Findings Of Fact Respondent, San Ann Food Stores, is the owner of an outdoor advertising sign located 5.89 miles east of the Hillsborough County Line, on the east side of Interstate 4 in Polk County. More specifically, the sign is east of the U.S. 98 and I-4 intersection which lies just north of the City of Lakeland. The sign is two-sided, with one side facing eastward, and the other facing westward. It sits on top of two poles which are approximately sixty feet high. The parties have stipulated that the sign is visible from I-4, although just barely, and lies within five hundred feet of that highway. They have also stipulated that no permit has ever been issued by petitioner, Department of Transportation (DOT), authorizing its use. The sign does not lie within the corporate limits of a city; however, this is immaterial to the resolution of these cases. On an undisclosed date, a DOT inspector observed the sign while conducting an inspection of another sign and found no display of a current valid permit tag. After checking his records, he found that no permit had ever been issued authorizing its erection and use. It was also determined, without contradiction, that the sign is within five hundred feet of the interchange of I-4 and U.S. 98. Such an intersection is classified as a restricted interchange. According to Rule 14 10.06(2)(b)2. and state law, no signs are permitted within five hundred feet of such an interchange. The sign in question was erected by Sun Oil Company around 1967 or 1968 when no permit was required. Respondent purchased the property on which the sign is located in April, 1978. It assumed that Sun Oil had obtained all necessary permits from the state to maintain and use the sign. It did not learn that Sun had failed to obtain a sign permit until the Notice of Violation was issued by DOT in February, 1985. It is willing to repay all fees owed during prior years if DOT will allow the sign to remain.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent's sign (facing east and west) be found in violation of the statutes and rules cited in the conclusion of law portion of this order, and that it be removed. DONE and ORDERED this 7th day of August, 1985, in Tallahassee, Florida. Hearings Hearings DONALD R. ALEXANDER Hearing Officer Division of Administrative The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative this 7th day of August, 1985.
Findings Of Fact The following findings are based on the uncontested facts alleged in Petitioner's Motion For Summary Recommended Order and from the Final Orders issued in Bayshore Homeowners Association v. Department of Environmental Regulation and Grove Isle, Inc., Case Nos. 79-2186, 79-2324 and 79-2354. On December 29, 1980 DER entered a Final Order on the application of Petitioner for a 90 slip marina in Biscayne Bay, Florida. The Order denied the permit because Grove Isle had not demonstrated that the project is "affirmatively in the public interest" and because the applicant had not demonstrated that it "can meet ambient water quality standards within the project area itself." In the Recommended Order on Remand the Hearing Officer had defined "existing ambient waters" to be the area in the cove between Grove Isle and the Miami mainland. The Final Order rejected that concept and held if any waters others than those contained within the immediate project site were to be considered as ambient, Petitioner must request a mixing zone as part of its application. See Section 17-4.242, (1)(a)2.b. and Section 17-4.244, Florida Administrative Code. By a letter received at the Department of Environmental Regulation on May 20, 1981, Grove Isle reapplied for the boat dock permit which was the subject of the foregoing proceedings. Petitioner's application, which was in the form of a letter from counsel, stated: May 18, 1981 Mr. Larry O'Donnell Department of Environmental Regulation Post Office Box 3858 West Palm Beach, Florida 33402 RE: GROVE ISLE - Application for Boat Dock Dear Mr. O'Donnell: On behalf of Grove Isle, LTD, I am reapplying for the boat dock permit previously applied for by Grove Isle, LTD. Please consider this a short-form application. Your office designated a previous file number, DF 13-7956, to this matter. In conjunction with that application I am applying for a mixing zone, pursuant to Rule 17-4.244, for both the construction and operation of this marina. Please refer to your file on the previous application and incorporate said documents into this reapplication. I am submitting with this application: A scale drawing (one inch = 100') of the proposed facility. (which you have) A certified survey of the proposed mixing zone. (one inch = 100') An application fee of $20.00 A copy of the Final Order issued by Jacob D. Varn, former secretary of DER, on the previous application. A copy of the Notice of Intent previously issued for this project, dated 9/23/79. (which you have) As you will note from reading Mr. Varn's Final Order, he concluded that issuance of this permit was not appropriate inasmuch as the applicant had not applied for nor received a designated mixing zone. We do not necessarily agree with this order and have, in fact, appealed this decision to the First District Court of Appeal. However, in an attempt to keep this matter from becoming any more complicated, we have decided to reapply for the permit and to apply for a mixing zone. We do not concede that a mixing zone should be required for this project or that the facility will result in the release of any pollutants so as to significantly degrade ambient water quality. However, should this project, through its construction or operation, result in the release of any pollutants, I believe they would be limited to: Bottom sediments placed in suspension by the installation of the concrete piles used to support the docking facility during construction; Minimal amounts of oil and grease which may escape from the various vessels moored to the docks; The constituants of anti-fouling paint which may be applied to the hulls of the various vessels moored at the docks. Turbidity will be controlled by the use of curtains during construction. If lowered water quality occurs at all in this project it would only occur within the designated mixing zone, as per Rule 17-4.242 (2)(b) F.A.C. Please advise me should additional information be needed to process this re-application. Yours truly, /s/ KENNETH G. OERTEL On June 19, 1981, DER sent a "completeness summary letter" to Petitioner which requested the following information: Your project is in Outstanding Florida Waters. Please provide the following items demonstrating compliance with Section 17-4.242, Florida Administrative Code. Please demonstrate that this project is clearly in the public interest and that this project will not result in the degradation of ambient water quality beyond the 30 day construction period. Petitioner responded by letter dated June 22, 1981 and which was received at DER on June 25, 1981. Petitioner said in pertinent part: Dear Mr. Duke: If you would check your previous file no. DF-13-7956, I believe you will find all the information you have requested has previously been provided to your office either in that permit file or through the administrative hearings held in pursuit of this application. I think it would be more fruitful if you would communicate with Al Clark, Attorney for DER, with regard to the status of this application. As I do not wish to speak on behalf of Mr. Clark, I believe you should confirm the status of this application with him, particularly in view of our attempt to comply with Secretary Varn's Final Order which suggests the application for this mixing zone. The record reflects no further correspondence between the parties until September 23, 1981 when the Department entered a Final Order Denying Application for Permit. The Order provided that: This project was reviewed previously (DF 13-7956) and was determined not to be clearly in the public interest pursuant to Section 17-4.242, F.A.C. No further evidence upon resubmittal, has been provided to clearly demonstrate that this project is in the public interest. Furthermore, the requested mixing zone exceeds that allowable pursuant to Section 17-4.244, F.A.C. and can be applied only during the construction period, pursuant to Section 17-4.242, F.A.C. During the operation of this facility ambient water quality is expected to be degraded in violation of Section 17-4.242, F.A.C. This order was entered ninety-one days after DER received Petitioner's June 22, 1981 letter.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Department of Environmental Regulation issue the permit applied for by Petitioner, Grove Isle, Ltd. on May 20, 1981 subject to the conditions contained in the Notice of Intent To Issue Permit dated October 23, 1979 which is a part of the record in Bayshore Homeowners Association et al., v. State of Florida Department of Environmental Regulation and Grove Isle, Inc., Case Nos. 79-2186, 79-2324 and 79-2354. DONE and RECOMMENDED this 12th day of February, 1982, in Tallahassee, Florida. MICHAEL P. DODSON 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 12th day of February, 1982.
The Issue Whether the South Florida Water Management District’s (“District”) intended award of a contract for aerial spraying services, granular application services, and aerial transport services, to Coastal Air Services, Inc. (“Coastal”), is contrary to the District’s governing statutes, rules, policies, or the bid specifications; and, if so, whether the decision was clearly erroneous, contrary to competition, arbitrary, or capricious.
Findings Of Fact The Parties The District is an independent taxing authority created pursuant to section 373.069, Florida Statutes, with the authority to contract with private entities to maintain real property controlled by the District. See § 373.1401, Fla. Stat. HAI is a Florida corporation duly authorized to do business in the State of Florida with a business address of 1090 Airglades Boulevard in Clewiston, Florida. Coastal is a Florida corporation duly authorized to do business in the State of Florida with a business address of 7424 Coastal Drive in Panama City, Florida. The RFB On February 7, 2018, the District issued the RFB, soliciting bids for qualified respondents to provide the following: [F]urnish all labor, equipment, perform data entry and perform all operations for spraying of aquatic, ditchbank and invasive vegetation by helicopter and provide aerial flight services for site inspection and plant surveys. Both HAI and Coastal submitted timely bids, which the District deemed responsive and responsible under the terms of the RFB. The District deemed Coastal the lowest responsive and responsible bidder for aerial spraying, granular application, and aerial transport services. The District deemed HAI the lowest responsive and responsible bidder for spot spraying services. On May 11, 2018, the District posted its Notice of Intent to Award the respective contracts to Coastal and HAI. HAI challenges the award to Coastal because it is not a responsible bidder under the terms of the RFB. HAI’s challenge focuses on two items required to document the bidder’s responsibility to perform the requested services. First, the RFB requires the bidder to provide at least two helicopters certified pursuant to 14 CFR Part 133, Rotocraft External-Load Operations; and 14 CFR Part 137, Agricultural Aircraft Operations (Part 137 Certificate). Second, the RFB requires the bidder to demonstrate its ability to obtain required insurance coverage. Part 137 Certificate HAI contends that Coastal’s bid does not meet the responsibility provisions of the RFB because it did not include sufficient Part 137 Certificates for its subcontractor, HMC Helicopters (“HMC”). HAI contends the Part 137 Certificates are required to expressly state that aircraft are certified to dispense economic poisons. Petitioner’s argument fails for three reasons. First, the RFB does not require the bidder’s Part 137 Certificate to expressly endorse aircraft to dispense economic poisons.3/ Second, assuming the express endorsement was required, the requirement does not apply to HMC. The RFB defines the term “Bidder” and “Respondent” as “[a]ll contractors, consultants, organizations, firms or other entities submitting a Response to this RFB as a prime contractor.” (emphasis added). In its bid, Coastal is listed as the prime contractor, and HMC as a subcontractor. The RFB requires each Respondent to list at least two aircraft which are Part 133 and 137 certified. The requirement applies to Coastal as the primary contractor, not to its subcontractor. Coastal’s bid listed five aircraft with both Part 133 and 137 Certificates, actually exceeding the requirement for two such certified aircraft. Third, assuming an express endorsement for dispensing economic poisons was required, and that the requirement applied to HMC, HMC’s Part 137 Certificate documents HMC’s authority to dispense economic poisons. Pursuant to 14 CFR 137.3, “Agricultural aircraft operation” is defined as follows: [T]he operation of an aircraft for the purpose of (1) dispensing any economic poison, (2) dispensing any other substance intended for plant nourishment, soil treatment, propagation of plant life, or pest control, or (3) engaging in dispending activities directly affecting agriculture, horticulture, or forest preservation, but not including the dispensing of live insects. To obtain a Part 137 Certificate, the operator must pass a knowledge and skills test, which includes the safe handling of economic poisons and disposal of used containers for those poisons; the general effects of those poisons on plants, animals, and persons and precautions to be observed in using those poisons; as well as the primary symptoms of poisoning in persons, appropriate emergency measures in the case of poisoning, and the location of poison control centers. See 14 CFR § 137.19. However, if the operator applies for a Part 137 Certificate which prohibits dispensing of economic poisons, the applicant is not required to demonstrate the knowledge and skills listed above. See Id. HMCs’ certificates do not contain an express prohibition against dispensing economic poisons. The authorization for HMC’s aircraft to dispense economic poisons is inherent in its Part 137 Certificate. Coastal’s bid meets the solicitation requirement for at least two aircraft with Part 137 Certificates. Insurance Requirements The RFB requires each Respondent to “provide evidence of the ability to obtain appropriate insurance coverage.” Respondents may meet the insurability requirement by having their insurance agent either (1) complete and sign an insurance certificate which meets all of the requirements of Exhibit H to the RFB; or (2) issue a letter on the insurance agency’s letterhead stating that the Respondent qualifies for the required insurance coverage levels and that an insurance certificate meeting the District’s requirements will be submitted prior to the execution of the contract. In response to this requirement, Coastal submitted a letter from Sterlingrisk Aviation, dated March 6, 2018, stating, “All required coverage amounts are available to Coastal Air Service, Inc. to fulfill the requirements of this contract.” In the Re: line, the letter refers to the specific RFB at issue in this case. Coastal also submitted a certificate of insurance from Sterlingrisk Aviation demonstrating the levels of insurance coverage in effect at the time the bid was submitted, although the coverages are less than the amounts required under the RFB.4/ HAI takes issue with Coastal’s evidence of ability to obtain the required coverage because the letter from Sterlingrisk does not state “an insurance certificate reflecting the required coverage will be provided prior to the contract execution.” Based on the totality of the evidence, the undersigned infers that Sterlingrisk’s letter omits the language that a certificate “will be provided” prior to contract execution, because Sterlingrisk will issue an insurance certificate only when Coastal applies, and pays the premium, for the increased coverage limitations. The letter from Sterlingrisk substantially complies with the insurance requirements of the RFB, and constitutes competent, substantial evidence of Coastal’s ability to obtain the required insurance coverage. HAI introduced no evidence that Coastal obtained an economic advantage over HAI by failing to include language from its insurance agent that “an insurance certificate reflecting the required coverage will be provided prior to the contract execution.” Instead, HAI argued that by failing to enforce that provision of the RFB, the District cannot ensure the winning bidder will be responsible to undertake the contract. HAI argued that the District’s failure to adhere to this RFB requirement may create inefficiencies that “would result in the event that Coastal were unable to obtain the required insurance coverage” before execution of the contract. Coastal’s bid documents its eligibility for insurance coverage in the amounts required by the RFB. If Coastal does not provide said certificates, it will not be qualified for final execution or issuance of the contract.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Southwest Florida Water Management District enter a final order dismissing Helicopter Applicator, Inc.’s Petition. DONE AND ENTERED this 15th day of November, 2018, in Tallahassee, Leon County, Florida. S SUZANNE VAN WYK 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 15th day of November, 2018.
The Issue Whether the Board of Professional Engineers should penalize Respondent because of negligence in the practice of his profession.
Findings Of Fact Respondent Mr. Walker holds professional engineer's license no. P.E. 40276. His license was issued by the Florida Board of Professional Engineers. During times pertinent he was employed by the U.S. Army Corps of Engineers (Corps). The Corporation is charged with providing investigative and prosecutorial services to the Board in accordance with Sections 455.32, 471.005(9), and 471.038, Florida Statutes. The Board has the authority to assess penalties against professional engineers pursuant to Section 471.033(3), for violations of Section 471.033(1). Mr. Walker has been the Resident Engineer, Construction Division, with the Corps at Hurlburt Field, Florida during all times pertinent. Hurlburt Field is a U. S. Air Force Base. The Corps of Engineers administers major construction projects at Hurlburt Field. During times pertinent Mr. Walker supervised about eight people. In late 2001 or early 2002, the Corps awarded a contract to widen Cody Road and Independence Road, which are located on the premises of Hurlburt Field. Both required the relocation of water lines. The Corps gave a design contract for the road widening project to an architect engineer firm named JE/Sverdrup, of Jacksonville, Florida. JE/Sverdrup prepared an Application for a Public Drinking Water Facility Construction Permit for submission to the Florida Department of Environmental Protection (DEP). DEP was involved in this construction contract because it required the relocation of over 5,000 linear feet of potable water lines. The person who actually signed the permit application was Ronald J. Lowe, Professional Engineer, for a permittee identified as Colonel Timothy Boone, U. S. Air Force. The permit request was submitted to DEP on May 24, 2001. Base Civil Engineering acted as liaison with DEP through its employee Andrea Bishop (Ms. Bishop). The Corps, and Mr. Walker, had no contact with DEP. Permit/Certification No. 0184807-001-DS/C, addressing the road widening project, was granted on June 15, 2001. DEP expected the permit to be closed out upon completion of the construction or upon completion of part of the construction. In order to close out a permit, DEP required a certification by a licensed professional engineer, to the effect that the construction was in accordance with the plans submitted with the permit; that the record drawings for the substantially completed portions of the project were adequate; and that all deviations from the construction permit were indicated, must be provided. Also, a satisfactory analysis of bacteriological samples must be provided. On August 16, 2002, subsequent to the completion of substantial construction work, a Certification of Construction Completion and Request for a Letter of Clearance to Place a Public Drinking Water Facility into Service (Certificate of Completion) was signed by Lieutenant Colonel Jeffrey L. Pitchford, Commander, 16th Civil Engineer Squadron. During the course of construction of this project, Lieutenant Colonel Pitchford, at least weekly toured the sites with Mr. Walker. Lieutenant Colonel Pitchford was aware of what the status of the project was on an on-going basis. At the time the Certificate of Completion was fully executed, work on Independence Road had been completed. Work on Cody Road had not been completed. Lieutenant Colonel Pitchford was aware of that fact. The Certificate of Completion contained attachments that included pressure gauge information, bacterial test results, and red line "as built" drawings. The pressure gauge information said that the tests were conducted on Independence Road. The red line "as built" drawings submitted were drawings of Independence Road. The bacterial analysis does not reveal on what road samples were taken. A careful reading of the Certificate of Completion, as submitted, reveals that it addresses only the completion of Independence Road. The Certificate of Completion is divided into four parts. Part I is entitled "Project Name and Construction Permit Number, Permittee, Etc." It identifies the project and the permit number, among other items of information. Ms. Bishop, the Compliance Program Manager, at Base Civil Engineering at Hurlburt Field, completed Part I of the form. As representative of the U. S. Air Force, Ms. Bishop is the only liaison to DEP. There is no controversy with regard to the manner in which Part I was completed. Upon completion of Part I, Ms. Bishop, in accordance with established procedure, sent the Certificate of Completion to the Corps. Mr. Walker executed Part IV and returned it to Ms. Bishop. Thereafter, Parts II and III were executed by Lieutenant Colonel Pitchford, as described below. Part II of the Certificate of Completion is entitled "Statement by Permittee." The person who signed Part II, Lieutenant Colonel Pitchford, certified as authorized representative of Hurlburt Field, that the contractor had furnished Hurlburt Field with record drawings for the substantially completed portion of the project and that record drawings were available in his office. Lieutenant Colonel Pitchford also certified that, "if this project involves the construction of any new or altered treatment facilities, an operation and maintenance manual for the new and altered treatment facilities included in the substantially completed portion of this project is available for review at the site of the new and altered treatment facilities." Lieutenant Colonel Pitchford signed Part II on August 16, 2002. Part III is entitled "Statement by Owner/Operator of Project After It Is Placed into Service." This was signed by Lieutenant Colonel Pitchford. In this part he certified that as representative of Hurlburt Air Force Base, he will be the owner/operator after it is placed in service. He also certified that he received a copy of the record drawings and that they were available for his review at his command. Part III of the Certificate of Completion also stated that the project, 0184807-001-DS/C, was substantially complete. This block was signed by Lieutenant Colonel Pitchford on August 16, 2002. As noted earlier, when Mr. Walker executed Part IV, Parts II and III were not completed. Part IV of the Certificate of Completion is entitled, "Certification of Construction Completion by Professional Engineer in Responsible Charge of Inspecting Construction of Project." Part IV was executed by Mr. Walker on August 15, 2002. By his signature he certified that as a professional engineer in Florida he was responsible for inspecting the construction of the road widening project in order to determine if the work "is proceeding in compliance with the construction permit and approved plans and specifications." In Part IV of the Certificate of Completion he also certified that, ". . . the substantially completed portion of this project has been constructed in accordance with the construction permit. . . ." Moreover, he certified, among other things, that the record drawings for the substantially completed portion of the project are accurate, and, that to the best of his knowledge all water mains have been disinfected and bacteriologically tested in accordance with certain DEP rules. He certified that the certification was based upon an on-site observation. Importantly, Part IV, signed by Mr. Walker, also asserted that, "This certification does not necessarily constitute a certification of final completion of construction. Additional construction may be needed to satisfy all conditions of the construction contract documents." Part IV has an inked stamp impression upon it, which was also signed by Mr. Walker, which averred that the project was designed by the Mobile District of the U. S. Army Corps of Engineers and that the initials or signatures on the document were made within the scope of his employment. The fully executed Certificate of Completion was submitted to DEP by Ms. Bishop. Mr. Walker was not involved in submitting it. DEP received the Certificate of Completion and erroneously concluded that both the Cody Road Project, as well as the Independence Road project, had been completed. Accordingly, they closed out the project. Subsequently, a former employee in Mr. Walker's Office sent letters to government agencies asserting that due to Mr. Walker's negligence, impure water had been provided to personnel at Hurlburt Air Force Base. This was investigated. The investigation determined that impure water had not been provided to those using the potable water system on the base. Because of the erroneous assumptions made by DEP based on the Certificate of Completion, the permitting process was reviewed by DEP, the Corps, and the U. S. Air Force. It was determined that Hurlburt's permit certification process needed review because the erroneous conclusions drawn by DEP were the result of systemic problems with the procedures used. Following this review, Hurlburt Air Force Base developed a new Standing Operating Procedure, so that this type of error and miscommunication might be avoided in the future. This was sent to DEP on December 8, 2003. DEP revised their Certificate of Completion form effective August 28, 2003. The revision was not done solely because of the incident with the form used in the Hurlburt Field construction. When Mr. Walker signed Part IV of the Certificate of Completion, the only other part of the form that was completed was Part I. The information certified by Mr. Walker was entirely correct and truthful. Moreover, the language in Part IV specifically noted that, "This certification does not necessarily constitute a certification of final completion of construction." Dr. Chen H. Lin is a professional engineer with an ecology and environmental consulting firm. He is a graduate of a university in Taiwan with a Bachelor in Civil Engineering degree, has a Master in Civil Engineering degree from Auburn University, and a Ph.D. in Environmental Engineering from the University of Florida. He is licensed as a professional engineer in Florida, Alabama, South Carolina, and Michigan. He was accepted as an expert in civil engineering and in the permitting process with DEP in reference to water, waste-water, and waste-water treatment. It is Dr. Lin's opinion that Mr. Walker did not exercise due care and was negligent as a professional engineer because he filled out and signed Part IV of the Certificate of Completion at a time when Parts II and III were blank. Dr. Lin is a credible expert witness and his testimony is given great weight as to generally accepted standards applicable to professional engineers. However, his experience with specific military procedures is limited. Therefore, his opinion that Mr. Walker was negligent is rejected because of the factual context and procedures that existed at the time within the Corps and Base Civil Engineering at Hurlburt Field. James J. Mallett is a registered professional engineer in Florida and has been since 1963. He is also licensed in Alabama, Georgia, Tennessee, and Louisiana. He graduated from Auburn University in 1955 and received a Master of Civil Engineering degree from the University of Illinois. He also has a Master of Business Administration degree from the University of Alabama at Birmingham. Mr. Mallett has worked in the area of water system projects in many states and with the military and the U. S. Army Corps of Engineers since the late 1970s. He has worked on water projects at Hurlburt Field and is familiar with the processes used there. It is his opinion that it is standing operating procedure at Hurlburt to complete the Certificate of Completion in the manner in which the form at issue was completed. It is his opinion that Section IV does not imply that the project is completed and that if DEP had read the form closely they would have known that the Certificate of Completion addressed only Independence Road. Mr. Mallett believes the form is confusing. He does not believe that it was negligent for Mr. Walker to sign Part IV prior to the completion of Parts II and III. Mr. Mallett's testimony is more credible than the testimony of Mr. Lin as to the presence or absence of negligence, because Mr. Mallett is more familiar with the specific procedures used at Hurlburt Field and military construction projects in general. It is his opinion that Mr. Walker's actions, in the context of the procedures employed at Hurlburt Field, were entirely correct and were not negligent. This opinion is accepted as fact. Ms. Bishop's testimony provided the actual cause of the error, which was a result of the lack of communication among the Corps and the Base Civil Engineering Section and herself.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Board of Professional Engineers enter a final order dismissing the Administrative Complaint against Mr. Walker. DONE AND ENTERED this 22nd day of September, 2005, in Tallahassee, Leon County, Florida. S HARRY L. HOOPER 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 22nd day of September, 2005. COPIES FURNISHED: Douglas D. Sunshine, Esquire Florida Engineers Management Corporation 2507 Callaway Road, Suite 200 Tallahassee, Florida 32303-5267 Pamela A. Moine, Esquire Assistant United States Attorney Northern District of Florida 21 East Garden Street, Suite 400 Pensacola, Florida 32502 Paul J. Martin, Executive Director Florida Board of Professional Engineers 2507 Callaway Road, Suite 200 Tallahassee, Florida 32303-5256 Leon Biegalski, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202
The Issue The issue in this appeal is whether the decision of the City of Clearwater Development Code Adjustment Board denying Petitioner's application for a variance is supported by the evidence in the record, or whether it departs from the essential requirements of law. See Section 137.014(f)(3), City of Clearwater Land Development Code.
Findings Of Fact On or about May 15, 1989, Branch Sunset Associates (Petitioner), the owner of certain property located at 1856 U.S. Highway 19 North, Clearwater, Florida (Section 6-29-16), applied for a variance to eliminate a condition previously imposed by the Development Code Adjustment Board on a prior variance. The property is zoned CC (Commercial Center), and is the site of a strip shopping mall. In March, 1988, the Board granted a variance allowing a tenant in Petitioner's mall, Workplace, to have a building identification sign which is larger than would be allowed under the Code without a variance. In November, 1988, Petitioner was granted a variance for the square footage of a pylon property identification sign with the condition that a Workplace sign not be placed on the pylon property identification sign located at the right of way. Petitioner and this tenant, Workplace, are now seeking removal of this condition in order to allow Workplace to be identified on the existing pylon sign, while leaving Workplace's large building identification sign in place. The Development Code Adjustment Board denied Petitioner's application for variance on June 8, 1989, and Petitioner timely filed this appeal of the Board's decision. Workplace is located approximately 800 feet off of U.S. Highway 19, and due to this distance, the prior variance of 97 square feet was granted in March, 1988, to allow a business identification sign of 225 square feet. The Code allows business identification signs up to 128 square feet without a variance. The letters spelling out "Workplace" are from 4 to 6 feet in height. Since opening in May, 1988, Workplace has experienced a steady growth in its business, and now completes approximately 1000 transactions per day. It is an office products store, and is open seven days a week. When the condition was placed on the variance for the pylon identification sign in November, 1988, the property owner agreed to this condition. At this time, it is primarily the tenant, Workplace, which is seeking this variance to eliminate the condition agreed to in November, 1988, by the property owner. Workplace seeks to be allowed to be included on the property identification sign, but is unwilling to immediately conform to Code on its building identification sign, a variance for which was granted in March, 1988, if this currently sought variance is approved. Thus, Workplace seeks to retain its variance for the size of its building identification sign, while also being included on the pylon property identification sign, which is larger than otherwise allowed due to the November, 1988, variance. The reason that the Development Code Adjustment Board approved the variance for Workplace in March, 1988, was that there was no property identification sign on site at that time, and the store was to be located so far off the right of way. This was a newly opening mall, and Workplace was one of the first new tenants to open for business. There are some prior tenants on this property that had business identification signs on their buildings that are in excess of the square footage allowed by the Code, but these are prior nonconforming signs which must be removed or brought into compliance by October, 1992. Section 134.015(c). However, when the property owner sought the variance in square footage limits to erect a pylon property identification sign in November, 1988, the Workplace business identification sign was already in place. Rather than allow Workplace to benefit from two variances, the Board conditioned the November, 1988, variance on precluding Workplace from being shown on the pylon sign. This was a reasonable condition under the circumstances, and was agreed to by the property owner. There was no showing of hardship on behalf of Workplace since business has been very good, and since any concerns about distance from the right of way were fully addressed by the March, 1988, variance.
Findings Of Fact At all times material hereto, Respondent, Jones & Scully Aloha Foliage Growers, maintained the sign at issue. On September 6, 1989, the sign was located on the southbound, west side of Krome Avenue, 56 feet south of Southwest 168th Street in unincorporated Dade County, Florida, and approximately 25 feet from the outside edge of the right- of-way of Krome Avenue. The portion of Krome Avenue at which the sign was located is within the federal-aid primary highway system. The sign was clearly visible from the roadway. However, the sign did not have a permit from Petitioner, Department of Transportation, to be located along Krome Avenue, and Petitioner placed a notice on the sign that it was illegal. The sign was displayed on a rolling, four-wheel, flat-bed trailer, and its location was changed every twenty-four hours. The message on the sign was tastefully presented and indicated that Jones & Scully Orchids were located one mile away from the placement of the sign. At the same intersection and along Krome Avenue other advertising signs appeared. Some indicated the presence of agricultural products for sale and others announced cafeteria trucks which were peddling their wares. Respondent asserted, at the hearing, that these signs may be in violation of the permitting requirement but that the signs had not been cited by the Petitioner. However, no proof was demonstrated that these signs were cited as illegal by Petitioner, or if they were in violation of existent law. Respondent operates a worldwide mail order business featuring orchids. Many of its customers seek out the source of the plants. At some time in the past, Respondent had a permanent sign at the location of the business but was required to remove it due to some easement problems. As a result, Respondent suffered an adverse impact on its business, but since the sign at issue has been in operation, the frequency of visits from its customers had increased. The presence of street signs at the corner of Krome Avenue and 168th Street is poor or inconsistent. Local government in Dade County has jurisdiction over the placement of street signs at the intersection. As a merchant in the area, Respondent has attempted to compensate for the lack of street signs by displaying its own directional indicator. Although Respondent's business may suffer from the lack of an advertising or a directional sign, and although the intersection may be poorly indicated, Petitioner's sign is impermissible at the location cited. It rests within 660 feet of the nearest edge of the right-of-way of a federal-aid primary highway and is maintained on a federal-aid primary highway without a permit from Petitioner.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Transportation issue a Final Order providing that the subject sign is in violation of Sections 479.07 and 479.11(1) and requiring the removal of the sign. DONE and ENTERED this 19th day of December, 1989 in Tallahassee, Florida. JANE C. HAYMAN 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 December, 1989. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 89-5050T Petitioner's proposed findings of fact are addressed as follows: Addressed in paragraphs 1,2,3 and s. Adopted in paragraph 4. Subordinate to the result reached. Respondent's proposed findings of fact are addressed as follows: Irrelevant. Addressed, in part, in paragraphs 5, and 6; in part, irrelevant, Addressed in paragraphs 5 and 7. Addressed in Paragraphs 6, 7, 8 and 9. In part, subordinate to the result reached; in part, irrelevant. Irrelevant. COPIES FURNISHED: Rivers Buford, Jr., Esquire Florida Department of Transportation 605 Suwannee Street, M.S. 58 Tallahassee, Florida 32399-0458 Robert Scully, pro se President The Scully Group, Inc. Jones & Scully Aloha Foliage Growers 18955 Southwest 168th Street Miami, Florida 33187-1112 Ben G. Watts, P.E., Interim Secretary Florida Department of Transportation Haydon Burns Building, 605 Suwannee Street Tallahassee, Florida 32399-0458 Attn: Eleanor F. Turner, MS 58 Thomas H. Bateman, III General Counsel Florida Department of Transportation Haydon Burns Building, M.S. 58 605 Suwannee Street Tallahassee, Florida 32399-0458
Findings Of Fact On or about March 7, 1986, Petitioner submitted an application for a variance from the open space and rear set-back line requirements applicable to property located at 2612 U.S. 19 North, Clearwater, Florida. The subject property is zoned CC (commercial center). Petitioner's application requests a variance to provide 12.33% open space instead of 25%, and to construct a building 30 feet from the rear property line rather than 50 feet as required by the Land Development Code for property zoned CC. On or about April 24, 1986, the Development Code Adjustment Board denied Petitioner's application for a variance, and Petitioner timely appealed on May 6, 1986. The only evidence in support of its application offered by Petitioner was the testimony of Robby Tompkins. He testified that Petitioner's application is "unique" because Petitioner was 90% complete with its architectural plans for the renovation and modernization of the subject property when the current ordinance took effect, and Petitioner therefore urges that the current ordinance should not apply. Additionally, Petitioner argues that there will be no injury to the public as a result of the variance, and in fact the project will add 6800 square feet to its shopping center. Tompkins admitted that an increase in financial return was the primary reason Petitioner has sought the variance. Finally, he stated that if Petitioner complies with the 25% open space requirement, there will not be enough parking to meet Code provisions, and if sufficient parking is provided, there will not 25% open space.
Findings Of Fact At all times pertinent to this proceeding, Respondent was a closely held corporation owned and operated by Salvatore Studiale and his family, including his wife, Celia, their son Jack Studiale and their daughter, Caroline Greenlaw. Respondent owns and operates Tropical Acres Steak House, a restaurant located in Broward County, Florida. Respondent erected a sign in 1975 in Broward County ninety feet north of Griffin Road adjacent to I-95 that is the subject of this proceeding. In a 1976 proceeding involving the same parties to this proceeding, Petitioner cited the same sign that is the subject of these proceedings for having been erected without certain permits in violations of Sections 479.02, 470.07(1), and 479.111(2), Florida Statutes (1975). Thereafter the case was referred to the Florida Division of Administrative Hearings (DOAH) and assigned DOAH Case No. 76-473. A formal administrative hearing was held in Case No. 76- 473 by a DOAH Hearing Officer who entered a Recommended Order. The following findings of fact, taken from the Recommended Order entered in Case No. 76-473, are consistent with the evidence presented before me and are hereby adopted as my findings of fact: In July, 1975, Salvatore Studiale and his wife Celia purchased certain real estate located between Interstate Highway I-95 and Griffin Road, Fort Lauderdale, Florida. On August 1, 1975, Salvatore Studiale, President of Respondent Corporation, and his wife, leased the property to Respondent. A variance for the erection of the sign was required from Broward County and this was approved on the condition that frontage of the property be deeded to the county. This was done on December 8, 1975. The property deeded to Broward County was of a value of approximately $18,000. Subsequently, Respondent had a sign erected which read "Tropical Acres Steaks [and] Seafood 1/2 Mile". Investigation by Petitioner's representatives in the Spring of 1976 revealed that no state permit had been applied for prior to erection of the sign and that no permit tag was affixed thereto. The premises of the business establishment advertised in Respondent's sign is located at a place other than the property on which the sign was erected. In early June, 1976, Respondent changed the copy on its sign to delete the words "1/2 Mile" and substitute therefor the word "Lessee". The Hearing Officer in Case 76-473 concluded that the subject sign was exempt from Petitioner's permitting requirements: ... because Section 479.16(11)1/ excepts from the provisions of Chapter 479 "Signs or notices erected or maintained upon property giving the name of the owner, lessee or occupant of the premises". The copy on the sign that reads "Tropical Acres Steaks Seafoods" (sic) adequately reflects the name of the lessee of the property. In fact, since the alleged violation was noted, Respondent has even added the word "Lessee" to the copy on the sign. It is concluded that Respondent properly falls with the exception stated above. The Hearing Officer in Case No. 76-473 recommended that "the allegations against Respondent be dismissed". Thereafter on August 12, 1976, Petitioner entered a Final Order in Case 76-473 which found that the findings of fact and the conclusions of law contained in the Recommended Order were correct and adopted the Recommended Order as its Final Order. The site of the subject sign had been the location of a gasoline service station before the Studiales purchased the property. When the sign was erected, the site was located in unincorporated Broward County. In July 1990 the site was annexed so that at the time of the formal hearing the sign was located within an incorporated municipality. In 1978, Respondent's sign was damaged by a wind storm. With Petitioner's approval, the sign was restored. On June 13, 1991, Petitioner's investigators inspected the subject sign. At an undetermined time between 1978 and June 13, 1991, a strip was attached to the supporting posts beneath the main faces of the sign so that two additional sign faces, one facing north and the other south, were created. The message that was placed on each face of this smaller sign was "1/2 Mile West" together with directional arrows. This addition was for the purpose of directing traffic to Respondent's restaurant, which was located 1/2 mile west of the sign. The directional message on each face of the smaller sign was removed prior to the formal hearing that was held in this proceeding. No permit for the sign has been applied for by Respondent or the Studiales and no permit has been given by Petitioner. Petitioner does not charge any permit fee for a sign unless a permit has been issued. There was a dispute as to whether Respondent had been charged and had paid annual fees for the subject sign. The greater weight of the evidence establishes that in 1986 and 1987 Respondent received billings from Petitioner for the subject sign as a result of computer error and that Respondent paid those billings. It is clear, however, that the Studiales were aware that no permit had ever been issued for this sign and that they relied on the determination made in Case 76-473 that the sign was exempt from permitting. Respondent has attempted to establish that it has placed great reliance in making its business plans on Petitioner's representations and assurances that the subject sign was a legal structure. Although it is clear that the subject sign is important to Respondent's business because it serves to direct customers to the restaurant location, Petitioner's delay in challenging the legality of the sign has not prejudiced Respondent. Respondent has been benefitted by the continued existence of the subject sign. The size of the sign exceeds 10 square feet. On June 20, 1991, Petitioner issued a notice of alleged violation of Sections 479.07(1), 479.105, and 479.07(9)(a)1, Florida Statutes (1991), for the subject sign, based on its determinations that the sign was not exempt from pertinent permitting requirements, that it did not have a permit, and that it was improperly spaced.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered which finds that the status of Respondent's sign is "nonconforming" and which rejects Petitioner's contention that the sign is illegal. DONE AND ORDERED this 2 day of April, 1992, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 2 day of April, 1992.
The Issue Whether the subject sign of Respondent is a lawful sign for which Respondent should be compensated upon its removal.
Findings Of Fact Respondent, David Grover, owns a V-shaped billboard with a north face and a south face located outside any incorporated city or town 0.14 mile south of State Road 518 on Highway A1A, a federal-aid primary highway, advertising "Sun Harbor Nursery" on both faces of the sign. The nursery advertised on the billboard is a business owned by Respondent located approximately one half mile from the subject sign. (Transcript, page 53.) A violation notice dated July 15, 1981 was Served on Respondent alleging that the subject sign is in violation of Section 479.07(1), Florida Statutes, and Rule 14-10.04(1), Florida Administrative Code, because it was erected without a permit; and that it is also in violation of Section 479.02, Florida Statutes, and Rule 14-10.06(1)(b), Florida Administrative Code, because it is located within 500 feet of a permitted sign. Respondent's father, David Grover, Sr., erected the V-shaped billboard in 1961 without a permit and maintained it until he sold the land on which it is located to his son in 1974. (Transcript, pages 31-35.) No application for a permit from the Petitioner Department was made during the time David Grover, Sr. owned the land and sign or since Respondent owned the property until 1981, when an application was denied because permits had previously been issued for other nearby signs. (Transcript, pages 43 and 46.) There is a distance of approximately 118 feet between the south face of the subject sign and a billboard which bears a permit issued by the Petitioner Department in 1974. There is also a distance of approximately 118 feet between the north face of the subject sign and a billboard which bears a permit issued by the Petitioner Department in 1974. (Petitioner's Exhibit 1; Transcript, pages 14, 15 and 41.) Subsequent to the hearing Respondent admitted that his sign is in violation of the statutes and rules requiring a space of 500 feet from a permitted sign but contends the sign is a lawful sign having been grandfathered by the passage of time since its erection in 1961 and therefore he is entitled to compensation upon its removal. The parties submitted proposed findings of fact, memoranda of law and proposed recommended orders, which were considered in the writing of this order. To the extent the proposed findings of fact have not been adopted in or are inconsistent with factual findings in this order, they have been specifically rejected as being irrelevant or not having been supported by the evidence.
Recommendation Based upon the testimony adduced, the evidence admitted and after consideration of the findings of fact and conclusions of law submitted by the parties, the Hearing Officer recommends that the Department of Transportation enter its final order directing the removal of the subject sign within thirty (30) days from the date hereof and without compensation to the sign owner. DONE and ORDERED this 20th day of January, 1982, in Tallahassee, Leon County, Florida. DELPHENE C. STRICKLAND 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 20th day of January, 1982. COPIES FURNISHED: Charles G. Gardner, Esquire Department of Transportation Haydon Burns Building Tallahassee, Florida 32301 Peirce Wood, Esquire 542 Hammock Road Melbourne, Florida 32901 Paul N. Pappas, Secretary Department of Transportation Haydon Burns Building Tallahassee, Florida 32301
