The Issue Whether Respondent, Richman Property Services, Inc. (Respondent), committed an unlawful employment practice as alleged in the Amended Petition for Relief filed with the Florida Commission on Human Relations (FCHR), and, if so, what relief should Petitioner, Jessica A. Lamarre (Petitioner), be granted.
Findings Of Fact Petitioner is an African-American, who denotes her race as Black. At all times material to the allegations of this case, Petitioner was employed by Respondent in Brevard County, Florida. Respondent is a property management company doing business in Florida. Respondent manages an apartment complex identified in this record as Manatee Cove Apartments (Manatee Cove) located in Melbourne, Florida. In November of 2008, Respondent’s regional manager, Gilda Fernandez, interviewed Petitioner for the job of property manager for Manatee Cove. Petitioner had several years of experience as a property manager in South Florida and was interested in the position at Manatee Cove. Although Heather Garden, Respondent’s Senior Vice President, normally interviewed prospective property managers, her schedule did not allow her to personally interview Petitioner. Instead, Ms. Garden interviewed Petitioner by telephone. At the time of the telephone interview, Ms. Garden did not know Petitioner’s race. Although Petitioner had hoped to give her employer at the time more notice, Respondent required that Petitioner begin her duties at Manatee Cove early. Instead of starting December 1, 2008, Petitioner agreed to begin work at Manatee Cove in November 2008. Before Petitioner started, Ms. Fernandez told Petitioner that the regional manager for Manatee Cove would be another supervisor, Marlene Williams. Ms. Williams was a newly hired regional manager for Respondent, who did not participate in the hiring of Petitioner. From the outset, Ms. Williams and Petitioner did not have a sound working relationship. Despite the fact that Ms. Williams initially advised Ms. Fernandez that she liked Petitioner, the relationship between Ms. Williams and Petitioner deteriorated over time. At the time of Petitioner’s hire, Respondent’s employee handbook required training and mentoring for new employees of the company. Although Petitioner had several years of leasing experience in similar apartment complexes, she was not fully trained in the Respondent’s way of doing business. Respondent did not exhaust training procedures with Petitioner, nor did they initially provide her with trained support staff to help her tackle the problems at Manatee Cove. Prior to Petitioner’s arrival at Manatee Cove, the complex experienced a low rate of occupancy that Respondent asked Petitioner to address. Additionally, Manatee Cove had a number of delinquent leases that Respondent expected Petitioner to resolve. To Petitioner’s credit, both areas of concern were addressed and improvements were made. More critical to the company, however, was an upcoming audit that Manatee Cove faced. A third party was scheduled to audit Manatee Cove for compliance with regulations related to affordable income properties. Because Manatee Cove participated in the program, Respondent was required to maintain records pertaining to the program guidelines. Much of Petitioner’s effort during her time at Manatee Cove related to preparing for the audit. When the audit was passed with flying colors, Petitioner was praised for her work. After Ms. Williams became Petitioner’s supervisor, several issues with Petitioner’s performance were identified by Respondent. For example, Petitioner was required to open the office at a certain time. When Petitioner worked late into the night she failed, on a couple of occasions, to open the office on time. Respondent’s exaggeration of this alleged problem was unwarranted. Respondent also claimed that Petitioner did not submit end-of-the-year invoices timely. Petitioner was timely with the invoices. Any error in not timely filing invoices for the security vendor was attributable to other employees. Despite requests for additional training and assistance, Respondent gave Petitioner only a cursory training opportunity. In contrast, Respondent trained Petitioner’s successor, a Caucasian female, more thoroughly. Further, the person Respondent allegedly sent to assist Petitioner did little to actually help her. Instead, she spent her time compiling minute details of how Petitioner did not do things the Respondent's way. At one point, when advised of the alleged problems at Manatee Cove, Ms. Garden advised Ms. Williams to fire all of the employees there. Curiously, only Petitioner was terminated. On February 9, 2009, Ms. Williams discharged Petitioner without specifying grounds for the action. Later, Ms. Williams claimed Petitioner’s failure to timely pay invoices was the basis for the action. To the contrary, Petitioner timely presented for payment all invoices over which she had control. The invoices that were unpaid were for a vendor (the security company), who was hired before Petitioner came on the property, for whom the appropriate information had not been put into the system, and for whom the Respondent failed or refused to assist Petitioner input the appropriate data. Simply stated, the failure to timely pay the security vendor was not Petitioner’s error. Respondent replaced Petitioner with a less experienced Caucasian female. Petitioner was hired at a salary of $40,000, with a free apartment as additional compensation. When she was terminated, Petitioner was advised to vacate her apartment at Manatee Cove. Petitioner worked to improve the leasing productivity at Manatee Cove. She was professional and experienced in her job. The women who conspired to terminate Petitioner’s employment with the company did so without considering the positive contributions Petitioner made to the Manatee Cove property. Respondent did not have a sound business reason for terminating Petitioner. Instead, Respondent terminated Petitioner because she did not fit the corporate image. Ms. Williams and Ms. Garden wanted Petitioner to do everything the Respondent's way. When Petitioner showed success managing the complex her way, trouble ensued. Less than one percent of the over 300 employees Ms. Garden supervises are Black managers. Ms. Garden did not sit down with Petitioner to train her; did not verify others had appropriately trained her; and did not include Petitioner in what could have been constructive conversations regarding Petitioner’s work. Instead, she and Ms. Williams along with Ms. Christy Starr (Petitioner’s eventual replacement), spent their time chronicling superficial errors and complaints against Petitioner. Petitioner had been employed less than a month when Respondent’s employees started writing negative comments regarding Petitioner’s work performance. Many of the comments were generated during a time when Petitioner had little or no help to run the office, and little or no training. All of the negative comments started after Ms. Garden met Petitioner (and obviously observed her ethnicity). The table below demonstrates the time frame for Petitioner’s first month of employment with Respondent: Date: Event: November 2008 Petitioner interviewed for job by Ms. Fernandez. November 2008 Petitioner interviewed by phone for job by Ms. Garden. December 1, 2008 Date Petitioner was to start job; per employment agreement. November 24, 2008 Date Petitioner started job to accommodate Respondent; Ms. Fernandez met with Petitioner approximately 1-2 hours to get her started. Early December 2008 Ms. Fernandez and Ms. Garden visit Petitioner; Ms. Garden meets her for first time in person; Ms. Garden initially likes Petitioner. December 12, 2008 Petitioner meets Ms. Williams for first time; Petitioner expresses need for help; Ms. Williams tells Ms. Fernandez she likes Petitioner. After December 12, 2008 Ms. Williams e-mails Ms. Fernandez to state she has issues with Petitioner. Mid December 2008 Respondent tells Petitioner to get invoices in to be paid by end-of-year. Mid December to late December 2008 Petitioner asks for assistance with invoices; specifically with regard to security vendor for whom paperwork incomplete. During the first month, Petitioner worked the property without great assistance from the Respondent. The following chart depicts the remainder of Petitioner’s employment with the company: On or about January 6, 2009 Ms. Card hired to be Petitioner’s assistant. Early January, shortly after she was hired Ms. Card sent for “training” at another property managed by Respondent; training turned out to be a session to allow Respondent’s employees to criticize Petitioner’s work. January 14, 2009 Ms. Garden wrote to express disappointment that Petitioner had not reached an occupancy goal despite improvement. January 15, 2009 Ms. Garden complains that Petitioner does not answer e-mail quickly enough. January 19-21, 2009 Ms. Starr sent to Manatee Cove to assist; instead does little and produces a report critical of Petitioner. January 21, 2009 Ms. Garden advises Ms. Williams should look for whole new staff for Manatee Cove. On or about January 21, 2009 Ms. Williams suggests Ms. Garden consider Ms. Starr for Petitioner’s job. January 26, 2009 Ms. Williams issues a disciplinary report to Petitioner; report allegedly written in December 2008, but Ms. Williams claimed she could not print it until this date. January 26, 2009 Petitioner given a copy of the job description for manager. January 30, 2009 Petitioner handles the audit conducted by third party and passes without any violations or issues. Subsequent to audit Petitioner praised for good work on audit. Early February 2009 Ms. Williams discovers security company not paid before new year. February 9, 2009 Ms. Williams fires Petitioner. On February 10, 2009, Ms. Starr replaced Petitioner as manager at Manatee Cove. Petitioner has been unemployed since her termination from Manatee Cove. Although qualified, Petitioner has not actively pursued job opportunities outside the Central Florida market. Instead, Petitioner enrolled as a full-time student. Petitioner filed a Complaint of Discrimination on or about December 2, 2009. Subsequently, Petitioner retained counsel and filed the instant administrative petition on or about October 8, 2010.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order finding cause for an unlawful employment practice as alleged by Petitioner, and awarding Petitioner no more than six months back pay. DONE AND ENTERED this 6th day of April, 2011, in Tallahassee, Leon County, Florida. S J. D. PARRISH 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 6th day of April, 2011. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Thomas A. Groendyke, Esquire Douberley & Cicero 1000 Sawgrass Corporate Parkway, Suite 590 Sunrise, Florida 33323 John M. Finnigan, Esquire Finnigan Law Firm 1700 Maitland Avenue Maitland, Florida 32751 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachaee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue The issue involved in this case is whether the Petitioner Good Samaritan Health Systems, Inc., should be issued a Certificate of Need to construct an ambulatory surgical center in West Palm Beach, Florida. Testifying on behalf of the Petitioner at the final hearing were Kenneth A. Weda, President of Good Samaritan Hospital; Ms. Patricia Sher, an expert in alternative delivery systems; Samuel G. Tischler, an expert in ambulatory surgical design, administration and planning; Dr. Milton R. Tignor, Jr., a urologist on the staff of the Good Samaritan Hospital; Dr. Abraham Schmuckler, an anesthesiologist at Good Samaritan Hospital; Jerome A. Goebel, an expert in hospital design and architecture; Ross Raneri, an expert in architecture for health care facilities; Byron Thompson, an expert in health care finance; Ms. Linda Vossler, an expert in operating room administration, nursing, staffing and equipment; Robert L. Broadway, an expert in health care planning, administration and finance; and Daniel J. Sullivan, an expert in health care planning and finance. Elizabeth Dudek, Health Services and Facility Consultant Supervisor in the Office of Community Medical Affairs, testified for the Department of Health and Rehabilitative Services. Michael L. Schwartz, an expert in health care planning; Rick D. Knapp, an expert in financial feasibility; and Robert J. Zasa, a former vice-president of Alternative Care, testified on behalf of Intervenors. Nancy McAnallen, nursing director of surgical services at St. Mary's Hospital testified by deposition for Intervenors. Petitioner Good Samaritan's Exhibits 1-3, 6-9, 11-12, 14, 15(a)-(i) and Department of Health and Rehabilitative Services' Exhibits 1-4 were offered and admitted into evidence. The following Intervenor's Exhibits were offered and admitted into evidence: St. Mary's Exhibits 1-4, 6 and 7; Visual Health's Exhibit 1; Intervenor's Exhibits 1-4 and Palm Beach Exhibits 1, 2, 3(a), (b) and (c). At the final hearing ruling was reserved on Petitioner Good Samaritan's Exhibits 4-5 and Intervenor St. Mary's Exhibits 5-6 which are now admitted. The transcript of hearing was filed on September 16, 1986. The parties filed their proposed recommended orders on October 16, 1986. Ruling on the parties' proposed findings are contained in the attached appendix.
Findings Of Fact Paragraphs 1-14 Accepted. 15-28 Accepted, but not in dispute at the hearing. 29-30 Accepted and covered in paragraphs 3-5 of Recommended Order. 31-32 Not relevant to this proceeding. 33-39 Accepted. 40-54 Accepted, but not relevant only to the extent institution specific criteria are considered. 55-58 Accepted. 59-64 Rejected. The preponderance of the evidence supports a finding that the proposal will not merely shift existing services, but will add to the under-utilization problem experienced in the service district. 65-66 Accepted, except as modified in the Recommended Order. 67-70 Rejected. 71-78 Accepted. 79 It is unclear from the record whether scheduling problems exist because of the size of the rooms or doctor preference. 80-81 Accepted. 82-84 Accepted, but modified to show that although the applicant's present operating rooms are far from ideal, less costly and more efficient solutions were not adequately considered as an alternative to the Ambulatory Surgical Center. Rejected. Accepted. 87-90 Accepted. 91-109 Rejected. Table 7 was not utilized in the formulation of the Recommended Order primarily because it uses only a portion of the population of Palm Beach County, the North Palm Beach subdistrict, instead of the entire county or health planning district population as required by law. 110 Accepted. 111-124 Rejected. The Department's non-rule policy was not adequately explained nor justified at hearing. The Department's failure to consider the capacity of approved but not yet operational facilities in granting CON's within the service district was likewise never justified. 125 Accepted. 126-130 Rejected. The capacity-based analysis was adequately explained and justified and was essentially accepted. 131 Accepted. 132 Rejected. The elderly presently have numerous alternatives to inpatient treatment within the service district. 133-134 Accepted. 135 Rejected. 136 Accepted, but modified to reflect that neither Palm Beach nor Visual Health are organized as nonprofit corporations. 137-150 Accepted to the extent they are relevent to this proceeding. 151-159 Rejected. It was not adequately demonstrated that the costs of renovation would be greater or less efficient than shutting down existing space and adding space in a new, separate facility. 160-162 Rejected. Not relevant to these proceedings. 163-169 Accepted. 170-243 Accepted as modified in the Recommended Order. 244 Accepted as modified to reflect that the applicant will increase its market share as a result of this project. 245-247 Rejected. The proposal adds services and capacity to the service district. 248 Accepted. 249-250 Rejected. The nature of this project will affect referral patterns of physicians. 251-253 Accepted. 254 The first sentence is accepted and the second sentence is rejected. 255-256 Accepted. 257 Rejected. The project is not cost-effective if it duplicates the services provided by under-utilized facilities. 258 Accepted. 259. Accepted. The proposal will result in increased outpatient market share and additional revenue for the applicant. 260-261 Accepted. 262-264 Rejected. To the extent that competition exists in the health care field, any added health care provider will foster competition. However, the law permits a CON to issue only when a need for the service is demonstrated. It is based on the assumption that excess services will not lower prices, but will instead result in under- utilized, over-duplicated facilities in the service district. INTERVENORS' PROPOSED FINDINGS OF FACT Paragraphs 1-4 Accepted as modified in the Recommended Order. 5-10 Accepted as modified in the Recommended Order. 11-12 Accepted as modified. 13-14 Not relevant to this proceeding. 15-21 Accepted, not in dispute at the final hearing. 21-25 Accepted as modified in the Recommended Order. 26-38 Accepted. 39-40 Accepted as modified in the Recommended Order. 41 Accepted if the 10-hour day is reasonable. 42-43 Rejected. The need in the community is the primary focus of the CON law rather than the need of an applicant. 44-45 Accepted. There are six approved or existing centers in Palm Beach County. 46 Accepted as modified in the Recommended Order. 47-50 Accepted. 51-54 Accepted. 55-61 Rejected. 62 Accepted. 63-64 Rejected. 65 Accepted. COPIES FURNISHED: Byron Mathews, Esquire Paul H. Amundsen, Esquire MCDERIOTT, WILL & EMORY 101 North Monroe Street Suite 1090 Tallahassee, Florida 32301 Douglas H. Mannheimer, Esquire CULPEPPER, PELHHAM, TURNER & MANNHEIMER, P.A. 300 East Park Avenue Tallahassee, Florida 32301 R. Bruce McKibben, Esquire Assistant General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Charles Stampelos, Esquire MCFARLAIN, BOBO, STERNSTEIN, WILEY & CASSEDY 666 First Florida Bank Bldg. Tallahassee, Florida 32301 Terry Cole, Esquire OERTEL & HOFFMAN, P.A. Post Office Box 6507 Tallahassee, Florida 32314-6507 F. Philip Blank, Esquire Reynold D. Meyer, Esquire 241 East Virginia Street Tallahassee, Florida 32301 Sam Power, Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
Recommendation Based on the foregoing, it is RECOMMENDED that Petitioner's application for a Certificate of Need authorizing establishment of an ambulatory surgical facility in Palm Beach County, Florida be DENIED. DONE and ENTERED this 9th day of March, 1987 in Tallahassee, Florida. SHARYN L. SMITH 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 9th day of March, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 84-3722 RULINGS ON PETITIONER'S JOINTLY
The Issue The issue to be resolved in this proceeding is whether the Governor and Cabinet, sitting as the Siting Board, should issue certification to Florida Power & Light Company ("FPL") to construct and operate a new 1,100 megawatt (MW) combined-cycle electrical generating unit to be located at FPL's existing Manatee Plant site in Manatee County, Florida, in accordance with the Florida Electrical Power Plant Siting Act, Section 403.501, et seq., Florida Statutes.
Findings Of Fact Background Florida Power & Light Company is the largest electric utility in Florida, currently serving approximately seven million customers in its 34-county service area. That service area extends south from the northern Florida border along the east coast of the State, and includes all of the southern portion of the Florida peninsula up to and including Manatee County. FPL currently operates 34 generating units at 14 locations in Florida, including FPL's Manatee Plant. FPL has been supplying electricity in Florida for over 75 years. FPL’s Manatee Plant is located in the north central portion of Manatee County, Florida, approximately five miles east of the community of Parrish, Florida. The Manatee Plant is located in the unincorporated area of Manatee County. Access is by State Road 62, which runs east/west at the southern edge of the Plant site. S.R. 62 connects with U.S. 301 west of the Plant site in Parrish, Florida. The FPL Manatee Plant site contains approximately 9,500 acres. The existing FPL Manatee Plant includes two 800-megawatt steam-electric generating units known as Units 1 and 2. FPL applied for permits for Manatee Units 1 and 2 in June of 1972. Units 1 and 2 began commercial operation in 1976 and 1977, respectively. The Florida DEP issued a "Title V" air operation permit (No. 0810016-001-AV) for the Manatee Plant on May 29, 1998, pursuant to Chapter 403, Florida Statutes, and Rules 62-4, 62-210, 62-213 and 62-214, Florida Administrative Code. The Title V permit authorizes Units 1 and 2 to operate up to 8,760 hours per year, subject to comprehensive and detailed conditions pertaining to their air emissions, including but not limited to: emission limitations and standards; testing, monitoring, reporting, and record-keeping requirements; information on permitted fuels; and description of the two emission units and their maximum heat input rates. Existing Units 1 and 2 will remain in operation and will not be affected by the Project. The Manatee Plant site contains a 4,000 acre cooling pond, which provides cooling water to the two existing steam electric generating units at the site. Makeup water for the cooling pond is withdrawn from the Little Manatee River, pursuant to diversion schedules established under a Permit Agreement between FPL and SWFWMD, entered into in April 1973. Withdrawals from the Little Manatee River have occurred for over 25 years. Other facilities on the site include oil storage facilities, wastewater treatment facilities, an onsite system substation and transmission lines, construction and maintenance warehouses, and administration and ancillary facilities. The balance of the Manatee site is undeveloped or utilized for agricultural operations such as citrus groves, row crops, and cattle. Surrounding land uses are agricultural or undeveloped, with scattered residential development to the north and west of the Plant site. The nearest residence is approximately one-half mile away from the proposed Manatee Unit 3 site, within an outparcel contained within the larger FPL Manatee Plant site. Project Overview Manatee Unit 3 will consist of a natural gas-fired combined cycle power plant capable of generating 1100 MW (nominal) of electricity. Manatee Unit 3 will be located entirely within the existing boundaries of the FPL Manatee Plant site. Manatee Unit 3 will be located west of existing Units 1 and 2 in the Project Area comprising approximately 73 acres. The Unit 3 power block will be located in an area that has already been affected by existing uses at the Manatee Plant. Unit 3 will require approximately 26 acres for permanent facilities. The balance of the Project Area contains construction activities, existing warehouses, and stormwater facilities. The portion of the Manatee Plant site on which Unit 3 is proposed to be located, and for which FPL has sought site certification in this proceeding, does not include the existing Manatee Units 1 and 2. Neither FPL, nor any agency party, has invoked, or sought to invoke, the jurisdiction of the PPSA with respect to Manatee Units 1 and 2 or the air emissions from those existing generating units. All parties stipulated that Units 1 and 2 are not at issue in this proceeding. FPL undertook a community outreach program in connection with Manatee Unit 3. This effort included one-on-one discussions, group meetings and presentations, plant tours, and other opportunities. An open house was held at the Manatee Plant in May 2002. This ongoing communication program has contacted more than 1,800 people. FPL is continuing to update the community on the Project through presentations and mailings. Need for Manatee Unit 3 On December 10, 2002, the Florida Public Service Commission ("PSC") issued its Final Order determining the need for the FPL Manatee Unit 3 Project (as well as FPL's proposed Unit 8 at its Martin Plant). The PSC determined that FPL has a need for additional capacity to maintain the reliability of FPL's electrical system. FPL was found to have a need for Manatee Unit 3 taking into account the need for adequate electricity at a reasonable cost. The PSC found that FPL chose a proven technology and has the necessary experience in the construction and operation of combined cycle units. Further, the costs for both units were found to be reasonable. The PSC concluded there were no further energy conservation measures available to FPL that could offset the need for Manatee Unit 3. FPL was found to have implemented a considerable amount of cost effective energy conservation and demand side management. Based upon FPL's evaluation of other alternatives submitted in response to a request for proposals, the PSC found that Manatee Unit 3 and the separately-proposed Martin Unit 8, are the most cost effective alternative available to meet FPL's need for additional generating capacity beginning in 2005. The PSC concluded that FPL had met the statutory requirements under Section 403.519, Florida Statutes, for the determination of need for Manatee Unit 3. Project Schedule and Construction FPL expects to begin construction of Manatee Unit 3 in June 2003, or upon receiving final approvals for the Project. The new Unit is expected to be complete in June 2005, in order to meet FPL's customers' summer needs in that year. The simple cycle portions of Unit 3 are scheduled for completion beginning in August 2004, to allow operation in simple cycle mode while construction of the combined cycle unit is ongoing. Peak construction employment will be approximately 750 construction workers, management, and staff. Construction employment is expected to average about 275 workers. There will be no new construction of temporary or permanent roads that connect offsite as the existing plant entrance at S.R. 62 will be used for Project construction. Fugitive dust produced by traffic and excavation will be minimized through paving or the use of water sprinkling. Major pieces of equipment will be delivered by truck over existing road ways, or by rail over a rail line that already serves that site. The Unit 3 Project Area has been previously cleared for the existing units or will require minimal clearing. Impacts from creating material laydown areas will be minimal, temporary and mainly associated with grubbing and grading to create proper drainage. Soils will need to be excavated to provide support for the plant foundation and other facilities. Foundations for heavy loads will be supported by spread foundations or pilings. Subsurface excavations may require temporary dewatering by localized pumping of the shallow aquifer to lower the water table. The effluent from dewatering will be routed to the cooling pond. No offsite impacts to groundwater from dewatering activities are expected. The entire Project Area is outside the 100-year flood zone. Construction activities will alter runoff in parts of the site, but no adverse effects are expected from these activities. Construction period surface water runoff will be conveyed to stormwater ponds that can provide detention for all runoff from these areas. Impacts to offsite surface waters from construction- related runoff are expected to be negligible. Onsite construction activities will not cause adverse ecological effects as the Project Area is already highly altered, and maintained as either grassy or cultivated areas. These areas do not contain unique wildlife species and are not considered important wildlife habitats because of their disturbed nature. (No wetlands are located within the Project Area.) Construction noise will comply with the Manatee County Noise Control Ordinance. Construction noise will not affect wildlife in the vicinity of the site. The Manatee Plant site already has noise associated with operation of the existing facility and wildlife in the area is acclimated to such activities. Control measures will be implemented during construction to minimize fugitive air emissions and its potential impacts. Clearing will be kept to a minimum, thereby reducing air emissions from exposed surfaces. Watering will be used to control fugitive dust on highly traveled areas. During construction, portable chemical toilets and bottled water will be utilized. Solid and hazardous wastes generated during construction will be handled and disposed offsite by individual contractors. Project Description Manatee Unit 3 will consist of four advanced combustion turbines ("CT") and four heat recovery steam generators ("HRSG") in a configuration referred to as a "4-on-1" combined cycle unit. Each combustion turbine will generate approximately 170 MWs. The CTs operate much like a jet engine, in which air and fuel, in this case natural gas, are combined in the CT and then combusted. The heated gases then rotate a shaft that drives an electrical generator. The exhaust gases from the combustion turbines produce steam in the heat recovery steam generators, which is used in turn to drive a separate steam turbine generator. By utilizing the waste heat from the CTs, the resulting combined cycle unit will be more efficient than the simple cycle CTs and traditional steam-electrical units. Manatee Unit 3 will be among the most efficient electric generators in Florida. Duct burners are proposed for each HRSG and are fired during peak demand periods to achieve the total nominal generating capacity of Unit 3. The four CTs will be equipped with inlet air evaporative cooling which creates a more moisture-laden air stream in the CT, allowing additional power to be produced more efficiently. The CTs will also be capable of power augmentation, in which steam from the HRSG is injected into the CT during periods of peak electrical demand to increase electrical output. Each CT will be capable of operation in "peak" mode in which the firing temperature of the combustion turbine is increased, resulting in increased power. Exhaust gases from Unit 3 will be emitted from a stack associated with each HRSG unit. Each combustion turbine will also be capable of operating in simple cycle mode in which exhaust gases will be emitted either from a bypass stack associated with each CT or by the HRSG stack. Natural gas heaters will be used if the CTs are operated in simple cycle mode. The height of the four HRSG stacks will be a maximum of 150 feet. Cooling water for the Manatee Unit 3 will be provided by the existing cooling pond. Wastewaters and stormwater from the power block will be treated onsite and recycled to the cooling pond. Other onsite facilities to be constructed as part of the Project will include interconnections with the existing onsite transmission facilities, along with storage facilities for ammonia, hydrogen, demineralized water, and condensate water. Manatee Unit 3 will connect to the existing onsite electrical system substation via a new tie line. That substation will be expanded to accommodate the interconnection to FPL’s existing electric transmission system. No new offsite transmission lines are required. The Unit 3 project will utilize a number of other existing facilities at the Manatee Plant site. Natural gas will be the only fuel used in the Manatee Unit 3. Gas will be delivered to the Plant by pipeline. The Manatee Plant site is already served by an existing natural gas pipeline that may supply gas to the Unit 3, or another gas pipeline may be installed and would be independently permitted and constructed. Natural gas will not be stored onsite. Manatee Unit 3 will generate only small quantities of solid wastes. These will be limited to municipal solid wastes and infrequent replacement of inlet air filters. The catalyst in the selective catalytic reduction (SCR) system will be replaced periodically and disposed of in accordance with applicable requirements. Hazardous wastes will be produced in limited quantities. These will be collected and disposed of offsite by a licensed hazardous waste contractor. Air Emissions Air emissions from Manatee Unit 3 will result from both the combustion process and impurities in the fuel itself. Nitrogen oxides are formed through the oxidation of a portion of the nitrogen that is naturally found in natural gas. Additional nitrogen oxides are formed through the oxidation of the nitrogen contained in the combustion air. Carbon monoxide and volatile organic compounds are formed by incomplete combustion of fuel. Sulfur dioxide and particulate matter emission rates are dictated by the amount of sulfur in the fuel. Under state and federal Prevention of Significant Deterioration ("PSD") review requirements, all major new or modified sources of regulated air pollutants that are located in areas attaining compliance with ambient air quality standards must be reviewed. Manatee Unit 3 is considered a major modification to the existing Manatee Plant site because the Project's emissions will exceed the significant emission increase thresholds for several regulated air pollutants. Based on expected emissions from Unit 3, PSD review was required for: particulate matter ("PM"), sulfur dioxide ("SO2"), nitrogen oxides ("NOx"), carbon monoxide ("CO"), volatile organic compounds ("VOC") and sulfuric acid mist. PSD review is used to ensure that significant air quality deterioration will not result from new facilities like Unit 3. These analyses include a review of the proposed emissions control technology, a source impact analysis, an air quality impact analysis, source information, and additional air quality impact analyses. Air Emissions Control Technology Air emissions from Manatee Unit 3 will be minimized through the inherent efficiency of the combined cycle design, and the use of: natural gas as the exclusive fuel, advanced combustion control technology, and post-combustion control technology. Natural gas, the cleanest of fossil fuels, has very low levels of impurities and can be burned very efficiently. The use of dry low NOx combustion design in the CTs, and low NOx burners in the duct burners, will also minimize air emissions by inhibiting formation of thermal NOx by premixing of fuel and air prior to combustion, and by reducing flame temperatures. Selective Catalytic Reduction ("SCR") will provide additional control of emissions of NOx from Unit 3 when operating in combined cycle mode. In the SCR system, located in the HRSGs, ammonia is injected into the CT exhaust where NOx in the gas stream reacts with the ammonia in the presence of a catalyst to form nitrogen and water. State and federal PSD regulations require that Manatee Unit 3 meet all applicable emission limiting standards and that Best Available Control Technology ("BACT") be applied in order to control emissions. BACT is defined in Chapter 62- 210.200(38), Florida Administrative Code, as: An emission limitation, including a visible emissions standard, based on the maximum degree of reduction of each pollutant emitted which the Department [of Environmental Protection], on a case by case basis, taking into account energy, environmental and economic impacts, and other costs, determines is achievable through application of production processes and available methods, systems and techniques (including fuel cleaning or treatment or innovative fuel combustion techniques) for control of each such pollutant. The BACT requirements are intended to insure that the air emission control systems for Unit 3 reflect the latest in control technologies used in the electric utility industry and take into consideration existing and future air quality in the vicinity of the Project. BACT review includes a cost-benefit analysis of alternative control technologies capable of achieving a higher degree of emission reduction than the proposed technology. FDEP's determination on what constitutes BACT for Manatee Unit 3 is to be based on a balancing of environmental benefits with environmental, energy, and economic impacts and other costs. In its PSD review, the Department preliminarily determined that the air emissions control technologies proposed for Manatee Unit 3 are consistent with BACT as required under federal and state PSD regulations. The exclusive use of natural gas, combined with advanced combustion control technology, will provide the maximum degree of emission reduction for sulfur dioxide, particulate matter, volatile organic compounds, carbon monoxide and sulfuric acid mist. The dry low NOx control technology for the CT combustors and the duct burners, along with SCR, reflect the latest available control technologies for reducing NOx emissions from combined cycle systems. The emission limits for Manatee Unit 3 in the Department's recommended Conditions of Certification are identical to the emission limits proposed as BACT by the Department. The recommended NOx emission limit of 2.5 parts per million for combined cycle operation is equal to or lower than BACT determinations for other combined cycle units in the State of Florida, and is lower than any project previously certified by the Siting Board under the PPSA. Air Quality Impact Analysis Ambient air quality standards have been established by the U.S. EPA and FDEP to protect public health and welfare. Air quality in the vicinity of the Manatee Plant, and in the Tampa Bay area, currently meets all federal and state ambient air quality standards. Manatee County is classified as an "attainment" area for all criteria pollutants. Air quality modeling demonstrates that Manatee Unit 3 will comply with all state and federal ambient air quality standards, as well as PSD Class I and II increments. The air quality modeling conducted for the Project followed EPA and FDEP modeling guidelines. Two air quality models were utilized to assess air quality impacts in the area surrounding the Manatee Plant site. The modeling also assessed impacts in the nearest PSD Class I area, which is the Chassahowitzka National Wilderness Area (NWA), located approximately 72 miles to the north-northwest from the Project site. Local meteorological data from the National Weather Service was used in the modeling. The modeling incorporated maximum air emissions from the Unit 3 under both combined and simple cycle configurations and at various operating modes, loads, and ambient air temperatures, which may affect the emission rates from the Unit. The air quality modeling results indicated the maximum air impacts from the Project will comply with all ambient air quality standards and PSD Class I and II increments. EPA has established "Significant Impact Levels" for the various pollutants that are subject to PSD review, and the Department has adopted these Significant Impact Levels at Rule 62-204.200(29), Florida Administrative Code. The comparison of a project's air quality impacts with the Significant Impact Levels represents an initial screening analysis to determine which pollutants require a more detailed modeling analysis. Impacts of the emissions of all air pollutants from Unit 3 would be below the PSD Class I and Class II Significant Impact Levels, except for coarse particulate matter (PM10) over the 24-hour averaging period in the Class II areas. Accordingly, air impacts from Unit 3 are considered insignificant based upon this screening analysis for all pollutants except for PM10 over the 24-hour averaging period. More refined modeling was conducted for PM10 over the 24-hour averaging period. This modeling demonstrated that PM10 emissions from Unit 3, when considered along with other existing sources, would be well below each of the relevant air quality standards. Nitrogen oxides and volatile organic compounds are precursors to the formation of ozone in the atmosphere. The emission of these air pollutants from Manatee Unit 3 will not interfere with the ongoing compliance with the ambient air quality standard for ozone in the Tampa Bay region, and will not interfere with the area-wide strategy for reducing ozone concentrations. There are expected to be no air quality impacts due to associated industrial, commercial, or residential growth due to the Project or its location. There should also be no adverse impacts to the "Air Quality Related Values," including visibility, soils, vegetation, or wildlife, in the closest PSD Class I area at the Chassahowitzka NWA. Unit 3's potential impacts on regional haze in this Class I area were below the screening level. Water Uses and Sources Water uses for Manatee Unit 3 will include circulating water for the condensers and other cooling, demineralized water for use in the power generation process, and general service water for washdowns and other uses. The existing cooling pond, with makeup water provided from the Little Manatee River, will be the source of cooling, service, and process water for Unit 3, as it is currently the source of water for the existing Manatee Plant. Potable water will be supplied from an existing permitted onsite potable well. The existing cooling pond is man-made and has earthen embankments. The 4,000-acre pond has a gross storage volume of approximately 52,000 acre-feet of water. The pond contains two splitter dikes to prevent short circuiting in the circulating water, thereby enhancing the cooling pond's heat dissipation efficiency. A spillway is located on the northern embankment of the cooling pond and is designed to safeguard against overtopping of the embankment. The only planned releases from the cooling pond are annual testing of the spillway gates. Seepage from the cooling pond through the embankments is captured in a system of toe drains around the perimeter of the pond. The seepage is collected in sumps and returned to the cooling pond. An average of approximately three million gallons per day of seepage is returned to the cooling pond. The Unit 3 circulating water system may require the construction of new inlet and outfall structures within the cooling pond and installation of circulating water pumps and underground piping to move water to and from the new Unit 3. The existing inlet structure may be utilized and a new diffuser pipe may be installed as part of the circulating water system, which would eliminate the need to construct new facilities in the pond dike. The existing weir at the Little Manatee River intake will be upgraded to ensure minimum river flows are maintained. No other changes are needed to the cooling pond or the existing cooling water systems for Units 1 and 2 or to the cooling pond makeup system. An existing Permit Agreement between FPL and the Southwest Florida Water Management District, originally entered into in 1973, allows sufficient makeup water for the operation of the Manatee Plant cooling pond even with the addition of Unit Under the existing agreement, withdrawals may not exceed 190 cubic feet per second ("cfs") and are not allowed to lower river flow below 40 cfs. The existing agreement would allow FPL, under certain flows in the Little Manatee River, to withdraw up to 47 percent of the river flow. After Unit 3 begins operation, makeup water for the cooling pond will continue to be withdrawn from the Little Manatee River. FPL has proposed, and SWFWMD has recommended, a more restrictive schedule for diversions from the Little Manatee River beginning in October 2004. With the proposed diversion schedule, withdrawals will reduce the rate of river flow by no more than 10 percent. During emergency conditions, when the level of the cooling pond falls below 62 feet above mean sea level ("msl"), FPL will be allowed to revert to the existing diversion schedule for October through July, under the current Permit Agreement until the cooling pond reaches 63 feet msl. Under either schedule, diversions will neither reduce the river flow below 40 cfs nor exceed 190 cfs. A modeling analysis of the revised schedule indicates that the average monthly diversion or withdrawal for all three units from the Little Manatee River is estimated to be about 8.9 million gallons per day ("mgd") when Unit 3 becomes operational. Flow in the Little Manatee River averages 114 mgd near the FPL Manatee Plant. The modeling analysis showed that only three events in a 24-year period would qualify as "emergencies" in which the current diversion schedule would have been used. Under this analysis, withdrawals under the proposed diversion schedule would have exceeded 10 percent of the river flow only three percent of the time. Historical withdrawals for the FPL Manatee Plant have exceeded 10 percent of the river flow 18.5 percent of the time. The Little Manatee River is approximately 40 miles long from its origins to its mouth at Tampa Bay. The FPL Manatee Plant is about 18.5 miles above the mouth of the river. From its mouth up to about river mile 12, the vegetation in this part of the river is mangroves, salt marsh, and tidal marsh. At river mile 12 and above, the river is generally freshwater with freshwater bottom land stream swamp vegetation. Water flows and levels exhibit significant variability, with flows ranging between a low of four cubic feet per second and a high of 10,000 cubic feet per second at a location 3.5 miles downstream from the FPL Manatee Plant. At that location, water levels can vary between two feet and 12 feet above mean sea level. Withdrawals from the Little Manatee River have the effect of reducing flow in the river, which could affect water levels along the river, as well as the location of the saltwater interface in the river itself. The saltwater interface represents the point at which fresh and saltwater meet, and it may move up and down the river due to river flow and tidal forces. There has been no adverse effect on the ecology of the Little Manatee River or its estuary from the historical withdrawals for the FPL Manatee Plant. An evaluation of the hydrologic and ecological effects of the projected withdrawals under the revised diversion schedule indicate that the withdrawals after Manatee Unit 3 commences operation should not result in adverse impacts to the Little Manatee River. Hydrologic analyses indicate that the effects of withdrawals under the proposed diversion schedule on water levels, water flows, and salinity in the Little Manatee River will all be within the natural variability of the river and similar to the effects of the historical withdrawals for the Manatee Plant. No significant adverse effects on the ecological features of the Little Manatee River will result from the withdrawals under the new diversion schedule. Flora and fauna in the river are well adapted to fluctuating water levels and salinity. The new diversion schedule will more closely mimic natural rainfall patterns and the 40 cfs cutoff for diversions will protect critical low flow periods in the river. The new diversion schedule with Manatee Unit 3 will be more environmentally sensitive than the existing diversion schedule. These diversions will occur in a manner that better mimics the natural fluctuations in daily river flow by allowing more water to be diverted during high flow periods when the ecology of the river and its estuary is less sensitive to withdrawals. FPL has provided reasonable assurances that the proposed withdrawals after Unit 3 commences operation will have no adverse effects on the Little Manatee River and its estuary. SWFWMD has proposed that FPL undertake a hydrobiological monitoring program of the River. This program will map and monitor vegetation in the river and collect data on salinity and tides in the river. The monitoring program will require regular reports to SWFWMD on the effects of FPL’s withdrawals on the ecology of the Little Manatee River and its estuary. Surface Water Discharges from the Cooling Pond A mathematical model was also conducted of the thermal performance of the cooling pond to predict water quality in the pond over a 24-year period, based on historical weather data and expected plant water withdrawals. The model was used to estimate the dissolved solids level in the cooling pond so that water quality in the pond could be predicted for the future. The pond modeling indicates that water quality in the pond will not exceed surface water quality standards that apply to discharges from the pond. Currently, the only discharges from the pond occur during high-water controlled discharges during extreme rainfall events that exceed the 100-year, 24-hour storm, and during annual gate tests that are conducted to ensure reliability of the gates. When Unit 3 becomes operational, excess rainfall releases from the pond will become less frequent. The pond water level will be managed to provide sufficient storage to retain all direct rainfall and surface water runoff to the pond from a 100-year, 24-hour storm. The cooling pond modeling showed that, with Unit 3 operating, no high water discharges would have occurred over a modeled 24-year period. FPL will continue to analyze the pond water quality as required under an existing FDEP wastewater permit prior to any releases during gate tests. If the analysis shows water quality of a discharge would exceed applicable Class III surface water criteria, then the water in the stilling basin below the discharge gates is also analyzed for water quality criteria. If the combined discharge would violate Class III water quality standards, the gate test will not be performed. Plant Water and Wastewater Treatment The design and operation of Manatee Unit 3 will include a number of water conserving technologies or systems. The use of combined cycle generating technology reduces water use by 60 percent over the water use in a comparable traditional steam generating unit. Unit 3 will utilize only natural gas and thus will not require water to control air emissions of nitrogen oxides. Wastewaters and stormwater from the power block will be collected and recycled to the cooling pond. Process water for use in the plant will be treated in an existing permitted reverse osmosis ("RO") demineralizer system. Demineralized water is required to replace water lost in the steam cycle and to maintain water quality in the heat recovery steam generators, as well as for use in power augmentation and in inlet air fogging systems on the combustion turbines. Raw water will be taken from the Manatee Plant cooling pond for these purposes. The reject water from the RO system will be recycled to the cooling pond. The plant will also require general service water that will be provided by the service water system. The existing permitted domestic wastewater treatment system will handle any additional flows generated by Manatee Unit 3 and no new treatment facilities are planned. The proposed Manatee Unit 3 will utilize the existing Manatee Plant's process water treatment system and associated wastewater treatment systems. The only new wastewaters generated by Unit 3 will be blowdown required to maintain water quality in the HRSGs and equipment wash waters and stormwater from the power block. These wastewaters will be treated in the existing wastewater treatment systems, as necessary, and then recycled to the cooling pond. The cooling system for Manatee Unit 3 requires chlorination or use of biocides to prevent biofouling of the heat rejection system. The water in the steam cycle of the HRSG will be treated to prevent corrosion and scaling of the piping and boiler drums. The HRSG and its piping must also be chemically cleaned initially and then periodically during the life of the Plant. The chemicals required for this process will be delivered to the site by a contractor at the time of the scheduled cleanings. Chemical wastewaters resulting from drainage at chemical storage tanks or cleaning and maintenance operations will be contained and routed to the existing neutralization system for treatment or disposed offsite. Surface Water Management System The onsite drainage facilities for Manatee Unit 3 are to be constructed in accordance with applicable federal, state, regional, and local regulations for control of both stormwater quality and stormwater quantity. The new stormwater systems for Unit 3 will be designed to handle the rainfall from a 25-year, 24-hour storm. Runoff that does not contact industrial areas will be collected and routed to new detention ponds located in the western and southern portions of the Project Area or routed directly to the cooling pond. Stormwater in the CT/HRSG, switchyard, and the plant maintenance areas will be collected, treated for oil separation as needed, and recycled to the cooling pond. The perimeter roads surrounding the CT/HRSG area will contain the runoff from a 100-year, 24-hour storm. Drainage patterns at the existing units will be separated from the new Unit 3 areas. During construction, runoff will be routed to the stormwater ponds to prevent sediment transmission offsite and will be used while final construction of the Project stormwater system is completed. Temporary silt fences will be installed to prevent sediment from being displaced and carried offsite by construction runoff. Groundwater Impacts The only groundwater withdrawal associated with Manatee Unit 3 will be the withdrawal of approximately 1,000 gallons per day of additional groundwater for potable use. This would increase total potable groundwater withdrawals to 8,000 gallons per day. This is within the permitted withdrawal rates under the existing Manatee Plant's consumptive use permit for potable water. Thus, it is anticipated there will be no adverse impacts on groundwater supplies as a result of groundwater withdrawals for Unit 3. Groundwater will not be used in the cooling or other processes for the Project. The existing Manatee Plant cooling pond is the principal source of potential impacts to groundwater at the Plant. Because the cooling pond is generally above the surficial aquifer, seepage from the cooling pond may move laterally through the earthen embankments and vertically into the groundwater beneath the cooling pond. The cooling pond is surrounded by a toe drain system and sumps that are designed to collect horizontal seepage from the cooling pond. This system captures most, if not all, of the seepage and recycles it to the cooling pond, thereby minimizing potential groundwater quality impacts to the surficial aquifer. The Manatee Plant cooling pond was in existence in July 1982 and therefore it is an existing installation for purposes of groundwater discharges under Rule 62-522.200, Florida Administrative Code. Groundwater discharges from the cooling pond are required to meet the state's primary drinking water standards at the boundary of an existing zone of discharge. The groundwater zone of discharge extends to FPL's property boundaries and to the base of the surficial aquifer below the Manatee Plant site. An analysis of the groundwater discharges from the cooling pond indicates that the cooling pond discharges will comply with applicable groundwater standards at the edge of the existing zone of discharge. Noise Impacts of Construction and Operation A noise impact assessment was conducted for the Project, both during construction and operation. Baseline or ambient noise data was collected using sound monitoring equipment at five different locations within and near the Project Area. Using the ambient noise data and expected project noise levels for construction and operation, a noise impact evaluation was performed using an accepted noise propagation computer program. This assessment demonstrated that the construction and operation of Manatee Unit 3 will comply with the Manatee County Noise Ordinance. Socioeconomic Impacts and Benefits The Project Area is an appropriate site for the proposed new Unit 3. The Project consists of the installation of a new combined cycle unit at an existing power plant site that has been in use for that purpose since 1976. Surrounding properties are zoned for agricultural use and residential properties are some distance from Unit 3. The closest residential area is approximately two miles from the Unit 3 Project Area. The Project will also comply with the noise standards of Manatee County. The Manatee Unit 3 Project will benefit the economies of Manatee County and surrounding communities. Direct benefits will include employment opportunities during construction and operation of the Project. It is expected that most of the construction employees will be drawn from the Tampa Bay area and commute daily to the job site. Employment opportunities will result from construction job opportunities, as well as jobs indirectly generated through the purchase of goods and services in the area. Construction employment will average 275 jobs over a 24-month period with an estimated payroll of $95 million. In addition, approximately $20 to $25 million is expected to be spent within the state for materials and equipment during construction. Construction spending will have a multiplier effect in the economy, producing indirect jobs in sectors that support the construction industry. The number of indirect jobs expected to be created will average 175 jobs over the 24-month period. The principal impact from construction of Unit 3 will be short-term traffic impacts due to construction employees, equipment, and materials entering and leaving the site. A transportation analysis of the Project indicated that there could be undesirable delays at the existing Plant's driveway connection to S.R. 62 and at the intersection of S.R. 62 and U.S. 301 in Parrish, with the current stop signs that exist. Therefore, during peak construction periods, an off-duty officer would control the traffic at those intersections during those peak hours. This is the preferred means for traffic maintenance. Operation of Manatee Unit 3 will add approximately 12 new employees at the FPL Manatee Plant. Increases in employee traffic and deliveries to the Plant during operation will be de minimus compared to Manatee County's threshold for traffic impacts. No traffic improvements are needed for Unit 3's operation. Thus, the Project-related traffic during operation of Unit 3 will meet Manatee County's transportation concurrency standards. The additional annual payroll for these 12 new employees is estimated to be $600,000. The increased economic activity from this payroll is expected to generate an additional 18 indirect jobs in the local economy and generate about $310,000 in annual earnings, primarily in construction, retail trade, real estate, business service and health service. Estimated Manatee County property taxes from Unit 3 during operation are $8.2 million in 2006. Over the first five years of operation, tax payments to Manatee County and the State of Florida are expected to be $1 million in sales taxes and almost $38 million in property taxes. The power plant will require very little in the way of additional public services and thus, there should be little or no increase in demand for public services and facilities from Unit 3. Manatee Unit 3 will be consistent with the Manatee County Comprehensive Plan, the State Comprehensive Plan, and the Strategic Regional Policy Plan of the Tampa Bay Regional Planning Council. The Project will also comply with the applicable development standards in the Manatee County Land Development Code. Construction and operation of Manatee Unit 3 will not adversely affect any landmarks, sensitive areas, or archaeological or historical sites. The closest landmarks and sensitive areas within the five-mile radius of the Project will not experience any changes in air quality, noise level, water quality, or visual impacts. There will be no impacts to known archaeological resources. If archaeological materials are discovered, they will be evaluated by professional archaeologists and state historical preservation officials, if necessary. Public Comment Nine members of the public provided testimony during the certification hearing, and two exhibits were admitted as public comment. Several of the persons who provided public comment expressed concerns regarding the air emissions from Manatee Units 1 and 2. Several others expressed appreciation for the manner in which FPL has interacted with the community. No competent, substantial evidence that would alter the findings of fact set forth herein was received from members of the public at the certification hearing. Agency Positions and Stipulations The FDEP, the Florida Department of Community Affairs, the Florida Department of Transportation, the Florida Fish and Wildlife Conservation Commission, the Southwest Florida Water Management District, the Tampa Bay Regional Planning Council, and Manatee County each prepared written reports on the Project. Each of these agencies recommended approval of Manatee Unit 3, or otherwise did not object to certification of the proposed power plant. FDEP has proposed a series of Conditions of Certification for the Project that incorporate the recommendations of the various reviewing agencies. FPL states that it is prepared to accept and can comply with these Conditions of Certification in the design, construction, and operation of Manatee Unit 3. The Florida Department of Community Affairs stipulated that the Project would not conflict with the State Comprehensive Plan. The Tampa Bay Regional Planning Council stated in its agency report that the Project would not conflict with the Strategic Regional Policy Plan for Southwest Florida. Manatee County reported that the Project would be consistent with the County's comprehensive plan and land development code. No state, regional, or local agency has recommended denial of certification of the Project or has otherwise objected to certification of the Project.
Conclusions For Florida Power & Light Company: Peter C. Cunningham, Esquire Douglas S. Roberts, Esquire Hopping Green & Sams Post Office Box 6526 Tallahassee, Florida 32314 For the Department of Environmental Protection: Scott A. Goorland, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard The Douglas Building, Mail Station 35 Tallahassee, Florida 32399-3000 For the Southwest Florida Water Management District: Martha A. Moore, Esquire Southwest Florida Water Management District 2379 Broad Street Brooksville, Florida 34604-6899 For Manatee County: Jeffrey N. Steinsnyder, Esquire Jamie L. Althouse, Esquire Manatee County Attorney's Office Post Office Box 1000 Bradenton, Florida 34206-1000 For Tampa Bay Regional Planning Council: Roger Tucker, Esquire 9455 Koger Boulevard, Suite 219 St. Petersburg, Florida 33702-2491 For ManaSota-88, Inc.: Glenn Compton, Chairman 419 Rubens Drive Nokomis, Florida 34275
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Siting Board grant full and final certification to Florida Power & Light Company, under Section 403, Part II, Florida Statutes, for the location, construction, and operation of Manatee Unit 3, representing a 1,100 MW combined cycle unit, as described in the Site Certification Application and the evidence presented at the certification hearing, and subject to the Conditions of Certification contained in FDEP Exhibit 2 and as appended hereto. DONE AND ENTERED this 19th day of February, 2003, in Tallahassee, Leon County, Florida. CHARLES A. STAMPELOS 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 19th day of February, 2003. COPIES FURNISHED: Ross Stafford Burnaman, Esquire James V. Antista, Esquire Fish and Wildlife Conservation Commission 620 South Meridian Street Tallahassee, Florida 32399-1600 Colin Roopnarine, Esquire Assistant General Counsel Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100 Roger Tucker, Esquire Tampa Bay Regional Planning Council 9455 Koger Boulevard, Suite 219 St. Petersburg, Florida 33702-2491 Jeffrey N. Steinsnyder, Esquire Manatee County Attorney's Office Post Office Box 1000 Bradenton, Florida 34206 Peter C. Cunningham, Esquire Douglas S. Roberts, Esquire Hopping Green & Sams Post Office Box 6526 Tallahassee, Florida 32314-6526 Sheauching Yu, Esquire Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0450 Martha A. Moore, Esquire Southwest Florida Water Management District 2379 Broad Street Brooksville, Florida 34604-6899 Robert V. Elias, Esquire Martha Carter Brown, Esquire Florida Public Service Commission Gerald Gunter Building 2450 Shumard Oak Boulevard Tallahassee, Florida 32399-0850 Scott A. Goorland, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard The Douglas Building, Mail Station 35 Tallahassee, Florida 32399-3000 ManaSota-88, Inc. c/o Glenn Compton, Chairman 419 Rubens Drive Nokomis, Florida 34275 David B. Struhs, Secretary Department of Environmental Protection The Douglas Building 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Teri L. Donaldson, General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard The Douglas Building, Mail Station 35 Tallahassee, Florida 32399-3000 Kathy C. Carter, Agency Clerk Department of Environmental Protection 3900 Commonwealth Boulevard, Mail Station 35 Tallahassee, Florida 32399-3000
The Issue The evidence shows that Jones continued to operate an adult congregate living facility after her application for license renewal was denied. The primary issue of law is whether the Department of Health and Rehabilitative Services has jurisdiction to impose a fine on a person whose license, according to the Department's own complaint, has expired and whose application for renewal has been denied, for operating without a license.
Findings Of Fact M. B. Jones was licensed to do business as Palmetto Palms, an adult congregate living facility, on or about March 15, 1979. This license expired in March, 1980, prior to which Jones reapplied for a new annual license. Her right to continue to operate an adult congregate living facility was extended while her application was pending. On August 20, 1980, Jones' application was denied, and she was notified of the denial. The letter of denial stated that a written request for hearing would have to be filed by September 3, 1980. Jones did not file a timely request for a hearing on her denial. She had requested a hearing on the denial of her application when she filed her renewal application, which was premature. She requested a hearing at or about the time the instant Administrative Complaint issued, which was untimely. It was this second request which was treated as the request for a hearing on the Administrative Complaint, which Jones had been advised was in the process of preparation. Jones continued to operate as an adult congregate living facility after she received notice that her application was denied.
Recommendation Although the facts show that the Respondent was operating an adult congregate living facility without a license, as stated in the Conclusions of Law the Department lacks jurisdiction to levy the fine imposed. Therefore, based on the foregoing Findings of Fact and Conclusions the Hearing Officer recommends that the Department of Health and Rehabilitative Services take no action to levy a fine against M. B. Jones, doing business as Palmetto Palms Adult Congregate Living Facility. DONE and ORDERED this 24th day of March, 1981, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN 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 March, 1981. COPIES FURNISHED: Barbara Dell McPherson, Esquire Department of HRS 2255 East Bay Drive Post Office Box 5046 Clearwater, Florida 33518 Mrs. M. B. Jones c/o Palmetto Palms 411 15th Avenue, North St. Petersburg, Florida 33704 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, Petitioner, vs. CASE NO. 80-2272 B. JONES d/b/a PALMETTO PALMS ADULT CONGREGATE LIVING FACILITY, Respondent. /
The Issue The issues in this case are whether Respondent, Coconut Cove Resort and Marina, Inc., failed to comply with the requirements of Sections 440.10, 440.107, and 440.38, Florida Statutes, and, if so, the appropriate amount of penalty which should be assessed against Respondent.
Findings Of Fact The Department of Financial Services (hereinafter referred to as the “Department”), is the state agency charged with the responsibility of enforcing the requirement of Section 440.107, Florida Statutes, that employers in Florida secure workers' compensation insurance coverage for their employees. § 440.107(3), Fla. Stat. Respondent, Coconut Cove Resort and Marina, Inc. (hereinafter referred to as “Coconut Cove”), is a Florida corporation, which at the times relevant operated a small hotel/resort located in Islamorada, Florida. On November 4, 2008, a complaint was received by the Bureau of Compliance Office of the Division of Workers’ Compensation located in Miami, Florida, requesting a determination of whether Coconut Cove was in compliance with Florida’s workers’ compensation coverage requirements. The complaint was referred to Xotchilth Valdivia, a Department investigator, for investigation. After performing an in-office audit of the Department’s databases and finding no evidence that Coconut Cove had secured workers’ compensation coverage or had obtained exemptions from Florida workers’ compensation laws, Ms. Valdivia traveled to Coconut Cove’s location on November 6, 2008. Upon arriving at Coconut Cove’s location, Ms. Valdivia spoke with a woman by the named Comeau, who was manning the front desk of the resort. Ms. Valdivia asked to speak with Mr. Bates, but was informed that Mr. Bates, a commercial airline pilot, was away. Ms. Comeau, however, told Ms. Valdivia that Mr. Bates’ wife, Magda was available. While waiting for Ms. Bates to arrive, Ms. Valdivia observed four individuals who appeared to be performing work for the resort, in addition to Ms. Comeau, who was manning the front desk: a male who was working around the swimming pool, and two women who appeared to be maids with cleaning mops. When Ms. Bates arrived, Ms. Valdivia identified herself and the purpose of her visit. During the course of her discussion with Ms. Bates, Ms. Bates identified 18 individuals as employees of Coconut Cove by name and occupation. The 18 individuals included Mr. and Ms. Bates, both officers of Coconut Cove. While indicating that she knew nothing about Florida workers’ compensation requirements, Ms. Bates also stated that Coconut Cove did not have workers’ compensation coverage. Finding that Coconut Cove had four employees as of November 6, 2008, and no workers’ compensation coverage, conclusions not disputed by Ms. Bates, Ms. Valdivia issued Stop- Work Order No. 08-326-D5 and served it on Ms. Bates. A Request for Production of Business Records for Penalty Assessment Calculation (hereinafter referred to as the “Request for Records”), was also served on Ms. Bates. The Request for Records sought payroll records for the three-year period preceding the date of the issuance of the Stop-Work Order. Ms. Valdivia explained the reason why the Stop-Work Order was being issued and the purpose of the Request for Records. She also explained that the business records would be utilized in calculating any penalty owed by Coconut Cove for failing to carry workers’ compensation coverage. Although Coconut Cove attempted to prove that Ms. Valdivia acted arbitrary in her actions to this point, the evidence proved the contrary. Ms. Valdivia acted reasonably, appropriately, and had good cause for the actions taken. In response to the Request for Records, Ms. Bates telephoned the accountant for Coconut Cove and requested that he provide the payroll information being sought by the Department. Almost all that information was immediately faxed to Ms. Bates, who then provided a copy to Ms. Valdivia. The documentation consisted of a payroll report for Coconut Cove for the period January 1, 2008, to November 6, 2008, UCT-6 reports filed by Coconut Cove with the Florida Department of Revenue for the fourth quarter of 2005 through the third quarter of 2008. (Petitioner’s Exhibits 4B, 4E, 4F, and 4G.) Based upon the information contained in the UCT-6 reports provided by Coconut Cove to the Department, the names of employees and the gross income paid to them by Coconut Cove was reported by Coconut Cove to the Department of Revenue. Those reports indicate that Coconut Cove employed four or more individuals each month from October 2005 through September 2008. Subsequently, Coconut Cove provided additional payroll information to the Department concerning payroll for the periods of November 7, 2005, through December 31, 2005, and November 1, 2008, through November 6, 2008. Again, the documents, which were provided by Coconut Cove, indicate that it had employed four or more individuals during the periods of time covered by these documents. The Request for Records included a request for time sheets, check stubs, and check ledgers for the period of time at issue, November 7, 2005, to November 6, 2008 (hereinafter referred to as the “Audit Period”). None of these documents were provided to the Department or at hearing. While Coconut Cove had a stack of documents at hearing which Mr. Bates referred to generally as time cards, those documents were not offered into evidence and no specific testimony concerning the vast majority of the documents was provided. Based upon the documentation provided by Coconut Cove to the Department, documentation which was offered and admitted at hearing, the Department proved clearly and convincingly that Coconut Cove employed four or more individuals during each month of the Audit Period. This finding excludes Mr. and Ms. Bates, who, although employees of Coconut Cove who had not obtained exemptions from coverage during the audit period, received no remuneration from Coconut Cove during the Audit Period. The documentation provided by Coconut Cove was provided to Russell Gray, an employee of the Department since 1986. Mr. Gray reviewed all the payroll information provided by Coconut Cove to Ms. Valdivia, transferred the payroll information to spread sheets, and proceeded to calculate the penalty imposed pursuant to statutes and rules for Coconut Cove’s failure to comply with the insurance coverage requirements of Chapter 440, Florida Statutes. The manner in which Mr. Gray calculated the penalty is more specifically and accurately described in the Department’s proposed findings of fact numbered 21 through 25 and 27, which are hereby incorporated into this Recommended Order by reference. Mr. Gray determined that the penalty to be assessed against Coconut Cove was $27,897.58. An Amended Order of Penalty Assessment for the penalty was issued December 3, 2008, and served on Coconut Cove by certified mail on December 4, 2008. Subsequently, Mr. Gray concluded that his penalty calculation was incorrect to the extent that he had included gross income in the amount of $1,316.65 to an employee named Gerald Elmore. This figure was the income of another employee and not income attributable to Mr. Elmore. In order to correct his error, the Department filed a Motion to Amend Order of Penalty Assessment on September 18, 2009, seeking to file a 2nd Amended Order of Penalty Assessment, lowering the penalty assessment to $27,821.74. Despite objections to this amendment raised at hearing by Coconut Cove, the Motion to Amend was granted after hearing the impact of the change and the reason it was required. On December 15, 2008, Coconut Cove entered into a Payment Agreement Schedule for Periodic Payment of Penalty. The Department, therefore, issued a Conditional Release from Stop- Work Order, also dated December 15, 2008. Coconut Cove’s relevant defense to the foregoing consisted of the assertion by Mr. and Ms. Bates that they simply did not have more than three employees at anytime. It was asserted that employees listed on the documentation provided by Coconut Cove’s accountant to Ms. Bates and given by Ms. Bates to Ms. Valdivia, were actually employees of another entity owned by the Bates, Paul’s Beach Bar and Grill, Inc., which runs an on- site restaurant and catering service. The testimony of Mr. and Ms. Bates on this issue was not convincing and is rejected as unworthy. The testimony was uncertain as to time, short on specifics, and was contrary to the information reported on the payroll records and UCT-6s provided by Coconut Cove’s accountant. That testimony is also rejected because no explanation as to why the individuals had been listed as employees of Coconut Cove on the payroll records and UCT-6s if they were indeed employees of Paul’s Beach Bar and Grill, Inc. The Department proved clearly and convincingly, based upon documentation produced to it by Coconut Cove, that the individuals named on the penalty worksheet attached to the Amended Order of Penalty Assessment were employees of Coconut Cove during the Audit Period, that Coconut Cove paid those individuals the gross income included in the penalty worksheet, and that the calculation of the penalty assessment, as amended at hearing, was accurate.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Financial Services, Division of Workers' Compensation, enter a final order: Finding that Respondent, Coconut Cove Resort and Marina, Inc., failed to secure the payment of workers’ compensation for its employees during the Audit Period, in violation of Section 440.107, Florida Statutes; and Assessing a penalty against Coconut Cove Resort and Marina, Inc., in the amount of $27,821.74. DONE AND ENTERED this 30th day of November, 2009, in Tallahassee, Leon County, Florida. LARRY J. SARTIN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of November, 2009. COPIES FURNISHED: Timothy L. Newhall, Esquire Department of Financial Services 200 East Gaines Street Tallahassee, Florida 32399 Paul Bates Magda Bates 8401 Overseas Highway Islamorada, Florida 33036 Tracey Beal, Agency Clerk Department of Financial Services 200 East Gaines Street Tallahassee, Florida 32399-0390 Honorable Alex Sink Chief Financial Officer Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300 Benjamin Diamond, General Counsel Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300
