The Issue Whether DOT has improperly excluded Western Waste Industries, Inc. from bidding by combining two Volusia County sites in a single invitation to bid?
Findings Of Fact A three-man maintenance crew works out of DOT's Daytona Beach construction office, which is 16 miles distant from DOT's principal Volusia County facility, the Deland maintenance yard. In the summer, when both mowing operations and littering are at their peak, 72 DOT field people and 14 convicts set out from the Deland yard daily to sweep the roadways, police, grade and seed the shoulders, cut the grass and do other bridge, pipe and concrete maintenance. At one time, as the work day ended, crews dropped litter and mown grass at the county dump on their way back to the sites at which they assembled mornings in Deland and Daytona Beach. The Daytona Beach crew still does. But somebody calculated that DOT could save 100 man hours a month by arranging for "dumpsters" at both its Volusia County yards. That way all workers can return to their work stations directly, and no side trip is required in order to dispose of litter and cut grass. On April 1, 1988, petitioner Western Waste Industries, Inc. (WWII) installed two dumpsters, each with a capacity of eight cubic yards, at DOT's Deland yard. Under a month to month agreement, WWII empties both containers twice weekly in exchange for $273 monthly. DOT is satisfied with its decision to use dumpsters, but is obliged to invite bids, because DOT cannot procure the services it needs for less than $3000 a year. Among the specifications set out in DOT's invitation to bid is the form of the contract the successful bidder is to sign, which includes the following: 1.00 The Department does hereby retain the Contractor to furnish certain services in connection with Central Point Refuse Pickup and Disposal Originating at the Department's Maintenance Office Located at 1655 North Kepler Road, Deland, Florida, with an Option to Include Similar Services for the Department's Construction Office Located at 915 South Clyde Morris Boulevard, Daytona Beach, Florida. DOT's Exhibit No. 1 (emphasis in original) In Exhibit A to the form contract, entitled "SCOPE OF SERVICES," the specifications call for "trash containment and removal of litter ... from specific offices located in the Department's District Five." Id. Exhibit A specifies both the Daytona Beach and the Deland offices by name and address. Attachment B indicates that the successful bidder is to remove 40 cubic yards of refuse weekly from DOT's maintenance yard in Deland and, at DOT's option, additional refuse from the Deland yard, from the Daytona Beach office, or from both. If DOT exercised both options, the contractor would haul ten percent of DOT's refuse from the Daytona Beach office, on an annual basis. In its letter of protest, dated June 14, 1988, WWII complains that it "operate[s] on the West Side [of Volusia County] only." But the two companies who submitted bids in response to DOT's invitation to bid are willing to collect refuse at both sites. No exclusive franchise or other legal impediment precluded WWII from bidding on collection at both sites By soliciting bids for service at both sites, DOT avoids the administrative costs of inviting and evaluating two sets of bids.
The Issue The issue is whether Petitioner must forfeit his vested benefits in the Florida Retirement System (FRS), pursuant to section 112.3173(3), Florida Statutes, due to Respondent's commission of an act of extortion, as defined in section 836.05, Florida Statutes.
Findings Of Fact Petitioner has lived for much of his life in West Palm Beach. Petitioner's family owned a Pepsi-Cola bottling company in West Palm Beach until selling it five or six years ago. Petitioner started with the company as a truck driver and eventually served as a vice-president. Petitioner served as a locally elected official in West Palm Beach for nearly 20 years. Petitioner was elected commissioner of the Board of Commissioners of the City of West Palm Beach and served for 12 years. Subsequently, he was elected and reelected commissioner of the Board of County Commissioners of Palm Beach County. Petitioner was prevented by term limits from serving beyond his second four-year term, which was due to end in December 2010. However, Petitioner resigned from the county commission five months earlier after he pleaded guilty to, and was adjudicated guilty of, the extortion that is described below. Petitioner had planned to retire from public office after finishing his term in December 2010. In his early 60s and evidently secure financially, Petitioner looked forward to retirement, during which he planned to volunteer in the community and play with his grandchildren. In the final year of his final term in public office, Petitioner busied himself with--or, perhaps more aptly, obsessed over--one major piece of unfinished business: the South Cove Restoration Project. The South Cove Restoration Project is an ecological restoration project in the Lake Worth Lagoon in downtown West Palm Beach. The Lake Worth Lagoon is a 20-mile long body of water in central Palm Beach County. Located just east of Flagler Drive and north of the Royal Park Bridge, the South Cove Restoration Project's primary sponsor is Palm Beach County, although the state has provided funds and the City of West Palm Beach and the Florida Inland Navigation District are also identified as project "partners." The project consists of the creation of two acres of mangrove/spartina habitat, 3.5 acres of potential seagrass habitat, and one acre of rock revetment/oyster reef. The project also includes a 565-foot elevated boardwalk running from the sidewalk along Flagler Drive to the largest mangrove island and a 16-foot square observation deck. Lastly, the project includes the capping of an old dredge hole with clean sand. This will reduce turbidity in the adjacent water column by preventing the continual resuspension of fine-grained particles that tend to collect in the dredge hole. For many years, water-quality issues in the Lake Worth Lagoon have received the attention of state, regional, and local officials, including Petitioner. For a couple of years, Petitioner had served as the county representative to, and chair of, a consortium of governmental entities that had formed the Lake Worth Lagoon Initiative (Initiative). Members of the Initiative have been drawn from the Florida Department of Environmental Protection, the South Florida Water Management District, the Palm Beach County chapter of the League of Cities, and Palm Beach County. The mission of the Initiative is to restore water quality in the lagoon by obtaining and providing funding from various sources for projects to address such issues as water quality, habitat, and pollution-control. The Initiative has supported the South Cove Restoration Project, which is located to the south of a larger project recently undertaken by the City of West Palm Beach to dredge the Intracoastal Waterway adjacent to Flagler Drive as part of extensive renovations of an old city marina. The dredge spoil from the city marina project will provide the fill for the dredge hole in the South Cove Restoration Project. The South Cove Restoration Project was first identified in 1997 as a Surface Water Improvement and Management project. In August 2008, the Department of Environmental Protection proposed to issue the permits necessary for the project's construction and operation. Trump Plaza challenged the proposed permits in DOAH Case No. 08-4752, and Flagler Center Properties, LLP, intervened on the side of Trump Plaza. Trump Plaza is the owner- association of two 30-story condominium buildings, and Flagler Center Properties is the owner of two eight- or nine-story office buildings. Due to the proximity of their buildings to the South Cove Restoration Project, both parties challenged the project on the grounds of, among other things, the potential obstruction of their view and the unreasonable infringement on their qualified rights to a dock. These properties and the uplands adjoining the South Cove Restoration Project are all entirely within the city limits of the City of West Palm Beach. This litigation delayed the issuance of the permits by 15 months. However, in September 2009, an Administrative Law Judge issued a recommended order approving the permits, and, in November 2009, the Department of Environmental Protection issued the final order issuing the permits. Members of the Johnson family own Flagler Center Properties. Like the Koonses, the Johnsons have lived in West Palm Beach for many years. The eldest Johnson is of the age of Petitioner's parents, and Petitioner knew the next generation of Johnsons, as they grew up together in West Palm Beach. The third generation of Johnsons and Koonses even attend the same school. But all of these relationships notwithstanding, at least certain members of the Johnson family with ownership interests in Flagler Center Properties have opposed at least certain aspects of the South Cove Restoration Project. The extortion occurred late in the approval process for the South Cove Restoration Project. The two acts of extortion took place in the six weeks before a vote by city commissioners to allow a fourth wheelchair-ramp access to be constructed from the existing sidewalk, over the seawall, and onto the boardwalk. The city commission vote took place on June 17 or 19, 2010. As expected, the city commissioners unanimously approved the fourth wheelchair ramp. Within a few days after the city vote, the last project sponsor to commit funds--the board of the Florida Inland Navigation District--approved its $1.5 million contribution. Evidently, the District vote was even more of a certainty that the city vote because--to the extent that Petitioner's extortion was designed to ensure final passage of the South Cove Restoration Project--Petitioner's concern, at the time of the extortion, was the city vote, not the District vote. In anticipation of the city vote, on May 6, 2010, at 9:14 a.m., Petitioner called the Johnson family attorney to discuss the Johnson family's continued objection to the project, especially the boardwalk. Petitioner failed to reach the attorney, so he left a voicemail. After a brief greeting, Petitioner demanded that the attorney send Petitioner immediately a memo outlining the remaining objections of the Johnson family to the South Cove Restoration Project. And if you don't--then I'm going to do a Public Records Request to the City of West Palm Beach on this. Dean, just for the heads up, good friend of mine, I'm going to work as hard as I've ever worked in twenty years of public service to take the Johnsons through the ringer on this if they don't support the City of West Palm Beach. I'll have kids picketing at the building and what I'm going to say is they want [a] marina instead of an island. I told you, this is very personal for me. Okay. This is something I really, really want. After twenty years I want the Johnsons to step away and congratulate me personally on all the work I've done. Okay? I have no idea why they're trying to fuck me on the deal but this is very personal. I'm going to work five [sic] hours a day for the next six weeks. I'm going to leverage every possible person, program--I have to get a five-oh vote out of the City Commission. It's very personal, Dean. So, I can't understand why they want to do it ultimately, I want them to say we've [sic] love to have this project. I'm going to door to door at every tenant in the building and throw them under the fucking bus. I'm going to say they want a marina out here versus a public island. I'm going to the FBI--I'm going to the Foundation. I'm going to every tenant in the building. I'm going to see if I have a banking relationship with anybody in there. I want this done and it's a personal thing for me. Shortly after this voicemail, Petitioner instructed a county employee to visit the Flagler Center Properties' site and photograph dead trees and the property's stormwater outfall. The record is not reliably developed on these points, except to the extent that these two issues are mentioned in Petitioner's next voicemail to the Johnson family attorney, which took place after the photographs were taken. To dispel any doubt of his seriousness, Petitioner called the Johnson family attorney again on June 9, 2010, at 6:18 pm: Hey, it's Koons. Just wondering, are the Johnsons still fighting that island on the maintenance issue? I was just wondering because I don't know if you noticed the dead trees that they have in their building in downtown West Palm Beach. Can't even take care of their own property with the dead trees. I don't know why they're worrying about maintenance on something else [the South Cove Restoration Project]. Anyway, also, do you have a map of where their stormwater goes? I was just trying to think if they were ever under a pre- treatment of their stormwater that goes off, I think, right where that island is going to be. Anyway, just let me know. Let me know if you want me to call Code Enforcement or what you want me to do. Thanks. By Information dated August 3, 2010, the State of Florida alleged that Petitioner "on or between May 6, 2010, and June 17, 2010, . . . did either verbally or by a written or printed communication, maliciously threaten an injury to the reputation of [the Johnson family] with intent to compel the persons so threatened . . . to do any act or refrain from doing any act against their will, contrary to Florida Statute 836.05 (2 DEG FEL)". The Information also alleges two misdemeanors that are irrelevant to this case. After three interviews with the authorities, Petitioner resigned from the county commission on August 3, 2010. The next day, Petitioner pleaded guilty to extortion and the two misdemeanors, and the court adjudicated Petitioner guilty of all three offenses and sentenced him to five years' county probation for the extortion and fined him $10,000 for the extortion. There is no evidence whatsoever that Petitioner extorted the Johnson family for personal financial gain. He had already declined to run for another elected office, so the record does not support a finding that he engaged in this extortion for his personal political gain. There is no evidence whatsoever that Petitioner engaged in this extortion for any other personal purposes, including obtaining wheelchair access for a family member or obtaining improper sexual advantage. It is difficult to find that Petitioner engaged in this extortion to cement some sort of personal legacy. The South Cove Restoration Project is not an exceptionally large project, in terms of water quality impacts. It appears to have already been named, so general naming rights--to paraphrase a theater critic, the graffiti of the political/philanthropic class--do not seem to be involved. (Charles Isherwood, "The Graffiti of the Philanthropic Class," N.Y. Times, December 2, 2007, http://www.nytimes.com/2007/12/02/theater/02ishe.html). As noted above, the sole practical concern of Petitioner, at the time of the acts of extortion, was the city vote on the fourth wheelchair ramp. But this vote was a near certainty and concerned an inconsequential matter--a fourth wheelchair ramp--that would not have prevented the project from going forward. Some proponents of the project even believed that the city vote was unnecessary, and a fourth ramp could have been located nearby at a location not within the jurisdiction of the city. Almost all that is left to explain the extortion is Petitioner's characterization of his acts, which he admitted were driven by anger, frustration, and stupidity. The narcissistic demands in the first voicemail that the Johnson family pay public homage to Petitioner and the eerie passive- aggressive nature of the second suggest pride to the point of hubris. But nothing else--except, of course, anger and stupidity. At all material times, Petitioner was in FRS-covered employment, owned vested FRS benefits, and had not filed for FRS retirement benefits. By letter dated November 8, 2010, Respondent advised Petitioner that he had forfeited his FRS benefits when he entered a guilty plea to the felony of extortion. He timely requested a hearing.
Recommendation It is RECOMMENDED that the Division of Retirement Services enter a final order determining that Petitioner's acts of extortion, described above, do not constitute grounds for forfeiture of his FRS pension. DONE AND ENTERED this 9th day of August, 2011, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE 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 8th day of August, 2011. COPIES FURNISHED: Sarabeth Snuggs, Director Division of Retirement Department of Management Services Post Office Box 9000 Tallahassee, Florida 32315-9000 Jason Dimitris, General Counsel Department of Management Services 4050 Esplanade Way, Suite 160 Tallahassee, Florida 32399-0950 Geoffrey M. Christian, Esquire Department of Management Services 4050 Esplanade Way, Suite 160 Tallahassee, Florida 32399-0950 Mark A. Emanuele, Esquire Panza, Maurer and Maynard, P.A. Bank of America Building, Third Floor 3600 North Federal Highway Fort Lauderdale, Florida 33308
The Issue The issues in this case are whether the Respondent committed violations alleged in an Administrative Complaint and, if so, what disciplinary action should be taken.
Findings Of Fact At all times material to this case, Respondent was employed by Petitioner as a school psychologist. At all times material to this case, Respondent was a member of the Classroom Teachers Association (CTA) Bargaining Unit. At all times material to this case, Respondent was receiving benefits under a valid claim for Workers' Compensation benefits arising from an accident on January 7, 2000. In conjunction with investigations as to Respondent's eligibility for Workers' Compensation benefits, video surveillance of Respondent's activities was conducted on several occasions. At the beginning of the 1999-2000 school year, Dr. Laakso worked for Petitioner as a school psychologist in Area 3, and was assigned to Palm Beach Lakes High School, Forest Hill High School, and Conniston Middle School. His immediate supervisor was Mary Kate Boyle, the Area 3 Exceptional Student Education (ESE) Team Leader. On January 7, 2000, Dr. Laakso was working in his car while parked in the Palm Beach Lakes High School parking lot, and when exiting the car, hit his head on the door jamb causing a compression of his spine. He then received a second injury to his back while pulling psychological testing kits out of his car. Dr. Laakso submitted this injury to Petitioner as a workers' compensation injury, and it was covered as such. Christopher Brown, M.D., an orthopedic surgeon and one of Dr. Laakso's workers' compensation physicians, treated Dr. Laakso. On February 8, 2000, Dr. Brown placed Dr. Laakso on a "no-work" status. Dr. Laakso suffers from cervical spinal stenosis, which is a narrowing of the spinal canal. Because Dr. Laakso had underlying spinal stenosis secondary to arthritis, combined with disc herniations, his orthopedic surgeon, Dr. Brown, diagnosed Dr. Laakso's stenosis as severe. Also on February 8, 2000, Ms. Boyle held an investigative meeting with Respondent and his then-attorney, Stephen Fried, to discuss Respondent's continued absences since January 7, 2000 (the date of Respondent's workers' compensation injury) and his work status. In a letter to Dr. Laakso dated February 9, 2000, Ms. Boyle explained what her expectations were with regard to Respondent's absence and work status. On February 9, 2000, Dr. Laakso requested unpaid sick leave for January 11, 2000 to May 31, 2000, which the School Board granted. In March of 2000, Dr. Laakso was released back to light duty work, with restrictions. Some of the physical restrictions placed on Dr. Laakso's activities included no overhead use of the right upper extremity and no heavy use of the right upper extremity greater than 5 pounds. In addition, Dr. Laakso was told to be careful and to try not to hurt himself. Dr. Brown also imposed a 10 mile driving restriction on Dr. Laakso because Dr. Brown believed Dr. Laakso's spinal stenosis placed him at increased risk if he hit his head or was in a car accident. Dr. Laakso argued against the driving restriction because he was capable of driving and believed that the restriction would "mess things up" if he was unable to use his car. Dr. Laakso neither asked for the driving restriction nor represented that he needed the restriction.4 Dr. Laakso conveyed the driving restrictions to both Ms. Boyle and Linda Meyers in Risk Management. On March 21, 2000, Dr. Laakso was given a light duty placement in which he was assigned to Atlantic High School watching the school's security cameras. This assignment was for Dr. Laakso's regularly scheduled 7.5 hours a day, and was within the physical and driving restrictions imposed by Dr. Brown. While on light duty assignment at Atlantic High School, Dr. Laakso reported to Assistant Principal, Marshall Bellin. Dr. Laakso also submitted his time sheets to Mr. Bellin for Mr. Bellin's verification and signature. After Mr. Bellin signed the light duty time sheets, Dr. Laakso faxed them to Ms. Boyle for payroll purposes. Around this time period, in approximately April of 2000, the third party administrator, FARA, who handles the School Board's Workers' Compensation claims, hired private investigator Richard Mains to conduct surveillance of Dr. Laakso. Mains observed Dr. Laakso at various times from April 3, 2000 through October 2, 2000. Mains documented Respondent's driving to and from his Matlacha home and the activities in which he engaged while there. Mains did not know whether Dr. Laakso was taking pain or anti-inflammatory medication, or whether Dr. Laakso was under the influence of these types of medications at the times Mains observed him. On May 17, 2000, Ms. Boyle held another investigative meeting regarding Respondent's absences while on light duty. The minutes from that meeting indicate that Ms. Boyle expressed her concern to Dr. Laakso regarding his absences, discussed his light duty assignment at Atlantic High School, and directed him to call her beeper if he was going to be absent. He was also directed to provide a doctor's note if he was absent. Dr. Laakso remained in the light duty assignment at Atlantic High School for the remainder of the 1999-2000 school year. On Wednesday, August 9, 2000, the first day of the 2000-2001 school year, Dr. Laakso again reported to Atlantic High School to resume his light duty placement. On August 15, 2000, Marshall Bellin signed Respondent's light duty sign-in sheet, which covered Dr. Laakso's work attendance for August 9, 10, 11, and 14, 2000. Around August 14 or 15, 2000, Dr. Laakso received verbal notification that because his driving restriction had been lifted, he was being taken off light duty assignment and was to report to Area 3. Prior to this verbal notification, Dr. Laakso had not been advised by his physicians that his driving restriction had been lifted. However, he subsequently learned through someone at the Risk Management Department that, in fact, the driving restriction had been lifted. Upon hearing the news, Dr. Laakso contacted Dr. Brown. When he went to see Dr. Brown, Dr. Brown explained to Respondent that the Board had sent him a questionnaire asking whether he believed that Dr. Laakso could drive a car as opposed to whether he should drive a car. Dr. Brown further explained that he responded that Dr. Laakso could drive a car, but felt he had made a mistake as he felt it was still dangerous for Dr. Laakso to drive. Accordingly, on August 17, 2000, Dr. Brown reinstated Dr. Laakso's driving restriction of no more than 10 minutes. On August 17, 2000, Dr. Laakso sent a memo to Ms. Boyle indicating that his driving restriction had been reinstated. A copy of the note from Dr. Brown was attached to this memo. Because of her continuing concern regarding Respondent's absences, on October 2, 2000, Ms. Boyle held another "investigative meeting" regarding Dr. Laakso's absences. This meeting resulted in Boyle's issuing Dr. Laakso a written reprimand for unacceptable and unexcused absences, failure to call in intended absences as required, and insubordination. The written reprimand specifically addressed Dr. Laakso's absences on August 9, 10, 11, 22, and September 20, 27, 28, and 29. Ms. Boyle believed her issuance of the written reprimand dated October 2, 2000, was consistent with the progressive discipline policy. At the time that Ms. Boyle wrote the reprimand, she also notified the District's Professional Standards Department and requested a formal investigation of Respondent's absences. Ms. Boyle then contacted Ray Miller in Professional Standards to be sure that she was following appropriate procedure. In October of 2000, Ray Miller received Respondent's case for investigation, and the investigation was assigned case number 101. Specifically, Miller investigated allegations involving Respondent's misuse of leave, unauthorized absence, failure to call in and report absences as required, and insubordination for the time period of January 2000 through December 2000. At the time of his interview with Respondent, Miller had a surveillance video and a report of Respondent's activities for April of 2000. Respondent neither denied that he was the subject of the video nor that he failed to report and call in his absences. Shortly before December 4, 2000, Miller signed off on the investigative report for case number 101, and on December 4, 2000, Paul Lachance issued a letter to Dr. Laakso indicating that the investigation was complete, and that a determination of probable cause had been made. The investigative report was then reviewed by the Case Management Review Committee to determine whether there was just cause to recommend discipline and, if so, provide a discipline recommendation. The Committee found just cause and recommended Dr. Laakso's termination. A number of meetings were held in December 2000 with representatives of Petitioner, Dr. Laakso, and his then- attorney, Mr. Fried. As a result of these meetings, an informal settlement was reached; Dr. Laakso's employment was not terminated, but rather he was transferred to the Area 1 ESE office. By a letter to the file dated January 8, 2001, Paul Lachance, Director of Professional Standards, administratively closed case number 01-101 against Dr. Laakso with "no action." While assigned to Area 1, Dr. Laakso was under the supervision of Area 1 ESE Team Leader, Paul Sayrs. As supervisor, Mr. Sayrs was responsible for keeping track of Respondent's attendance. Accordingly, Sayrs directed Respondent to call and notify secretary Judy Fabris if he was going to be absent, who in turn would notify Mr. Sayrs. While assigned to Area 1, Dr. Laakso missed work for several days in January and February 2001, and was also out for most of March and April 2001. On April 4, 2001, Mr. Sayrs sent Dr. Laakso a letter listing the dates of his absences and directing him to submit a doctor's note for the dates listed, as well as for any future absences. The next day, April 5, 2001, Mr. Sayrs sent another letter to Dr. Laakso advising him he was currently absent without approved leave. Mr. Sayrs advised Respondent further that due to an absence of correspondence from Respondent, Mr. Sayrs would assume Respondent had decided to discontinue working for Petitioner and Respondent's name would be submitted to the School Board for acceptance of Respondent's resignation. Dr. Laakso immediately contacted Dr. Sachs regarding Mr. Sayrs' request for medical documentation, but was unable to get an appointment with Dr. Sachs until April 20th. However, prior to his April 20th appointment, Dr. Laakso forwarded to Dr. Sachs a copy of the District's letter, which indicated he would be terminated if he did not provide the requested documentation prior to his appointment on April 20th. In response, Dr. Sachs accounted for Dr. Laakso's absences, noting they were due to his symptoms and cervical condition. Additionally, Dr. Laakso followed through by faxing his Request for Leave of Absence without Pay form with his signature, dated April 18, 2001, directly to Dr. Sachs for his signature. The leave was ultimately granted retroactive to March 8, 2001, prior to Dr. Laakso's being terminated by the District. On April 18, 2001, Dr. Laakso sent a handwritten note to Dan McGrath explaining his absences. Dr. Laakso attached to his note to Mr. McGrath two documents from Dr. Sachs, one dated April 15, 2001, and the other dated April 6, 2000. On May 18, 2001, Paul Sayrs evaluated Dr. Laakso's performance. The evaluation sheet indicated that Dr. Laakso was "presently on a medical leave of absence." Dr. Laakso has a second home in Matlacha, located on the other side of Cape Coral. Matlacha is located in the Fort Myers area and is approximately 150 miles from the West Palm Beach area, roughly a three-hour trip using country roads. Because he had not been feeling well, Dr. Laakso had not been taking care of his property in Matlacha. As a result, he received notices from the county telling him he needed to clear up the property or face a potential daily fine of $225. Specifically, the county informed Dr. Laakso that he needed to mow the grass, move a boat, register a pickup truck, and park the truck somewhere where it was not in open view. He asked for an extension in which to do these things, which was granted. However, the county advised Dr. Laakso that if he did not get the work done by the date established, the daily fine would be imposed. Although while at his Matlacha home Dr. Laakso did work outside of the restrictions imposed on him by his physician, he could work for 20 or 30 minutes and then go inside and rest, unlike when he was at work for the School Board, which required he work a full eight-hour day. While he was on his Matlacha property, he continued his daily swimming as part of his physical therapy, which he had discussed with, and received approval for, from Dr. Brown. At no time did Dr. Laakso attempt to hide the fact that he drove to the Matlacha property or that he worked in his yard while there. In fact, he disclosed this information when deposed in his workers' compensation case, and he discussed it with his doctor. While the doctor did not give Dr. Laakso permission for this type of conduct, Dr. Laakso did discuss it with him.5 Following the closing of the first investigation numbered 101, the office of Professional Standards received a memo from Diane Howard, Director of Risk Management, dated January 9, 2001. Ms. Howard was requesting a reinvestigation of Dr. Laakso's absences. In response to this memo, Miller did not interview Respondent, but instead viewed surveillance videotapes from August 11 through October 1 or 2, 2000. In addition to the videos, Miller reviewed memos from Nancy Patrick, Mary Kate Boyle, and Paul Sayrs. Miller testified that the difference between this investigation and the previous one was that it involved a different period of time, both for the videos and regarding issues of Respondent's attendance in January, February, and March of 2001. The allegations against Respondent for this investigation were that he was obtaining leave due to sickness or illness and that he was performing actions that were inconsistent with his alleged illness or sickness. This second investigation followed the same pattern as the first and was sent to the Committee for review. The Committee again recommended Dr. Laakso's termination. Dr. Laakso timely requested an administrative hearing, and these proceedings followed. The collective bargaining agreement describes procedures for discipline of employees, including this: Without the consent of the employee and the Association, disciplinary action may not be taken against an employee except for just cause, and this must be substantiated by clear and convincing evidence which supports the recommended disciplinary action. The collective bargaining agreement also requires progressive discipline (reprimand through dismissal) . . . [e]xcept in cases which clearly constitute a real and immediate danger to the district or the actions/inactions of the employee constitute such clearly flagrant and purposeful violations of reasonable school rules and regulations.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered in this case dismissing all charges in the Administrative Compliant, reinstating Respondent to his position of employment with the School Board, and providing Respondent with such back pay and attendant benefits as are authorized by law. DONE AND ENTERED this 21st day of November, 2003, in Tallahassee, Leon County, Florida. S MICHAEL M. PARRISH 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 21st day of November, 2003.
The Issue The issues in these cases are whether the Agency for Health Care Administration (AHCA or Agency) should discipline (including license revocation) Bayou Shores SNF, LLC, d/b/a Rehabilitation Center of St. Pete (Bayou Shores) for the statutory and rule violations alleged in the June 10, 2014, Administrative Complaint, and whether AHCA should renew the nursing home license held by Bayou Shores.
Findings Of Fact Bayou Shores is a 159-bed licensed nursing facility under the licensing authority of AHCA, located in Saint Petersburg, Florida. Bayou Shores was at all times material hereto required to comply with all applicable rules and statutes. Bayou Shores was built in the 1960s as a psychiatric hospital. In addition to long-term and short-term rehabilitation residents, Bayou Shores continues to treat psychiatric residents and other mental health residents. AHCA is the state regulatory authority responsible for licensure of nursing homes and enforcement of applicable federal regulations, state statutes, and rules governing skilled nursing facilities, pursuant to the Omnibus Reconciliation Act of 1987, Title IV, Subtitle C (as amended) chapters 400, Part II, and 408, Part II, Florida Statutes, and Florida Administrative Code Chapter 59A-4. AHCA is responsible for conducting nursing homes surveys to determine compliance with Florida statutes and rules. AHCA completed surveys of Bayou Shores’ nursing home facility on or about February 10, 2014;5/ March 20, 2014; and July 11, 2014. Surveys may be classified as annual inspections or complaint investigations. Pursuant to section 400.23(8), Florida Statutes, AHCA must classify deficiencies according to their nature and scope when the criteria established under section 400.23(2) are not met. The classification of the deficiencies determines whether the licensure status of a nursing home is "standard" or "conditional" and the amount of the administrative fine that may be imposed, if any. AHCA surveyors cited deficiencies during the three surveys listed above (paragraph 4). Prior to the alleged events that prompted AHCA’s actions, Bayou Shores had promulgated policies or procedures for its operation. Specifically, Bayou Shores had policies or procedures in place governing: (Resident) code status, involving specific life-saving responses (regarding what services would be provided when or if an untoward event occurred, including a resident’s end of life decision); Abuse, neglect, exploitation, misappropriation of property; and Elopements. CODE STATUS Bayou Shores’ policy on code status orders and the response provided, in pertinent part, the following: Each resident will have the elected code status documented in their medical record within the Physician’s orders & on the state specific Advanced Directives form kept in the Advanced Directives section of the medical record. Bayou Shores’ procedure on code status orders and the response also provided that the “Physician & or Social Services/Clinical Team” would discuss with a “resident/patient or authorized responsible party” their wishes regarding a code status as it related to their current clinical condition. This discussion was to include an explanation of the term “'Do Not Resuscitate’ (DNR) and/or ‘Full Code.’” Bayou Shores personnel were to obtain a written order signed by the physician indicating which response the resident (or their legal representative) selected. In the event a resident was found unresponsive, the procedure provided for the following staff response: 3 Response: Upon finding a resident/patient unresponsive, call for help. Evaluate for heartbeat, respirations, & pulse. The respondent to the call for help will immediately overhead page a “CODE BLUE” & indicate the room number, or the location of the resident/patient & deliver the Medical Record & Emergency Cart to the location of the CODE BLUE. If heartbeat, respirations, & pulse cannot be identified, promptly verify Code Status - Respondent verifies Code Status by review of the resident’s/patient’s Medical Record. If Code Status is “DNR” – DO NOT initiate CPR (Notify Physician, Supervisor & Family). If Code Status includes CPR & respondent is CPR certified, BEGIN Cardio Pulmonary Resuscitation. If respondent is not CPR certified, STAY with the RESIDENT/PATIENT – Continue to summon assistance. The first CPR certified responder will initiate CPR. If code status is not designated, the resident is a FULL CODE & CPR will be initiated. A scribe will be designated to record activity related to the Code Blue using the “Code Blue Worksheet.” The certified respondent will continue CPR until: Relieved by EMS, relieved by another CPR certified respondent, &/or Physician orders to discontinue CPR. A staff member will be designated to notify the following person(s) upon initiation of CPR. EMS (911) Physician Family/Legal Representative * * * 5) Review DNR orders monthly & with change in condition and renew by Physician’s signature on monthly orders. (Emphasis supplied). Bayou Shores’ “Do Not Resuscitate Order” policy statement provides: Our facility will not use cardiopulmonary resuscitation and related emergency measures to maintain life functions on a resident when there is a Do Not Resuscitate Order in effect. Further, the DNR policy interpretation provides: Do not resuscitate order must be signed by the resident’s Attending Physician on the physician’s order sheet maintained in the resident’s medical record. A Do Not Resuscitate Order (DNRO) form must be completed and signed by the Attending Physician and resident (or resident’s legal surrogate, as permitted by State law) and placed in the front of the resident’s medical record. (Note: Use only State approved DNRO forms. If no State form is required use facility approved form.) Should the resident be transferred to the hospital, a photocopy of the DNRO form must be provided to the EMT personnel transporting the resident to the hospital. Do not resuscitate orders (DNRO) will remain in effect until the resident (or legal surrogate) provides the facility with a signed and dated request to end the DNR order. (Note: Verbal orders to cease the DNRO will be permitted when two (2) staff members witness such request. Both witnesses must have heard and both individuals must document such information on the physician’s order sheet. The Attending Physician must be informed of the resident’s request to cease the DNR order.) The Interdisciplinary Care Planning Team will review advance directives with the resident during quarterly care planning sessions to determine if the resident wishes to make changes in such directives. Inquiries concerning do not resuscitate orders/requests should be referred to the Administrator, Director of Nursing Services, or to the Social Services Director. Bayou Shores’ advance directives policy statement provides: “Advance Directives will be respected in accordance with state law and facility policy.” In pertinent part, the Advance Directives policy interpretation and implementation provides: * * * Information about whether or not the resident has executed an advance directive shall be displayed prominently in the medical record. In accordance with current OBRA definitions and guidelines governing advance directives, our facility has defined advanced directives as preferences regarding treatment options and include, but are not limited to: * * * b. Do Not Resuscitate – Indicates that, in case of respiratory or cardia failure, the resident, legal guardian, health care proxy, or representative (sponsor) has directed that no cardiopulmonary resuscitation (CPR) or other life-saving methods are to be used. * * * Changes or revocations of a directive must be submitted in writing to the Administrator. The Administrator may require new documents if changes are extensive. The Care Plan Team will be informed of such changes and/or revocations so that appropriate changes can be made in the resident assessment (MDS) and care plan. The Director of Nursing Services or designee will notify the Attending Physician of advance directives so that appropriate orders can be documented in the resident’s medical record and plan of care. (Emphasis supplied). A DNR order is an advance directive signed by a physician that nursing homes are required to honor. The DNR order is on a state-mandated form that is yellow/gold (“goldenrod”) in color. The DNR order is the only goldenrod form in a resident’s medical record/chart.6/ The medical record itself is kept at the nursing station. DNR Orders should be prominently placed in a resident’s medical record for easy access. When a resident is experiencing a life-threatening event, care-givers do not have the luxury of time to search a medical record or chart to determine whether the resident has a DNR order or not. Cardiopulmonary resuscitation should be started as soon as possible, provided the resident did not have a DNR order. Bayou Shores had a policy and procedure regarding DNR orders and the implementation of CPR in place prior to the February 2014 survey. The policy and procedure required that DNR orders be honored, and that each resident with a DNR order have the DNR order on the state-mandated goldenrod form in the "Advanced Directives" section of the resident’s medical record. ABUSE, NEGLECT, EXPLOTATION, AND MISAPPROPRIATION OF PROPERTY PREVENTION, PROTECTION AND RESPONSE POLICY AND PROCEDURES Bayou Shores’ “Abuse, Neglect, Exploitation, and Misappropriation of Property Prevention, Protection and Response” policy provided in pertinent part: Abuse, Neglect, Exploitation, and Misappropriation of Property, collectively known and referred to as ANE and as hereafter defined, will not be tolerated by anyone, including staff, patients, volunteers, family members or legal guardians, friends or any other individuals. The health center Administrator is responsible for assuring that patient safety, including freedom from risk of ANE, hold the highest priority. (Emphasis supplied). Bayou Shores’ definition of sexual abuse included the following: Sexual Abuse: includes but is not limited to, sexual harassment, sexual coercion, or sexual assault. (Emphasis supplied). Bayou Shores’ ANE prevention issues policies included in pertinent part: The center will provide supervision and support services designed to reduce the likelihood of abusive behaviors. Patients with needs and behaviors that might lead to conflict with staff or other patients will be identified by the Care Planning team, with interventions and follow through designed to minimize the risk of conflict. Bayou Shores’ procedure for prevention issues involving residents identified as having behaviors that might lead to conflict included, in part, the following: patients with a history of aggressive behaviors, patients who enter other residents rooms while wandering. * * * e. patients who require heavy nursing care or are totally dependent on nursing care will be considered as potential victims of abuse. Bayou Shores’ interventions designed to meet the needs of those residents identified as having behaviors that might lead to conflict included, in part: Identification of patients whose personal histories render them at risk for abusing other patients or staff, assessment of appropriate intervention strategies to prevent occurrences, Bayou Shores’ policy regarding ANE identification issues included the following: Any patient event that is reported to any staff by patient, family, other staff or any other person will be considered as possible ANE if it meets any of the following criteria: * * * f. Any complaint of sexual harassment, sexual coercion, or sexual assault. (Emphasis supplied). Bayou Shores’ ANE procedure included the following: Any and all staff observing or hearing about such events will report the event immediately to the ABUSE HOTLINE AT 1-800-962-2873. The event will also be reported immediately to the immediate supervisor, AND AT LEAST ONE OF THE FOLLOWING INDIDUALS, Social Worker (ANE Prevention Coordinator), Director of Nursing, or Administrator. Any and all employees are empowered to initiate immediate action as appropriate. (Emphasis supplied). Bayou Shores’ policies regarding ANE investigative issues provided the following: Any employee having either direct or indirect knowledge of any event that might constitute abuse must report the event promptly. * * * All events reported as possible ANE will be investigated to determine whether ANE did or did not take Place [sic]. Bayou Shores’ procedures regarding ANE investigative issues included the following: Any and all staff observing or hearing about such events must report the event immediately to the ANE Prevention Coordinator or Administrator. The event should also be reported immediately to the employee’s supervisor. All employees are encouraged and empowered to contact the ABUSE HOTLINE AT 1-800-962-2873. [sic] if they witness such event or have reasonable cause to suspect such an event has indeed occurred. THE ANE PREVENTION COORDINATOR will initiate investigative action. The Administrator of the center, the Director of Nurses and/or the Social Worker (ANE PREVENTION COORDINATOR) will be notified of the complaint and action being taken as soon as practicable. (Emphasis supplied). Bayou Shores’ policy regarding ANE reporting and response issues included the following: All allegations of possible ANE will be immediately reported to the Abuse Hotline and will be assessed to determine the direction of the investigation. Bayou Shores’ procedures regarding ANE reporting and response issues included the following: Any investigation of alleged abuse, neglect, or exploitation will be reported immediately to the Administrator and/or the ANE coordinator. It will also be reported to other officials, in accordance with State and Federal Law. THE IMMEDIATE REPORT All allegations of abuse, neglect, . . . must be reported immediately. This allegation must be reported to the Abuse Hotline (Adult Protective Services) within twenty-four hours whenever an allegation is made. The ANE Prevention Coordinator will also submit The Agency for Health Care Administration AHCA Federal Immediate/5-Day Report and send it to: Complaint Administration Unit Phone: 850-488-5514Fax: 850-488-6094 E-Mail: fedrep@ahca.myflorida.com THE REPORT OF INVESTIGATION (Five Day Report): The facility ANE Prevention Coordinator will send the result of facility investigations to the State Survey Agency within five working days of the incident. This will be completed using the same AHCA Federal/Five Day Report, and sending it to the Complaint investigation Unit as noted above. DESIGNATED REPORTERS: Shall immediately make a report to the State Survey Agency, by fax, e-mail, or telephone. All necessary corrective actions depending on the result of the investigation will be taken. Report any knowledge of actions by a court of law against any employee, which would indicate an employee is unfit for service as a nurse aide or other facility staff to the State nurse aide registry or other appropriated [sic] licensing authorities. Any report to Adult Protective Services will trigger an internal investigation following the protocol of the Untoward Events Policy and Procedure. (Emphasis supplied). Bayou Shores’ abuse investigations policy statement provides the following: All reports of resident abuse, . . . shall be promptly and thoroughly investigated by facility management. Bayou Shores’ abuse investigations interpretation and implementation provides, in pertinent part, the following: Should an incident or suspected incident of resident abuse, . . . be reported, the Administrator, or his/her designee, will appoint a member of management to investigate the alleged incident. The Administrator will provide any supporting documents relative to the alleged incident to the person in charge of the investigation. The individual conducting the investigation will, as a minimum: Review the completed documentation forms; Review the resident’s medical record to determine events leading up to the incident; Interview the person(s) reporting the incident; Interview any witnesses to the incident; Interview the resident (as medically appropriate); Interview the resident’s Attending Physician as needed to determine the resident’s current level of cognitive function and medical condition; Interview staff members (on all shifts) who have had contact with the resident during the period of the allege incident; Interview the resident’s roommate, family members, and visitors; Interview other residents to whom the accused employee provides care or services; and Review all events leading up to the alleged incident. The following guidelines will be used when conducting interviews; Each interview will be conducted separately and in a private location; The purpose and confidentiality of the interview will be explained thoroughly to each person involved in the interview process; and Should a person disclose information that may be self-incriminating, that individual will be informed of his/her rights to terminate the interview until such time as his/her rights are protected (e.g., representation by legal counsel). Witness reports will be obtained in writing. Witnesses will be required to sign and date such reports. The individual in charge of the abuse investigation will notify the ombudsman that an abuse investigation is being conducted. The ombudsman will be invited to participate in the review process. Should the ombudsman decline the invitation to participate in the investigation, that information will be noted in the investigation record. The ombudsman will be notified of the results of the investigation as well as any corrective measures taken. * * * The individual in charge of the investigation will consult daily with the Administrator concerning the progress/findings of the investigation. The Administrator will keep the resident and his/her representative (sponsor) informed of the progress of the investigation. The results of the investigation will be recorded on approved documentation forms. The investigator will give a copy of the completed documentation to the Administrator within working days of the reported incident. The Administrator will inform the resident and his/her representative (sponsor) of the results of the investigation and corrective action taken within days of the completion of the investigation. The Administrator will provide a written report of the results of all abuse investigations and appropriate action taken to the state survey and certification agency, the local police department, the ombudsman, and others as may be required by state or local laws, within five (5) working days of the reported incident. Should the investigation reveal that a false report was made/filed, the investigation will cease. Residents, family members, ombudsmen, state agencies, etc., will be notified of the findings. (Note: Disciplinary actions concerning the filing of false reports by employees are outlined in our facility’s personnel policy manual.) Inquiries concerning abuse reporting and investigation should be referred to the Administrator or to the Director of Nursing Services. Bayou Shores’ reporting abuse to facility management policy statement provides the following: It is the responsibility of our employees, facility consultants, Attending Physicians, family members visitors etc., to promptly report any incident or suspected incident of . . . resident abuse . . . to facility management. Bayou Shores’ reporting abuse to facility management policy interpretation and implementation provides the following: Our facility does not condone resident abuse by anyone, including staff members, . . . other residents, friends, or other individuals. To help with recognition of incidents of abuse, the following definitions of abuse are provided: * * * c. Sexual abuse is defined as, but not limited to, sexual harassment, sexual coercion, or sexual assault. All personnel, residents, family members, visitors, etc., are encouraged to report incidents of resident abuse or suspected incidents of abuse. Such reports may be made without fear of retaliation from the facility or its staff. Employees, facility consultants and /or Attending Physicians must immediately report any suspected abuse or incidents of abuse to the Director of Nursing Services. In the absence of the Director of Nursing Services such reports may be made to the Nurse Supervisor on duty. Any individual observing an incident of resident abuse or suspecting resident abuse must immediately report such incident to the Administrator or Director of Nursing Services. The following information should be reported: The name(s) of the resident(s) to which the abuse or suspected abuse occurred; The date and time that the incident occurred; Where the incident took place; The name(s) of the person(s) allegedly committing the incident, if known; The name(s) of any witnesses to the incident; The type of abuse that was committed (i.e., verbal, physical, . . . sexual, . . .); and Any other information that may be requested by management. Any staff member or person affiliated with this facility who . . . believes that a resident has been a victim of . . . abuse, . . . shall immediately report, or cause a report to be made of, the . . . offense. Failure to report such an incident may result in legal/criminal action being filed against the individual(s) withholding such information. * * * The Administrator or Director of Nursing Services must be immediately notified of suspected abuse or incidents of abuse. If such incidents occur or are discovered after hours, the Administrator and Director of Nursing Services must be called at home or must be paged and informed of such incident. When an incident of resident abuse is suspected or confirmed, the incident must be immediately reported to facility management regardless of the time lapse since the incident occurred. Reporting procedures should be followed as outlined in this policy. Upon receiving reports of . . . sexual abuse, a licensed nurse or physician shall immediately examine the resident. Findings of the examination must be recorded in the resident’s medical record. (Note: If sexual abuse is suspected, DO NOT bathe the resident or wash the resident’s clothing or linen. Do not take items from the area in which the incident occurred. Call the police immediately.) (Emphasis supplied). C. ELOPEMENT A/K/A EXIT SEEKING Bayou Shores’ elopement policy statement provides the following: Staff shall investigate and report all cases of missing residents. Bayou Shores’ elopement policy interpretation and implementation provides the following: 1. Staff shall promptly report any resident who tries to leave the premises or is suspected of being missing to the Charge Nurse or Director of Nursing. * * * If an employee discovers that a resident is missing from the facility, he/she shall: Determine if the resident is out on an authorized leave or pass; If the resident was not authorized to leave, initiate a search of the building(s) and premises; If the resident is not located, notify the Administrator and the Director of Nursing Services, the resident’s legal representative (sponsor), the Attending Physician, law enforcement officials, and (as necessary) volunteer agencies (i.e., Emergency Management, Rescue Squads, etc.); Provide search teams with resident identification information; and Initiate an extensive search of the surrounding area. When the resident returns to the facility, the Director of Nursing Services or Charge Nurse shall: Examine the resident for injuries; Contact the Attending Physician and report findings and conditions of the resident; Notify the resident’s legal representative (sponsor); Notify search teams that the resident has been located; Complete and file an incident report; and Document relevant information in the resident’s medical record. FEBRUARY 2014 SURVEY A patient has the right to choose what kind of medical treatment he or she receives, including whether or not to be resuscitated. At Bayou Shores there may be multiple locations in a resident’s medical record for physician orders regarding a resident’s DNR status. A physician’s DNR order should be in the resident’s medical record. When a resident is transported from a facility to another health care facility, the goldenrod form is included with the transferring documentation. If there is not a DNR, a full resuscitation effort would be undertaken. In late January, early February 2014, AHCA conducted Bayou Shores’ annual re-licensure survey. During the survey, Bayou Shores identified 24 residents who selected the DNR status as their end-of-life choice. Of those 24 residents, residents numbered 35,7/ 54 and 109, did not have a completed or current “Do Not Resuscitate Order” in their medical records maintained by Bayou Shores.8/ As the medical director for Bayou Shores, Dr. Saba completed new DNR orders for patients during or following the February survey. In one instance, a particular DNR order did not have a signature of the resident or the representative of the resident, confirming the DNR status. Without that signature, the DNR order was invalid. In another instance, a verbal authorization was noted on the DNR forms, which such is not sufficient to control a DNR status. A medication administration record (MAR) is not an order; however, it should reflect orders. In one instance, a resident’s MAR reflected a full code status, when the resident had a DNR order in place. During the survey, Bayou Shores was in the midst of changing its computer systems and pharmacies. At the end of each month, orders for the upcoming month were produced by the pharmacy, and inserted into each resident’s medical record. Bayou Shores’ staff routinely reviewed each chart to ensure the accuracy of the information contained therein. Additionally, each nurse’s station was given a list of those residents who elected a DNR status over a full-code status. Conflicting critical information could have significant life or death consequences. The administration of cardio- pulmonary resuscitation (CPR) to a resident who has decided to forgo medical care could cause serious physical or psychological injuries. As the February survey progressed, and Bayou Shores was made aware of the DNR order discrepancies, staff contacted residents or residents’ legal guardians to secure signatures on DNR orders so that resident’s last wishes would be current and correct. Bayou Shores had a redundant system in place in an effort to ensure that a resident’s last wishes were honored; however, the systems failed. MARCH 2014 SURVEY On March 20, 2014, AHCA conducted a complaint survey and a follow-up survey to the February 2014 survey. During the March 2014 survey, Janice Kicklighter served as the ANE prevention coordinator for Bayou Shores. On February 13, 2014,9/ Resident BJ was admitted to Bayou Shores from another health care facility. Sometime after BJ was admitted, paperwork indicating BJ’s history as a sex offender was provided to Bayou Shores. Exactly when this information was provided and to whom is unclear. Once BJ was assigned to a floor, CNA Daniels was assigned to assist BJ, and tasked to give BJ a shower. CNA Daniels observed that BJ was unable to transfer from his bed to the wheelchair without assistance; however, CNA Daniels, with assistance, was able to transfer him, and took him to the shower via a wheelchair. It is unclear if CNA Daniels shared his observation with any other Bayou Shores staff. Several hours after BJ’s admission, Mr. Thompson, Bayou Shores’ then administrator, was informed that BJ had been admitted. Mr. Thompson conferred with the director of nursing (DON) and the director of therapy (director). The director immediately assessed BJ that evening. The director then advised Mr. Thompson and the DON that her initial contact with BJ was less than satisfactory. BJ declined to cooperate in the assessment, and the director advised Mr. Thompson and the DON that BJ could not get out of bed without assistance. Mr. Thompson, the DON and the director did not provide any further care instructions or directions to Bayou Shores staff regarding BJ’s care or stay at that time. A failure to cooperate does not ensure safety for either BJ or other residents. The day after his admission, BJ was assessed by a psychiatrist. Thereafter, Mr. Thompson notified nearby schools and BJ’s roommate (roommate) that BJ was a sexual offender. Shortly after his conversation with the roommate, Mr. Thompson directed that a “one-on-one” be established with BJ, which means a staff member was to be with BJ at all times. BJ was evaluated again and removed from the facility. Bayou Shores did not immediately implement its policy and procedures to ensure its residents were free from the risk of ANE. Hearsay testimony was rampant in this case. Mr. Thompson testified that he spoke with BJ’s roommate about an alleged sexual advance. However, the lack of direct testimony from the alleged victim (or other direct witness) fails to support the hearsay testimony and thus there is no credible evidence needed to support a direct sexually aggressive act. Rather, the fact that Mr. Thompson claims that he was made aware of the alleged sexual attempt, yet failed to institute any of Bayou Shores policies to investigate or assure resident safety is the violation. JULY 2014 COMPLAINT SURVEY In June 2015, Resident JN left the second floor at Bayou Shores without any staff noticing. A complaint was filed. At the time of the June 2014 incident (the basis for the July Survey), Bayou Shores’ second floor was a limited access floor secured through a key system. Some residents on the second floor had medical, psychiatric, cognitive or dementia (Alzheimer) issues, while other residents choose to live there. There are two elevators that service the second floor; one, close to the nurses’ station, and the second, towards the back of the floor. There was no direct line of sight to the nurses’ station from either elevator. To gain access to the second floor, a visitor obtained an elevator key from the lobby receptionist, inserted the key into the elevator portal which brought the elevator to the lobby, the elevator doors opened, the visitor entered the elevator, traveled to the second floor, exited the elevator, and the elevator doors closed. To leave the floor, the visitor would use the same system in reverse. At the time of the June incident, visitors could come and go to the second floor unescorted. Additionally, Bayou Shores had video surveillance capabilities in the elevator area, but no staff member was assigned to monitor either elevator. Mr. Selleck, Advanced Center’s administrator, sought JN’s placement at Bayou Shores because he thought Bayou Shores offered a more secure environment than Advanced Center. Advanced Center was an unlocked facility and the only precaution it had to thwart exit-seeking behavior was by using a Wander Guard.10/ JN was admitted to Bayou Shores on Friday evening, June 20, 2014, from Advanced Center. Based upon JN’s admitting documentation, Bayou Shores knew or should have known of JN’s exit-seeking behavior. JN slept through his first night at Bayou Shores without incident. On June 21, his first full day at Bayou Shores, JN had breakfast, walked around the second floor, spoke with staff on the second floor and had lunch. At a time unknown, on June 21, JN left the second floor and exited the Bayou Shores facility. JN did not tell staff that he was leaving or where he was going. Upon discovering that JN was missing, Bayou Shores’ staff thoroughly searched the second floor. When JN was not found there, the other floors were also searched along with the smoking patio. JN was not found on Bayou Shores’ property. Thereafter, Bayou Shores’ staff went outside the facility and located JN at a nearby bus stop. The exact length of time that JN was outside Bayou Shores’ property remains unknown. Staff routinely checks on residents. However, there was no direct testimony as to when JN left the second floor; just that he went missing. Staff instituted the policy and procedure to locate JN, and did so, but failed to undertake any investigation to determine how JN left Bayou Shores without any staff noticing. NOTICE OF INTENT TO DENY AHCA’s Notice was issued on January 15, 2015. Bayou Shores was cited for alleged Class I deficient practices in each of the three conducted surveys: failure to have end-of-life decisions as reflected in a signed DNR order; failure to safe- guard residents from a sexual offender; and failure to prevent a resident from leaving undetected and wandering outside the facility.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Health Care Administration enter a final order revoking Bayou Shores license to operate a nursing home; and denying its application for licensure renewal. DONE AND ENTERED this 21st day of July, 2016, in Tallahassee, Leon County, Florida. S LYNNE A. QUIMBY-PENNOCK 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 21st day of July, 2016.
The Issue The issues in this instance are promoted in keeping with an administrative complaint brought by the Petitioner against the Respondent, charging violations of Sections 943.13 and 943.145, Florida Statutes. These allegations relate to the claim that Respondent was involved in a liaison with a prostitute in which he exchanged Valium for sex. The encounter between the Respondent and the prostitute is alleged to have occurred while the Respondent was on duty. This Valium was allegedly obtained from an automobile which was examined as part of the Respondent's duties as a law enforcement officer. It is further alleged that the Valium should have been turned in as part of his responsibilities as a law enforcement officer.
Findings Of Fact Respondent is a holder of a certificate as law enforcement officer, Certificate No. 98-10527. That certificate is issued by the State of Florida, Department of Law Enforcement, Criminal Justice Standards and Training Commission, and Respondent has held that certificate at all relevant times in this proceeding. Respondent has been employed as a police officer by the Daytona Beach, Florida, Police Department in the relevant time period and it was during that tenure that Respondent is accused of having committed the offense as set forth in the administrative complaint. Debbie Ofiara is the only witness to the Respondent's alleged indiscretion while on duty. Ms. Ofiara is an admitted prostitute, who has drug problems so severe that she required specific program treatment to address them. In particular, that drug difficulty relates to the drug Dilaudid. In addition, Ofiara has served six months in jail for grand theft, a felony conviction. At the time of the alleged incident with the Respondent she was under the influence of drugs and was under the influence of drugs when she reported that incident to a police investigator in the Daytona Beach Police Department. When testimony was given at the hearing, Ofiara was attending a drug program while awaiting a sentence for a drug offense related to cocaine. She had pled guilty to that drug charge, a felony. Ofiara has been arrested for prostitution, arrests made by the Daytona Beach Police Department on three different occasions. She had been arrested for hitchhiking by Officer Cadenhead prior to the incident which underlies the administrative charges and indicates that she "took offense" at the arrest. Moreover, she acknowledges some past concern about her treatment in encounters with Officer Gary Gallion of the Daytona Beach Police Department in his official capacity. Ms. Ofiara claims that sometime in November 1982, in the evening hours, the Respondent, while on duty as a police officer, in uniform and driving a marked patrol car, approached Ofiara and made arrangements to meet her. She further states that this rendezvous occurred in Daytona Beach, Florida, and that in exchange for Valium tablets which the Respondent had obtained from an examination of a car he had been involved with in his police duties, which tablets were not turned in, Ofiara performed oral sex for Respondent's benefit. Some time later, Ofiara related the facts of the encounter with Officer Cadenhead to an internal affairs investigator with the Daytona Beach Police Department, Lieutenant Thomas G. Galloway. She also gave Galloway a bottle which she claimed was the bottle in which the Valium was found. The vial or container was not examined for any residue of the substance Valium or examined for fingerprints of the Respondent. Following Galloway's investigation of the allegations, the Daytona Beach Police Department determined to terminate the Respondent from his employment. That termination was effective February 11, 1983. Respondent was subsequently reinstated after service of a four-week suspension without pay by order of the City of Daytona Beach Civil Service Board, effective March 9, 1983. Having considered the testimony of Ms. Ofiara and the testimony of the Respondent in which he denies the incident with her, and there being no corroboration, Ms. Ofiara's testimony is rejected for reasons of credibility. As a prostitute, drug user, felon and person with a certain quality of animosity toward the Respondent and in consideration of the demeanor of the accusing witness and Respondent, her testimony is rejected.
The Issue Whether Respondent committed the acts alleged in the Notice of Specific Charges and, if so, the discipline, if any, that should be imposed against Respondent’s employment.
Findings Of Fact At all times material hereto, the School Board was the constitutional entity authorized to operate, control, and supervise the public schools in Miami-Dade County, Florida. The School Board has employed Respondent for approximately 15 years as a school security monitor. As such, at all times relevant to this proceeding, Respondent was a non- probationary “educational support employee” within the meaning of Section 1012.40, Florida Statutes, whose employment can be terminated for reasons stated in the applicable collective bargaining agreement, which is the contract between the Miami- Dade County Public Schools and the United Teachers of Dade (the CBA). Article XXI, Section 3.D of the CBA provides that educational support personnel can be terminated for “just cause.” The term “just cause” is defined by that provision of the CBA as follows: . . . Just cause includes, but is not limited to, misconduct in office, incompetency, gross insubordination, willful neglect of duty, and/or conviction of a crime involving moral turpitude. Such charges are defined, as applicable, in State Board Rule [Florida Administrative Code Rule] 6B-4.009. During the 2007-2008 school year, Respondent was a school security monitor assigned to the Lawrence Center. Prior to that assignment, Respondent had been assigned to Miami Beach Senior High School (Beach High School). While at Beach High School, there was a probable cause finding that Respondent had engaged in an inappropriate sexual relationship with a high school student who was over 18 years of age. As a result, Respondent’s employment was suspended without pay for a period of 30 days. Respondent accepted the 30-day suspension and agreed not to appeal. Ms. Durden began working as a Data Input Specialist at the Lawrence Center in May of 2008. Shortly after her arrival, Respondent asked Ms. Durden (then known as Ms. Williams), who was on her way to lunch, to bring him back lunch. The request, which Ms. Durden denied, caused her to feel uncomfortable. Thereafter, Respondent came to come to Ms. Durden’s work area on several occasions and asked her for the mints that she kept on her desk. Ms. Durden believed that Respondent was leering at her. Ms. Durden clearly disliked Respondent and felt uncomfortable in his presence. On June 3, 2008, Respondent was in the parking lot area when Ms. Durden walked by to retrieve an object from her car. Respondent was talking to someone in a parked vehicle. The identity of the person in the parked vehicle could not be established and there was no evidence as to the subject of the conversation between Respondent and the unidentified person in the vehicle. As Ms. Durden walked by, Respondent tried to get her attention by yelling out to her “Hey baby.” Ms. Durden did not respond. When she was on her way back into the school, Respondent told her, “Ms. Williams, I know you heard me speaking to you.” Ms. Durden (Williams) then told Respondent, “My name is not ‘hey baby.’ My name is Ms. Williams, and you address me as such.” There was no evidence that Respondent continued to address Ms. Durden inappropriately. On June 5, 2008, Ms. Durden walked into the after care office to speak to Ms. Staples, who was working as an After Care Specialist. Respondent was in the after care office with several other employees, both male and female. When Ms. Durden walked into the after care office, Respondent blurted out “my dick is hard.” Ms. Durden immediately left the room feeling disgusted by Respondent’s remark. Ms. Staples testified that Respondent made the statement “my dick is on hard.” Ms. Staples and the other employees who had been meeting in the after care office also immediately left the office after Respondent’s statement. Ms. Staples and her colleagues were shocked by Respondent’s statement.2 On June 6, 2008, Ms. Durden and Ms. Santos passed out paychecks or pay stubs to employees. Respondent appeared at the threshold of Ms. Durden’s office, which is part of the main office, and asked for his paycheck. Ms. Durden asked Respondent to leave while she sorted through the paychecks. Ms. Durden was uncertain whether Rich was Respondent’s first name or last name. There was a verbal exchange between Respondent and Ms. Durden as to that issue. Respondent remained outside of Ms. Durden’s office, but in a position where he could observe her. Ms. Durden testified, credibly, that Respondent was leering at her. Ms. Durden became so uncomfortable that she started shaking. Prior to June 6, 2008, Ms. Durden had told Ms. Santos that she did not like Respondent and felt uncomfortable around him. Ms. Santos attempted to keep Respondent away from Ms. Durden by offering to get anything he might need from the main office and bringing it to Respondent’s duty station. On one occasion, Ms. Santos observed Respondent staring at Ms. Durden’s rear end. On June 6, 2008, Ms. Santos observed that Ms. Durden was very uncomfortable being in Respondent’s presence. She intervened by finding Respondent’s paycheck and bringing it to him. Ms. Durden reported these incidents first to Ms. Johnson-Brinson (an assistant principal) and then to Mr. Osborne (the principal). Thereafter the School Board followed all relevant procedures leading up to its vote to discipline Respondent by terminating his employment. Ms. Johnson-Brinson is not aware of any complaints from any Lawrence Center employees other than Ms. Durden pertaining to inappropriate behavior by Respondent. Mr. Osborn testified as to the reasons he recommended the termination of Respondent’s employment. Part of those reasons related to behavior by Respondent during his tenure at the Lawrence Center that was not alleged in the Notice of Specific Charges. That non-alleged behavior is irrelevant and has not been considered by the undersigned in reaching the findings and conclusions set forth in this Recommended Order.3
Recommendation Based on the foregoing findings of fact and conclusions of Law, it is RECOMMENDED that the School Board enter a final order adopting the Findings of Fact and Conclusions of Law contained in this Recommended Order. It is further RECOMMENDED that the final order terminate Respondent's employment. DONE AND ENTERED this 19th day of October, 2009, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 19th day of October, 2009.
Findings Of Fact Respondent Francis J. Sortino has been employed by the School Board of Broward County at Deerfield Beach High School in Deerfield Beach, Florida, since 1970 when the school opened. For ten years, he served as the school's planetarium director. In 1979 or 1980, he returned to teaching science in the classroom. In the fall of 1981, he taught a third-hour science class in which Thomas Bates, Debbie Landoskey, Lonnie McKever, Ricky Huntley, Steve Santiago, and Joe Sawyer, among others, were enrolled. On October 28, 1981, Joe Sawyer took the seat near the back of the class to which he had been assigned at the beginning of the school year, even though he had been subsequently reassigned to a seat in the front of the class. When Joe Sawyer and Steven Santiago began talking to each other, Mr. Sortino directed Joe Sawyer to take the seat at the front of the class. Joe Sawyer, who stood five feet one inch, weighed 97 or 98 pounds, and was 15 years old at the time of the hearing, complied with this request, but soon struck up a conversation with Thomas Bates. Thereupon Mr. Sortino told Joe Sawyer to move again, over near Debbie Peck. Joe Sawyer stood up, began moving in the direction Mr. Sortino had indicated (T. 293), and asked, "Where do you want me to move?" at least once. Mr. Sortino then picked up an empty desk, threw it so that it slid some ten feet across the floor and stopped against the wall, grabbed Joe Sawyer by the nape of the neck, forcibly set him down in the desk, and struck him with his open hand, using first his palm and then the back of his hand. These cuffs, no more than four in all, were not administered with Mr. Sortino's full strength; they fell on Joe Sawyer's shoulder or on the back of his neck. All this occurred in the presence of some 30 classmates, a few of whom called out urging Joe Sawyer to go to the school office to report the incident. Joe Sawyer did not cry, call out or resist. His face reddened and he laid his head down on his desk, but he was not seriously hurt. He did not require medical assistance or sustain any permanent injury. Aside from Mr. Sortino, no adult was present when respondent struck Sawyer. Mr. Sortino made no effort during third-hour science class on October 28, 1981, to secure the presence of another adult. The school principal, Rosa J. Lawson, had not delegated to respondent or any other teacher the authority to administer corporal punishment. On October 28, 1981, the School Board of Broward County had in force the following policy, No. 5301: Discipline - Corporal Punishment The principal, or in his/her absence, the person in charge of the school, shall have the responsibility for maintaining overall disci- pline within the school setting. The principal shall share with the teacher the responsibility for maintaining proper school conduct and morale. Further, he/she may delegate to the teachers such responsibility for control and direction of the students as he/she considers desirable. When and where such responsibility has been delegated the teachers shall be sup- ported in any reasonable action they may take. Each pupil enrolled in a school shall, during the time he/she is being transported to or from school at public expense, during the time he/ she is attending school, and during the time he/she is on the school premises, be under the authority of the principal or teacher in charge of the school, and under the immediate control and direction of the teacher or other member of the instructional staff or of the bus driver to whom such responsibility may be assigned by the principal. The board shall do everything within its legal power to protect and support the principal and teachers in their disciplinary role. This shall include legal support in accordance with Florida Statutes, Section 230.234. In addition, the board shall assist the principal, teacher, bus driver and/or other school staff members in bringing about penalties for the disruption of school functions or assault upon the instruc- tional staff as set forth under Florida Statutes, Section[s] 231.06 and 231.07. Corporal punishment may be administered at the discretion of the principal or his/her designated representative. Normally this should be done only after other corrective measures have been tried without success. A teacher shall not inflict corporal punish- ment except upon approval of the principal and only then in the presence of another adult who is informed beforehand, and in the student's presence, of the reason for the punishment. Such punishment may not be degrading or unduly severe in its nature. (For clarification, see Florida Statutes, Section 232.27) All suspensions or expulsions shall be made in accordance with Florida Statutes and board policy 5006. Rules When corporal punishment is administered, the following rules shall be observed: The punishment shall be administered by the principal or by some other member of the professional staff designated by him/ her. Under no circumstances shall a stu- dent be struck about the head or shoulders. The punishment shall be administered poste- riorly by striking the student below the waist and above the knees. The administration of corporal pun- ishment shall be witnessed by at least one (1) other member of the staff. Corporal punishment shall not be administered in the presence of other students. When disciplinary action is taken by the principal and/or his/her designee the teacher referring the disciplinary case will be advised in writing of the action taken. A teacher may not suspend a child from school or class. However, in cases where an emergency situation develops, the teacher shall take such steps as are rea- sonably necessary to protect the students. The use of reasonable force necessary to isolate the disruptive student from the classroom shall not constitute corporal punishment as defined in accordance with Section 232.27, Florida Statute[s] , and shall not be used as a basis for the sus- pension of any member of the school staff nor for holding anyone liable for such an act unless the force used is degrading or unduly severe as to its nature. The designated member of the pro- fessional staff or principal who has admin- istered punishment shall provide the pupil's parent or guardian with a written explana- tion of the reason for the punishment and the name of the other adult who was present. Petitioner's Exhibit No. 11. The substance of this policy was fully explicated in the Deerfield Beach High School Teachers' Handbook at pp. 16, et seq., Petitioner's Exhibit No. 9. The policy of the School Board of Broward County with respect to corporal punishment has not changed, in substance, for a decade or more. Respondent was furnished a copy of Petitioner's Exhibit No. 9 at the beginning of the 1981-1982 school year. The Deerfield Beach High School Teachers' Guidebook also contained the following: Referrals to the Administrative Assistants The control of students is not something that can be achieved by so many rules or by the work of a few individuals, but rather by sincere and cooperative effort on the part of the entire faculty and staff to understand pupils and their problems. Teachers are encouraged to handle their own disciplinary problems whenever possible. Adequate lesson planning and consistancy [sic] of discipline are probably the best means of avoiding disciplinary difficulties. However, when a student becomes persistently unmanageable in the classroom to the detriment of the learn- ing situation or when his offense is of such a nature that he should be referred to some- one else, the teacher should write to the Administrative Assistant. This should be done only after the teacher has exhausted every means at his disposal to corre[c]t that student's conduct. In cases of EMERGENCY nature, the teacher should use the BUZZER to summon an Administrative Assistant to accompany the student to the office. When a referral becomes necessary, please use the three-part referral provided by the Administrative Assistant's office. Give as much information as possible about the reason for the referral in order to help the Administrative Assistant determine the measures to be taken. If the referral form is not adequate, please feel free to use an attachment. Petitioner's Exhibit No. 9. Respondent Sortino's own personal approach to discipline problems in the classroom is, he testified, fully consistent with the foregoing: If I have a child that's, you know, a minor infraction, the first thing I do is ask him to write a composition, have him take it home and get it signed by his parents. Then they bring the composition back to me. This way I ask the child to do something on why--let's say, for instance, he's just talking in class, or chewing gum, whatever it is. Whatever the infraction, I ask the student to write me a one page composition as to why they shouldn't do that in school, to take it home and have it signed by the parents, and bring it back to me. If they do it again, they write another composition. Generally, I ask them to write three compo- sitions. Generally, after three compositions, what I do is call home. That is not always successful, but I have made phone calls to parents at home. In many cases they tell me, I can't control him at home, can't you. At that point, then I would give detentions, which is school policy to give a student detentions. If he fails to serve detentions, I would write a referral on that student and send him to an adminis- trative assistant, and then they're supposed to take care of it from there. And that's the policy I've been follow- ing, as far as administering discipline in the classroom. (T. 302-303.) Even though he could not remember ever asking Joe Sawyer to write a composition, and never telephoned his parents, Mr. Sortino thought, at the time of the hearing, that his striking Joe Sawyer on October 28, 1981, "was proper." (T. 282.) This episode "was a second occurrence of this type incident." (T. 221.) Mr. Sortino did not refer Joe Sawyer to the school administration for discipline on October 28, 1981, or at any other time, although he did make several other such referrals of students in the fall of 1981. On October 28, 1981, he referred a student named Donald Evans to Rubin C. Ransaw, Jr., an administrative assistant at Deerfield Beach High School, for disciplinary action after Evans, in the presence of Mr. Sortino and other students, said, "Sortino sucks," twice. Petitioner's closing argument was made in written form and filed on May 11, 1982, Respondent's proposed findings of fact, conclusions of law and recommended order were filed on May 13, 1982. These submissions were considered in preparation of the recommended order. Respondent's proposed findings of fact have been adopted, in substance, for the most part. To the extent they have not been adopted they have been deemed unsupported by the weight of the evidence or immaterial to this cause.
The Issue Whether Petitioner was the subject of an unlawful employment practice based on his disability by Respondent.
Findings Of Fact Respondent, Fresenius Medical Care, provides dialysis treatment to end-stage renal disease patients. During the time relevant to this proceeding, Respondent operated 11 clinics in the Northwest Florida and South Alabama area. The Florida clinics were located in Pensacola, Navarre, Destin, Fort Walton Beach and Crestview. The South Alabama clinic was located in Andalusia. “Dialysis” is the cleansing of the body of unwanted toxins, waste products, and excess fluid by filtering the blood of patients through the artificial membrane of a dialysis machine. Purified water and dialysate are used during the process. Dialysis treatment is necessary when a patient’s kidneys are inadequate or no longer capable of acting as a filter to remove waste and fluids from a patient’s blood. While the frequency of treatment can vary for each patient, patients typically received dialysis at Fresenius’ clinics three times a week for four hours. The treatment requires piercing the skin and blood vessel so that each patient is intravenously attached to a dialysis machine. Because dialysis involves piercing the skin and blood vessels, as well as the removal and replacing of a person’s blood, patients are at an increased risk of infection. In order to protect patients from infection, proper maintenance, testing, and sanitation of the equipment used during dialysis is of primary importance. As such, dialysis is highly regulated by state and federal agencies responsible for health, safety, privacy, and reimbursement for health care. In order to fulfill its obligations to its patients and regulators, Fresenius maintained a Code of Business Conduct that outlined policies and procedures which every employee was required to follow. These policies and procedures were based on federal regulations enforced by the Centers for Medicare and Medical Services (CMS). The Code required that maintenance, sanitation, and tests for contaminants be regularly performed according to the schedules established for such procedures. The Code of Business Conduct also required all of Respondent’s employees to maintain accurate and complete records. In particular, biomedical equipment technicians were required to maintain logbooks of all the maintenance and tests done on each piece of equipment used in the dialysis process. Documentation was required to ensure that state and federal reporting requirements for maintenance and testing on dialysis machines was done. Documentation of every task performed by a biomedical technician was also required for review by Respondent’s internal and external auditors. Failure to perform these functions could subject Respondent to fines and other government actions, including loss of its Medicare certification and a shutdown of its clinics. Respondent also maintained a “Continuous Quality Improvement” (CQI) program which was designed to review indicators of the quality of treatment Respondent’s patients were receiving. These quality measures were reviewed by a CQI committee. The CQI committee was an interdisciplinary team consisting of the Medical Director, the doctor responsible for overseeing the medical care provided in a clinic; the Area Manager, the person responsible for managing all aspects of a clinic’s operations; the Clinical Manager, the registered nurse responsible for nursing care and technical services at a clinic; and the Biomedical Technician, the person responsible for maintaining, sanitizing, and testing the dialysis equipment at a clinic. Periodic meetings were held by the CQI committee to review all aspects of dialysis at a clinic. The periodic meetings included a review of machine maintenance, machine sanitation, and culture tests done on dialysis machines at a clinic, as well as a review of logbooks maintained by the biomedical technician, if necessary. The periodic meetings also included a review of all adverse events and all patient incidents that occurred at a clinic. Additionally, to ensure quality dialysis services, all of Respondent’s employees received initial and annual compliance training, which addressed relevant changes to Respondent’s policies, as well as state and federal laws. Petitioner, David J. Normandin, was a certified Biomedical Equipment Technician and nationally certified Biomedical Nephrology Technician. Petitioner received extensive training as a Biomedical Technician, including training on national standards for nephrology technicians and national protocols for testing, maintenance, and documentation of these efforts. Additionally, Petitioner received both initial and annual on-the-job training from Fresenius regarding required maintenance, sanitation, and record-keeping responsibilities. Petitioner worked for Respondent on two separate occasions. Initially, he worked at one of Respondent’s clinics in North Carolina, where he was a Chief Technician. Later, Petitioner moved to Florida and was employed by Renal Care Group as a Biomedical Technician. Eventually, Renal Care Group was purchased by Respondent in April 2006. After the purchase, Petitioner remained employed with Respondent as a Biomedical Technician until his termination on February 6, 2008. As a Biomedical Technician, Petitioner was assigned responsibility for three clinics. Petitioner’s responsibilities included providing preventive maintenance, troubleshooting, repairing, cleansing, and disinfecting of the clinic’s dialysis machines and water treatment equipment. His responsibilities also required taking water cultures and testing the water systems to ensure that the equipment and water were free from bacterial growth and pathogens. Without such maintenance, sanitation, and tests, it was dangerous for a patient to be intravenously hooked up to a dialysis machine that had not been properly tested or maintained. Every patient with whom the dialysis equipment might come into contact would be affected. Indeed, the consequences of not performing required routine testing, sanitation, maintenance, and record-keeping tasks were serious. At Fresenius’ clinics, Biomedical Technicians worked independently and were assigned to specific clinics. However, Biomedical Technicians assigned to other clinics sometimes helped other technicians when needed to complete their required duties. Such help only occurred if the foreign technician was available and not busy with meeting responsibilities for their own clinics. Petitioner admitted that the other technicians were usually “slammed” with the work at their own clinics and not generally available to help at Petitioner’s clinics. Indeed, the evidence did not demonstrate that other qualified technicians were generally or routinely available to assist Petitioner in his job duties. Similarly, the evidence did not demonstrate that it was reasonable for Respondent to hire additional technicians to help Petitioner perform his job duties. Petitioner was required to provide a monthly summary or technical report to the CQI committee for each clinic to which he was assigned. As part of the report, Petitioner was required to self-report what maintenance and tests were completed, and what maintenance and tests remained to be completed at each clinic. Petitioner was also required to self- report if he was behind in the performance of his routine job duties so that help might be provided, if it was available. If Petitioner failed to properly report any compliance deficiencies, such deficiencies would not normally be discovered until the Regional Technical Manager, Todd Parker, conducted an internal audit of the clinic or an unannounced CMS survey was performed. When he was initially hired by Respondent, Petitioner was responsible for the clinics in Fort Walton Beach, Crestview and Andalusia. At times, Petitioner assisted in or was responsible for the maintenance of two additional facilities in the area. These additional assignments generally occurred when Respondent was understaffed or training new staff. However, by April or June 2007, Petitioner was only responsible for the three clinics in Fort Walton Beach, Navarre, and Destin. The evidence did not show that Petitioner was responsible for more clinics than any other Biomedical Technician. Joan Hodson was the Clinic Manager for Respondent’s Fort Walton Beach clinic. As of April 2007, Petitioner’s direct supervisor was George Peterson, who in turn reported to Mr. Parker. Joan Dye was the Area Manager. Petitioner testified that he informed his employer in 2003 that he had a bad back. Petitioner admitted that he continued to perform his job duties without significant difficulty. There was no evidence that demonstrated his complaints were more than ordinary complaints about a sore back or that such complaints rose to the level of or were perceived as a handicap by his supervisors. However, sometime in 2007, Petitioner was diagnosed with two herniated discs and began having difficulty keeping up with his job duties. In March 2007, Petitioner was the on-call technician for emergency calls from the clinics in the area. He did not respond to several calls from the area clinics. These clinics complained about the missed calls to Ms. Dye and Mr. Parker during the March CQI meeting in Pensacola. As a consequence, Ms. Dye and Mr. Parker called Petitioner into the office to discuss the missed calls and to address the issue that his work was falling behind. They asked Petitioner if there was a problem. At the time, Petitioner was not under any medical restrictions from a healthcare provider. Petitioner informed Ms. Dye and Mr. Parker that he was on medications for his back which caused him to sleep very deeply and not hear the phone ring when clinics called. He also told them that he was having a hard time keeping up with his work because of the pain from his back. As a result of the meeting, Petitioner was taken off “call” duty and was no longer responsible for responding to other clinics’ calls for assistance. Petitioner was also informed that he would be provided help when it was available so that he could catch up on his assignments. Additionally, Petitioner was asked to provide a doctor’s note concerning his back condition and any limitations he might be under due to his back. This meeting was the first time Petitioner informed his employer that he had a serious back problem. On April 24, 2007, Petitioner provided Respondent with a doctor’s note concerning his back. The doctor’s note stated that for two months Petitioner was not to lift over 30 pounds, and was not to engage in repetitive bending, stooping, or kneeling. Petitioner was released to full duty on June 24, 2007. This is the only doctor’s note Petitioner ever provided to Respondent. Importantly, these restrictions did not impair Petitioner’s ability to document all of the jobs he had performed or to accurately self-report when specific maintenance and tests were not done or were behind. On October 3, 2007, Mr. Parker performed a technical internal audit of the Navarre clinic which was assigned to Petitioner. At the time, Petitioner was responsible for the Navarre clinic. The audit revealed that Petitioner had performed no dialysis and end toxin testing for the clinic during the year. These tests were required to be performed every six months. Moreover, Petitioner failed to disclose to anyone that he had not performed these tests even though he had the opportunity to self-report during CQI meetings or at any other time. Again, Petitioner met with Mr. Parker and Ms. Dye. When asked to explain why the tests had not been performed at the Navarre clinic, Petitioner told Mr. Parker and Ms. Dye that he “did not know” he had to do them, and that he had simply “misunderstood” the requirements. Petitioner’s claim was not credible. His supervisors found Petitioner’s explanation to be suspect, since he had previously completed dialysis and end toxin testing at both Navarre and the other clinics he was responsible for. In a memo he later prepared as to why he had not conducted the tests, Petitioner wrote: “so much to do, so far behind.” Petitioner never mentioned his back as an excuse for why he had not performed the tests in his meeting with Ms. Dye and Mr. Parker. At the hearing, Petitioner admitted that he simply “forgot” to conduct the dialysis tests. Clearly, Petitioner’s failure to perform his duties was not related to his back. Similarly, his failure to self-report with any specificity was not related to his back. Ms. Dye instructed Petitioner to complete the test samplings for the clinic that day. Ms. Dye also instructed Petitioner to maintain samplings per the policies at all of his clinics going forward. Petitioner also was instructed by Ms. Dye that he had to immediately test all of the machines at the Fort Walton Beach and Destin clinics for which he was responsible. Petitioner asked Mr. Parker for assistance in catching up on the dialysis testing at the Navarre clinic. Mr. Parker came to the clinic and performed half of the tests, while Petitioner performed the remainder. In November 2007, Petitioner saw a surgeon for his back and, for the first time, was specifically informed by a physician that he would need back surgery. It was anticipated that the surgery would be performed sometime after the first of the year. Petitioner told his employer about his need for surgery. They encouraged Petitioner to do whatever he needed to do to take care of his health, and take any necessary time off. Petitioner chose to continue to work. A CQI committee meeting for the Fort Walton Beach clinic was scheduled for Thursday, January 24, 2008. Prior to the meeting, Joan Hodson, the Clinical Manager for the clinic, asked Petitioner to meet with her early in the morning to review the clinic’s dialysis culture logbook. Petitioner missed the meeting and arrived after noon, with no explanation. He told Ms. Hodson that all cultures were good. Later, at the CQI committee meeting, Petitioner reported to the Medical Director, Dr. Reid, that all the cultures looked good. In reviewing, the printout report for the cultures, Dr. Reid noticed that one of the samples was high and asked that it be redrawn. Petitioner told Dr. Reid and the committee that he had already performed a redraw. He left the meeting to go get proof of the redrawn results. Petitioner’s claim that he did not tell the committee that he had already redrawn the culture and had the results is not credible. Petitioner left the CQI meeting and never returned. Later, Petitioner admitted he had not redrawn the sample. He was instructed to redraw the sample immediately. The day after the CQI meeting, Ms. Hodson called Petitioner asking for the redraw results. Petitioner still had not performed the redraw claiming that he was “too busy.” He was again instructed to immediately perform the redraw. Ms. Hodson called Petitioner the following day, inquiring about the redraw, but did not receive a return call. That weekend, Mr. Parker also called Petitioner to ensure that the redraw was done or would be performed immediately. During the call Mr. Parker informed Petitioner of the seriousness of his failure to redraw the culture immediately as he had been instructed to do and the inappropriateness of his actions regarding the culture before, during, and after the CQI meeting. Mr. Parker also instructed Petitioner to call Ms. Dye about the redraw results. Petitioner again did not perform the redraw as instructed. Ms. Dye also left Petitioner a voicemail to call her about the redraw. Petitioner never called Ms. Dye back. Petitioner’s repeated and willful failure to comply with his supervisors’ instructions was not related to his back. On January 30, 2008, as a consequence of Petitioner’s failure, Petitioner was relieved of his duties for the Destin clinic. He was also given a written warning in a Corrective Action Form (CAF), based on the incidents from January 24, 25, 26, and 28, 2008. The CAF specified “Expectations for Change,” which identified problems with Petitioner’s performance. Ms. Dye reviewed the CAF with Petitioner and instructed him that these problems had to be addressed immediately. These expectations included: Perform all culture draws according to FMC Technical Manual and review this with the Clinical Manager. Immediately report any cultures that are outside the FMS limits and any redraws to the CM. . . . When Dave is at the clinic, he will be expected to redraw any culture that day, if necessary; At CQI monthly meetings, will ensure that all cultures are reported correctly and proper protocol is followed. A Technical CQI summary monthly report and a Spectra monthly summary culture report must be presented to the CM and MD for review and signature; Implement a basic monthly schedule and submitted to his CM’s by the 1st day of each month, will ensure that if he is not at a specific location according to his schedule, he will contact the CM or the Charge Nurse of that clinic to inform them of his location. If called or paged by any clinic, or a member of management, he must respond within 15 minutes from the time he received the call or page; Will follow a more systemic time schedule and will incorporate his time with his monthly schedule. Will make himself readily available to be present, if one of his clinics develops a problem in the early morning hours, if necessary; and When on-call, the 15-minute rule also applies. If not on-call, no matter which clinic calls, will return the call or page and assist the clinic, inform them who is on-call and/or attempt to resolve the problem over the phone. That same day, January 30, 2008, Petitioner received a Developmental Action Plan from Mr. Peterson. Five goals and an Action Plan were identified that Petitioner had to meet within time frames set during the next 90 days. Goals in the Plan included incorporating all of his monthly cultures into the FMC (Fresenius Medical Care) logbook and developing a basic monthly preventive maintenance culture and disinfect schedule for all facilities. By March 31, 2008, the Technical Manager would evaluate and review the goals accomplished by Petitioner to determine if further action was necessary. Petitioner admitted that although he had been obligated to self-report all of the deficiencies in the Corrective Action Form at the CQI meeting in January 2008, he failed to do so. Petitioner testified that he told Ms. Hodson that he was “very much behind” on performing his job duties. He also admitted that he never provided her with any specifics as to the tasks he had not performed. Additionally, he admitted that, “I don’t even know all of the things that I was behind on” and “I don’t know which [logbooks] I’m missing.” The internal audit at the Fort Walton Beach clinic and Petitioner’s actions regarding the redraw of the culture caused Ms. Dye to be concerned about the integrity of the job Petitioner was performing at all three of his clinics. Based on Petitioner’s lack of honesty with the CQI committee, Ms. Dye was legitimately concerned that Petitioner was covering up his failure to do his work and that the safety of patients was at risk. As a result, Mr. Parker performed an audit of the Fort Walton Beach clinic on February 6, 2008. The audit revealed that no dialysate cultures had been performed since October 2007; two out of 31 machines lacked proper documentation of any preventive maintenance having been performed; no preventive maintenance logs were available for the building maintenance and ancillary equipment; two new machines had no documentation; and no electrical and safety checks had been performed since April 2007. All of these tasks were required to have been completed by Petitioner, and Petitioner’s failure to complete them was a serious violation of his job duties. Indeed, these deficiencies placed the Fort Walton Beach clinic in immediate jeopardy of being fined and shut down by CMS. A shutdown would have left 80 of Respondent’s patients without dialysis treatment and placed them at risk for illness and possibly death. The audit also uncovered that the written summaries Petitioner had submitted to the CQI committee in October, November, and December 2007, and the verbal reports he had given to the committee at those monthly meetings, indicating that the preventive maintenance logs were up to date, were in fact incorrect. Again, Petitioner’s failure to document was a serious violation of Petitioner’s job duties and was not related to his back condition. By this time, Ms. Dye had legitimately lost all faith in Petitioner’s honesty. She suspected that Petitioner had falsified certain records because he could not produce various records when he was asked to produce them and only later did the requested records appear. In short, Petitioner’s supervisors had lost faith in Petitioner and could no longer trust him to self-report or to inform others when his duties were not being performed. On February 6, 2003, Ms. Dye presented Petitioner with a second Corrective Action Form, noting the issues generated by the internal audit and suspending Petitioner from work. The CAF was reviewed and signed by Petitioner. Based on what was discovered from the Fort Walton Beach clinic audit, Ms. Dye ordered an audit of Petitioner’s other clinics, Navarre and Destin. The same issues and deficiencies were discovered at those clinics: 1) the dialysate cultures at the Navarre and Destin clinics had not been performed since October 2007; 2) no safety checks had been performed on four out of 18 machines at the Navarre clinic, and none had been performed at the Destin clinic since July 2007; and 3) preventive maintenance was late on five machines at the Navarre clinic and six at the Destin clinic. The audit confirmed once more that Petitioner had misled the CQI committee members during the January CQI meetings for those clinics by not reporting in his written summary or verbal report any deficiencies. In addition, although Ms. Dye had instructed Petitioner just the week before to immediately perform dialysate cultures at all of his clinics, Petitioner had failed to perform any of those cultures and ignored the instructions of his supervisors. Petitioner was given a final Corrective Action Form by Ms. Dye on February 8, 2008. Ms. Dye reviewed the audit results with Petitioner, as well as the Corrective Action Form, which he signed. Petitioner was terminated the same day. Petitioner was fired after being on the Developmental Action Plan for one week because he had misled the CQI committee in his reports, failed to self-report the extent of the job duties he had not performed to the committee, and had not performed any testing of his dialysate cultures and electrical safety checks or reported that he could not perform those tasks. Such reporting was not related to Petitioner’s back condition. Moreover, misleading the CQI committee was not related to any back condition Petitioner had. Both were egregious and terminable offenses by Petitioner. After Petitioner was terminated in February 2008, he applied for unemployment compensation and for multiple jobs. He never informed any prospective employer that he was disabled or needed an accommodation. Once he ultimately had surgery in March 2008, Petitioner told Respondent that he was better and could work, and he asked for his job back. Eventually, Petitioner went to massage therapy school, obtained his license, and worked sporadically as a massage therapist. Prior to the hearing, Petitioner completed work as a team leader with the Census Bureau. These facts demonstrate that Petitioner’s back condition was not a handicap. There was no evidence that Petitioner was terminated for a handicap or a perceived handicap, and the Petition for Relief should be dismissed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the Florida Commission on Human Relations enter a Final Order dismissing the Petition for Relief. DONE AND ENTERED this 18th day of November, 2010, in Tallahassee, Leon County, Florida. S DIANE CLEAVINGER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 18th day of November, 2010. COPIES FURNISHED: Richard N. Margulies, Esquire Jackson Lewis 245 Riverside Avenue, Suite 450 Jacksonville, Florida 32202 R. John Westberry, Esquire 7201 North 9th Avenue, Suite A-4 Pensacola, Florida 32504 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue Whether the Petitioners have standing to initiate this proceeding? Whether the Intervenors have standing to intervene? Whether the Department should enter a final order that issues the JCP and the Variance?
Findings Of Fact The Parties The Sherry Petitioners and Their Property David and Rebecca Sherry, husband and wife, are the leaseholders of "Apartment No. 511 [a condominium unit] of Surf Dweller Condominium, a condominium with such apartment's fractional share of common and limited elements as per Declaration thereof recorded in Official Records . . . of Okaloosa County, Florida." WD Ex. P-8, Bates stamped PET7157. Their address is 554 Coral Court, #511, Fort Walton Beach, Florida 32548. The Sherrys leased their condominium unit in May 2002 in anticipation of it being their retirement home. After retirement, "towards the end of 2005," WD tr. 840, the unit became their permanent residence. They chose their home after an extensive search for the best beach in America on which to reside. The couple toured the Gulf Coast of Florida, the Keys and the Atlantic seaboard from South Florida into the Carolinas. Both explained at hearing why they picked the Panhandle of Florida in general and selected the Surf Dweller Condominium in particular as the place that they would live during retirement. Mr. Sherry testified: This particular area we chose because of the beach quality. Quite frankly, . . . I was surprised when I first saw the place . . . the really stunning quality of it. The sand is absolutely beautiful. The water has that clear green hue. You can walk off shore and it just looks great. There isn't any other place like it in the Continental US that I've ever seen. WD Tr. 841. Mrs. Sherry elaborated about the reasons for their choice to reside on the beach adjacent to the Surf Dweller and their enjoyment of the beach in the Okaloosa Island area of Santa Rosa Island. "We moved here for the quality of the beach, the sugar white sand." Tr. 936, Case No. 10-0515 (emphasis added). She explained that both she and her husband walk or run the beach daily. Mr. Sherry always runs; Mrs. Sherry's routine is to walk and run alternately. There are other distinctions in their daily traverses over the sugar white sand of Okaloosa Island. Mr. Sherry sometimes runs in shoes. As for Mrs. Sherry, however, she professed, I always run barefoot. I always walk barefoot and I take longer walks than he does. He runs the whole Island. I walk the whole Island and I run 3 miles at a time of the Island. So, that's the difference in the way we use [the beach.] Id. Mrs. Sherry described her activities on the beach more fully and how she enjoys it: I . . . swim. I surf on the skim board, float out in the water . . . I help Dave fish, we crab, . . . all sorts of things like that for recreation. Pretty much a beach person. I sit down on the beach under an umbrella with a lot of sunscreen. * * * I've always run barefoot. That's the reason [we chose the beach next to the Surf Dweller], it's not only the quality of the sand, [it's also] the fact that it's so soft because as I've aged, my husband and I have both been running for 30 years. He's in much better shape. I can still run barefoot and I can do a good pace, but if I've got shoes on, it's not nearly as much fun and I don't do nearly as much of it. So, to me, being able to have the squeak [of the sand underfoot], which you don't have with the restored sand is a big deal and having to wear shoes is a big deal. I really like to . . . [cross the beach] barefoot. WD Tr. 939. I actually think the project will impact me, at least, as much as my husband, David . . . my husband is . . . involved with . . . being board president of the Surf Dweller[.] I spend at least as much time as he does on the beach. And the way our furniture is arranged in the unit, it's so that when I'm in the kitchen, I bake the cookies, I see the beach, when I'm at the computer I can see the beach. I've got all the best views. So, I think I'm . . . extremely involved with it. It's the first thing I see in the morning; it's the last thing I see at night and I'm down there every morning. In fact, I was on the beach this morning before we came in . . . I don't miss my morning walk. Tr. 950, 10-0515. The Surf Dweller Condominium is located in Block 5 of Santa Rosa Island, Okaloosa County, on real property that was deeded to the County by the federal government and then subsequently leased out by the County under long-term leases. The legal description of the Surf Dweller Condominium is: LOTS 257 TO 261, INCLUSIVE, LOTS 279, 280, 281, BLOCK 5, SANTA ROSA ISLAND, PLAT BOOK 2, PAGE 84, OKALOOSA COUNTY. WD Ex. P-8, PET7158. Block 5 of Santa Rosa Island is subject to Protective Covenants and Restrictions adopted by the Okaloosa Island Authority in 1955 and recorded in the Official Records of the County at BOOK 121, PAGES 233-250. See WD County Ex. 13. The Protective Covenants and Restrictions set up four classifications of areas denominated as Zones B-1 through B-4. See id., Part B: Areas of Application, at BOOK 121 Page 235. Block 5 of Santa Rosa Island is in Zone B-2, "Apartment, Hotel Court and Hotel Areas." Id. at BOOK 121 PAGE 236. Part F of the Protective Covenants and Restrictions, provides, in part, Beach Protection * * * The beaches, for 300 feet inland from mean water level (or to the dune crest line, whichever is the greater distance), are under strict control of the Authority . . . One hundred fifty feet inland from the mean water line, in front of all B1 and B2 Areas, will be public beaches. The next 150 ft. inland will be private beaches as set out on subdivision plats . . . WD County Ex. 13, at page marked "BOOK 121 PAGE 242." The Surf Dweller Condominium Property, lying between reference monuments R-6 and R-7, does not extend as far south as the mean high water line ("MHWL") of the Gulf of Mexico. From testimony provided by Mr. Sherry, see below, it appears that the Surf Dweller Condominium Property is deeded to the border with the beaches governed by Part F of the Protective Covenants and Restrictions. Mr. Donovan and His Property John Donovan is the leaseholder of "APARTMENT NO. 131 AND APARTMENT NO. 132, OF EL MATADOR, A CONDOMINIUM AS PER DECLARATION THEREOF, AS RECORDED IN . . . THE PUBLIC RECORDS OF OKALOOSA COUNTY, FLORIDA." WD Ex. P-7, PARTIAL ASSIGNMENT OF SUBLEASE, Bates stamped PET7067. The address of the El Matador is 909 Santa Rosa Boulevard, Fort Walton Beach, Florida 32548. Mr. Donovan is not a resident of the State of Florida. His primary residence is in the State of Georgia. Mr. Donovan described in testimony his use and the use of his family of the beach seaward of El Matador and other parts of the Okaloosa Island area of Santa Rosa Island: I've . . . got to walk [for reasons of health] and I do walking every day I'm down here[.] I get all the way down to East Pass. I don't get down there every day, but I get down there a lot. My sons and my one grandchild take great pleasure in fishing off there, right at the end where the East Pass is right from the surf. * * * I swim. I don't swim probably as much as my co-petitioners [the Sherrys], but I'm sure I go out further. And I don't surf like David [Sherry] does but my grandchild would never tell me that I don't. I run as much as I can. Not as much as I used to. We also take long walks. WD Tr. 973-4. In a plat of El Matador Condominium introduced into evidence as part of Exhibit P-7, El Matador is described as: A CONDOMINIUM OF LOTS 557 THROUGH 590 INCLUSIVE, BLOCK 9 AND THE INCLUDED PORTION OF PORPOISE DRIVE THEREOF SANTA ROSA ISLAND A SUBDIVISION OF BLOCK 9 A RESUBDIVISION OF BLOCK 8 AS RECORDED IN PLAT BOOK 2, PAGE 190, PUBLIC RECORDS OF OKALOOSA COUNTY, FLORIDA Exhibit P-7, last page (un-numbered). Block 8 of Santa Rosa Island (like Block 5 in which the Surf Dweller Condominium is located) is also in Zone B-2 set up by the Protective Covenants and Restrictions. Block 8, just as Block 5, is governed by Part F, Beach Protection, of the Protective Covenants and Restrictions that places the beaches, for at least 300 feet inland, of the segment of Santa Rosa Island to which Block 8 is adjacent under the strict control of the County and makes the first 150 feet inland from the MHWL "public beaches." County WD 13, at page marked "BOOK 121 PAGE 242." El Matador Condominium is between reference monuments R-1 and R-2. It is not deeded to the MHWL of the Gulf. The plat in County Exhibit 13 shows the southern edge of the El Matador condominium property to be adjacent to the "FREEHOLDERS BEACH," see Exhibit P-7, last page (un-numbered), that is, to the edge of the area of the private beach designated under the "Beach Protection" provision of the Protective Covenants and Restrictions. The public beach designated by the same provision is seaward of the private beach. Concerns of the Sherrys and Mr. Donovan The Surf Dweller Condominium Property that serves the Sherrys' condominium unit and the El Matador Condominium Property that serves Mr. Donovan's condominium unit are along the segment of the beaches and shores of Okaloosa County that will be restored by the Okaloosa Island Project. The Sherrys and Mr. Donovan initiated this proceeding because they are opposed to the Okaloosa Island Project. One of the grounds for their opposition concerns the Project's borrow area to be used as a source of sand. It is offshore but relatively close to the beach immediately landward of the Sherry and Donovan condominium units. The Sherrys and Mr. Donovan presented evidence that the borrow area is sited and situated in such a way that once dredged it will cause impacts to the shoreline of Okaloosa Island. The impacts, they believe, in turn will affect their use and enjoyment of the beach. Mr. Donovan is concerned about the erosion and turbidity impacts that dredging the borrow site which serves the Project could have on the Gulf and the beach. Erosion would change his view of the beach from the window of his condominium unit and aggravate a scalloping of the shore. The unevenness of the scalloped surface would cause him difficulties in his walks. He is concerned that turbidity could attract sharks which would make it unsafe for him to swim. Most importantly to him, the change in the beach and shoreline along the El Matador Condominium property contemplated by the Draft JCP could deter his family members (his grandchild included) from visiting him and vacationing at his unit in the El Matador Condominium. The Sherrys and Mr. Donovan have other concerns about the Project. For example, they believe that the sand used in the restoration will not be compatible with Okaloosa Island's "sugar white" sand. They also are concerned about the impact that placement of the sand will have on their view, their walks and their runs and the many ways in which they use and enjoy the beach. Furthermore, they presented evidence that the cost of the Project will outweigh its benefit. The Intervenors Intervenors John Dezzutto and Thomas Wilson own condominium units 102-D and 101-B in the Seaspray Condominium located at 1530 Miracle Strip Parkway, Fort Walton Beach, Florida 32548. At its southern boundary the property that is subject to the declaration of condominium that created the Seaspray Condominium (the "Seaspray Condominium Property") is deeded to the MHWL. Hence, the Seaspray Condominium Property is considered to be "gulf-front." Intervenor David Wallace owns Unit 502 in the Destin West Beach and Bay Resort Condominium located at 1515 Miracle Strip Parkway, Fort Walton Beach, Florida 32548. Similar to the Seaspray Condominium, at its southern boundary the property that is subject to the declaration of condominium that created the Destin West Beach and Bay Resort Condominium (the "Destin West Beach and Bay Resort Condominium Property") is deeded to the MHWL. The property, therefore, is considered to be "gulf- front." The Seaspray Condominium Property and the Destin West Beach and Bay Resort Condominium Property overlap the beaches that are to be restored by the Project. If the County is to restore the area of the beach that is on the condominium properties of the two condominiums in which the Intervenors own condominium units, it will need to heed the advice of General Condition Six in the Draft JCP which is interpreted by the Department as a warning against trespass as well as provide authorization for such use from the property owner as required by the Draft JCP. The County and the Department Okaloosa County is a political subdivision of the State of Florida and the applicant for the JCP and the Variance. The Department is the state agency responsible for administration of the state's regulatory authority as found in Part I of the Beach and Shore Preservation Act, chapter 161, Florida Statutes, and in particular, for the issuance of permits required by section 161.041 and the concurrent processing of "joint coastal permits" as allowed by section 161.055. It also serves as staff to the Board of Trustees of the Internal Improvement Fund and in that capacity handles the processing and issuance of SSL Authorizations. Okaloosa Island Okaloosa Island is not an island. It is an unincorporated area of Santa Rosa Island. Santa Rosa Island is a barrier island that runs along much of the coast of the Panhandle of Florida. As explained by Mr. Clark at the final hearing, one is "in" Okaloosa Island while being "on" Santa Rosa Island. Okaloosa Island was conveyed to the County by the federal government and then leased by the County under long-term leases. The Surf Dweller and El Matador Condominium Properties (with units that belong to the Sherrys and Mr. Donovan, respectively), are in Okaloosa Island. Some of the other leaseholders in Okaloosa Island opted to have their leases converted to ownership of the leased property in fee simple. The Surf Dweller and El Matador Condominium Properties remain under long-term leases. Dry Beach Adjacent to Surf Dweller and El Matador Beginning with Hurricane Opal in 1995, the beaches and shores adjacent to the Surf Dweller and El Matador Condominium Properties were seriously damaged. Nonetheless, there is a significant stretch of dry beach between the Surf Dweller and El Matador condominium properties and the MHWL of the Gulf. In the case of the Surf Dweller Property, Mr. Sherry estimated the width of the beach between the condominium property and the MHWL to be 300 feet. See his testimony quoted, below. The MHWL of the Gulf of Mexico is a dynamic line, subject to constant change from the natural influences of the coastal system. Whatever effect its ever-changing nature might have on the width of the beaches between the MHWL and the Surf Dweller and El Matador condominium properties, at the time of hearing, there existed a 150 foot-wide stretch of beach water- ward of the two condominiums that the public has the right to occupy and use. David Sherry confirmed as much when he related the actual practice by the public in using it and the response that public use generated from him and his wife in the following colloquy on cross-examination by Mr. Hall for the County: Q If someone . . . crosses Santa Rosa Boulevard and utilizes this access[-]way that's marked on the map that you identified earlier, do they have the right to utilize any of the portion of [the private beach] of that 150-foot portion in front of your condominium? A . . . [N]o, they wouldn't have the right to do that. Q . . . [D]o they have the ability to set up an umbrella or place their towel within that 150-foot area [of private beach] in front of your condominium? A In that area, no. In the area south of that [the public beach] , which is where everyone actually sets up and wants to set up, in that area south, people set up and we don't have any problem with that. We let people do it -- Q On [the] public beach[.] A On the public beach they're perfectly free to do that. * * * Q I believe your testimony today, based on your GPS calculations, was that you have 300 feet of dry sand beach . . . running from the boundary of the condominium to the edge of the Gulf of Mexico; is that correct? A Essentially, from the building to the Gulf of Mexico. * * * Q So, 300 feet, roughly, from the boundary of the Surf Dweller Condominium common area down to the waterline? A Correct. Q So, there would be enough room today, based on the language of the restrictive covenants to have . . . 150 feet of public beach and then the 150 feet of Freeholders Beach as designated on the plat [in County Exhibit 13] now? A Much like it was in 1955 [when the Protective Covenants and Restrictions were adopted and recorded], yes. WD Tr. 891-3 (emphasis added). Since the first 150 feet of beach landward of the MHWL under the Protective Covenants and Restrictions is "public beach," there is no doubt that there is a stretch of beach between the Surf Dweller Condominium and the MHWL that is public beach, and it has a width of 150 feet. From aerial photographs introduced into evidence, the same finding is made with regard to beach that is public between El Matador and the MHWL of the Gulf. Mr. Donovan testified that his leasehold interest in his units at El Matador along with the interests of the other El Matador condominium unit leaseholders included 150 feet of private beach landward of the 150 feet of public beach adjacent to the MHWL of the Gulf of Mexico. His lawyer, moreover, advised him not to convert his leasehold interest into a fee simple ownership in order to protect his interest in access to the private beach designated by the Protective Covenants and Restrictions. See WD Tr. 986-87. Opal and Okaloosa Island Beaches Today Hurricane Opal made landfall near Pensacola in October 1995. Prior to Hurricane Opal, the shoreline in Okaloosa Island had been stable. The width of the vegetated and upper berm and dune systems had been about 175 feet and the un- vegetated beach seaward of the dune system about 100 feet wide. Upland development was protected from storm surge and wave action by a good 285-foot width of dune system and beach. Opal devastated much of the Florida Panhandle. Okaloosa Island was not spared. The shoreline of Okaloosa Island both advanced and retreated. The western half of Okaloosa Island (west of R-8) showed shoreline recession, that is, the shoreline on the western half retreated landward. The shoreline on the eastern half (east of R-8) advanced water-ward. The dune system, however, was destroyed. From the point of protection the beaches and the dune system offer upland development, moreover, the advance of the beaches in the eastern half of Okaloosa Island did not offset the damage done from volumetric reduction of the sand that the eastern half of Okaloosa Island suffered. As for Okaloosa Island as a whole, the area lost considerable sand volume. Opal's damage to Okaloosa Island, in sum, consisted of substantial loss of sand volume, significant deflation of beach profile and erosion of the dune and beach system throughout the area. After Opal, the general trend along Okaloosa Island was recession. Based on an overall average, the recession measured about minus 7 feet per year. See OI Tr. 561. The Okaloosa Island shoreline moved toward upland development. Despite the general retreat of the shoreline, in some areas of Okaloosa Island, the beaches appear to the untrained eye to be healthy because they are usable and quite wide. But even at their widest points, Okaloosa Island beaches are "very low and flat" OI tr. 562. The only dunes (where there are any at all) are "insignificant manmade dunes," id., that do not protect upland development. In short, Okaloosa Island is in need of coastal protection. It is "completely vulnerable to the impact of a storm surge or waves from, not only a hurricane, but lesser storms . . . ." OI Tr. 536. Critically Eroded Shoreline Florida Administrative Code Chapter 62B-36 governs the Beach Management Funding Assistance Program. It contains the following definition of "Critically Eroded Shoreline": "Critically Eroded Shoreline" is a segment of shoreline where natural processes or human activities have caused, or contributed to, erosion and recession of the beach and dune system to such a degree that upland development, recreational interests, wildlife habitat or important cultural resources are threatened or lost. Critically eroded shoreline may also include adjacent segments or gaps between identified critical erosion areas which, although they may be stable or slightly erosional now, their inclusion is necessary for continuity of management of the coastal system or for the design integrity of adjacent beach management projects. Fla. Admin. Code R. 62B-36.002(4) (the "Critically Eroded Shoreline Definition"). The Department determines whether upland development, recreational interests, wildlife habitat or cultural resources are threatened or lost based on a 25-year storm event. In 2005, the Department designated the area subject to the Okaloosa Island Project as having a "critically eroded shoreline." The designation was in accordance with the Critically Eroded Shoreline Definition and based on post-storm vulnerability after Hurricane Ivan which made landfall in the United States in September of 2004. An investigation was conducted in Fall 2008 to update the designation in response to a request from the County. The investigators concluded that there had been erosion, including deflation and recession of the dune and beach, to such an extent that upland properties and development were threatened between R-1 and R-8.5 and R-12 and R-13. The shoreline in the area between R-8.5 and R-12 (the "Gap Segment") standing alone did not meet the requirements for designation as critically eroded. Nonetheless, the Gap Segment was designated as having a critically eroded shoreline for continuity of management of the coastal system and to facilitate management of the adjacent beached in order to maintain the integrity of the Project's design. The same is true of the segment of the Project east of R-13, that is, from R-13 to R-15. ("Continuity of management and maintenance of a project's design integrity" is a basis for designating a shoreline to be critically eroded under the Department's rule.) Were the Gap Segment to be excluded from the Project, fill placed by the restoration effort in the adjacent, restored areas would collapse into it over time. The restored areas would not remain stable and the restoration effort would be defeated, diminished or endangered. That upland areas in the Gap Segment might not be threatened by a 25-year storm does not mean that restoration is not a useful activity for the segment. To the contrary, the upland areas alongside the Gap Segment will benefit from the Project. While the upland areas adjacent to the Gap Segment's shoreline may not be threatened by less damaging higher- frequency storms, they are "definitely threatened by a 50 or 100-year storm event and are in need of the project from that standpoint." OI Tr. 557. Genesis of the County's Efforts Following the designation by the Department of the shoreline subject to the Project as critically eroded, the County began to consider beach restoration in Okaloosa Island. The efforts gained momentum when the County entered an inter- local agreement with the City of Destin in 2006. The agreement provided that the Tourist Development Council (the "TDC") would be the lead agency in all beach restoration issues. The County chose the shoreline now subject to the Project for restoration because of the Department's designation of it as critically eroded. The Project The Project calls for the placement of 940,000 cubic yards of beach quality sand along a 2.8 mile stretch of shoreline. The shoreline is between the Department's reference markers R-1 and R-15 on Santa Rosa Island in an unincorporated area of the County known as Okaloosa Island, Sections 28 through 30, Township 2 South, Range 23 West, in the Gulf of Mexico, Class III Waters. The Project's entire site is situated within the Gulf Islands National Seashore which extends one mile offshore of Santa Rosa Island, the waters of which have been designated by the state as Outstanding Florida Waters ("OFW"). The placement on the beach of the sand (or fill) will create dunes that have the potential to become stable through vegetation, extend the beach seaward roughly two hundred feet, and elevate the beach an average of roughly five and an half feet. The design includes a 40-foot-wide dune crest at an elevation of 14 feet NAVD, a 60-foot wide backberm at 8.5 feet NAVD, and a variable width berm at 5.5 feet NAVD. The dune will transition into the backberm at a 1:4 (vertical:horizontal) slope; the backberm will transition into the berm at a 1:10 slope; and the berm will transition into the existing sea bottom at a 1:10 slope. In areas where the landward edge of the dune crest does not tie into the existing dune, the landward dune face will merge into the existing topography at a 1:4 slope. The fill for the Project will be dredged from an offshore borrow area. The Project includes the removal of sand placed on Okaloosa Island beaches in 2006. Referred to at hearing as "brown sand," see OI tr. 1668, Case No. 10-2468, the sand had been hauled in from an upland source by truck rather than being from an offshore borrow area as contemplated by the Draft JCP. The brown sand is not the same color as the "sugar white" sand on Okaloosa Island's beaches. It is being removed because it is not compatible on the basis of color with the sand on the beach. The ECL Morgan and Eklund, Inc., Professional Survey Consultants (the "ECL Surveyors"), prepared a document dated October 30, 2008, entitled "MEAN HIGH WATER LINE SURVEY AND PROPOSED OKALOOSA ISLAND EROSION CONTROL LINE FOR FDEP RANGE MONUMENTS R-1 TO R-16 OKALOOSA COUNTY, FLORIDA," see WD County Ex. 7. The document was referred to at hearing by Mr. Trudnak as the "Erosion Control Line drawings for the Okaloosa Island Project." WD Tr. 261. (The document, WD County Exhibit 7, will be referred to in this order as the "Proposed ECL Drawings.") The Proposed ECL Drawings show that a survey of the MHWL survey between R-1 and R-16 was conducted on September 16, 2008. As would be expected, the MHWL depicted on the Proposed ECL Drawings is not a straight line. For the most part, it meanders across the drawings with sections where the line comes to "points" that protrude seaward. For example, one prominent point would be at the end of a perpendicular line (that does not appear on the Proposed ECL Drawings) drawn seaward across the dry beach from a point (also not on the Proposed ECL Drawings) on Surf Dweller Condominium Property. See WD County Ex. 7, Case No. 10-2468. The Proposed ECL Drawings depict three other lines, entitled "LANDWARD LIMITS OF CONSTRUCTION," "POST CONSTRUCTION MEAN HIGH WATER LINE," and "SEAWARD LIMITS OF CONSTRUCTION," all of which are predominately straight lines. On April 21, 2010, the Board of Trustees of the Internal Improvement Fund by resolution (the "Resolution") "approved, adopted and certified for the purposes prescribed by Sections 161.141 through 161.211, Florida Statutes," OI Petitioners' Ex. 22, the Okaloosa Island Project ECL "particularly described in Exhibit A." Id. Exhibit A begins with the legal description of the ECL and ends with drawings entitled "OKALOOSA 001-016 EROSION CONTROL LINE OKALOOSA COUNTY, FLORIDA" (the "Approved ECL Drawings"). With a few exceptions (dates and titles) immaterial to this proceeding, the Approved ECL Drawings are identical to the Proposed ECL Drawings. The Seaward Limit of Construction Line is water-ward of the Post Construction MHWL, both of which are well water-ward of the MHWL set in September 2008. Generally, the width from the Seaward Limit of Construction Line to the Landward Limit of Construction Line on the drawings is about 400 feet. The Landward Limit of Construction The Landward Limit of Construction Line in much of the Proposed and Adopted ECL Drawings is over dry beach which, although under the strict control of the County, was declared to be "private" by the County's Protective Covenants and Restrictions. As its name suggests, the Landward Limit of Construction Line was expected by the ECL Surveyors to be the landward edge of the sand fill placed during construction of the Project. As explained by Mr. Trudnak at hearing, the line is "the back of the dune. So, it is the landward most point where sand will be placed." OI Tr. 270. But Mr. Trudnak explained further that the Landward Limit of Construction Line on the Proposed ECL Drawings (and therefore, on the Approved ECL Drawings as well) would not, in fact, be the actual landward- most point of sand placed during the construction phase of the restoration. Rather, the landward-most point where sand would be placed would be significantly waterward of the Landward Limit of Construction Lines on the drawings. Mr. Trudnak offered several reasons for his position. The Landward Limit of Construction Lines on the drawings are straight lines which is not consistent with what will happen when the construction is actually undertaken. Furthermore, a new limit of construction line will be determined when construction plans are submitted prior to the issuance by the Department of a Notice to Proceed, subsequent to the issuance of a JCP. The ECL Surveyors whose Proposed and Approved ECL Drawings contain the straight Landward Limit of Construction Lines that are too landward were not retained to produce drawings for construction plans. The line on the construction plans, when developed, will be much more seaward than the line on the Proposed and Approved ECL Drawings. The County intends, moreover, to construct the Project so that the landward limit of construction falls inside the 150 feet of public beach immediately waterward of the ECL, much further seaward of the Landward Limit of Construction Lines on the Proposed and Approved ECL Drawings. It is reasonable to expect that the County will be able to carry out its intention. See Okaloosa County Exs. 20 and 21, Case No. 10-2468 and Mr. Trudnak's testimony at OI Tr. 181. To the west of a point relatively close to R-12, that is, from R-1 to roughly R-12, the Project can be built on "public" property, that part of the beach declared by the Protective Covenants and Restrictions to be public and controlled by the officials of Okaloosa County or owned by the federal government as part of Eglin Air Force Base. The same is not true of the property to the east of a point just west of R-12. With the exception of the beach adjacent to Newman Brackin Wayside Park (see OI Joint Ex. 2B, sheet 4 of 4 and OI DEP 24), the property east of the federally owned Eglin property is privately owned to the MHWL. If the County does not get authorization from the owners of this private property to conduct restoration activities on the property, the property "would have to be skipped." OI Tr. 188. That would leave two gaps with no restoration landward of the MHWL: the eastern-most end, from roughly R-13.8 to R-15, and a gap from roughly R-11.9 to R-12.9. "Skipping" private properties in the event of a refusal of consent by the owners to use the property during construction would not mean that the Project should be abandoned. The Project could be fully constructed where consents were not required. Where necessary consents were not obtained, the Project could still be constructed below the MHWL. Thus, the project could be constructed over its entire proposed length from R-1 to R-15; east of R-12, however, the Project would not be at its proposed width along the entire length. Some sand from the areas that are restored fully would be transported to the private properties not restored above the MHWL. The Project width in the fully restored segments adjacent to the gaps would be diminished. The beach width in the eastern part of the Project will be narrower than if the private consents had been obtained and the eastern beach fully restored. If the Project's proposed width is narrowed in parts by lack of consents, the Project will not be as effective had the consents been obtained. Nonetheless, the Project will still provide protection over its entire length from surges and damaging wave action produced by tropical storms. Project Construction The Project's Construction is intended to be facilitated by hopper dredge. The dredge excavates at a borrow site. A ship brings the excavated material to the beach fill site where it is discharged by pipe onto the beach. The pipeline runs perpendicular to the shore and extends about a quarter of a mile offshore. The contractor normally fences off a work zone that is about 500 feet wide. The work zone moves along the beach as construction progresses. "[I]n that work zone, there is a lot of heavy equipment that moves the sand around . . . looking at the Project . . . [from] an aerial view, roughly half the sand will be placed seaward and half the sand . . . landward of . . . [the] Mean High Water Line." WD Tr. 139. The Project's construction template or "the shape of the beach when it[']s constructed," id., consists of a dune, a backberm and a wide variable berm. Over the first several months following the Project's construction, a calibration process takes place. About half of the berm erodes and deposits offshore in a near shore sand bar. The near-shore bar acts as a wave break. It dissipates wave energy during storms. A healthy near-shore bar provides significant storm protection. The Project will provide protection from a 50-year storm. Selection of the Sand Source: Borrow Area OK-A The engineers of the Project, ("Taylor Engineering," the "Project's Engineers" or the "Engineers") examined the Gulf's underwater expanse from Santa Rosa County to Walton County seaward to Federal waters. The search for a sand source included a reconnaissance phase and a detail phase investigation of geophysical and geotechnical data. After exhaustive study, two potential borrow areas were identified: a "far-shore" site and a "near-shore" site. The far-shore site is eight miles offshore and about a mile east of East Pass and is designated "OK-B." The near-shore site, three miles west of East Pass and centered about a mile and a quarter from the shores of the Okaloosa Island part of Santa Rosa Island, is designated "OK-A." With its edge within the designated Outstanding Florida Water boundary of the Gulf Islands National Seashore Park, OK-A is within a relic ebb tidal delta in water depths of -36 to -51 feet, NGVD. Approximately 1.7 miles wide from east to west and approximately 0.9 miles wide north to south, it covers approximately 700 acres. At its landward-most side, it will be dredged 10 feet into the existing bottom. Reference in documents of Taylor Engineering and the County to OK-A as the "near-shore site" does not mean it is located in the "nearshore" as that term is used in coastal geology. The coastal geologic term "nearshore" refers to the zone from the shoreline out to just beyond the wave breaking zone. See WD Tr. 513. Borrow Area OK-A is well beyond the nearshore. It is clearly located "offshore," in "the relatively flat zone that is located from the surf breakers seaward out to the outer limits of the continental shelf." OI Tr. 513. It is referred as the near-shore site by Taylor and the County to distinguish it from OK-B which is farther offshore and therefore was referred to as the "farshore site." The two sites, OK-A and OK-B, were selected for comparative review on three bases: sand quality; financial impact; and dredging impacts. Sand quality is "the number one criteri[on]." WD Tr. 143, 10-0515. It involves grain size, soil and shell content, sand color and size of material in the sand, including large shells. See OI Sherry 138. Financial impact is determined mainly by distance; the farther from the construction site, the more expensive to transport the sand. If the borrow area is close enough to shore, a Borrow Area Impact Analysis is conducted. An impact analysis was not conducted for OK-B. The Engineers assumed on the basis of its 8-mile distance from shore that it would not impact the shoreline. The assumption was a reasonable one. Impacts to the shoreline or beach from the dredging of OK-B are unlikely. A Borrow Area Impact Analysis was conducted of OK-A. The quality of the sand in OK-B was similar to that of OK-A but OK-A's "was slightly better." WD Tr. 144. The slight difference was not a significant factor in the determination that OK-A should be selected. The main factor in favor of OK-A was distance. Because it is so much closer to the Project than OK-B, use of OK-A "substantially reduces the cost of construction" id., compared to OK-B. Taylor Engineering (and ultimately the County) selected OK-A as the sand source. The selection process included a sand source investigation by Taylor. Taylor Engineers' final report on sand source was released in October 2009. The report shows that in OK-A, the southeast corner of the area "seemed to contain a lesser quality sand than the borrow area as a whole and in terms of color." WD Tr. 145. Sand from the southeast corner of OK-A, nonetheless, was used in two beach restoration projects, both on Eglin Air Force Base property. Those projects were denominated A-3 and A-13. See further findings, below. The selection of OK-A was supported by Taylor Engineering's OK-A Borrow Area Impact Analysis. Borrow Area Impact Analysis An Okaloosa County Sand Search Borrow Area Impact Analysis was prepared by Taylor Engineering for the Joint Coastal Permit Application and released in July 2008. Aware that dredging the borrow site could affect both wave climate and current (the swift flow of water within a larger body of water), Taylor examined the impact of dredging the OK-A Borrow Area for those effects in the borrow area vicinity. The ultimate purpose of the Borrow Area Impact Analysis, however, was larger. It was to determine the changes to wave and current climate for impact to the beach, such as erosion. An increase in wave height, for example, would increase erosion. Two numerical modeling efforts were conducted. The first, called STWAVE, documents the impacts to wave climate. The second, ADCIRC, analyzes the effects of the dredging on currents. The STWAVE model requires wave characteristics as input. Taylor Engineering used "a 20-year hindcast of wave data from a WIS station located directly offshore in deep water. Under STWAVE modeling, impacts were examined for normal conditions and then 'under a 100-year storm condition.'" WD Tr. 149. The basis was the 100-year storm data from Hurricane Opal. The impacts of bottom friction were ignored, a common practice in applications like the County's JCP application that involves work on the open coast with a uniform sandy bottom. As Mr. Trudnak put it: When you use . . . wave monitoring devices, you're trying to calibrate a model for the effects of bottom friction. And when the borrow area is this close to shore [as in the case of OK-A], . . . the propagation of distance of the waves is relatively short. And when you have a uniform sandy bottom you don't expect the impacts of bottom friction to be significant. So . . . in applications like [Okaloosa County's for the Western Destin Project], you ignore the effects of bottom friction. WD Tr. 150. The analysis assumed that all of the sand in the borrow area would be removed when, in contrast, "the borrow site usually contains 50 percent more sand than what the Project requires on the beach." WD Tr. 152. Borrow Area OK-A is intended to serve five beach restoration projects in all. Three are completed: the two projects on Eglin Air Force Base and the Emergency Holiday Isle Project. The remaining two are the Western Destin Project and the Okaloosa Island Project. These five projects require 4.7 million cubic yards of sand of the nearly 7 million cubic yards of sand available in OK-A. The impact analysis, therefore, was conservative in that it predicted more impact than would actually occur because significantly less sand would be removed from the site than was factored into the STWAVE modeling. With regard to normal conditions, the STWAVE modeling led to the conclusion that impacts from the permitted activities associated with the borrow area would be negligible. Under storm wave conditions, the STWAVE modeling showed "a certain wave angle or direction that increased the wave height." WD Tr. 151. The increase in wave height, however, was far enough offshore so as to never affect the "actual breaking wave height on the beach." Id. The modeling results enabled Taylor Engineering to conclude "that the borrow area did not have a potential to cause any impacts whatsoever." WD Tr. 152. (emphasis added). ADCIRC is a state-of-the art hydrodynamic model that simulates tidal currents. Taylor Engineering conducted the ADCIRC modeling to analyze effects on the tidal currents and circulation in and around East Pass that would be caused by dredging the borrow area. Just as in the case of STWAVE, ADCIRC modeling showed that the impact of dredging the borrow area would be negligible whether in normal or "storm" conditions. Upland Private Property Of the properties along the 2.8 miles of shoreline to be restored, six are deeded to the MHWL. The six are the properties of Eglin Air Force Base, the Sheraton Hotel, the Gulfarium, the Ramada Hotel, Destin West Beach and Bay Resort Condominium, and Seaspray Condominium. These properties are all located in the eastern part of the Project, from R-11.3 to Beasley Park at the east terminus of the Project. Intervenor Wallace and his wife Sondra S. Wallace were deeded Condominium Unit 502 in the Destin West Beach and Bay Resort-Gulfside by a Special Warranty Deed executed by Tolbert Gulfside Development Company on March 7, 2003. See OI Petitioners' 112. The Condominium Property associated with Destin West Beach and Bay Condominium extends to the MHWL of the Gulf of Mexico. The Parcel ID Number on the Special Warranty Deed is 00-2S-24-2185-0015-0030 (Parent Parcel). Id. A quitclaim deed admitted into evidence as OI County Exhibit 22 bears the same Parcel ID Number but without reference to "(Parent Parcel)." The grantor of the quitclaim deed is Okaloosa County and the grantee is Tolbert Enterprises, Inc. The deed contains the following language: IT IS THE EXPRESS intent of the Grantor that its reversionary estate in that portion of the original leasehold estate from the Okaloosa County and/or Okaloosa Island Authority which the Grantee now owns in the subject premises shall be merged with such present leasehold interest now owned by the Grantee, subject, however to such terms and conditions contained in the 1963 quitclaim deed of record from the United States of America to the Grantor and all Protective Covenants previously imposed of record on the above land by Okaloosa County or its agent, Okaloosa Island Authority, and by acceptance of this deed, Grantor acknowledges the validity of such Protective Covenants and Restrictions (with the term "owner" being substituted for "leaseholder" or "lessee" therein where appropriate), which are hereby reimposed. OI County Ex. 22 (emphasis in original). Whether the Protective Covenants and Restrictions apply to all of the six properties so that the first 150 feet landward of the MHWL is "public beach" under the "strict control of the County" is a question that cannot be decided on the state of this record. But it appears from the quitclaim deed that constitutes OI County Exhibit 22 that the County took pains when it conveyed the Okaloosa Island property subject to the deed to make sure that the grantees under the conveyances were aware of the Protective Covenants and Restrictions and that the County's intention in the conveyances was for the Protective Covenants and Restrictions to survive. For the properties in the Project that are not deeded to the MHWL, the County has control of the beaches through the Protective Covenants and Restrictions. In addition to the documents of record, the County's control is evidenced by seven main public access-ways to the beach along Okaloosa Island, additional smaller access-ways, public use of the access-ways, public parking serving access of the public to the beaches of Okaloosa Island and public use of the dry, sandy portion of the beach in Okaloosa Island. The Application An Application for a Coastal Construction Permit The Application was processed as a joint coastal permit (a "coastal construction" permit under section 161.041). It was not processed as an application for a coastal construction control line ("CCCL") permit. Section 161.041 (the "Shore Protection Statute") and chapter 62B-41 apply to JCPs. Section 161.053 (the "CCCL Statute") and chapter 62B-33 govern CCCL permits. The Department treats its JCP and CCCL permitting programs as independent from each other and as mutually exclusive permitting programs. A project that involves "beaches and shores" construction is permitted under one permitting program or the other but not under both permitting programs. See WD Tr. 424-5. Indeed, when it comes to beach restoration projects (or "shore protection" projects) such as the Western Destin Project, section 161.053(9) of the CCCL Statute provides as follows: "The provisions of this section do not apply to structures intended for shore protection purposes which are regulated by s. 161.041 [the Shore Protection Statute] " The Department interprets section 161.053(9) to exempt the Project from CCCL statutory requirements and the rules that implement the CCCL Statutes so that the only permit the Project requires, in the Department's view, is a JCP. Application Signatures Item 18 of the Application provides a signature line for the County and "the title of the person signing on its behalf." OI Joint Ex. 1, DEP From 73-500 (05/17/07), p. 4 of 9. The Item opens with: "A. By signing this application form, I am applying . . . for the permit and any proprietary authorizations identified above [see findings below related to "written authorizations"], . . . ." Id., (emphasis added). Item 18 also provides "signature lines" for an agent in Section B if the County designates an agent for the processing of the application. Section 18 C of the Application provides a signature line under the following heading: "PERSON AUTHORIZING ACCESS TO THE PROPERTY MUST COMPLETE THE FOLLOWING." There was no signature provided at any point in the application process by any person authorizing access to the property as called for by Item 18C. Joint Ex. 11, Page 4 of 27. The "Written Authorization" Provision Chapter 62B-14 is entitled "Rules and Procedures for Applications for Coastal Construction Permits." The Shore Protection Statutes serves as rule-making authority for every rule in chapter 62B-41. Every rule in the chapter, moreover, implements, among other provisions, one provision or another of the Shore Protection Statute. Rule 62B-41.008 derives its rule-making authority from the Shore Protection Statute and section 161.055(1) and (2). Among the statutory provisions it implements are four subsections of the statute: (1), (2), (3) and (4). Section (1) of rule 62B-41.008 provides, in pertinent part, as follows: A Joint Coastal Permit is required in order to conduct any coastal construction activities in Florida. A person required to obtain a joint coastal permit shall submit an application to the Department . . . The permit application form, entitled "Joint Application for Joint Coastal Permit, Authorization to Use Sovereign Submerged Lands, Federal Dredge and Fill Permit" . . . is hereby incorporated by reference . . . . The application shall contain the following specific information: * * * (c) Written evidence of ownership of any property which will be used in carrying out the project, or authorization for such use from the property owner which is upland of mean high-water, or below mean high water but not sovereign land of the State of Florida. * * * (n) Written authorization for any duly- authorized member of the Department staff to enter upon any property to be used in carrying out the project, for the purpose of evaluating site conditions prior to final processing of the permit application. (emphasis added). Rule 62B-41.008(2) (the "Waiver Provision") lists requirements of rule 62B-41.008(1) which are to be waived by the Department under circumstances described in the Waiver Provision: "Any of the requirements contained in paragraph 62B- 41.008(1)(f), (h), (i), (j), (k), (l), or (m), F.A.C., will be waived if the Department determined that the information is unnecessary for a proper evaluation of the proposed work." In its list of requirements that will be waived under certain circumstance, the Waiver Provision does not include paragraphs (c) or (n). The Application did not contain the "specific information" detailed in paragraphs (c) and (n) of rule 62B- 41.008(1). As of the dates of final hearing, the County had not provided the Department with any written authorizations from the owners of the privately-owned properties within the Project area, including Intervenors. Demonstration of Property Ownership The Application demonstrated that the County owned much of the property subject to the Project. At the time of final hearing, it had permission, of course, to use that property. The County has also obtained the permission of the federal government to use Eglin Air Force Base property that is within the Project area. As for the other property, all privately owned, no written authorizations as of the final hearing had been obtained from the owners despite discussions between them and the County. Despite the clear requirement in rule 62B- 41.008(1)(c), the Department does not usually require that an applicant provide in the application written authorization from owners of upland property to be used in coastal construction projects. The Department might require written authorization in an application for certain coastal construction projects like a groin construction project, see OI tr. 476, or a similar project that involved one or two upland property owners. The typical beach restoration project, however, involves the use of many different upland properties, too many, in the Department's view to require the application to contain the written authorizations of all the owners. The Department justifies departure from enforcing the requirement of rule 62B-41.008(1)(c) in applications for beach restoration for a number of reasons. First, compliance is impractical. Aside from the significant number of signatures that must be obtained, the moment the application is submitted is too early in the process to require written authorization. In beach towns, where most restorations take place, many of the owners are absent and difficult to contact. By the time the restoration begins, the property may have changed hands. Second, the Department's practice is to require the authorizations as a permit condition and for written authorization to be submitted prior to construction, that is, sometime between when the JCP is obtained and the Notice to Proceed with construction is issued. An applicant in possession of a JCP for beach restoration cannot begin construction activities until a Notice to Proceed is issued. The aim of the rule is achieved in a timely manner whether all consents are submitted with an application or not. Aside from practical considerations and safeguards to ensure consent from upland property owners prior to the commencement of construction activities, written authorization in the application is not relevant in the Department's view in a permitting proceeding. Permitting proceedings are not designed to prevent trespass by an applicant. They are designed to consider environmental impacts. With regard to trespass considerations, there are other safeguards. These include the warning to the applicant in General Condition Six of the Draft JCP: 6. This permit does not convey to the Permittee or create in the Permittee any property right, or any interest in real property, nor does it authorize any entrance upon or activities on property which is not owned or controlled by the Permittee. The issuance of this permit does not convey any vested rights or any exclusive privileges. The Draft JCP also contains General Condition Eight: 8. The Permittee, by accepting this permit, specifically agrees to allow authorized Department personnel with proper identification and at reasonable times, access to the premises where the permitted activity is located or conducted for the purpose of ascertaining compliance with the terms of the permit and with the rules of the Department and to have access to . . . copy any records that must be kept under conditions of the permit; to inspect the facility, equipment, practices, or operations regulated or required under this permit; and to sample or monitor any substances or parameters at any location reasonably necessary to assure compliance with this permit or Department rules. Reasonable time may depend on the nature of the concern being investigated. If the applicant conducted construction using upland property without written authorizations from the upland owner, the Department would view the construction to be in violation of the JCP and would bring an enforcement action to halt the construction until written authorization was obtained. There are many opportunities, therefore, to achieve the aim of the rule subsequent to the filing of an application. Lapse in the Application Chapter 62B-49 is entitled, "Joint Coastal Permits and Concurrent Processing of Proprietary Authorizations." Rule 62B-49.005 is entitled, "Application Requirements and Processing Procedures." The following appears in the rule: An application shall be denied if the applicant fails to provide additional information to the Department within six (6) months [the "Six Month Period"] after a written request for such information has been sent to the applicant. However, if the applicant can demonstrate that he or she has been actively working on collecting or developing the requested information, and that additional time will be required to complete their response to the "RAI," the applicant may request up to six (6) additional months to submit their response. Fla. Admin. Code R. 62B-49.005(4). On November 25, 2008, the Department sent its third Request for Information (the "Third RAI") to the County. The Third RAI asked for more information regarding a risk assessment, the permit fee, a biological opinion (the "Biological Opinion") from "Fish and Wildlife," OI tr. 91, and had a question regarding a lighting ordinance. The County did not respond to the Third RAI within six months which expired on May 25, 2009. Nor did it request an extension within the Six Month Period. Mr. Trefilio and others on behalf of the County were in touch with DEP throughout the Six Month Period about various issues concerning the JCP. See OI tr. 90. Mr. Trudnak, for example, in early May, prior to the expiration of the Six Month Period sent an e-mail to DEP personnel to inquire about the permit fee DEP had required because Taylor Engineering believed it was incorrect. The Department did not respond until early June. Taylor Engineering had been "continuously working on the . . . Economic Analysis that addressed the questions that DEP had about the Risk Assessment [and] . . . had been talking to DEP about that." OI Tr. 169-70. Mr. Trudnak corresponded with the Army Corp of Engineers about the Biological Opinion. His hope was that a draft could be timely submitted with the other responses to the RAI. He contacted Ralph Clark and spoke with Jamie Christoff, a Department employee, about its status. But, the County and its agents "were not able to get that done within the six month time frame." OI Tr. 170. On June 3, 2009, Mrs. Sherry wrote an e-mail to Michael Barnett. She asserted that the Application was dormant and had lapsed. She requested that it be denied on the basis of the rule. The next day, an e-mail from Mr. Barnett, Chief of DEP's Bureau of Beaches and Coastal Systems, posed the question to Department personnel, ". . . has there been any verbal or written communication from either the Applicant or their Agent as to when the Department might anticipate a response to RAI #3?" OI Petitioners' Ex. 65, Page 2 of 4. E-mail messages in the file and a conversation with her subordinate, Jamie Christoff, led Dr. Edwards, who was in charge of the processing of the Application, to conclude that the County and its agents had been working on the application during the Six Month Period. After the message from Mrs. Sherry to the Department (and after the expiration of the Six Month Period), Mr. Trudnak requested an extension of time under the rule. The extension was not granted in writing. Dr. Edwards concluded "because there was that active back and forth between the Department and the applicant [during the Six Month Period], there was no need for additional time being granted . . . ." OI Tr. 440. Application Deemed Complete Chapter 62B-49 establishes the joint coastal permit program "by combining the regulatory requirements of the coastal construction program (Section 161.041, F.S.) with the environmental resource (or wetland resource) permit program (Part IV of Chapter 373, F.S.) . . . ." Fla. Admin. Code R. 62B-49.001. The chapter also "provides concurrent review of any activity requiring a joint coastal permit that also requires a proprietary authorization for use of sovereign submerged lands owned by the Board of trustees of the Internal Improvement Trust Fund." Id. Rule 62B-49.003 is entitled "Policy." It provides as follows in pertinent part: Any application submitted pursuant to this chapter shall not be deemed complete . . . until the Department has received all information required for: a coastal construction permit under . . . Chapter 62B- 41, F.A.C.; . . . and Chapters 18-18, 18-20 and 18-21. Fla. Admin. Code R. 62B-49.003(3). Despite the absence in the Application of written authorizations required by rule 62B-41, the clear directive of rule 62B-49.003(3), and the failure of the County to respond in a timely manner to RAI #3 or obtain in writing an extension of the time to respond, the Department deemed the Application complete on December 30, 2009. If Written Authorizations are not Obtained If written authorizations are not obtained from the owners of the six private properties between R-11.3 and the eastern terminus of the Project, the County would have to decide whether and/or how to proceed. If the eastern-most 600 feet of the Project were deleted, for example, the Project could be modified to mitigate the effects of the deletion without much effect on the remainder of the Project. If more of the Project were deleted, it would present more of a challenge to the effectiveness of the Project. In any event, the Project can be completed along its entire length up to the MHWL. The Project may not be at full width where consents are not obtained but it will still provide some storm protection where narrowed. It would also still provide significant protection westward of R- 11.3 all the way to R-1 albeit the closer to R-11.3 the more diminished would be the effectiveness of the Project if the Project is not at full width east of R-11.3. Legislative Declaration of Public Interest Section 161.088, Florida Statutes, bears the catchline, "Declaration of public policy respecting beach erosion control and beach restoration and nourishment projects." It states: Because beach erosion is a serious menace to the economy and general welfare of the people of this state and has advanced to emergency proportions, it is hereby declared to be a necessary governmental responsibility to properly manage and protect Florida beaches fronting on the . . . Gulf of Mexico . . . from erosion and that the Legislature makes provision for beach restoration and nourishment projects . . . . The Legislature declares that such beach restoration . . . projects, as approved pursuant to s. 161.161, are in the public interest; must be in an area designated as critically eroded shoreline, or benefit an adjacent critically eroded shoreline; . . . (emphasis added). Proprietary Public Interest Test Chapter 18-21 governs Sovereignty Submerged Lands Management. Rule 18-21.004 sets out management policies, standards and criteria. It opens as follows: The following management policies, standards, and criteria shall be used in determining whether to approve, approve with conditions or modifications, or deny all requests for activities on sovereignty submerged lands . . . . General Proprietary. (a) For approval, all activities on sovereignty lands must be not contrary to the public interest . . . "Public interest" is defined as: Demonstrable environmental, social, and economic benefits which would accrue to the public at large as a result of a proposed action, and which would clearly exceed all demonstrable environmental, social, and economic costs of the proposed action . . . Fla. Admin. Code R. 18-21.003(51) (the "Proprietary Public Interest Test"). The rule also states that "[i]n determining the public interest in a request for use . . . [of] sovereignty lands . . . , the board shall consider the ultimate project and purpose to be served by said use " Dr. Fishkind, an economist, conducted an economic cost/benefit analysis of the Project and concluded that the economic benefit is between $5.77 and $12.09 million while the cost of the Project is between $16.30 and $21.58 million. The Department did not present an economist to rebut Dr. Fishkind's analysis. The Department takes the position that the Project is in the public interest and meets the Proprietary Public Interest Test because of the declaration by the Legislature in section 161.088. The Department interprets the Legislature's declaration in section 161.088 that beach restoration projects are in the public interest to relieve the County from having to provide evidence that the Project meets the Proprietary Public Interest Test and to relieve the County and the Department from a need to rebut the evidence provided by Petitioners' economist. The Department draws support for its interpretation from language in section 161.091(3). The language makes reference to the declaration in section 161.088 that beach restoration projects are in the public interest. It finds further "that erosion of the beaches of this state is detrimental to tourism, the state's major industry, further exposes the state's highly developed coastline to severe storm damage, and threatens beach-related jobs, which, if not stopped, may significantly reduce state sales tax revenues " § 161.091(3), Fla. Stat. Impacts The depth of OK-A should not exceed -49.4 feet, NGVD, in an area where the depth of the ocean bottom is roughly -40 feet, NGVD. OK-A is relatively wide, at least as compared to an existing borrow area not far away, the borrow area used for beach restoration in western Walton County and eastern Okaloosa County east of the City of Destin (the "Walton Borrow Area"). It is also a shallow borrow area when its depth is measured from the Gulf floor. It is in deeper water than the Walton Borrow Area. These factors make it less likely to cause impacts to the beach than the Walton Borrow Area. Despite the width of OK-A, its relative shallowness measured from the Gulf floor, and its water depth, Dr. Dally, on behalf of the Petitioners, challenged the Taylor Engineering conclusion that there would be no impacts to the beach from the dredging of Borrow Area OK-A. The challenge from Dr. Dally, however, did not detail what the impacts would be or how serious they would be. Instead, Dr. Dally concluded that "not nearly enough study has been conducted of the proposed borrow area to ascertain that there will be no adverse impacts." WD Tr. 633. Dr. Dally's challenge to the conclusion by Taylor Engineering of no impacts to the beach from an excavated OK-A begins with an explanation in general of wave dynamics, sediment transport, and borrow site impacts. Wave Dynamics, Littoral Sediment Transport, and Borrow Site Impacts, Generally General Wave Dynamics "[W]aves in very deep water will start to turn and become more shore parallel in the case of Okaloosa County." WD Tr. 636. As they approach shore, a dynamic process of shoaling and refraction occurs. The waves may also begin to diffract. Shoaling is a growth in height from interaction with the shallow bottom or a shoal. Refraction is a process of alignment of waves with bottom contours. Diffraction is a spreading of waves or the bending of waves or change in wave direction after interaction with emergent structures or submerged features. As the process of shoaling, refraction and diffraction takes place, waves may be affected by bottom friction, depending on ocean bottom conditions. Dr. Dally offered the following description of wave changes as they close in on the face of the beach and interact with the shoreline. The description includes potential impacts of an excavated OK-A on the beaches and shores adjacent to the Surf Dweller and El Matador condominium property: As they pass into the very nearshore . . . they, of course, grow in height. They then break . . . [or] [s]ometimes, as they pass over a [sand]bar, they'll stop breaking. And then begin breaking again when they get right up onto the beach face. Any time you put a bathymetric feature [such as a borrow area] into that otherwise natural system, you affect the wave transformation due to processes dependent upon the character of the perturbation . . . * * * Wave reflection from abrupt bathymetric changes. . . in this case, the landward most . . . notch of the borrow area would be a reflective surface . . . when something has perturbed the wave field like that, defraction [sic] becomes an important process. So, as the waves pass over this proposed borrow area and, especially, over the 10-foot or greater vertical face, they will reflect and begin defraction [sic] so that it becomes a . . . complicated wave field . . . . WD Tr. 636-7. In addition to the perturbation caused by the borrow area there is another factor at work that has the potential to affect the beach along the condominium properties owned by the Sherry Petitioners: sediment transport. Sediment Transport "Sand can move along or away from the beach in two ways." WD Tr. 1141. It can move along the shoreline or it can move offshore. Littoral transport of sediment, a factor important to erosion and accretion, is the movement of sediment, mostly sand, along or parallel to shore. It is caused by the intersection of waves that come ashore at an angle to the shoreline, rather than those that break straight onto the beach. The average net long-term littoral transport in the area of the Project and Okaloosa Island is east to west. The Sherrys and Mr. Donovan own property down-drift from the OK-A site, or to the west. Dr. Young described the beaches down-drift of OK-A at hearing: "Those beaches have, over the . . . last decade or so, been generally stable to accreting. There's a pretty nice beach out there right now." WD Tr. 1143. This area of the Okaloosa County's beaches and shores is the area most likely to be affected by an excavated OK-A if there are, in fact, any impacts to beaches and shores caused by the dredging of the borrow site. Borrow Site Impacts Two processes affecting waves in the Gulf would occur above an excavated OK-A Borrow Area. The first wave process would be "that part of the wave energy will actually reflect and go back out to sea," WD tr. 640, in essence, a scattering effect of the energy. Diffraction at the same time would cause the waves to radiate outwards from the borrow area rather than the waves going straight back out to sea. The second wave process creates the potential for the waves to become "very, very, complicated." WD Tr. 640. They could "trip," that is, the notch in the borrow area could break the waves. "[B]rag scattering" (WD tr. 641) could make the waves deteriorate into shorter period waves. If there are changes in waves, tide level or current, changes will be caused to the beach. As Dr. Dally succinctly put it at hearing, "[the beach] might erode, it might accrete, it might do both," WD tr. 641, by virtue of the presence of an excavated OK-A Borrow Area. If the impact of the excavation of the borrow area were to create shorter period waves, the result generally would be erosion. If the impact created longer period waves which generate water movement deep into the water column the result generally would be accretion. The borrow area has the potential in Dr. Dally's opinion to create both longer and shorter period waves. Wave angle of the waves breaking on the beach also is a factor in beach impacts. But Dr. Dally was unable to predict the impacts of the excavation of OK-A to Okaloosa Island beaches and shores without more study, data and analysis as to what effects a dredged OK-A would have on wave period and wave angle and the concomitant sediment transport. Like Mr. Trudnak, Mr. Clark concluded that OK-A is too far offshore to cause adverse impacts to the beach. If, however, the Project were to utilize a borrow area along the same stretch of the beach but much closer to shore as in the case of the Anna Maria Island Project in which the borrow area was only 1000 feet from the shoreline, erosion impacts could occur on part of the beach. Beneficial impacts in such a case would occur to the beach downdrift of the borrow area. In the Anna Maria Island Project, beaches far enough to the south which were downdrift of the borrow area accreted. The impact to the Sherry and Donovan Properties, both being downdrift of a borrow area located along the same stretch of beach but within 1000 feet of shore and closer in than OK-A, would likely be beneficial. The area of shoreline that would be affected by wave impacts from an excavated OK-A is larger than the area in the immediate shadow zone of the borrow site, that is, a shadow zone perpendicular from the borrow site to the shore. The area affected by wave impacts depends on the angle of the waves. In the Destin area and along Okaloosa Island where the Sherry Petitioners reside, the waves come ashore predominately out of the east. If the waves come ashore along Okaloosa Island at a strongly oblique angle (more directly from the east), "the shadow zone now stretches further to the west and the diffraction pattern . . . increases the size of the shadow zone," WD tr. 680, to a size much larger "than the actual shadow zone of the . . . borrow area." Id. Along these same lines, if there are impacts to the beach caused by a dredged OK-A, the impacts should be greater the closer the beach is to the footprint of a dredged OK-A. Given the predominate tendency of the waves to come from the east along Okaloosa Island, if the beaches alongside both the Surf Dweller Property and the El Matador Property are affected, the beach alongside the Surf Dweller Property will incur the greater impact. Likewise, if beach impacts are incurred by beach alongside only one property or the other, it is much more likely that the beach alongside the Surf Dweller Property will be affected than the beach alongside the El Matador Property. The distance of an offshore borrow area from the shore is critical to the effect of the borrow area on diffraction and wave dynamics. If the borrow area is far off shore, as in the case of the alternative, potential borrow site identified by Taylor Engineering, OK-B, then, as explained by Dr. Dally, diffraction "has a lot of time and a lot of opportunity to smooth the waves out once again and things become uniform when they hit the beach." WD Tr. 645. A borrow area that is closer to the beach has higher potential for creating impacts. Dr. Dally again: "[I]f you move the borrow area closer to the beach, you have this scattering pattern induced by the reflection and the diffraction and refraction that doesn't have time to smooth itself out. And that's when you can really cause impacts to the beach, both accretive and erosive impacts." Id. (emphasis added). The underscored sentence from Dr. Dally's testimony quoted in the previous paragraph was directly addressed in the County's case through Mr. Trudnak's determination that OK-A, although not as far away as OK-B, is far enough away from the beach that it will not cause adverse impacts to the beach. Again, Dr. Dally's testimony, despite the underscored testimony in the previous paragraph, is not that OK-A will, in fact, cause impacts to the beach. His testimony, rather, is the equivalent of a statement that the closer a borrow area is to the beach the more likely that it will have impacts to the beach and that at some point, a borrow area, will be so close to the beach, that adverse impacts will occur. The fact that OK-A is much closer to the beach than OK-B does not mean that an excavated OK-A will cause impacts to the beach. Impacts of an excavated OK-A depend upon OK-A's actual distance from the beach rather than OK-A's distance relative to OK-B's distance. Thus, while it may be determined that the likelihood of impacts to the beach is greater in the case of OK-A than in the case of OK-B, actual impacts from OK-A to the beach (as far as the effect of distance) is a function of OK-A's actual distance from the beach without regard to OK-B's distance from the beach. In addition to Dr. Dally's certitude that there will be impacts to the beach by virtue of the presence of a dredged OK-A, Dr. Dally also took issue with the method by which Taylor Engineering reached the conclusion of no impacts in the OK-A Borrow Area Impact Analysis Report. The OK-A Borrow Area Impact Analysis Generally Mr. Trudnak was part of the Taylor Engineering team that prepared the Borrow Area Impact Analysis Report. Mr. Trudnak was not the only expert to defend the report's conclusion of no impact to the beach. The report was reviewed by Mr. Clark, the Department's expert, who also opined that there would be no impacts. Mr. Clark relied on more than the report for his opinion. He also relied on his extensive experience with beach restoration projects and monitoring data for those projects and visual observation of those projects post-construction. The only numerical data analysis specific to the excavation of the OK-A Borrow Area, however, that the Department used in determining that excavation of OK-A would not have any adverse impacts to the shoreline and coastal systems of Okaloosa Island was the Taylor Engineering OK-A Borrow Area Impact Analysis Report. The Report described its evaluative efforts: [T]his report evaluates two potential dredging templates in terms of their impacts on wave and tidal current patterns during normal and extreme conditions. The evaluation requires analysis of the wave climate and tidal currents before and after the borrow area dredging. The analysis required a balance between minimizing impacts to wave climate and current patterns, and providing acceptable nourishment volumes. STWAVE (Steady-State Spectral Wave Model) simulated normal (average) and extreme (100-year (yr) storm) waves propagating over the baseline and post-dredging bathymetries. ADCIRC hydrodynamic modeling simulated tidal flow over the baseline and post-dredging bathymetries for normal (spring) and extreme (100-yr storm) tide conditions. A comparison of the baseline and post dredging model results established the effects of borrow area dredging on the neighboring shorelines (Destin and Eglin AFB) and the inlet. WD County Ex. 1, Okaloosa County Sand Search Borrow Area Impact Analysis, at 6. Thus, the STWAVE modeling conducted by Taylor as part of the analysis attempted to simulate normal (average) and extreme (100-year storm) waves propagating over the baseline and post-dredging bathymetrics. Taylor Engineering relied on WIS (Wave Information Study) results in performing its STWAVE modeling. WIS data are not measured wave data. Instead, they consist of numerical information generated by specific stations in wind fields in various locations around the Gulf of Mexico. The data are then placed in a model coded to represent the entire Gulf. The WIS station from which data were collected by Taylor Engineering is located approximately 10 miles offshore where the depth is approximately 85 feet. It would have been preferable to have used comprehensive field measurements, that is, data obtained from wave gauges on both sides of the borrow area over enough time to support use of the data, rather than WIS data. Comprehensive field measurements would have produced much more information from which to predict impacts to the beach. As Dr. Dally explained, however, If you don't have [field measurement data], then . . . especially over the long-term . . . a year or more [or] if you're analyzing your beach profile data over a 10 year period, you would like to have . . . wave data to accompany that 10 year period. Generally we don’t and that's when we start relying on models to fill in this missing information. WD Tr. 645-6 (emphasis added). This testimony was consistent with Mr. Trudnak's testimony: the problem with field measurement is that "the useful data that you [get] from [field measurement] gauges is . . . limited to [the] deployment period." WD Tr. 1234. It is not practical to take 10 years' worth of field measurements. As Mr. Trudnak explained: Typically, you would install those gauges for . . . a month or a couple of months . . . you want to use representative conditions . . . you try to pick a winter month and a summer month so you can try to capture those extremes and wave conditions. * * * [W]hen you . . . install those gauges in the field, you have no idea what those conditions are going to be during your deployment period. You can install your wave gauge for a month in the winter but that can be an unusually calm month, it could be an unusually severe month. So, it's really hit or miss, whether you . . . capture representative conditions. Id. (emphasis added). The WIS information utilized is hind-casted. Hind- casting is a method for developing deepwater WIS data using historic weather information to drive numerical models. The result is a simulated wave record. The WIS information utilized includes 20 years of hind-cast information. The purpose of using such a lengthy period of information is that it ensures that representative conditions are captured in the data for purpose of the analysis. Such "lengthy period" information overcomes the concern that there is not enough data to capture representative conditions as in the case of typical field measurement data. For its extreme STWAVE modeling, Taylor relied on WIS information generated during Hurricane Opal in 1995. Analysis of the model results showed negligible impacts on wave height under normal conditions and increased wave height during extreme conditions. Increased wave height during extreme conditions, however, was no closer than 300 feet from the shoreline. The increased wave height and wave angle in storm conditions were far enough offshore that they "never impacted the actual breaking wave height on the beach." WD Tr. 151. The model's prediction of no impacts in wave height on the shoreline due to a dredged OK-A and no change in sediment transport rate by virtue of the presence of a dredged OK-A led Taylor Engineering to conclude that whether in normal or extreme conditions, a dredged OK-A Borrow Area would not cause impacts to the beaches and shores of Okaloosa County. Criticisms of Taylor's STWAVE Modeling Dr. Dally offered four basic criticisms of Taylor Engineering's STWAVE Modeling: a) the model did not account for wave transformation processes caused by bottom friction between the WIS Station (10 miles out in the Gulf) and the OK-A site; b) the model was not calibrated or verified; c) the model did not sufficiently account for wave transformation impacts from the dredging of Site OK-A; and d) Taylor did not plot wave direction results from its STWAVE models or conduct any sediment transport analysis. Mr. Trudnak offered refutations of the criticisms. For example, taking the first of them, wave transformation processes caused by bottom friction between the WIS Station and the OK-A site were not accounted for by Taylor Engineering in its analysis because "most of that distance [between the WIS Station and the OK-A site] is deep water, meaning the waves aren't . . . feeling the bottom so they're not being affected by the bottom friction." WD Tr. 1236. The refutations were not entirely successful. The second of Petitioners' experts, Dr. Young cast doubt on the validity of all modeling no matter how well any particular modeling activity might meet the criticisms leveled by Dr. Dally against Taylor Engineering's effort. Dr. Young accepted Dr. Dally's testimony about why Taylor Engineering's modeling was not sufficient to support an opinion of "no impacts," but he differed with Dr. Dally as to whether coastal engineering models should be utilized to predict impacts to beaches. See WD Tr. 1157. Dr. Dally believes in the benefits of modeling as long as the modeling is conducted properly. Dr. Young does not. It is his opinion that no model produces a projection that is precisely accurate but the essence of his criticism is that "we don't know how wrong the models are." WD Tr. 1159. Models are "incapable of quantifying the uncertainty or how right or wrong that they might be." Id. With regard to the modeling used in Taylor's Borrow Area Impact Analysis, Dr. Young summed up: [W]hen we do this model run, especially with a model that isn't calibrated or verified, we get an answer . . . it's not precisely the right answer, but . . . nobody knows how wrong the answer is. I don't know it, Mr. Trudnak doesn't know and Mr. Clark doesn't know. And that's why being prudent is important and why relying on the monitoring data is critical because the monitoring data is real data. WD Tr. 1160. In contrast to Dr. Young, Dr. Dally, consistent with his faith in models appropriate for the investigation and conducted properly, took another tack in attacking the modeling used by Taylor Engineering. He criticized Taylor Engineering's failure to use a more comprehensive wave transformation model: the Boussinesq Model. Dr. Dally opined that the Boussinesq Model was superior to STWAVE principally because it takes diffraction into account. But Petitioners did not produce any off-shore borrow area impacts analyses which used the Boussinesq Model, and Mr. Trudnak testified that he was unaware of any. See tr. 1233 and 1234. The Boussinesq Model is typically used where diffraction plays the dominant role, that is, within areas like inlets or ports which have structures that will cause wave perturbation. The open coast is not such an area. If not more appropriate than the Boussinesq Model, STWAVE is an acceptable model under the Project's circumstances. When asked about the Boussinesq modeling's application in the context of his testimony that he could not say what would be the impacts of the dredging of the OK-A Borrow Area, their extent or whether they would be adverse, Dr. Dally testified that based on his experience, he was "almost certain," WD tr. 691, that Boussinesq modeling would show impacts to the beach adjacent to the Surf Dweller and El Matador Properties that could be a "type of accretion . . . [that is] momentary . . . due to the propagation of these features as they go up and down the beach." Id. This statement is consistent with Mr. Clark's opinion that if the Project's borrow area were within 1000 feet of shore, the impact of dredging OK-A to the Sherry and Donovan Properties would be beneficial. When asked if the beaches would develop scalloping (sand erosion in some areas and accretion in others), Dr. Dally said, "Right. This [wave transformation process caused by an excavated OK-A borrow area] makes a scalloping." WD Tr. 692. Perhaps the dredging of Borrow Area OK-A would aggravate scalloping along the shores of Okaloosa County but they would not create scalloping of an "un-scalloped" coastal system. Scalloping features in the Okaloosa Island portion of Santa Rosa Island existed at the time of final hearing. In short, Dr. Dally criticized Taylor Engineering's STWAVE modeling. As to the impacts he was sure would occur, he was unable to state whether they would be adverse, beneficial or both. Most importantly to the weight to be assigned his testimony, he was unable to testify as to how significant the impacts would be; one cannot determine from his testimony whether the impacts will be entirely de minimus, see rule 62B- 41.002(19)(c) or whether some could be significant, see rule 62B-41.002(19)(a). Dr. Dally's testimony with regard to the creation by the Project of scalloping did not indicate the significance of that scalloping to the coastal system of Okaloosa County, a system whose ocean bottom, beaches and shores already contain scalloped features. Suppositive impacts that would be caused by the Project to the beaches of Okaloosa County were not the only attack by Petitioners. They also challenged the impact analysis on the basis of the opinion that adverse impacts had been caused to beaches by another beach restoration project and its borrow area not far away: the Walton Project. The Walton Project and Its Borrow Area Completed in the late spring of 2007, the Walton Project placed sand dredged from the Walton Borrow Area on approximately 7 miles of beach in eastern Okaloosa County (East Destin) and western Walton County. Just as in the case of the Western Destin Project, Taylor Engineering performed a borrow site impact analysis for the borrow site used in the Walton Project. Location and Comparison to OK-A The northwest corner of the Walton Borrow Area is roughly 2.75 miles from the northernmost point of the western boundary of the OK-A Borrow Site. See WD Ex. P-13. The area between the eastern-most point of the OK-A Borrow site and the western-most point of the Walton Borrow Area, therefore, is roughly half that distance or 1.375 miles. The northwest corner of the Walton Borrow Area is approximately 0.8 miles offshore; its eastern-most point is roughly one-half mile off-shore. OK-A is larger than the Walton Borrow Area and will have more sand removed. It is also wider, shallow when measured from the Gulf floor, and in deeper water. Nonetheless, because of proximity, Petitioners characterize the two sites as similar. Despite proximity, there are significant differences between the two. A wider, less deeply dredged borrow area would have less impacts than one deeper and narrower. OK-A's location in deeper water makes it less likely to affect waves and current than the Walton Borrow Area. The footprints of the borrow areas are dissimilar. The Walton Borrow Area has an irregular shape. OK-A is in the shape of a rectangle with a uniform dredging depth although "the depth of sand that is dredged will taper off . . . further offshore . . .[s]o that the seaward most edge does not have significant thickness of sand. The maximum cut is towards the northern boundary." WD Tr. 306. The predominately significant difference between the two is the presence on the Gulf floor in the vicinity of the Walton Borrow Area of an ebb shoal: a large deposit of sediment. The ebb shoal exists because of interaction between East Pass and the waves, tides and currents of the Gulf. The Walton Borrow Area is "close to the East Pass ebb shoal . . . and it included the outer flanks of the ebb shoal." WD Tr. 155. It makes the littoral zone for the Walton Project more active than the littoral zone near which OK-A is located. Located a significant distance to the west of the East Pass ebb shoal, OK-A would not interact with its littoral zone in the way the Walton Borrow Area interacts with its littoral zone. Walton Borrow Area Impact Analysis and Monitoring Taylor Engineering's borrow area impact analysis for the Walton Borrow Area was similar to the impact analysis for OK-A in that both consisted of "wave models and hydrodynamic models." WD Tr. 156. The Walton impact analysis showed "one potential impact area about 2,000 feet long [on the beach] just west of East Pass," id., an impact area also described as extending from approximately 3,000 to 5,000 feet west of the westernmost jetty at East Pass. It anticipated that impact would be caused by wave action due to the perturbation resulting from the presence of the dredged Walton Borrow Area. The potential impact was projected by the analysis to be a reduction in the sediment supply to the beaches west of East Pass by 11,000 cubic yards per year. Because of that reduction, DEP included a mitigation condition in the Walton Project permit: placement of 55,000 cubic yards on the impacted beach. As a condition of the Walton Project, Taylor Engineering conducted monitoring of the impacts to the beach from the project in general and in particular from the Walton Borrow Area. At the time of hearing, reports for 2007, 2008, and 2009 had been completed and the engineering firm was working on the 2010 report. Mr. Trudnak described the results from the monitoring through 2008 at hearing. From the period of pre-construction in 2006 through immediate post-construction, the monitoring revealed "a huge volume of erosion." WD Tr. 159. Subsequent analysis from 2007 to 2008 revealed "a huge amount of accretion that actually exceeded the amount of erosion from the previous year." Id. The volumes of erosion and accretion "seemed abnormal." Id. The bottom line, however, of the two years of data is that the early erosion was more than countered by the accretion that occurred into 2008. After describing the impacts in the first two years of monitoring, Mr. Trudnak stressed the importance of what was revealed by additional monitoring. "[M]ore important is the long term trend . . . ." Id. From 2006 through 2009, the monitoring area "as a whole, actually accreted, it gained sand." WD Tr. 160. Determining the impacts to the beach caused by the Walton Project is complicated because of impacts caused by behavior of the beach at the time of construction and earlier. Consistent with the Department's "critically eroded" designations, data from March of 1996 (not long after Hurricane Opal), data from June, 2004 (before Hurricane Ivan) and 2006 pre-construction data showed the shoreline adjacent to the Walton Project Area to have been receding landward at a rapid rate. This "background" erosion is due mainly to the effects of tropical storms. In the wake of the dredging of the Walton Borrow Area it was difficult for Taylor Engineering to determine what impacts were caused by "background" erosion due to tropical storms and what impacts were caused by the dredging of the Walton Borrow Area. In contrast, it is not difficult to determine from monitoring data in the three years after construction of the Walton Project, however, that the beach west of the borrow area has accreted and that this appears to be the long-term trend. WD Tr. 159. Contrary to conclusions Petitioners would have drawn from the evidence presented by their experts, the more comprehensive data indicates that the Walton Project (including its borrow area) is having a beneficial impact on the beaches to the west of the project and its borrow area. Dr. Young opined on behalf of Petitioners that the problem with the OK-A Borrow Area Impact Analysis is that it is based on modeling which is far inferior to "real world" data. His opinion that actual data is superior to data generated by modeling, no doubt, is sound. The only "real world" data that will prove any impacts for sure, whether adverse or beneficial, from a dredged OK-A, however, is after-the-fact monitoring data. Such data is usually obtained annually after the construction of a project or after major storm events. It consists of obtaining near-shore and offshore monitoring profiles and involves determining shoreline changes and volumetric beach changes. In the absence of data from monitoring impacts of a dredged OK-A, Dr. Young opined that the data derived from monitoring the Walton Borrow Area, which showed erosion early after completion of the Project, is superior to the modeling data reviewed by Taylor Engineering in predicting impacts to Santa Rosa Island beaches. There are two problems, however, with Dr. Young's conclusion. First, beach impacts after the dredging of the Walton Borrow Area do not necessarily support similar impacts from a dredged OK-A because the two borrow areas are materially different. Second, the trend revealed by the more comprehensive data gathered in the wake of the dredging of the Walton Borrow Area is that the beach is receiving impacts that are beneficial. Reasonable persons might differ as to the outcome of reasonable assurances with regard to impacts based on the testimony of Mr. Trudnak and Drs. Dally and Young. The balance, however, swings clearly in favor of the applicant in consideration of the testimony of Ralph Clark. Mr. Clark's Review of OK-A Impacts Ralph Clark is a Registered Professional Engineer in Florida. The recent recipient of the Stan Tate Award from the Florida Shore and Beach Preservation Association, a lifetime achievement award for work over the years in beach preservation, and the Murrough P. O'Brien Award from the American Shore and Beach Preservation Association, at the time of hearing, Mr. Clark had worked for 37 years for the State of Florida as a coastal engineer. During his long career, Mr. Clark has worked on the State's two separate regulatory programs in the arena of beach management: a "Wet Beach Program, which is working below Mean High Water and includes projects such as beach restoration" WD tr. 485, and "the more dry beach program which involves construction seaward of Coastal Construction Control Lines and activities landward of Mean High Water . . . ." Id. He has been involved with the Department's Beach Management Program, a grants program for cost-sharing with local governments to develop a long-term comprehensive management plan for the state to solve critical impact problems around Florida which may include erosion. He has conducted or prepared the Critically Eroded Beaches Report every year "going back to the late 1980's" id., and he has "conducted Beach Erosion Studies and Storm Damage Impact Investigations around the State for the past four decades." WD Tr. 486. Specific duties of Mr. Clark's include the review of "scopes of work and project feasibility studies that are provided . . . by the [Department's] Beach Management Section." Id. In this capacity, Mr. Clark conducted the Department's engineering review of the Okaloosa Island Application and additional information related to the Project. On the basis of Mr. Clark's review and his testimony, it is found that "the project is a well designed hurricane protection project that is critically needed to restore the beaches of this beach community of Okaloosa Island " OI Tr. 519. The Project will protect recreational benefits and wildlife habitat in addition to providing necessary storm protection. The placement of 940,000 cubic yard of sand fill as called for by the Draft JCP will provide a significant amount of storm protection from the storm surge and waves of hurricanes or lesser storms that had impacts to the beaches and shores in the Project area. See OI tr. 520. The excavation of the sand from OK-A for the Project along with the excavation of sand from OK-A for all of the other projects the borrow area serves is not expected to have any adverse impacts to the beaches of Santa Rosa Island, including the beaches within the Project area. See WD tr. 488. Mr. Clark's opinions that the Project would be beneficial to the beach and dune system in Okaloosa Island and that the excavation of OK-A is not expected to have adverse impacts have a solid base. His opinions are founded on extensive experience with beach restoration projects over 37 years; extensive experience with coastal processes, coastal morphology, and coastal hydrodynamics; review of the application and supporting information; experience with the Project area and vicinity; extensive experience with coastal storm impacts and beach erosion; and review of roughly three dozen technical documents. Mr. Clark has reviewed 136 beach restoration projects. Of these, 111 were in Florida, six in other states and Puerto Rico, and 19 in countries on every continent in the world other than Asia. But coastal engineering experience in Asia is not missing from Mr. Clark's resume. He has conducted beach erosion control projects and coastal and shore protection projects (as distinguished from beach restoration projects) in that continent as well. Among the "countless number," WD tr. 490, of such projects he has reviewed are ones in the Netherlands, Denmark, Italy, Turkey, Egypt, China, and the Bahamas. Id. The reason his experience extended beyond the State of Florida to nations all over the world is because "the Florida Beach Preservation Program is internationally recognized." Id. The State has received many requests for technical assistance from various world governments. Mr. Clark has also in his time away from his employment with the state served as a consultant to the governments of Mexico, the Cayman Islands, and the Island Nation of St. Bartholomew and the French West Indies. Mr. Clark has investigated the impacts of 83 tropical storms in the Gulf of Mexico. Most investigations have been in Florida but some have been in other Gulf states and along the coast of the country of Mexico. During some of those investigations and while acting as a coastal engineer for the state, Mr. Clark visited the vicinity of Santa Rosa Island 176 times, excluding academic field trips. In his capacity as a state coastal engineer, Mr. Clark provided the Department with detailed damage assessments for each of the eight tropical storms noted in the Consolidated NOI for the Western Destin Project. During his 37 years of service, Mr. Clark has been on numerous task forces, committees and technical advisory groups relating to erosion control and beach management efforts by states along the Gulf and Mexico. Mr. Clark's early reports were used in the development of the state's Strategic Beach Management Plan and he prepared the first "Critically Eroded Beaches in Florida document," WD tr. 494, now electronically available to the public on the Department's website. Mr. Clark performed the "Critically Eroded Shoreline" evaluation for the beaches and shoreline subject to the Project. Storm Protection It is reasonable to expect that hurricanes in the future will have impacts on Okaloosa Island. "Okaloosa Island is completely vulnerable to the impact of a storm surge or waves from, not only a hurricane, but lesser storms and is in need of coastal protection." OI Tr. 536 The best defense against 25-year, 50-year, and 100- year storm events is beach restoration. Comparison to Other Borrow Area Impacts The OK-A Borrow Area is an offshore borrow area. Mr. Clark gave a few examples of other borrow areas that are offshore borrow areas and that are as large as OK-A. These were borrow areas used in the restoration of beaches in Panama City, Delray Beach, Canaveral Shoals, and Anna Maria Island. In addition to Taylor's Borrow Area Impact Analysis Report, Mr. Clark based his opinion on review of monitoring data for the many restoration projects with which he has been involved. Mr. Clark has reviewed borrow area impacts on beach restoration projects that have had adverse impacts. But these projects, typically, were "in inlet ebb tidal deltas of tidal inlets." WD Tr. 518. Located about three miles east of the ebb shoal of East Pass, OK-A is not an inlet-related borrow area. Of the 111 beach restoration projects that Mr. Clark reviewed, there was one that had an off-shore borrow area that adversely impacted the adjacent beach: the Anna Maria Island Project. The Anna Maria Island Borrow Area was located "roughly 1,000 feet off the [adjacent] beach . . . ." WD Tr. 519. In comparison, OK-A "is four to five times further offshore than the Anna Maria Island borrow area." WD Tr. 520. If instead of OK-A, the Project were to use a borrow area as close to the shore as the Anna Maria Island Borrow Area, its impacts to the shoreline would be both adverse and beneficial. The impact to adjacent beach would be erosion, but to the beach to the west of the borrow area the impact would be accretion. Mr. Clark's opinion of no impacts to the beach from dredging OK-A would be entirely different if OK-A had been located in the near-shore zone where "it's a whole different ball game." WD Tr. 532. The location of OK-A, between 4,000 and 5,000 feet offshore is in a zone that is "no problem," that is, it is not in the near-shore and far enough off shore that it will not cause impacts, adverse or beneficial, to the beaches and shores of Okaloosa County. Modeling and Dr. Young's Opinions For all his experience and coastal engineering prowess, Mr. Clark is not an expert in modeling. He relies on others within the Department to evaluate the sufficiency of a model or its methodologies. Mr. Clark did not ask anyone in the Department to evaluate the models used by Taylor Engineering. Dr. Young disagreed with the opinions of Mr. Trudnak and Mr. Clark that there would be no adverse impacts to the beach. He was sure that the dredging of OK-A would cause an adverse impact that would be either erosion or a decrease in the accretion that occurred in recent years along the beaches of Okaloosa Island. Dr. Young also cast doubt on Mr. Clark's experience as support for the opinion that dredging of OK-A would cause no adverse impacts. "Nobody believes there's ever been an adverse impact from a borrow area . . . ." WD Tr. 1206. Dr. Young used the "real world" experience with the Walton Borrow Area to back up that doubt. "[T]he problem is that we're not doing a good job of monitoring this project [the Walton Project] and the problem is convenient interpretation of the monitoring results." Id. Dr. Young's doubt about the value of Mr. Clark's experience was tempered by the reality of beach restoration in contrast to other types of projects whose failure was sudden, dramatic and easily discernible. Dr. Young: [W]hen a bridge collapses, civil engineers converge on that failed project and they learn more from that failure than they could ever learn from a bridge that lasted 30 years. And . . . one of the problems with coastal project design is that never happens. We never have a beach nourishment project that disappears in six months or a borrow area that causes erosion and coastal engineers converge from around the country and say, wow, here's a project that went wrong. And I think that is one of the hurdles that we need to cross in order to do a better job of project design. * * * We have no clear definition of what a failed project is. So, that way you can never have one that fails. And to me, a failed project is one that does not meet the promises made in the design of that project. And a failed project is also one where there are impacts that occur as a result of the project that are not adequately mitigated or anticipated. WD Tr. 1150-1 (emphasis added). When asked the question of whether there is a definition of a failed beach restoration project in the literature or that is generally accepted by the coastal engineering community, see WD tr. 1152, Dr. Young testified, "I have not seen one." Id.. He added, "I would assume they might offer a similar definition [to mine], if the project doesn't work the way we said it would, then we would consider that a failure. But there is certainly not large scale discussion of projects that did not perform as designed." WD Tr. 1152-3. Dr. Young, like Dr. Dally, did not perform any analysis to quantify any degree of erosion or decreased accretion. Nor has he ever performed modeling to analyze borrow area impacts in keeping with his view of the inutility of modeling for accurate prediction of beach impacts. Other Projects Constructed with OK-A Fill The OK-A Borrow Area is the sand source for other projects, several of which have been completed. Of the 7 million cubic yards of sand in OK-A, 1.1 million has been removed for other projects, including two projects on federal property that is part of Eglin Air Force Base, referred to as sites A-3 and A-13 (the "Eglin Projects"), and a small 2600-foot stretch of beach in Destin, referred to as the Holiday Isle Emergency Project. The Eglin Projects The Eglin Projects were completed in May 2010. During the construction phase of the Eglin Projects, hopper loads of OK-A Fill were analyzed on the basis of silt content. "[A] visual shell content analysis and a grain size analysis and color analysis" OI tr. 219, was also conducted on the hopper loads of OK-A Fill. An analysis of carbonate content was not conducted during the construction phase because of expense. Carbonate content analysis was saved for later after "post construction sampling." Id. The Eglin Projects were governed by a Sand Quality Control and Quality Assurance Plan (the "Sand QC/QA Plan") approved by the Department. The Okaloosa Island Project is also governed by a Sand QC/QA Plan. Sand QC/QA Plans The Department requires an application for beach restoration to include a Sand QA/QC Plan by rule: The application shall contain the following specific information: * * * (k) Two complete sets of construction plans and specifications . . . . The plans shall include the following: * * * 4. Permit applications for . . . beach restoration . . . shall include: * * * Quality control/assurance plan that will ensure that the sediment from the borrow sites to be used in the project will meet the standard in paragraph 62B-41.007(2)(j), F.A.C. [the Sand Rule] Fla. Admin. Code R. 62B-41.008(1). The purpose of a Sand QC/QA Plan was explained at hearing by Dr. Koch. It provides an outline of a level of observation and testing that has to be done during construction and post-construction. It provides remediation measures if fill is placed on the beach that is not "beach compatible fill" as defined in the Sand Rule. It is not a method by which the Department obtains reasonable assurance of compliance; reasonable assurance is obtained by the Department through "review of the sediment data." See OI tr. 705. The QC/QA Plan is more like "an insurance policy." Id. If something were to happen that was unexpected or not in compliance with the Sand Rule, the QA/QC Plans ensure that the "dredger is not going to be dredging outside the limits that's . . . outlined in the plan." OI Tr. 706. If non-compatible beach fill "were to be placed on the beach, [the QC/QA Plan] outlines triggers for [remediation] so that [remedial] action can be taken immediately." OI Tr. 707. Application of the Sand QC/QA to Eglin Project A-3 A few of the hopper loads used on Eglin A-3 failed. "One or two had a carbonate content greater than 5 percent. A couple had a grain size that was a millimeter or two under the acceptable range." OI Tr. 220. Given that the hopper used in the Eglin A-3 Project holds 2,500 cubic yards of material and that DEP requires compliance over an area of 10,000 square feet, "sand from one hopper load [that failed] could be blended in with sand from other hopper loads." Id. The remedial measure employed in the Eglin A-3 Project of blending non-compliant fill with good fill did not succeed. Mr. Trudnak offered at hearing that the OK-A Fill used at the Eglin A-3 Project had "a higher percentage of dark material," OI tr. 216, than the fill used in the Emergency Holiday Isle Project and therefore, the sand color in the restored Eglin A-3 Project "is inferior to the [sand color of the restored beach in the Emergency] Holiday Isle Project." Id. The darkness of the material used in the Eglin A-3 Project was confirmed by aerial photography conducted by Dr. Young a month after construction was completed. See discussion, below. Mr. Trudnak attributed the inferior quality of the fill used in the Eglin A-3 Project to the area of OK-A from which it was taken: the southeast and south central portions. Fill taken for the Emergency Holiday Isle Project which Mr. Trudnak opined was superior from the standpoint of color was taken from OK-A's southwest corner. Mr. Trudnak's assessment of the inferior color of the sand placed in the Eglin A-3 Project, however, was not revealed by testing of four post-construction samples taken on May 27, 2010 and tested on June 2, 2010. Those four samples all yielded recorded results for Munsell color at the lightest (and predominate) color assigned to the native beach: 5Y 8/1 or as the post construction testing results admitted into evidence show: "5Y Chroma 1 Value 8." See OI County Ex. 13. These tests results call into question the validity of the tests and other test results of the quality of the sand that is OK-A Fill. Sand Quality Quartz and Carbonate; Native Sand Quartz or Silicon Dioxide, a principal constituent of ordinary sand, is a brilliant, crystalline mineral, occurring in abundance in the earth's crust, most often in a colorless, transparent form. Quartz is usually present in beach sands in high percentages. Like quartz, carbonate also occurs in abundance in the earth's crust and is often present in beach sand. The source of carbonate in beach sand is mainly shells of organisms like clams and scallops. But carbonates that are not from shells also occur in marine environments. These non-shell carbonates may also be constituents of beach sand. The sand on the beaches of Okaloosa Island is predominately quartz and contains an extraordinarily low amount of carbonates. The references to Okaloosa Island beaches as being composed of "sugar white sand" and the beauty of their color which drew the Sherrys to Okaloosa Island is due to their general character as predominately "quartz" beaches to an unusual degree rather than as beaches with a significant amount of carbonate content or other content that would make the color other than "sugar white." As Dr. Young put it in the section of his report which analyzed the carbonate content of OK-A Sand used at A-3, the Eglin East Beach Restoration Project: Okaloosa Island sands are renowned for their unique, mature, quartz composition providing a "dramatic landscape of drifted blinding white sand that often puts northern visitors in mind of snow;" to quote the Walton County Chamber of Commerce website. This project [the Eglin East Project] has replaced that pure quartz sand with beach fill [that] would rank the beach as the highest carbonate content beach on the Panhandle. OI Petitioners' Ex. 40, (un-numbered 5th page). The awareness of the quality and color of Okaloosa Island beaches is accepted by all of the parties to this proceeding. Taylor Engineering, the County's agent, wrote the following in section 3.3 of its Sand Source Investigation Report, entitled "Color Analysis": Residents and visitors cherish the beaches of Okaloosa County for their very white clean sand. Thus, renourishment activity must address maintenance of the native beach sand color. * * * The color analysis determined the Munsell color classification of all the native beach sand samples in Okaloosa County. Taylor Engineering described the majority of them as Munsell Color 5Y8/1 (white) and described several other samples as 5Y 7/1. Notably, the native beach, having been exposed to sunlight and weathering over long periods of time, is lighter in color than in situ potential borrow materials identified in previous sand source investigations . . . . OI Petitioners' Ex. 42 at 16, OKC41283 (emphasis added). In order to ensure that the County's restoration efforts in Okaloosa Island would "address maintenance of the native beach sand color" and other characteristics of the sand native to Okaloosa Island, Taylor and the County made significant effort to comply with the Department's Sand Rule. The Sand Rule Rule 62B-41.007 is entitled "Design, Siting and Other Requirements." Section (1) sets out requirements in general for coastal construction. Section (2) provides special guidelines. Subsection (j) of Section (2) (the "Sand Rule") sets out the guidelines for "beach compatible fill" to be used in coastal construction projects including the beach restoration of the Okaloosa Island Project. The Sand Rule reads as follows: 62B-41.007 Design, Siting and Other Requirements. * * * Coastal construction shall be designed in accordance with established engineering and scientific practice, and the following special guidelines: * * * To protect the environmental function of Florida's beaches, only beach compatible fill shall be placed on the beach or in any associated dune system. Beach compatible fill is material that maintains the general character and functionality of the material occurring on the beach and in the adjacent dune and coastal system. Such material shall be predominately of carbonate, quartz or similar material with a particle size distribution ranging between 0.0062mm (4.0F) and 4.76mm (-2.25F)(classified as sand by either the Unified Soils or the Wentworth classification), shall be similar in color and grain size distribution (sand grain frequency, mean and median grain size and sorting coefficient) to the material in the existing coastal system at the disposal site and shall not contain: Greater than 5 percent, by weight, silt, clay or colloids passing the #230 sieve (4.0F); Greater than 5 percent, by weight, fine gravel retained on the #4 sieve (- 2.25F); Coarse gravel, cobbles or material retained on the 3/4 inch sieve in a percentage or size greater than found on the native beach; Construction debris, toxic material or other foreign matter; and, Not result in cementation of the beach. If rocks or other non-specified materials appear on the surface of the filled beach in excess of 50% of background in any 10,000 square foot area, then surface rock should be removed from those areas. These areas shall also be tested for subsurface rock percentage and remediated as required. If the natural beach exceeds any of the limiting parameters listed above, then the fill material shall not exceed the naturally occurring level for that parameter. Fla. Admin. Code R. 62B-41.007(2)(j) (emphasis added). In compliance with the Sand Rule, the Department seeks to ensure that fill placed on the beach in a restoration project maintains the general character and functionality occurring in the coastal and dune system adjacent to the beach that is the placement site. If a beach is predominately quartz, then the fill should be predominately quartz. The same is true for a beach that is predominately carbonate; the fill to restore that beach should be predominately carbonate. It is the general character and functionality of sand on the beach and the adjacent coastal and dune system where the fill is to be placed that is the baseline against which the Department determines the compatibility of fill. Fill compatible with one beach in Florida is not compatible with all beaches in Florida. Fill that is predominately carbonate, for example, might be compatible with many beaches in the state; it would not be compatible with the predominately quartz coastal and dune systems adjacent to the beaches of Okaloosa Island. OK-A Fill: Not Compatible The environmental functions the Department considered when applying the Sand Rule to this case are nesting habitat for turtles, nesting and foraging habitat for shorebirds and general habitat for beach mice. There may be overlap between the general character of the material at issue and its environmental functionality. Color, a sand characteristic, is a component of the general character of sand. Color can also relate to environmental functionality. It has an effect, for example, on the temperature of the sand which, in turn, determines sex ratios for turtle hatchlings as well as the incubation period for turtle eggs. Sand color, therefore, has an effect on environmental function related to sea turtles. To the extent it affects thermal characteristics of beach sand, color can affect other organisms whose habitat includes beaches. The County and the Department presented evidence that the fill from OK-A ("OK-A Fill") will maintain the environmental functionality on the Project's beaches. The evidence presented by Petitioners to rebut the evidence of the County and Department as to environmental functions or functionality otherwise was insubstantial. The fill from OK-A will maintain the environmental functionality of the Project's placement site. In contrast to environmental functionality, the evidence established that OK-A Fill will not maintain the general character of the native beach subject to the Okaloosa Island Project beach. The finding that the fill will not maintain the general character of the placement site is based on three factors: 1.) carbonate content, 2.) color, and 3.) the presence of 3/4 inch material. Carbonate Content Native Beach Taylor Engineering's Sand Search Investigation Report, see Petitioners' OI 42, Case No. 10-2468, determined the carbonate content of the native beach in Okaloosa Island to be 0.00%. Most beaches in Florida have shell and carbonate content. Carbonate content of "0.00%," therefore, is highly unusual and it underscores the unusual if not unique character of Okaloosa Island beaches. Taylor's determination of "0.00%" carbonate content of the native beach was based on acid digestion tests conducted by Ellis & Associates, a certified laboratory. While there may be other ways of objectively determining carbonate content, acid digestion is the best method. Carbonate content cannot be determined on a percentage basis visually. To arrive at an accurate acceptable percentage, acid digestion is required. See Deposition of Gregory William Stone, Ph.D., at 22. Taylor Engineering conducted tests on 16 sand samples collected by Taylor at four different monuments on the beach and from the adjacent dune system in Okaloosa Island. At R-1 and R- 6, samples were taken at "Mid-Berm," mean high water and mean low water. At R-11 and R-16, samples were taken in areas of dune vegetation, at the dune toe, Mid-Berm, mean high water and mean low water. (Samples were also taken by Taylor in areas of dune vegetation and at the dune toe at R-1 and R-6. These samples were excluded from the analysis by Ellis and Associates because they represented "non-native dune restoration sand trucked in from an upland source." OI Joint Ex. 3G at 2.2). Each of the 16 samples of native beach sand yielded a calcium carbonate content of "0.00%." There was other evidence that indicated that beaches of Okaloosa Island must contain some amount of carbonate, no matter how small, despite Taylor Engineering's testing and analyses that yielded carbonate content at 0.00%. Dr. Stone, the County's witness, testified that in the Okaloosa Island portion of Santa Rosa Island carbonate "is in the swash zone . . . where the waves break, and the water is pushed up and then falls back under gravity." Deposition of Gregory William Stone, Ph.D., at 12. Carbonates from shells are always present in swash zones. Dr. Stone had not conducted carbonate analyses of the native sand and could not testify as to what percentage of Okaloosa Island beach sand is carbonate. During storms, however, large shell fragments are pushed onto the beach. The conflict in the evidence as to the extent to which Okaloosa Island beach sand contains carbonates is resolved by the following. The carbonate content of the native sand is extraordinarily low, at a figure that approaches zero. OK-A Fill Carbonate The persuasive evidence in this case establishes that the carbonate content of OK-A Fill is so much higher than the carbonate content of the sand native to Okaloosa Island beaches that, for this Project, OK-A Fill is not "beach compatible fill," as defined by the Sand Rule. Supportive of the finding is Dr. Young's credible analysis of the OK-A Fill used in the Eglin East Project. The analysis appears in OI Petitioners' Exhibit 40 (marked as "DOAH Case No. 10-2468, Exhibit Sherry 40"), entitled: "Analysis of carbonate content for the Eglin (East) beach nourishment project." Dr. Young acquired 21 random samples of beach sediment in August of 2010 from the Eglin East Project after construction using a sampling grid and ArcGIS. Criticized by the Department because the samples were all taken close to the shoreline and none were taken within the back of the berm to the back of the dune, his methodology for selecting and collecting the samples is found to be reasonable nonetheless. The samples were subjected to standard procedures including "Acid Digestion" for the determination of insoluble residue as an estimate of carbonate content. The data from Dr. Young's "acid digestion/insoluble residue determination," see OI Petitioners' Ex. 40 at 4, show carbonate content to range from as low as 3.89% to as high as 11.81% (using rounded figures). The averaging of the percentage of carbonate content for the 21 samples yields an average carbonate content for OK-A fill of 6.29% (a rounded figure). In addition to Dr. Young's carbonate content results for OK-A fill used in the Eglin East Project, carbonate content acid digestion testing results of OK-A Sand was introduced into evidence as part of the Sand Source Investigation. See OI Petitioners' 42. Table 5.5 of the document, id. at 36, shows that 61 vibracore samples were taken from different locations and different depths at the locations in OK-A. Of the 61 vibracore samples, 24 were subjected to analysis for carbonate content. Several were rejected because they were out of the area to be dredged. The acid digestion tests conducted on Taylor's behalf for the samples selected to be included in the results yielded an average carbonate content of OK-A fill at 3.77%. The carbonate content of OK-A fill, whether measured by Dr. Young or Taylor Engineering, significantly exceeds the carbonate content of seven beaches along the Panhandle of Florida tested for carbonate. These beaches stretch from Perdido Bay in Escambia County to the West to the Walton County 30 A Corridor in the east (with Okaloosa Island being in the middle). The carbonate content in these seven beaches averages 0.6%. The beach with the highest carbonate content of the seven (denominated "Perdido Bay" by Petitioners' Exhibit 3) is located in Escambia County. It is shown to have a carbonate content of 1.4%. Of the seven, the beach with the lowest carbonate content is "Okaloosa Island" at "0." OI Petitioners' 3. The restored beach subject to the Project, therefore, would change from prior to restoration to having either no carbonate content or almost none to being the beach on the panhandle, at least as to its restored portion, with the highest carbonate content by a significant margin. The fill to be used in the Project is not "beach compatible fill" because it will not maintain the general character of the pre-Project sand from the standpoint of carbonate content. 2. Color Unlike the objective testing (acid digestion) that was used to determine the carbonate content of OK-A Fill and sand native to Okaloosa Island, the color of the fill and native sand was determined subjectively. Color determinations were made at various stages in the application process prior to the issuance of the Consolidated NOI. One determination was made when Taylor Engineering conducted an investigation (the "Sand Bleaching Investigation") into how much time it would take for OK-A Fill to lighten up and to what degree it would lighten after it had been excavated and exposed to sunlight and the atmosphere. The investigation led to a report issued in October of 2008 (the "2008 Sand Bleaching Report"). Another determination was made by Ellis and Associates, the laboratory which contracted its work with Taylor. The determinations were reported in a document entitled "Eglin AFB/Okaloosa County/Destin Sand Source Investigation- Okaloosa County, FL" dated October of 2009 (the "2009 Sand Source Report"). Other determinations were made by Department personnel. All of the various color determinations made at the different steps employed the Munsell Color System. The Munsell Color System In Florida, the Munsell System is used to assess the color of beach sand and sand fill used in restoration projects. The Munsell Color System assigns color notations composed of the three dimensions of a color sphere it uses as a model. The three dimensions of the sphere represent hue (five colors of the rainbow and five colors in between each of the five colors), value (lightness), and chroma (saturation or color purity). With regard to hue, Section 3.3 entitled "Color Analysis" of Taylor's Sand Source Investigation Report states, "The hue notation of a color indicates its relation to red, yellow, green, blue and purple." OI Petitioners' Ex. 42 at 16, OKC41283. Hues are identified in Munsell notation by one of ten alphabetical notations that are either a single letter and a number or two letters and a number. The single letter notations indicate the color, "R" for red, "Y" for yellow, "G" for green, "B" for blue and "P" for purple. The double-letter notations are also color notations: "YR" for yellow-red (orange), "GY" for green-yellow, "BG" for blue-green, "PB" for purple-blue, and "RP" for red-purple. The number notation is for one of ten degrees or shades of each hue. The hue that bears a five is not influenced by the adjacent hues. Thus, "5Y" is completely yellow without any influences of "green-yellow" or "yellow-red." The hues that matched the colors of the sand analyzed in this case were either "Y" which stands for "Yellow" or "YR," "yellow-red." The value notation in the Munsell Color System indicates lightness. The Munsell symbols for value span from 0 for absolute black to 10 for absolute white. "Thus, a value of 5 falls visually midway between absolute white and absolute black." Id. The chroma notation "indicates strength or departure from a neutral of the same lightness." Id. The lower the chroma number and the higher the value, the lighter is the color. Munsell color charts used in this case describe a value of 8 and a chroma of 1 to be "white." Thus sand classified as "5Y 8/1" would be a hue of "yellow" that approaches "white" because of value and chroma. Sand classified as "5y 7/1" or 5Y 7/2" as allowed by the permit would not be called "white" but rather, from what appears in Table 1.1 of the Sand Bleaching Investigation Report a grayish shade of "yellow." See OI Joint Ex. 3F at 2. Allowable Color Table 1 of Attachment G to the Application sets out "Sediment Characteristics" as part of the Draft Sand Quality Control and Quality Assurance Plan [the "Draft Sand QC/QA Plan"] for Eglin AFB/Okaloosa Island Beach Restoration Project." OI Joint Ex. 1G. Allowable Moist Munsell Color proposed by the Draft Sand QC/QA Plan for "Native Beach" is "2.5Y 7/1 or lighter." Id., Table 1. For "Borrow Area Acceptable Material Limits," it is "2.5Y 6/2 or lighter." Id. The values of the borrow area were applied for at "6" or lighter because "70 percent of [OK-A] sand has a Munsell value of 7 or lighter and, roughly, 30 percent has value of 6." OI Tr. 362. The moist Munsell colors the Application proposed to be considered as the color of the native beach and acceptable colors for OK-A Fill were not approved by the Department. The Draft JCP set the two, respectively, at "5Y 7/1 - 5Y 8/1" and "5Y 7/2, 2.5Y 7/2, or lighter." OI Joint Ex. 11, last page (un- numbered). A "5Y 7/2" is darker than "5Y 7/1," which in turn is darker than "5Y 8/1," the lightest color assigned by the Draft JCP to the native beach. A "2.5Y 7/2" shares the same value and chroma as a "5Y 7/2" but its hue is not a true yellow; it is of a hue closer to yellow-red (orange) than is the full yellow hue "5Y." Immediately after being dredged, OK-A Fill is darker than the native beach sand. For the time it has been at the bottom of the Gulf, it has not been exposed to natural forces that Taylor hypothesizes to affect the color of the sand on Okaloosa Island's beaches. Native Okaloosa Island beach sand, subject to sun, winds and waves, on the other hand, in Mr. Trudnak's view, has "been in an environment where it's really cleaned up." OI Tr. 212. The Sand Bleaching Investigation conducted by Taylor Engineering concluded that OK-A Fill lightens up once it is dredged and exposed to the elements. Sand Bleaching Investigation Before Taylor prepared its Sand Source Investigation Report that is contained in the Application, it sought to quantify how long it would take to OK-A Fill to lighten and the degree of lightening, if any, after placement on the beach. Taylor's investigation led to a report (the "Sand Bleaching Investigation" and the "Sand Bleaching Report"). See OI Joint Ex. 3F. Forty samples of OK-A fill were kept on the rooftop of a building in Jacksonville and subjected to natural conditions for at least 99 days. The samples were compared to Munsell colors. See the representation of the color of Munsell Hue 5Y in 24 panes on a chart labeled "Table 1.1 Representation of Munsell Colors Used in this Analysis" in the Sand Bleaching Report, OI Joint Ex. 3F, at 2. Values range from 4 to 8 with half steps between each value (4.5 and 5.5, for example) and chromas of 1, 2 and 3. The difference between "5Y 6/1" and "5Y 8/1" is obvious to the human eye. See OI Joint Ex. 3F at 2. The comparison of a sample of sand to Munsell colors and the grading of the sample leading to the assignment of the three Munsell color dimensions do not constitute objective, scientific measurement. Instead, it is merely a visual comparison by the person conducting the test. "[I]t is a subjective test." OI Tr. 237. The grading of the values in Taylor Sand Bleaching Investigation was determined visually by two Taylor employees. As Ms. Naimaster, one of the two Taylor employees testified, "[w]e held the sand up to the book." Naimaster Deposition at 9. Ms. Naimaster did not have any specialized training in use of the Munsell Color System. She was taught how to use the system by the other Taylor employee involved in the grading of the samples, Mr. Hall. Together, the two graded the samples toward the aim of determining the time it took for them to lighten and the degree of lightening. Mr. Hall and Ms. Naimaster reached the conclusion that the majority of the samples taken in the Sand Bleaching Investigation, when exposed to the elements on a Jacksonville rooftop lightened one value, say, "from a Munsell 7 to a Munsell 8 or a Munsell 6 to a Munsell 7." OI Tr. 214. They agreed on most of the comparisons of the samples pre-exposure to the samples post-exposure. When they disagreed, they worked collaboratively: We held the sample up to the book, and he said what he thought, I said what I thought, and we decided together, who was closer. Naimaster Deposition at 11. Mr. Hall, Ms. Naimaster's trainer, was a 27-year old Taylor staff engineer with a Masters of Engineering from Cambridge University in England at the time of his deposition in July 2010. His sole experience with sand bleaching consisted of the work he did that led to the 2008 Sand Bleaching Report. Prior to that work, he had no experience in sand bleaching. Whether quartz sand grains change color when exposed to sun, wind, and water was unknown to Mr. Hall at the time of his deposition. His description of the grading process during the Sand Bleaching Investigation matched Ms. Naimaster's: they agreed on the color selections for the samples "approximately 80 percent of the time; and then on the ones we disagreed, it was fairly quick to come to a consensus." Jonathan Hall DEPO-10- 2468 at 15. The lightening observed by Mr. Hall and Ms. Naimaster did not occur because of a change in the quartz in the samples. It occurred because of changes in the impurities in or on the quartz. Sand Source Grading and Review While anybody can look at a sample of beach sand and compare it to a Munsell color sheet and come up with a subjective determination of the Munsell color dimensions to be assigned, Taylor Engineering relied on a certified laboratory, Ellis and Associates, to conduct the grading of OK-A Fill during the Sand Source Investigation. See OI Tr. 237. The Sand Source Investigation report was also reviewed by Dr. Jennifer Koch, a coastal geologist with the Department, including "the color tests for each of the individual samples." OI Tr. 663. Her review, when it came to color consisted of cross-checking the color data that was provided. Although based on "data" (the samples and the Munsell Color sheets), her review was not conducted using objective standards. It was visual and subjective as she explained: You look at the color information for every individual sample. And then . . . a Vibracore or a portion of borrow area and you kind of look from there. Kind of like creating composites in the same way as you would with sediment data. You look at the overall color and you look at the individual sample color and compare that to what's existing on the beach. OI Tr. 686. Dr. Koch also visited other beach restoration projects to examine OK-A Fill in use. Later, Dr. Koch did her own color testing on samples using the Munsell Color System when she returned to her office. But before she left, Dr. Koch took pictures of the beach restoration in the emergency Holiday Isle project in which OK-A Fill was used. They appear in Department Exhibit 42. The pictures show the fill material to be clearly darker than the native beach sand. Nonetheless, Dr. Koch's assessment of the OK-A Fill used during the Holiday Isle Emergency Project is that "[t]he material was beautiful and it was beach compatible." OI Tr. 703. The Department concluded that the County had provided reasonable assurance that the OK-A Fill material to be used in the Project is beach compatible in every way, including color. The Department's Exhibit 42 establishes that the color of OK-A Fill after placement at Holiday Isle is significantly darker than the native beach. Dr. Young's testimony and other photographs in evidence relate to the color of OK-A Fill more than 100 days after it had been placed on the beach. The testimony and photographs establish that the color of the fill from OK-A is significantly darker than 5Y 8/1, the predominate color of Okaloosa Island native sand, after it has been on the beach for a time long enough to have received the effects of weathering claimed by the Sand Bleaching Investigation Report. The color of the native beach in A-3, one of the Eglin Projects, is rated as 5Y 8/1 or 5Y 7/1, the same as the native beach subject to the Okaloosa Island Project. In Dr. Young's aerials, taken from about 500 feet on June 21, 2010, the line between the restored beach and the native beach is easily seen by their color difference, the fill from OK-A being obviously darker. Sand Source Report Color Conclusions The Sand Source Report states the following: The color analysis determined the Munsell color classification of all the native beach sand samples in Okaloosa County. Taylor Engineering described the majority of them as Munsell Color 5Y 8/1 (white) and described several others samples as 5Y 7/1. Notably, the native beach, having been exposed to sunlight and weathering over long periods of time, is lighter in color than in situ potential borrow materials identified in previous sand source investigations (see Section 2.2). To help establish acceptable borrow material color criteria, the current study evaluated the effects of sun bleaching on sediment color. The color test exposed 40 potential offshore borrow material samples - representing various core borings collected during the detail phase of the investigation (Chapter 5) - to the Florida sun between 12/7/2007 and 3/17/2008 (99 days). Of the 40 samples, 23 began as value 7 and 13 began as value 6. The samples represented various vibracore depths, ranging between 0 ft and 18 ft. The test results, presented in Table 3.5, indicate that all samples with a Munsell value/chroma of 7/1, 7/2, or 7/3 turned white or nearly white (value of 8) due to weathering within 99 days of placement. Approximately 85% of placed sand with a Munsell value/chroma of 6/1, 6/2, or 6/3 lightened in value to at least 7 within that same period. * * * Importantly, the weathering analysis discussed above likely underestimates the level of lightening the beach fill will experience for two reasons. First, the borrow material will undergo a rigorous washing effect through particle abrasion as the sand travels through the dredge pipes during dredge loading and offloading. Second, wind and waves will weather the beach fill. The weathering analysis did not account for such weathering actions. OI Petitioners' Ex. 42, Section 3.3, at 16-17 (emphasis added). The methodology employed in the Sand Source and Sand Bleaching Investigation tests, however, was not scientific. See OI tr. 1424. Explanations The County offered several explanations to minimize the disparity between the quality of sand in OK-A Fill when first placed on the beach and the quality of the sand native to Okaloosa Island. Sand raking is an explanation offered for the low carbonate content of the native sand as determined by Taylor Engineering. "The county has been mechanically cleaning the beaches for close to two decades. Depending upon . . . the season, it's either once every day . . . [or] twice a week . . . [t]hese machines pick up things as small [as] cigarette butts and they've been picking up . . . shells, as well . . . ." OI Tr. 97. The darkness of OK-A Fill used in the Eglin Projects and the darkness of the OK-A Fill in general was attributed by Dr. Stone and Dr. Koch to heavy mineral content. Heavy minerals or iron-bearing minerals occur naturally in Florida Panhandle beach sand and in sand offshore. Dr. Stone's testimony about iron-bearing minerals suggested that OK-A Fill prior to dredging is in an anerobic environment and therefore will lighten when exposed to oxygen in the beach environment was refuted by Dr. Young. As Dr. Young testified, sediments in an anerobic environment are in a reduced form that "tend to look black or gray on the Munsell chart." OI Tr. 1424. Sediments from an anerobic environment are termed "gley," which indicates the presence of reduced iron. The OK-A Fill pumped onto the beach in the Eglin A-3 Project "tend to look more tan or brown, which suggest that the iron in them has . . . been oxidized." OI Tr. 1424-25. Iron imparts much of the color of sediment. If the iron in OK-A Fill has been oxidized prior to excavation, it is not "gleyed." It cannot be expected that it will oxidize and lighten after exposure to air. See tr. 1425 and 1426. As recognized by all parties OK-A Fill at the moment of excavation is darker than the sand native to the beaches of Okaloosa Island. When it is initially placed on the beach, the evidence demonstrates that the rigorous washing effect from particle abrasion as it is piped ashore does not lighten it sufficiently to meet the "whiteness" of the color of the native sand as hoped for by Taylor and the County as the result of their investigations. Aerial photographs of the Eglin A-3 Project taken four weeks after the completion of the project demonstrate "how easily one can . . . delineate the boundaries of the project based entirely on color being assessed at a height of about 400 feet." See OI Petitioners' 8-DDD and 8-GGG. The Eglin A-3 Project was completed at the end of May in 2010. Dr. Young visited the Eglin A-3 site "four or five times," OI tr. 1422, in late June, August and on November 30, 2010. During those visits, including the last visit more than 180 days or six months since completion of the project, he did not observe the OK-A Fill to have "bleached or lightened in color." Id. 3. 3/4 Inch Material Native sand in the beach subject to the Project has little to no material that would be retained on a 3/4 inch sieve. Photographs of OK-A Fill used in the Emergency Holiday Isle Project and at the Eglin A-3 Project were introduced into evidence. They demonstrate the presence in OK-A Fill of an amount of shell material that would not pass through a 3/4 inch sieve much greater than is present on the beach subject to the Project. After the Emergency Holiday Isle Project, an effort was made to remove shells that were in the OK-A Fill deposited on the beach. How much the shell weighed that was removed or how many days of tilling or screening to remove the shells was not established. Mr. Trefilio, the Coastal Management Coordinator acting on behalf of the County "told our contractor to use his professional judgment to basically remove as many shells as possible." OI Tr. 140. Dr. Young' visit to the Eglin A-3 Project and his personal observation establish that the OK-A Fill used at the A-3 site contains a significant amount of shell material that would not be retained on a 3/4 inch sieve. The fill from OK-A already excavated and used in other projects contains material that would be retained on the 3/4 inch sieve in a percentage significantly greater than the percentage of that material on the beach subject to the Project. It is highly likely that any fill taken from OK-A to be used in the Project would contain unacceptably-sized material at significantly greater percentages than on the native beach. Regulatory Public Interest Section 373.414 requires the County to provide reasonable assurance that the activity authorized by the JCP "will be clearly in the public interest" (as opposed to "not contrary to the public interest") since a portion of the OK-A Borrow Area is in an OFW. The statute provides: In determining whether an activity . . . is clearly in the public interest, . . . the department shall consider and balance the following criteria: Whether the activity will adversely affect the public health, safety, or welfare or the property of others; Whether the activity will adversely affect the conservation of fish and wildlife, including endangered or threatened species, or their habitats; Whether the activity will adversely affect navigation or the flow of water or cause harmful erosion or shoaling; Whether the activity will adversely affect the fishing or recreational values or marine productivity in the vicinity of the activity; Whether the activity will be of a temporary or permanent nature; Whether the activity will adversely affect or will enhance significant historical and archaeological resources under the provisions of s. 267.061; and The current condition and relative value of functions being performed by areas affected by the proposed activity. § 373.414(1)(a), Fla. Stat. The Department determined the Project to be clearly in the public interest. In doing so, the Department did not consider the Project's "non-environmental" impacts to the property of others under the authority of Miller v. Dep't of Envtl. Reg., 504 So. 2d 1425 (Fla. 1st DCA 1987). Criterion 1 A distinction is to be drawn between effect on the public health, safety and welfare, on the one hand, and the property of others, on the other hand. The project will not adversely affect the public health, safety or welfare of others. To the contrary it will serve the public health, safety and welfare. The restoration will protect upland structures and property vulnerable to extreme storm events and waves and storm surge should they occur during the life of the Project. The Project will affect the property of the Sherrys and Mr. Donovan by placing sand on the beach waterward of their condominium property that is not beach-compatible fill. The effect is likely to be adverse but to what extent is not established by this record. Criterion 2 The draft permit contains minimization measures during construction to protect endangered and threatened species such as turtles, shorebirds, and mice. The restoration of a critically eroded beach increases the habitat for endangered and threatened species. The environmental assessment developed to address potential impacts to threatened or endangered species, supplemented with literature review of the effects of beach restoration on natural habitat, demonstrates that there will be little to no adverse impacts with the exception of to the benthic infauna communities. Any adverse affects to the benthic infauna communities would be temporary. These communities rebound quickly. The temporary impacts are not considered adverse and they are certainly not significantly adverse. Dr. Robbin Trindell, the Biological Administrator for the State of Florida Management Program, reviewed the Project and concluded that OK-Fill is acceptable for turtle nesting. The conclusion was based on the grain size information submitted by Dr. Stone and from working with the Department's biologists. Criterion 3 The Project will not affect navigation. It is far from inlets and a significant distance from East Pass, which connects Choctawhatchee Bay to the Gulf. The Project may cause erosion, but it may also cause beneficial impacts to the shoreline. Harmful shoaling will not be caused by the Project. Criterion 4 Fishing is not expected to be impacted by the Project. The recreational value of the beach should increase. Marine productivity would not be affected adversely with the exception of the temporary impact to benthic infauna, an impact that would not be adverse in the long term. Criterion 5 The activity will be temporary. Criterion 6 There are no significant historical and archaeological resources in the project area. Criterion 7 The current condition and relative value of functions being performed by the areas affected by the Project will remain the same. It will continue to be a recreational beach adjacent to the Gulf. It will continue to provide habitat to endangered species and wildlife and will provide storm protection. Variance and Conditions The northern boundary of OK-A is within Outstanding Florida Waters ("OFW"). In a letter dated October 14, 2009, Taylor Engineering on behalf of the County requested three variances from rule provisions in chapter 62-4, which governs "Permits," as follows: [W]e request a variance from the provisions of Rule 62-4.244(5)[(c)], F.A.C., to establish a temporary mixing zone greater than 150 meters in an Outstanding Florida Water; a variance from the provisions of Rules 62-4.242(2)(a)2.b., 62-302.700(1), and 62-312.080(3), F.A.C., to establish a maximum allowable turbidity level above background levels for work with an Outstanding Florida Water; and a variance from the thirty-day time period, pursuant to Rule 62-4.242(2)(a)2.b. F.A.C., in which elevated turbidity levels may occur within a mixing zone located in an Outstanding Florida Water. OI Joint Ex. Vol. 3, Ex. 12. Rule 62-4.244(5)(c) which governs "Mixing zones: surface waters" provides: In no case shall the boundary of a dredge and fill mixing zone be more than . . . 150 meters in radius in . . . bodies of water [other than flowing streams], where these distances are measured from the cutterhead, return flow, discharge or other points of generation of turbidity or other pollutants. Rule 62-302.700(1) is in the rule chapter that governs "Surface Water Quality Standards." Entitled "Special Protection, Outstanding Florida Waters, Outstanding National Resource Waters," it provides: It shall be the Department policy to afford the highest protection to Outstanding Florida Waters and Outstanding National Resource Waters. No degradation of water quality, other than that allowed in subsections 62.4.242(2) and (3), F.A.C., is to be permitted in Outstanding Florida Waters and Outstanding National Resource Waters, respectively, notwithstanding any other Department rules that allow water quality lowering. (emphasis added). Rule 62-312.080(3) is in the rule chapter that governs "Dredge and Fill Activities". It provides: "[n]o permit shall be issued for dredging or filling which . . . is within an outstanding Florida Water unless the applicant complies with Section 403.918(2), F.S. (Supp. 1192), and Rule 62-4.242, F.A.C." (emphasis added). Both rules 62-302.700 (an OFW anti-degradation rule) and 62-312.080(3) (an OFW anti-degradation rule applicable to dredging and filling) allow an exception when the applicant complies with rule 62-4.242. Rule 62-4.242(2) sets "standards applying to Outstanding Florida Waters." Subsection (a)2.b of section (2) of the rule reads as follows: (a) No Department permit . . . shall be issued for any proposed activity . . . within an [OFW] or which degrades an [OFW], unless the applicant affirmatively demonstrates that: * * * 2. The proposed activity . . . is clearly in the public interest, and . . . * * * b. the existing ambient water quality within [the OFW] will not be lowered as a result of the proposed activity . . . , except on a temporary basis during construction for a period not to exceed thirty days . . . . [the "Thirty-Day Requirement]. The Department referred to the three variances in its Consolidated NOI as the "Variance" (in the singular rather than the plural). The Department reviewed the request for the Variance under section 403.201(1): Upon application, the department in its discretion may grant a variance from the provisions of this act or the rules and regulations adopted pursuant hereto. Variances and renewals thereof may be granted for any one of the following reasons. There is not practicable means known or available for the adequate control of the pollution involved. Compliance with the particular requirement or requirements from which a variance is sought will necessitate the taking of measures which, because of their extent or cost, must be spread over a considerable period of time. A variance granted for this reason shall prescribe a timetable for the taking of the measures required. To relieve or prevent hardship of a kind other than those provided for in paragraphs (a) and (b). Variances and renewals thereof granted under authority of this paragraph shall each be limited to a period of 24 months, except that variances granted pursuant to part II may extend for the life of the permit or certification. The Department determined that the Variance could be granted to the County for either of the first two reasons, (a) or (b), listed in section 403.201(1). Petitioners do not attack the Variance, however, for failure to meet the requirements of section 403.201(1). Instead, they attack the Variance for failure to satisfy section 120.54(2) [the "APA Variance Statute]: Variances and waivers shall be granted when the person subject to the rule demonstrates that the purpose of the underlying statute will be or has been achieved by other means by the person and when application of a rule would create a substantial hardship or would violate principles of fairness. The APA Variance Statute requires that two elements be met for a variance to be granted pursuant to it: 1.) the purpose of the underlying statute will be or has been achieved by other means; and 2.) violation of fairness (not at issue) or hardship. Hardship Nephelometric turbidity units ("NTUs") in OFWs cannot exceed zero at the edge of the 150-meter radius referenced in rule 62-4.244(5)(c). To keep NTUs at zero outside the 150-meter radius, the County "would have had to almost continually be shutting down . . . .[its hopper] dredge," WD tr. 415, because the turbidity plume created by the hopper dredge's activity would have regularly extended beyond the 150-meter radius. The Variance "allows an anti-degradation allowance of . . . 3 NTU's above background rather than zero NTU's above background at the edge of that mixing zone." WD Tr. 438. Use of a different type of dredge (such as a cutterhead) would not alleviate the need for the Variance for the construction of the Project. A cutterhead dredge is substantially more expensive with regard to both mobilization costs and actual dredging: $15-$20 per cubic yard versus $8 per cubic yard for a hopper dredge. Cutterhead dredges, moreover, do not operate in waves as effectively as hopper dredges. In rough water, "a cutterhead would see much more down time and conditions [could cause] a cutterhead . . . to stop dredging and go into safe harbor into East Pass." WD Tr. 173. The Variance from rule 62-4.244(5)(c), therefore, was needed because the standard-size mixing zone would have created a substantial hardship for the County. Furthermore, the Department had determined that the Project is clearly in the public interest. While the existing ambient water quality within the OFW is likely to be lowered for more than thirty days by the dredging in OK-A, it will not be lowered for more than ninety days, a "temporary" period. It would be a substantial hardship to require the County to meet the mixing zone standards in rule 62-4.244(5((c) and the 30-day requirement in rule 62- 4.242. b. Underlying Statutes: Achievement of Purpose The statutes implemented by the rules covered by the request for the Variance are provisions in either chapter 403 or 373, which control water pollution or protect water resources. No resources in the area, such as hard bottom or sea- grass beds, will be affected by a turbidity plume and an expanded mixing zone. The Department reached the conclusion that the purposes of the underlying statutes would be achieved. The conclusion was based on background knowledge from permitting of borrow areas and beach projects "all over the Panhandle," WD tr. 421, and the data gathered from them including "data from side scan sonar from seismic information all along this area." Id. Included in this background is knowledge of a similar mixing zone of 1,500 meters established for one of the Eglin AFB beach restoration projects which excavated OK-A with a hopper dredge and in which the 1500-meter mixing zone was determined to be appropriate. Independent of the information provided by the County, the decision was founded on the Department's own knowledge that no resources would be impacted by an expanded mixing zone and that there was a comparable project in the area that had been allowed a 1500-meter mixing zone. There were at least two other mitigating factors that the Department entertained as support for its decision. First, because of the difficulty in controlling turbidity in open waters in the Gulf, the 1,500-meter mixing zone established by the Consolidated NOI actually "is on the small side," WD tr. 422, of a mixing zone for the dredging of a borrow area to serve a beach restoration project. Second, 29 NTUs is the maximum turbidity allowed in waters that are not OFW. An extended mixing zone to allow the County to exceed 29 NTUs outside OFW was not granted as part of the variances under the Consolidated NOI. Deepwater Horizon Oil Spill 346. Rule 62B-49.005(16) provides: If site conditions change during the processing of an application to such an extent that the data already provided can no longer be used to determine consistency as provided in this chapter, then the application shall be denied unless the applicant agrees to waive the 90 day time requirements of Chapter 120.60, Florida Statutes, and provides the additional information required to reanalyze the application. After the filing of the Application, malfunction of British Petroleum's Deepwater Horizon offshore oil rig in the Gulf of Mexico led to the Oil Spill, a discharge of a massive amount of oil and natural gas into the Gulf of Mexico. No evidence was presented that showed the Oil Spill had caused impacts to the OK-A Borrow Area. The permit was revised, nonetheless, to add language in the wake of the Oil Spill that requires the County to visually inspect the borrow area prior to construction activity and to analyze sand samples from the borrow area. The County, therefore, plans to send a diver to collect samples to be analyzed for contamination. See WD tr. 175. Prior to the completion of the Emergency Holiday Isle Project, the County hired E-Tech Environmental Consultants to monitor and inspect OK-A. On August 9, 2010, a team of divers investigated the bottom of the borrow area for evidence of oil constituents. "Nothing out of the ordinary was seen on the bottom at the borrow site." OI Tr. 402. The team of divers collected samples at the same time they conducted their visual observation. The samples were sent to Pace Analytical Services in Ormond Beach, Florida, and were received there on August 12, 2010. The results of the analysis showed the presence of no oil constituents. Furthermore, no oil was found in the OK-A Fill pumped onto the beach during the Emergency Holiday Isle Project. A similar inspection, observation, sampling and testing of samples will be conducted prior to the commencement of operation on the Okaloosa Island Project. The QA/QC Plan and the Sand Rule cover foreign material (including oil). The plan and the rule should be sufficient to protect the beaches from oil contamination.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is recommended that the Department of Environmental Protection issue a Final Order that denies the application of Okaloosa County for issuance of the Joint Coastal Permit for the Okaloosa Island Beach Restoration Project. Denial of the JCP renders the request for the Variance moot. DONE AND ENTERED this 22nd day of September, 2011, in Tallahassee, Leon County, Florida. S DAVID M. MALONEY 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 22nd day of September, 2011. COPIES FURNISHED: Gregory T. Stewart, Esquire Nabors, Giblin & Nickerson, P.A. 1500 Mahan Drive, Suite 200 Post Office Box 11008 Tallahassee, Florida 32302 Joseph Alexander Brown, Esquire Hopping Green & Sams 119 South Monroe Street, Suite 300 Tallahassee, Florida 32301 Harry F. Chiles, Esquire Nabors, Giblin and Nickerson, P.A. Post Office Box 11008 1500 Mahan Drive, Suite 200 Tallahassee, Florida 32308 D. Kent Safriet, Esquire Hopping Green & Sams, P.A. Post Office Box 6526 Tallahassee, Florida 32314 Kelly L. Russell, Esquire Department of Environmental Protection The Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Richard S. Brightman, Esquire Hopping, Green & Sams, P.A. Post Office Box 6526 Tallahassee, Florida 32314 Edward A. Dion, Esquire Nabors, Giblin, & Nickerson, P.A. 208 Southeast Sixth Street Fort Lauderdale, Florida 33301 Walter C. Thompson, Jr. Barkley and Thompson, LC 1515 Poydras Street, Suite 2350 New Orleans, Louisiana 70112 Lea Crandall, Agency Clerk Department of Environmental Protection Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Herschel T. Vinyard, Jr., Secretary Department of Environmental Protection Douglas Building 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Tom Beason, General Counsel Department of Environmental Protection Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000
