, and neither they nor the cabinets were damaged by the water, but the vinyl floor tiles separated by no more than 1/8th of an inch due to ungluing from exposure to the water. This testimony is credited. The floodwater that entered the Trailer left a silty deposit on the floor, so it was relatively easy to determine the vertical reach of any floodwater that entered the Trailer, and the limited damage to the roof and sides of the Trailer does not appear to have allowed significant, if any, amounts of rain water into the Trailer. The crucial questions, which are left unanswered in this record, involve the extent of the work necessary to restore the finished floor and subflooring to their prestorm condition and the retail value of the cost of this work. One of Petitioner's witnesses was David Koppel, who is a licensed professional engineer with considerable experience in the assessment of damages, partly from a 22-year career with Respondent. In December 2018, Mr. Koppel inspected the foundation, tie-downs, interior and underneath of the Trailer, both flooring units, and the walls and cabinets and concluded that the structural elements were "sound" and everything was intact as it was built, except for a little "swelling and separation" of the finished floor, which Mr. Koppel testified was so minor that its repair or replacement would be left to the owners' choice. Mr. Koppel opined that all work had been performed in conformance with the 1970 Building Code, which was in effect when the original building permit was issued. Mr. Koppel's testimony is problematic in two regards.10 He mistook the vinyl floor for a wood floor, and he misidentified the referent as the owners' preference instead of the prestorm condition, as explained in the Conclusions of Law. Otherwise, Mr. Koppel's testimony is credited. There is no evidence that Petitioners repaired or replaced any of the items that Mr. Koppel inspected, prior to his inspection, so he would have found any damage, such as rot or mildew, that would have developed in the intervening 15 months between the storm and his inspection. This leaves as the sole open question as to damages the retail value of the cost of the work to repair or replace the damaged portion of the finished floor--an issue that is not addressed in the record. Lastly, it is necessary to determine the prestorm value of the Trailer. The property appraiser assessed the Trailer at $17,769. After a 20% adjustment, as discussed in the Conclusions of Law, Respondent increased the value of the Trailer to $21,323. Petitioners' witness, an experienced real estate appraiser, testified that the Trailer was worth $53,618, using the cost approach to value. Her total estimate of the cost of the structure, if new, was $73,450, which she reduced by $19,832 for depreciation. Petitioners' appraiser never explained why she estimated only $20,000 or 27% for depreciation for a 50-year-old manufactured home. Her appraisal also lacked comparable sales to back up her cost approach to value and never took into account published sources of market values for used manufactured homes. Petitioners' evidence does not persuade that a manufactured home, parked beside the ocean for 50 years, is worth today over $50,000. Thus, Petitioners failed to overcome the adjusted assessed value of $21,323. However, the proved retail value of the work associated with damage and improvements of $7401 is less than 50% of the value of the Trailer of $21,323. Following the storm, Petitioners and contractors performed the above-described work. By May 12, 2018, Respondent initiated an investigation into the substantial unpermitted work that Petitioners had undertaken. On June 8, 2018, Respondent issued a Notice of Violation/Notice of Hearing for July 26, 2018 (NOV). The NOV alleges the unpermitted work and requires corrective action of obtaining an after-the-fact or demolition permit. The hearing before the special magistrate took place on September 27, 2018. At the hearing, as stated in Petitioners Exhibit F, Respondent's counsel advised the special magistrate: This one isn't terribly complicated or terribly difficult in that we just need the after the fact permit so that the inspections can be performed to make sure that the utilities are connected, safely reconnected, reattached. It's currently on the blocks in the proper situation, hopefully it doesn't happen again. The NOV proceeding concluded with the parties' agreement that Petitioners would file an application for an after-the-fact permit, although the discussion indicates that Respondent was focusing exclusively on the necessity of a permit to replace the Trailer on its concrete block stacks and to replace the wood deck to its original position abutting the Trailer. The after- the-fact permitting process then ensued, as described in the Preliminary Statement.
Findings Of Fact By Application for Permit to Move Building over State Roads dated November 1, 1985, Eyal Sade, on behalf of Sade Housemovers applied for a permit to move a dwelling over state roads some 32 miles in Tampa and vicinity. Although this application showed the width of the building to be 32.2 feet, including eaves, E & S Construction/Sade Housemovers, was issued regular Permit No. B17531 on November 6, 1985 (Exhibit 1). Width, excluding eaves, was left blank on this application. This permit provided the building would be moved over state roads between the hours of 12:00 midnight and 6:00 A.M. and be escorted by local police. The application showed utility companies TECO, GTE and WRec [sic] had been notified of the move and the move had been cleared by the Florida Highway Patrol without comment regarding the need for escort. Also Seaboard railroad system had been notified (Exhibit 1). This move commenced shortly after midnight, November 19, 1985, with escorts from the Hillsborough County Sheriff's Department. The building had to be jacked up on the platform on which it rode and required a 90 degree turn to commence its trip south on Nebraska Avenue (U.S. 41). This delayed the start of the movement down Nebraska Avenue approximately 30 minutes. Shortly after the trip started, the portable generator that provided lighting on the building stopped functioning and the escorts told Mr. Sade he had to get the lights on the building. Sade attempted to have the generator repaired as the move progressed. When the movers stopped for approximately five minutes to repair the generator, the police escorts testified that the crew moving the building stopped working to eat. This was denied by Sade and the members of his crew who all testified that the sandwiches that Sade procured were eaten as the move progressed. The two deputies from the Sheriff's Office who escorted the move considered the move to be progressing slowly and told Sade several times that he should be ready to park the building before 6:00 A.M. Sade had spent three days surveying the route before November 19, and had taken measurements of all bridges and the elevation of lights. Mrs. Sade had contacted by telephone the City of Tampa Utilities Department to advise them of the move as well as Pasco County officials for the portion of the route in Pasco County. There was a conflict in the testimony of the deputies and Sade regarding the presence of a man on top of the building to clear traffic lights as the building passed under these lights. Sade testified he had a man on the building during the time the building was in the City of Tampa. The deputies testified they told Sade he needed someone on the top of the building. The bridge over the Hillsborough River on SR 39 was some twenty miles from the commencement of the trip and the building arrived at this bridge around 5:30 A.M. The escorts had told Sade several times that he should not be on the road after 6:00 A.M. and that hour was approaching. Sade was aware of a large lot on which the building could be parked off the highway located about one mile south of Hillsborough River bridge and decided to cross the bridge to get to that location. While crossing the Hillsborough River bridge, the building got stuck on the guardrail and had to be backed off. Sade's winch broke down but they were able to obtain a bulldozer from a business adjacent to the bridge which helped get the building off the pavement and along the right of way as demanded by the escorting officers. While this was going on, the traffic was totally blocked for about 20 minutes and delayed with one way traffic having to proceed past the building until the building was finally moved completely off the roadway. Even then the overhang of the building extended offer the road to the white line along the edge of the pavement. Sade's testimony that this eave was 17 feet above the pavement was not disputed; however, William Ledden opined that a semi-trailer would hit the roof of the building if it attempted to pass under this eave. By the time the building was parked along the right-of-way, it was approximately 8:40 A.M. and traffic had been stopped and delayed for almost three hours. The problem of getting the building stuck on the bridge, the resulting delay past 6:00 A.M. and that the building was still on the road was reported to Petitioner, and William Ledden, a certified officer employed by DOT as a weights and safety inspector, was dispatched to the scene. Ledden looked at the permit issued Sade for the move, saw it was a regular permit, saw that it expired at 6:00 A.M. and directed Sade not to move the building until a proper permit was issued. Ledden was present during the time the wrecker relocated the building alongside the paved road on the shoulder. For a building exceeding 30'6" in width a Special Permit is required (Rule 14-63.03, Florida Administrative Code). Ledden testified he made it clear to Sade that the building was not to be moved without a valid permit. On the morning of November 20, 1985, after midnight, the building was moved without incident across Hillsborough River bridge to the large lot south of the bridge that Sade had hoped to make the night before. Sade reapplied to DOT for a permit to move the building to its intended destination and on November 25, 1985, Special Permit No. B17546 (Exhibit 2) was issued to Respondent. This permit indicated all necessary parties were notified of the move. Shortly after midnight, November 27, 1985, the movement of this building recommenced pursuant to the Special Permit. The move progressed satisfactorily until the bridge on SR 39 over Blackwater Creek was reached. Petitioner's witness testified the building hit the rub rails on both sides of the bridge. Photograph admitted on Exhibit 4 shows one side of the building rubbing on the guardrail. Respondent acknowledged that the clearance was close and that to clear the guardrail on one side, the building had to be raised on that side. The driver of the towing truck acknowledged that he initially got off line and one side of the building touched the guardrail and it was necessary to back off the bridge to get realigned. To raise one side of the building to enable it to clear the guardrail on the right side, 2 x 12 planks were placed on the roadway for the right wheels of the carriage to ride on. These planks had to be moved continuously as the building progressed across the bridge. This materially slowed the progress across the bridge. Other than the initial rubbing of the guardrail, the only complaint of Petitioner regarding this part of the move is that the bridge was blocked to traffic for one and one-half hours while the building crossed the bridge. Sade testified the building was on the bridge for only 30 to 45 minutes; however, the longer period is deemed more reliable. After clearing the bridge, the building struck some tree limbs alongside the road and a railroad stop sign over the road which had to be realigned. This realignment was done by the moving crew and no safety hazard resulted. The carriage for the building had been raised as much as possible to clear the bridge guardrails and still be low enough to clear the overhanging traffic signals, hence the need to raise one side of the carriage to clear the guardrail at the Blackwater Creek bridge. The November 27 move was completed prior to 6:00 A.M. in accordance with the permit.
The Issue The issues in this case are whether Respondent violated Subsections 489.129(1)(g)1., 489.129(1)(g)2., 489.129(1)(j), 489.129(1)(m), and 489.129(1)(o), Florida Statutes (2005),1 and, if so, what discipline should be imposed.
Findings Of Fact At all times material to this proceeding, Mr. Calleja had a valid and active license as a commercial certified pool/spa contractor. His license number is CP 1456568. At all times material to this proceeding, Mr. Calleja was the owner of or did business as Nautica Pools & Spa (Nautica). The Board is charged with regulating the practice of contracting in the State of Florida pursuant to Chapters 455 and 489, Florida Statutes. On April 2, 2005, Mr. Calleja, as the representative for Nautica, entered into a contract with Jack Coleman to renovate Mr. Coleman’s existing pool. From April 2005 to July 27, 2005, Nautica installed rebar in the pool and set a new skimmer. Nautica subcontracted with Prestige Gunite of Melbourne, Inc. (Prestige), to put the gunite in the pool. Gunite is concrete that is sprayed out of a hose to form the walls of the pool. Personnel from Prestige arrived on the project site on the afternoon of July 27, 2005, to apply the gunite, but did not do so because the application would have taken longer to do than one afternoon. The following day, July 28, 2005, Mr. Calleja and a crew from Prestige returned to the project. A representative from Prestige told Mr. Calleja that the steel rebar had not been laid properly. Mr. Calleja told Prestige to apply the gunite and do what was necessary to cover the steel. Mr. Calleja left the project site, and Prestige began applying the gunite. During the application of the gunite, it became evident that the first spraying of gunite was not going to cover the steel. Attempts were made to reach Mr. Calleja, but Mr. Calleja was not available to solve the problem. Prestige began applying additional coats of gunite in an attempt to cover the steel. After the gunite was applied, two problems were identified. The first problem was in the fountain area. The gunite had not been applied properly, and there were hollow areas. The second problem was in the wet deck area. The steel rebar was too close to the surface of the floor, and the steel was visible. In order to remedy the problems, the concrete in the areas would have to be jack hammered to remove the concrete, and new gunite would have to be applied. By letter dated August 28, 2005, Nautica requested Mr. Coleman to pay Prestige $954.57. Nautica advised Mr. Coleman that when that amount had been paid, Nautica would pay the balance owed to Prestige and forward a release to Mr. Coleman. Mr. Calleja claimed that Mr. Coleman owed the $954.57 because Mr. Coleman had damaged Mr. Calleja’s saw. In the letter, Nautica acknowledged that there was additional work which had not been completed. The letter was signed by Mr. Calleja’s wife. Mr. Calleja had verbally told Mr. Coleman that he wanted Mr. Coleman to pay him $2,000.00, and he would take care of paying Prestige. The general specifications in the contract required that the contractor was responsible for “[s]tandard structural engineering plans and permits required by code.” Prior to commencing work on the pool renovation, Mr. Calleja did not secure the required building permits for the project. Mr. Coleman called Clifford Stokes, who is the building official with the town of Indialantic, and asked whether a permit had been issued. Mr. Stokes went to the project site. At that time, the gunite had been shot, and there was exposed steel rebar. Since no permit had been pulled, no inspection had been done after the steel was put in place. On September 15, 2005, Mr. Calleja applied for a building permit. Because the steel had been placed, and the gunite shot, it was impossible to do a visual inspection to determine whether the steel had been placed properly. In order to get a permit after the construction had been commenced, certain affidavits had to be submitted to the building official of Indiatlantic. Mr. Calleja had to submit an affidavit stating that the steel had been placed properly. An affidavit stating that the work had been performed properly had to be submitted from an engineer, who had made a site visit to the project and had determined that the work performed had been according to code. Additionally, Mr. Coleman was required to submit an affidavit that stated that he understood that no inspection had been done of the work by the building official. Mr. Calleja also had to pay a fine to Indiatlantic for commencing work without a building permit. On October 19, 2005, Mr. Calleja and Robert Lee from Lee Engineering came to the project site for the purpose of preparing the affidavits necessary to secure a building permit. Mr. Calleja did not return to the project site after October 19, 2005. Mr. Coleman sent a letter to Mr. Calleja dated October 13, 2005, noting that no work had been done on the project since July 28, 2005, and requesting that Mr. Calleja remedy a number of deficiencies with the work performed on the project and complete the job in accordance with the contract. The letter was returned to Mr. Coleman by the postal service because the time for forwarding mail from the address listed in the letter had expired. When Mr. Calleja came to the project site on October 19, 2005, Mr. Coleman requested a current address from Mr. Calleja, but Mr. Calleja refused to give him one. Mr. Coleman wrote another letter to Mr. Calleja dated October 25, 2005, again stating that no work had been done since July 28, 2005, and requesting that Mr. Calleja correct the deficiencies in the work and complete the contract. Mr. Coleman filed an action in small claims court attempting to recover the money for the lien filed by Prestige. However, Nautica had filed for bankruptcy, and Mr. Coleman did not proceed with the small claim action. A building permit for the project was issued in January 2006. The issuance of the building permit did not relieve Mr. Calleja from the responsibility of assuring that the work in the shallow end of the pool area where the rebar was sticking up was redone properly. After the building permit was issued, neither Mr. Calleja nor Mr. Coleman called for inspections by the Indiatlantic building official. The permit expired in June 2006. After the issuance of the building permit, Nautica performed no further work on the project. The total contract price was $9,340.00. Mr. Coleman and Mr. Calleja entered into an addendum to the contract on July 27, 2005, which increased the contract price to $13,000.00. The contract called for a down payment of $934.00, which was ten percent of the contract amount. After completion of excavation and the form and steel work, a payment of $3,736.00 was due, representing 40 percent of the total work. After completion of the pool shell, a payment of $2,802.00 was due, representing 30 percent of the total work. Prior to plastering, which represented 20 percent of the total work, a payment of $1,868.00 was to be paid. The contract addendum of $3,660.00 called for 50 percent of the addendum amount to be paid at the completion of the pool shell, and the remaining 50 percent of the addendum amount was to be paid at the completion of the pool. By check dated April 22, 2005, signed by Mr. Coleman’s wife, Mr. Coleman paid Mr. Calleja $1,000.00 as down payment on the project. In June 2005, Mr. Coleman gave Mr. Calleja a check for $573.42 for a pool and spa light. Mr. Coleman was to receive a credit of $380.00 toward the contract for the light. Additionally, Mr. Coleman overpaid Mr. Calleja by $166.90. By check dated July 27, 2005, and signed by Mr. Coleman’s wife, Mr. Coleman paid Mr. Calleja $7,396.00. This payment was to include half of the addendum amount, but Mrs. Coleman inadvertently included the full amount of the addendum. By check dated August 1, 2005, and signed by Mrs. Coleman, Mr. Coleman paid Mr. Calleja $739.10. Thus, by August 1, 2005, Mr. Coleman had paid Mr. Calleja, $9,682.00 on the contract. In December 2005, Mr. Coleman asked a representative of Paradise Pools, Patrick McDonough, to come to the project site and give an estimate to complete the pool. The estimate of $7,800.00 from Paradise Pools was for a cosmetic plaster of the existing pool, and the work was not warranted against leakage. Mr. McDonough would not warrant the work, because he saw a lot of potential liability problems with the work performed by Mr. Calleja. Mr. McDonough did not recommend that a cosmetic plaster be performed because of the potential problems. On October 26, 2005, Prestige filed a Claim of Lien against the property of Mr. Coleman for $4,227.40 plus interest, costs, and attorney’s fees. The lien was for the work which Prestige had performed on the project on July 28, 2005, and for which Mr. Calleja had failed to pay. Mr. Coleman called Mr. Calleja and told him that a lien had been filed. Mr. Calleja assured him that he would pay the lien, but he failed to do so. Mr. Coleman satisfied the lien by check dated April 11, 2006, for the amount of $5,139.58. David Bogenrief, P.E., viewed the project in June 2008 and provided Mr. Coleman with a quote to develop structural plans to repair Mr. Coleman’s pool. There was no testimony on the amount of the quote, and the Department did not request that the written proposal be admitted in evidence. Mr. Bogenrief did not know what it would cost to repair the pool. The Department has incurred $470.49 for costs in the prosecution of this case.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Mr. Calleja did not violate Subsection 489.119(2), Florida Statutes, and that Mr. Calleja violated Subsections 489.129(1)(g)1., 489.129(1)(g)2., 489.129(1)(j), 489.129(1)(m), and 489.129(1)(o), Florida Statutes; for the violation of Subsection 489.129(1)(g)1., Florida Statutes, imposing a fine of $2,000.00, suspending Mr. Calleja's license for six months, and requiring Mr. Calleja to pay Mr. Coleman $5,139.58 as restitution for the payment of the lien filed by Prestige; for the violation of Subsection 489.129(1)(g)2., Florida Statutes, imposing a fine of $2,000.00, suspending Mr. Calleja's license for six months, and requiring Mr. Calleja to pay Mr. Coleman $9,682.00, which represents the amount that Mr. Coleman paid to Mr. Calleja; for the violation of Subsection 489.129(1)(j), Florida Statutes, imposing a $1,000.00 fine and four years of probation; for the violation of Subsection 489.129(1)(m), Florida Statutes, imposing a $1,000.00 fine and four years of probation, which shall run concurrently with the other probation imposed; and, for the violation of Subsection 489.129(1)(o), Florida Statutes, imposing a $1,000.00 fine and two years of probation to run concurrently with the other probation imposed; and requiring payment of $470.49 as costs for the prosecution of this case. DONE AND ENTERED this 29th day of August, 2008, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL 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 August, 2008.
