The Issue The issue in this administrative proceeding is whether the Florida Department of Transportation’s ("DOT" or "the Department") denial of Petitioner’s, Network Engineering Services, Inc. d/b/a Bolton Perez & Associates ("BPA"), 2019 application for qualification pursuant to section 337.105, Florida Statutes, and Florida Administrative Code Chapter 14-75, was for good cause due to Petitioner’s participation in the construction of the Florida International University ("FIU") City Prosperity Project ("FIU Bridge project").
Findings Of Fact DOT is the state agency responsible for coordinating the planning, construction, and maintenance of a safe, viable, and balanced state transportation system. DOT relies on qualified contractors and professional consultants to provide services for Florida’s transportation needs. Section 287.055(3), Florida Statues, requires that any firm or individual desiring to provide professional services to a governmental agency must first be certified by the agency as qualified, pursuant to law and the regulations of the agency. The agency must find that the firm or individual to be employed is fully qualified to render the required service. Among the factors to be considered in making this finding are the capabilities, adequacy of personnel, past record, and experience of the firm or individual. Each agency is also required to evaluate professional services, including capabilities, adequacy of personnel, past record, and experience of the firm or individual. Section 337.105 and Florida Administrative Code Chapter 14-75 also governs the qualifications of professional consultants and other contractual services providers to DOT. Section 337.105 authorizes DOT to deny or suspend an application for qualification based upon a determination of "good cause," which includes, but is not limited to, nine illustrative examples specified in section 337.105(1)(a)–(i). DOT may, for good cause, deny or suspend for a specified period of time a person or firm from consideration for award of a professional service contract for a particular type of work. BPA is a multidiscipline engineering firm specializing primarily in transportation related engineering services, including bridge design, roadway design, civil works, construction engineering inspection ("CEI"), and program and construction management. At the time of the hearing, BPA had approximately 38 employees. BPA was formed by Joaquin "Jake" Perez, P.E., and John Bolton, P.E., in 1997 to provide transportation-related engineering services. BPA’s CEI qualifications are independent from, and do not necessarily mirror, BPA’s design qualifications. In some instances, BPA was qualified to serve as a CEI for categories of structures that the firm was not qualified to design. This is because BPA was internally divided into two core groups: design and CEI. Since inception, BPA’s design group was and continues to be headed by Mr. Perez, and the CEI group headed by Mr. Bolton. The operations of BPA’s CEI and design groups were completely segregated within the firm. CEI personnel did not work on design projects, and design personnel did not work on CEI projects. As President, Mr. Perez was involved in pursuing contracts for CEI services, but CEI services were provided only by CEI personnel. In or about 1999 or 2000, BPA first became qualified to respond to DOT’s request for qualifications to provide professional services to DOT. Mr. Bolton qualified the firm to provide CEI services, and Mr. Perez qualified it to provide design services. BPA remained qualified with the Department on an annual basis for both CEI and design work for nearly 20 years until July 2019. At that time, DOT issued a NOID removing BPA from consideration for award of professional service contracts with DOT for 2019- 2020. DOT issued the NOID based solely upon a report issued by OSHA and the investigation of NTSB regarding the collapse of the FIU Bridge project on March 15, 2018. THE FIU PEDESTRIAN BRIDGE PROJECT In 2014, DOT entered into a Local Agency Program ("LAP") Agreement with FIU for its pedestrian bridge project, a Category II, complex bridge, that would be constructed along Southwest 109th Avenue and Southwest 8th Street in the City of Sweetwater, Florida (the "project"). As the supervising agency of the LAP program, DOT was responsible for supervising and authorizing work by the local agency. The design of a Category II structure required an independent peer review by a firm with no other involvement in the project, which was prequalified with DOT. In September 2016, FIGG Bridge Engineers, Inc. ("FIGG"), the Engineer of Record ("EOR") for the project, hired Louis Berger to review FIGG’s plans for bridge foundation, substructure (end bents and center tower), and superstructure. Those plans included construction sequencing (including construction sequence drawings), the covered main span pre-casting, transport of main span, and placement of the main span between end bent 1 (south pier) and the pylon pier. The plans also included the post-tensioning stressing and destressing sequences. As the Local Agency, FIU was in responsible charge of the day-to-day activities, including project safety issues. Alfredo Reyna, P.E., was the Department’s LAP Coordinator for the project. Mr. Reyna is a licensed professional engineer, although he is not a structural engineer. In January 2016, FIU entered into a design-build contract1 with Munilla Construction Management, LLC ("MCM"), to design the bridge and to perform all work and furnish all materials, equipment, supplies, and labor necessary to construct the project. The bridge was designed by FIGG, a member of the MCM design-build team and the EOR. FIGG is a reputable designer who has been recognized internationally for its work. FIGG has experience in designing complex bridges, such as the Sunshine Skyway Bridge near Tampa, Florida. On September 23, 2016, FIU entered into a Standard Professional Services Agreement with BPA for CEI services (the "CEI Contract"). At the 1 The interaction of the local agency, contractor, designer, EOR, DOT, and the CEI is different between a "conventional" and a "design build" bridge project. In a conventional project, the designer is hired by DOT or owner to create a new bridge. The design goes through a review process at DOT and a final set of plans goes to bid for a contractor. By the time the contractor is selected, the EOR has completed the plans. The EOR is essentially "on call" for the construction phase of the project because the design work is complete. The CEI begins its work when the contractor begins construction. If there is a question in the field, the CEI makes a request for information from the EOR. DOT supplies design and construction managers throughout the process. In contrast, for a "design build" project, the owner has a conceptual plan for the project. The designer and contractor bid for the job based on the preliminary conceptual plan. The Designer/EOR and contractor work hand in hand from the beginning of the project and are in constant communication. The CEI begins work when the contractor starts work on the project. The CEI facilitates the resolution of any issues between the EOR/designer and the contractor who continue to plan throughout the duration of the project. Like a conventional build project, DOT has construction managers and design project managers involved from the beginning of the project. If concrete cracking occurs, it is the CEI's obligation to document the cracking and speak to people in the process who can assess and address the cracking. For a conventional build bridge, if cracking is observed, the CEI documents it, copies DOT, and sends it to the EOR for assessment. The EOR provides an assessment by conducting a site visit. The EOR then prepares an Engineering Assessment Report (EAR) for the project team. In a design build bridge job, if cracks are observed, they are documented by the CEI who notifies the EOR. The EOR, who is already on the job site, assesses the cracks and works with the contractor to devise a solution. time, John Bolton was the CEI qualifier for BPA. As CEI, BPA was to act as the liaison between the project owner (FIU) and the contractor (MCM). The CEI handles quality control, materials, schedules, payments, documents the entire process, and monitors the project. Jose Morales, P.E., worked under John Bolton as the Senior Project Engineer for the project. Mr. Morales first obtained his professional engineer’s license in 2006. He had approximately 12 years of CEI experience at the time of the collapse. Although he was the Senior Project Engineer for the project, Mr. Morales had little-to-no design experience. Mr. Morales was first involved in the early stages of pursuing the CEI Contract for the project. After the project was awarded, BPA was not involved in the design phase, but was later brought back into the fold beginning in October 2016, when BPA received the Notice to Procced and fully staffed its CEI scope of services when construction was scheduled to begin in or about March of 2017. The "Scope of Services" section (Exhibit B) to the CEI Contract required BPA to be prequalified with the Department in the following work categories: Work Type 10.1--Roadway CEI; Work Type 10.4--Minor Bridge and Miscellaneous Structures CEI; and Work Type 10.5.1--Major Bridge CEI- -Concrete. For the FIU bridge project, Categories 10.1 and 10.4 were considered to be the "major" type of work while 10.5.1 was considered to be the "minor" type of work. As expressly permitted by the Standard Professional Services Agreement, BPA satisfied the 10.5.1 prequalification requirement through its sub-consultant, The Corradino Group, Inc. ("Corradino"). BPA’s scope of services for the project did not include any design responsibilities. BPA performed constructability review of the plans as part of its CEI scope of work, but it did not review the plans or drawings on a technical level. The FIU bridge was a Complex Category II structure as defined by the Department’s Design Manual. The structure had a unique, complex design that was meant to be a signature, architectural feature for the area. The relevant construction sequence for the main span (Span 1) of the FIU bridge consisted of: casting the main span superstructure in the casting yard; installing post-tension bars in the diagonal and vertical members of the structure; stressing of the main-span post-tensioning while the main span is in the casting yard; removing the temporary formwork and supports; transporting the main span from the casting yard using a self- propelled modular transporter and placing the structure in a "simply supported" condition on the south pier and pylon pier; and de-tensioning truss members 2 and 11. Generally, cracks in concrete are common and are not, in and of themselves, a cause for concern. On a design-build job, when cracks manifest themselves in a concrete element, the CEI must document the cracking and report it to the design-build team, which includes the EOR. Depending on the nature of the cracks, the CEI may request an EAR from the EOR. This process is set out in section 400, subsection 400-21, of DOT’s Standard Specifications for Road and Bridge Construction (the "Standard Specifications"). DOT's Construction Project Administration Manual ("CPAM") includes the procedures to be followed by a CEI in addressing cracks in concrete. The CPAM requires that the CEI identify and document its observations and convey the information to the EOR for a final disposition as to the potential danger of the crack or the need for further evaluation. The FIU Bridge Cracking and Inspections by BPA On or about February 6, 2018, while Span 1 of the bridge was still in the casting yard, BPA became aware of certain cracks that had developed in the structure. Mr. Morales personally inspected the structure after the tendons on truss members 2 and 11 were stressed, and he noted that cracks had developed in other locations on the bridge. The cracks observed were very small, approximately 0.004 of an inch wide. On February 13, 2018, BPA submitted Crack Report #1 to MCM, FIU, and Corradino, documenting the cracks that had developed in the concrete truss members after completing the post-tensioning operations in the casting yard. Despite the small size of the cracks, BPA requested that the EOR provide an assessment of the cracks. FIGG, the EOR, responded to BPA’s request by stating that the current condition observed was temporary in nature and that the cracks were not an issue. BPA exercised independent professional judgment when it exceeded the requirements of section 400 of the Standard Specifications and the CPAM by documenting and reporting these initial cracks. In late February 2018, before the placement of the main bridge span on the permanent pylon and south pier supports, cracks were observed in certain truss members. BPA prepared and submitted Crack Report #2 to FIU and MCM on February 28, 2018, documenting the size and location of these cracks and requested that FIGG evaluate the cracks and provide a disposition. In its report, BPA called attention to certain cracks that were significant in size. As CEI, BPA was not qualified to determine whether these larger cracks posed an imminent danger of collapse. Further, BPA’s design team was not involved in the design of the bridge and was not qualified to evaluate these cracks from a design engineering perspective due to the category and complexity of the bridge. At this point, the cracks were not "structural" as defined by Section 400 of the Standard Specifications. Cracks more than one-half inch in depth are deemed "structural" and trigger the obligation of the CEI to notify the EOR. Nevertheless, BPA, again, exercised its independent professional judgment above and beyond the requirements of the Standard Specifications and CPAM by requesting that the report be forwarded to the EOR and requesting that the EOR provide a response and disposition of the cracks. On March 7, 2018, FIGG replied to Crack Report #2, stating, in part, that the cracks appeared small, that they were not concerned about these types of cracks in the particular region shown in the report, and that MCM would need to seal the cracks in accordance with the Department’s specifications. As the EOR, FIGG did not have any structural concerns regarding the cracks in Crack Report #2. On March 7, 2018, FIGG representatives were on site and observed the cracks referenced in Crack Report #2. After observing the cracks, FIGG did not delay the bridge movement that was scheduled to take place three days later on March 10th. As of March 8, 2018, BPA had no concerns regarding the integrity of the structure or public safety because the EOR had looked at the cracks in- person and assured the project team that the cracks were not a safety issue or structurally significant. These assurances came two to three days prior to the bridge being moved over Southwest 8th Street and placed on the permanent pylon and pier supports. The bridge movement was not delayed due to the cracks observed by the EOR. On March 10, 2018, Span 1 was moved from the casting yard and placed on the permanent pylon and south pier supports. After the placement and de-tensioning of diagonal members 2 and 11, cracks began to appear at the construction joint of diagonal 11, the deck, and at the top of diaphragm II. At approximately 11:00 a.m. on March 13, 2018, two days before the collapse, BPA circulated a draft of Crack Report #3 to MCM, recommending further monitoring and documenting of the cracks to determine whether they were active or dormant, and requesting that BPA be informed of the outcome of the EOR’s EAR and course of action. At 5:18 p.m. on March 13, 2018, the EOR responded to MCM with additional recommendations and stated "[a]gain, we have evaluated this further and confirmed that this is not a safety issue." Because BPA’s design team was not involved in the project, no BPA design personnel were aware of the documented cracking on the structure until sometime after Crack Report #3 was generated. At that time, Mr. Morales provided Mr. Perez with a copy of a draft of Crack Report #3. Mr. Perez briefly reviewed the draft report and confirmed with Mr. Morales that the CEI team had elevated the issue to the EOR. At all times in the documented communication relating to the cracks, the EOR and members of the FIGG design team represented to BPA that the cracks were not a safety concern, without reservation. Starting on March 13, 2018, FIGG directed MCM to implement an initial, temporary measure to address observed cracking in the member 11/12 nodal region. At that time, BPA was not aware of this communication between the EOR and the contractor. To restore the temporary support conditions when the structure was in the casting yard, MCM placed shims between diaphragm II and the pylon on March 13, 2018. FIGG also directed re-tensioning the post-tensioning rods in truss member 11 to begin on March 15, 2018. The re-tensioning operation was made as a "rushed request" to the post-tensioning subcontractor by MCM on March 14, 2018. "FIGG recommends to stress these PT bars as soon as possible but again, this is not a safety concern." MARCH 15, 2018, AND THE BRIDGE COLLAPSE Rather than waiting for the EAR, BPA once again exercised its independent, professional judgment and went above and beyond the requirements of the Standard Specifications, CPAM, and Contract Documents when it further escalated the issue of the cracks by calling for a meeting with the EOR. On the morning of March 15, 2018, a meeting requested by BPA and coordinated by MCM, was held in Miami, Florida. Representatives of FIGG, MCM, DOT, FIU, and BPA were present. At the March 15th meeting, BPA first became aware of the EOR’s instruction to MCM to proceed with a second temporary measure. This subsequent temporary measure was to reinstate the post-tensioning compression force back in member 11 as per the previous construction phase. As explained by the EOR, both temporary measures (shims and re- tensioning) were intended to restore the temporary support conditions when the structure was in the casting yard. Prior to the start of the meeting, the EOR, other FIGG engineers, and DOT’s LAP Coordinator inspected the bridge and the cracks in the nodal region of members 11/12. Only FIGG had structural engineers at the meeting. No other engineers present at the meeting had a background in structural engineering, including those in attendance on behalf of BPA. The meeting was called for purposes of discussing the concrete cracking on Span 1, and specifically the concrete cracking in nodal connection between truss members 11 and 12 and the bridge deck. At this meeting, BPA informed FIGG that the cracks in the bridge were lengthening and growing daily. Though not formally invited, Mr. Reyna attended this meeting in his capacity as DOT’s consultant/Assistant LAP Coordinator. At the March 15th meeting, the EOR presented FIGG's assessment of the cracking after having reviewed the three BPA crack reports and having personally inspected the cracks on at least the following two occasions: (1) prior to the bridge being moved from the casting yard over Southwest 8th Street; and (2) on the morning of the March 15th meeting. The EOR’s presentation consisted of a lengthy and comprehensive PowerPoint slide presentation on the conditions of the bridge, structural analysis by calculations and 3D modeling of the loads and forces the area of member 11/12 nodal region cracks, and an evaluation of the safety of the span over Southwest 8th Street for workers and the public. Throughout the March 15th meeting, BPA exercised its independent professional judgment by actively participating in the EOR’s presentation, questioning and challenging the EOR. For example, BPA: inquired as to whether temporary shoring was needed; sought clarification regarding the mechanism being used to capture the load from the node and whether it would have to be integrated with the pylon diaphragm; requested clarification on the amount of transferred post- tensioning assumed for the nodal shear stability analysis; inquired as to whether there were any restrictions on load; inquired as to whether there would be a crack monitoring plan; requested a copy of the EOR’s presentation; inquired as to whether it had been peer reviewed and commented that it wanted more eyes on the presentation calculations; and BPA requested a copy of the stressing procedure that was being recommended by the EOR. Throughout the presentation, and during the question and answer phase of the meeting, the EOR assured BPA and the other attendees that the structure was safe. These assurances were based on statements made by the EOR as well as its calculations and modeling, which were part of its slide presentation at the meeting. In the presentation on the slide entitled "Safety," FIGG stated that "…[it] had conducted sufficient supplemental/independent computations to conclude that there is not any concern with safety of the span suspended over the road." At the end of the presentation, the EOR concluded the meeting with "[b]ased on conservative calculations, it is concluded that the design meets LRFD strength requirements for this temporary condition and therefore there is no safety concern relative to the observed cracks and minor spalls." During the meeting, the EOR stated that some cracking similar to the ones on the structure, were expected. The EOR further stated during the meeting that the top deck spalls could not be replicated, but that the spalled areas were minor and they should be repaired during the next phase of work when the pylon concrete was to be placed. No engineer at the meeting, including DOT's representative, Mr. Reyna, requested or recommended a complete road closure to protect the public safety or that the bridge be shut down. BPA had no reason to request a full road closure of Southwest 8th Street. There was no preplanned complete road closure, there was no maintenance of traffic ("MOT") deficiency, and, based on the EOR’s presentation, BPA was reasonably satisfied that no safety issues required a road closure. Towards the end of the meeting on March 15th, MCM informed BPA that a specialty contractor, Structural Technologies ("VSL"), was already onsite to conduct the re-tensioning operation. Without BPA’s knowledge, VSL had already mobilized on site to perform the remedial re-tensioning. BPA was not involved in pre-coordination for the re-tensioning operation. Therefore, BPA’s sub-consultant, Corradino, was not onsite to participate in monitoring of the re-tensioning procedure. Corradino’s role, as BPA's sub-contractor, was that of a 10.5.1 CEI (Major Bridge CEI--Concrete). Corradino was responsible for monitoring and documenting the post-tensioning operations. The post-tensioning operation after placement of the span had already occurred and therefore, Corradino was not on-site on March 15, 2018. Based on the safety assurances and conservative calculations presented by the FIGG EOR that the structure was safe, BPA, and the other professional engineers present at the meeting, including those representing FIU and DOT, followed the recommendations of the FIGG EOR to bring the main span condition back to its pre-existing state when the span was in the casting yard. BPA did not have the expertise or the contractual duty to perform its own analysis of the cracking on this complex bridge and override, or even call into question, FIGG’s unequivocal assessment that the bridge was safe. During the restressing operation of member 11, the roadway below the bridge had two westbound lanes closed as per the blanket, two-lane, closure permit issued by DOT. This blanket, two-lane, closure permit was obtained by MCM to provide workspace underneath the bridge to conduct the remedial action. MCM obtained the blanket, two-lane, closure permit from the Department the morning of March 15, 2018, before conducting the remedial action. A CEI’s authority to request a partial or complete road closure is defined by the contract plans and roadway closure permits, which is implemented using the procedures outlined by the CPAM and the CEI Scope of Services of the CEI Contract. A CEI is authorized to request the contractor to either partially or fully close a road if there is an MOT deficiency, as contemplated by CPAM Section 9.1.8--"Recommended Action to Shut Down a Project Due to MOT Deficiencies." Lastly, a CEI has authority to request a partial or full road closure if it is aware of a safety issue. None of these conditions existed on the project in the days leading up to the collapse in light of the EOR’s comprehensive presentation regarding the cracking conditions of the bridge, strength in the area of member 11/12 nodal region, safety of the span over Southwest 8th Street, and repeated, unequivocal reassurances that the structure did not pose a safety concern. Ultimately, BPA’s authority to request a partial or complete road closure on the project was a collective effort with the Department and FIU. BPA did not have the authority or ability to act on its own to close the road. The FIU Pedestrian Bridge collapsed during the re-tensioning of the truss member 11 post-tensioning rods on the afternoon of March 15, 2018. Six people died as a result of the FIU bridge collapse, including one bridge worker and five vehicle occupants. Ten people were critically injured as a result of the FIU bridge collapse, including two BPA employees, Mr. Morales and Carlos Chapman. Mr. Chapman was on the canopy of the bridge during the re- tensioning operation, observing the work being performed by VSL and communicating the progress to Mr. Morales who was on the deck of the bridge. Because of the representations made by the EOR, neither Mr. Chapman nor Mr. Morales was concerned for his own safety or well-being when they went on the bridge on the day it collapsed. BPA’s role, responsibilities, and scope of work on the FIU Bridge project as the CEI was that of a contract administrator, not as a structural engineer with the capability to analyze the structural behavior of the bridge sufficient to determine if the cracks posed any danger of collapse. BPA had no basis, ability, or contractual obligation, to perform its own analysis of this complex structure sufficient to override the FIGG EOR’s unequivocal safety assessment and recommendations. BPA performed its CEI duties and utilized its independent professional judgement when it documented and monitored the cracks and requested an immediate structural evaluation by the FIGG EOR. Ultimately, the bridge collapse was caused by a fundamental design error. THE OSHA AND NTSB INVESTIGATIONS Shortly after the collapse, both OSHA and NTSB began investigating the causes of the collapse. OHSA completed its investigation and released a written report of its findings in June 2019.2 The June 2019 OSHA report was 2 DOT failed to enter into evidence the OSHA report on which it relies. However, prior to the final hearing, DOT filed a Motion for Judicial Notice of Reports Issued by Federal Agencies Concerning the FIU Bridge Collapse ("Motion"). The Motion was opposed by BPA on the basis that the first OSHA report was not final because a second report was issued, and is hearsay. By Order dated January 24, 2020, the undersigned officially recognized both the issued without prior review or comments from all party members who willingly cooperated with and were involved in the investigation, including NTSB and BPA. OSHA released an amended report on the collapse of the FIU Bridge project in July 2019; however, none of the amendments in the report pertained to the actions of BPA on the FIU Bridge project. NTSB completed its investigation and issued its report in October 2019. Significantly, no evidence was presented at the final hearing regarding from whom either agency conducted the investigations or drafted the reports, the qualifications or expertise of the investigators, the methodology used in the investigations, or the ability of any of the participants in the investigation to rebut the findings or conclusions. BPA willingly participated in both the OSHA and NTSB investigations, working with investigators and providing them with information, photographs, and details on the FIU Bridge project. Both OSHA and NTSB also conducted interviews of BPA personnel involved with the FIU Bridge project as part of their investigations. In its report, OSHA found that BPA failed to classify the concrete cracks, which were structural in nature, in accordance with DOT requirements. OSHA determined that BPA, as CEI, was expected to exercise its own independent professional judgment in accordance with their contract with FIU and DOT requirements. With intimate knowledge of extensive initial OSHA report and the NTSB report. Accordingly, references to the report in this Recommended Order are based upon the official recognition. As noted in the Order on the Motion, official recognition of the OSHA and NTSB reports, however, does not make the statements contained therein automatically admissible. "The distinction between noticing the contents of a record and noticing the truth of the contents resembles the distinction in the hearsay doctrine between offering an out-of-court statement simply to show it was said, and offering it for the truth of the matter asserted." C. Ehrhardt, Florida Evidence § 201.1 (2011 Edition)(quoting Wright & Graham, Federal Practice and Procedure: Evidence § 6337). Although the existence of the report and its findings were officially recognized, the greater weight of the evidence supports that the contents were not accurate as to the exercise of independent judgment of BPA. cracking on the bridge, BPA failed to recognize the bridge was in danger of collapsing, and did not recommend to FIU, MCM, or others to close the street and shore the bridge, regardless of the opinion held by the EOR. As a result, OSHA imposed a monetary fine on BPA for its conduct and failure to take appropriate action in the days leading up to the collapse of the main bridge span. In its October 2019 report (issued after the NOID to BPA in this case), NTSB found that beginning with the cracking identified on February 24, 2018, the distress in the main bridge span was active, continued to grow, and was well documented by all parties involved in the design, construction, and oversight of the bridge. Neither FIU, MCM, FIGG, nor BPA took responsibility for declaring that the cracks were beyond any level of acceptability and did not meet DOT standards. Further, NTSB concluded that under the terms and conditions of the CEI Contract, BPA had the authority to direct or authorize partial or complete road closures as necessary, acting in concert with DOT and FIU; however, none acted to close the road under the bridge, contributing to the severity of the impact of the bridge collapse. BPA POST-COLLAPSE ACTIVITIES AND 2018 APPLICATION FOR QUALIFICATION On May 3, 2018, BPA submitted its Request for Qualification for the July 1, 2018, through June 30, 2019, fiscal year ("2018 Application"). BPA’s 2018 Application was for the same Work Groups that would eventually be included in the 2019 Request for Qualification. Each work category is tied to a distinct job function. There is no relationship or similarity between CEI services (Work Group 10) and the other work groups. On June 27, 2018, DOT accepted BPA’s Request for Qualification in all work categories. In processing the application, the Department did not ask BPA any questions regarding its involvement in the project, offer any criticisms of BPA in response to the application, request to interview any BPA employees, or raise any concerns at all regarding BPA’s participation in the project. From the date of the collapse on March 15, 2018, to December 2018, DOT awarded two contracts to BPA directly for CEI and design services, respectively. During the same period, DOT allowed BPA to participate as a qualified sub-consultant on one CEI contract, three design contracts, and one traffic task work order contract. During the 2018-2019 fiscal year, before DOT attempted to suspend BPA’s qualifications, BPA was able to win several jobs in both the prime and sub-consultant role, including projects in which BPA would be providing CEI services. In October 2018, approximately seven months after the collapse, BPA applied to change its CEI qualifier from John Bolton to Jose Morales because John Bolton wanted to retire. DOT approved the request and did not object or raise any concerns with respect to Jose Morales serving as BPA’s qualifier for CEI services. On December 19, 2018, nine months after the collapse, DOT expressed concern for the first time about BPA’s role in the bridge project, staffing of current DOT projects, quality assurance/quality control ("QA/QC") plans, and professional liability insurance. DOT sent BPA a "Qualifications Letter of Concern," stating that it had "serious concerns regarding [BPA]’s involvement as the Construction Engineering Inspection consultant on the Florida International University (FIU) pedestrian bridge project[.]" DOT requested in its letter, among other things, "a detailed explanation of the firm’s actions on the FIU pedestrian bridge project and… any controls or changes in personnel, policies or practices that [BPA] has implemented subsequent to the collapse." On December 21, 2018, BPA responded to the Letter of Concern addressing each concern raised by the Department, in detail, including providing a copy of its Certificate of Liability Insurance demonstrating that there was no lapse in professional liability insurance coverage. On February 12, 2019, DOT responded to BPA’s correspondence dated December 21, 2018, requesting additional detail from BPA relative to its revised QA/QC plan and punctuated the correspondence by stating that DOT would refuse to process any further qualification requests from BPA, including ministerial prequalification name changes, until the matter was addressed to the Department’s satisfaction. Around this time, BPA submitted a request to change its name with DOT to reflect its business name with the Division of Corporations. BPA requested that DOT update this information on its website, but DOT refused to process the request due to its concerns with BPA’s qualifications. On February 20, 2019, BPA provided further detail regarding the specific policies and procedures that have been implemented to its CEI services. Specifically, BPA provided extensive detail regarding its revised QA/QC plan, which included a section dedicated to Category II type bridge structures and included a copy of the revised QA/QC program for DOT review. DOT never responded or requested any additional information in this regard. On March 15, 2019, one year to the day after the collapse, DOT issued a Notice of Intent to Suspend BPA’s existing certificate of qualifications. DOT attempted to suspend BPA’s qualifications in all Work Groups and declare BPA non-responsible for a period of one year for good cause. DOT further claimed that BPA "failed to adequately address the Department’s concerns regarding the firm’s performance of the contract, and the [BPA] staff directly involved with the FIU project who continue to work on other Department structural contracts." No further explanation was provided as to how BPA failed to address these concerns. BPA timely responded to the Notice of Intent to Suspend by way of a Notice of Contest, requesting an administrative hearing on the issues raised therein. Despite the Notice of Contest, DOT suspended BPA’s qualification, and sent written notice to its various offices stating, among other things, that BPA had been removed from DOT’s prequalification list. Ultimately, DOT reinstated BPA’s qualifications, but never formally withdrew the Notice of Intent to Suspend. However, in reinstating BPA’s qualifications, DOT neglected to reinstate BPA’s Small Business Enterprise ("SBE") designation, which negatively affected BPA’s ability to obtain points for SBE participation. The points add value in scoring competing responses to Requests for Proposals for DOT contracts. BPA repeatedly requested that this be corrected. BPA’s requests went largely ignored for nearly two months. On April 2, 2019, after BPA had an in-person meeting with Courtney Drummond, DOT's Assistant Secretary of Engineering and Operations, BPA submitted a qualifications modifications package to replace Jose Morales, P.E., with John Bolton, P.E., as the qualifier for the CEI Work Group to address Mr. Drummond's and DOT’s concerns about BPA staff involved on the FIU project working on other DOT contracts. On April 5, 2019, in response to the Notice of Intent to Suspend, BPA provided specific facts in support of BPA’s proper performance of the CEI Contract. As an accommodation to DOT, BPA further proposed a solution to DOT's concern about the staff involved in the FIU project. BPA stated that it was "willing to immediately remove the BPA staff directly involved in the FIU Bridge project from working on any Department contracts or qualifying the company for CEI services" and resubmitted its qualifications application with those changes. 2019 BPA REQUEST FOR QUALIFICATION REJECTION On May 7, 2019, BPA submitted its 2019 Request for Qualification to the Department early due to the lack of response from DOT on BPA's April 5, 2019, correspondence. BPA sought qualifications for design work and CEI services in the same work categories it was qualified in for the prior fiscal year. On June 10, 2019, BPA’s counsel met with DOT representatives in Tallahassee to discuss several outstanding issues relative to BPA’s current qualification, the upcoming renewal, and DOT’s failure to reinstate BPA’s SBE designation. DOT responded by promising to correct the "mistake" that same day. Inexplicably, it took another two weeks and several reminders from BPA for DOT to finally correct the SBE designation. BPA’s 2018-2019 qualifications expired on June 30, 2019. The next day, on July 1, 2019, DOT untimely responded to BPA’s Request for Qualification with a letter titled "Incomplete Renewal Applications for Pre- Qualification." DOT's letter raised the same concerns regarding BPA’s involvement in the bridge project and, again, requested "a detailed explanation of BPA’s actions on the FIU pedestrian bridge project and…any controls or changes in personnel, policies or practices that BPA has implemented subsequent to the collapse." This is the same request that had been previously made by DOT in its December 19, 2018, Qualifications Letter of Concern, February 12, 2019, Qualifications Letter of Concern, March 15, 2019, Notice of Intent to Suspend, and April 26, 2019, denial of BPA’s Submittal for Modification. BPA had already provided the information requested several months prior to DOT's July 1, 2019, correspondence. On July 11, 2019, DOT issued its Notice of Intent to Deny Request for Qualification directed to BPA’s 2019 Request for Qualification. In issuing its denial of BPA’s Request for Qualification, DOT relied solely on the findings and conclusions of the June 2019 OSHA Report as they relate to the CEI services provided by BPA on the project and referenced the pending NTSB investigation. The Department’s Notice of Intent to Deny was executed by William Watts, the Department’s Chief Engineer. Mr. Watts admitted at final hearing that he does not have the training or experience necessary to evaluate a CEI’s performance on a CEI contract. Moreover, neither Mr. Watts nor DOT retained or consulted with any individuals with CEI expertise prior to issuing the Notice of Intent to Deny. When he issued the Notice of Intent to Deny, Mr. Watts was completely unfamiliar with the following: the terms of BPA’s CEI Contract; BPA’s Request for Qualification; BPA’s past performance on CEI or any other Department contract; and BPA’s professional reputation. Mr. Watts did not evaluate BPA under the criteria required by Florida Statutes and the Florida Administrative Code prior to denying BPA’s Request for Qualification for good cause. Mr. Watts did not receive any analysis from the Department’s prequalification staff regarding their evaluation of BPA’s application under the statutory criteria. Mr. Watts admitted that he was aware that BPA documented the cracking on the bridge, reported the cracking to the design-build firm, and requested an EAR from the EOR--actions which were all in accordance with BPA's obligations as CEI pursuant to the CPAM and its contractual obligations with FIU. Mr. Watts’ only reason for issuing the Notice of Intent to Deny, as Chief Engineer for DOT, was because BPA was under investigation by OSHA and the NTSB, and OSHA’s release of its June 2019 Report. However, Mr. Watts did not know the author of the June 2019 OSHA Report, whether the author of the report was qualified to evaluate the performance of a CEI under Florida Statutes and the Florida Administrative Code, or whether the author of the OSHA report did anything to evaluate BPA’s performance relative to any other CEI, at the same time, and/or in the same community. DOT did not investigate the structure or organization of BPA to determine whether the issues raised in the OSHA report, regarding BPA’s performance of the CEI Contract, would reflect negatively on other groups or divisions within BPA that provided services exclusively under other non-CEI work categories (design services). Prior to issuance of the NOID, Mr. Watts did not undertake a review of BPA’s past performance or professional reputation--both of which were beyond reproach. DOT evaluates its consultants’ performance on all projects approximately every six to eight months. These evaluations produce a score that ranges from one to five, five being the highest possible score. A perfect score of five is uncommon and a score of four is outstanding. In the five years prior to the final hearing, DOT evaluated BPA’s performance on projects involving both design and CEI services. Specifically, DOT scored BPA’s performance in Work Groups 3.1, 3.2 (Highway Design), 4.12 (Bridge Design), 5.1 (Bridge Inspection), 7.2 (Traffic Operations Design), and 10.1 and 10.3 (CEI). During that period, BPA averaged a score of outstanding to nearly- outstanding on all projects, including outstanding and nearly-outstanding scores for inspection services on bridge rehabilitation projects, which involved cracking concrete elements. In May of 2019, prior to denying BPA’s request for qualifications for the fiscal year July 1, 2019, through June 20, 2020, Mr. Drummond personally presented BPA with an award from the American Council of Engineering Companies ("ACEC"), for excellence in major urban reconstruction. Specifically, the award was for CEI services on the State Road 7 project, and the ACEC recognized two-and-a-half-years of excellence in CEI services from late-2016/early-2017 through 2019. DOT's District Construction Engineer, District 6 Secretary, and Headquarters were intimately involved in the selection and vetting process that, ultimately, resulted in BPA receiving the award. In September 2019, after denying its request and three months after the release of the June 2019 OSHA Report, DOT voted that BPA receive another award for excellence in CEI services. As a member of the selection committee, DOT chose BPA to receive an award from the Florida Transportation Builders Association ("FTBA"), for excellence on the Baker’s Haulover Bridge rehabilitation project. By this award, FTBA and DOT recognized BPA’s excellence in CEI services, which spanned from one year before the collapse to one year after the collapse. The Experts 3 Gustavo Quesada, P.E. At the Final Hearing, BPA presented the expert testimony of Gustavo Quesada, P.E., a CEI with over 30 years of experience. The ALJ finds that Mr. Quesada is a qualified expert on the standard of care for a CEI and his opinions in that regard are based on competent substantial evidence. As explained by Mr. Quesada, the role of a CEI with respect to cracks in concrete is to identify the cracks and make sure they do not go unseen or undetected and that an EOR is engaged for purposes of addressing the cracking. Pursuant to the CPAM, when a CEI encounters cracks in concrete, a CEI is required to document the observation and make a disposition on the cracks based on Section 400 of the Standard Specifications. Moving forward, the CEI is also required to monitor any changes in the cracks. A CEI is not responsible for making a determination as to whether a crack is potentially dangerous. This is a determination for the EOR, who has an understanding of the structure, its design, and how the structure is expected to behave. A CEI is not charged with making judgment calls on the design of a structure or whether its integrity has been jeopardized. BPA documented, monitored, and reported the cracks on the project in compliance with the industry standards for CEIs working on Complex Category II Bridges, as well as the relevant sections of the CPAM and Section 400 of the Standard Specifications. BPA’s Senior Project Engineer, Mr. Morales, exercised his independent professional judgment in elevating 3 DOT intended to offer Mr. Watts at hearing as an expert to testify to the "good cause" DOT had when issuing the NOID to BPA. BPA filed a Motion in Limine to exclude or limit the testimony of both Mr. Watts and Mr. Robertson. The motion was argued at the outset of the final hearing. The undersigned precluded Mr. Watts from testifying as an expert in the field of CEI. Mr. Watts was allowed to testify as to DOT's qualification process and did so as a fact witness, rather than an expert. the issue of the cracks to the EOR even before he was required to do so under the CPAM and Section 400 of the Standard Specifications. At the meeting called by BPA on the morning of March 15, 2018, BPA exercised its independent professional judgment and complied with the applicable standard of care when Mr. Morales asked the EOR a series of questions in response to the EOR’s presentation and evaluation of the cracks on the bridge. According to Mr. Quesada, professional engineers are expected to rely on other engineers with superior or specialized knowledge when exercising their independent professional judgment. BPA’s role, responsibilities, and scope of work on the project as the CEI was largely that of a contract administrator, and a liaison between FIU and MCM--not as a structural engineer with the capability to analyze the structural behavior of the bridge sufficient to determine if the cracks posed any danger of collapse. Robert V. Robertson, P.E. DOT presented the testimony of Robert V. Roberson as an expert on the standard of care for CEIs. Mr. Robertson has served as DOT's State Structure’s Design Engineer for 13 years. Mr. Robertson has been a professional engineer for 35 years. Although preliminarily accepted by the undersigned as an expert in this field, it became apparent through cross-examination that Mr. Robertson has no significant CEI experience. Mr. Robertson has not worked in the CEI industry in the last 26 years, nor has he ever graded a CEI’s performance. Mr. Robertson was not involved in the Department’s evaluation of BPA’s performance of the CEI Contract. Accordingly, Mr. Robertson's testimony was of limited value. Mr. Robertson acknowledged that the FIU bridge was a complex concrete bridge structure that required a separate design qualification and that BPA did have such qualification. Mr. Robertson admitted that BPA’s contract with FIU did not require BPA to be qualified to inspect complex concrete bridges because BPA was allowed to satisfy that particular qualification requirement of the contract through a sub-consultant (Corradino). Mr. Robertson testified that any licensed engineer with a college degree in engineering should have known, based on the photographs in Crack Report #3, that the cracks were dangerous and should have acted to stop work on the project and close the road. However, DOT's LAP representative at the March 15, 2018, meeting held prior to the bridge collapse, Mr. Reyna, a licensed professional engineer with a college degree in engineering, failed to raise any concerns at the March 15th meeting or act to cease bridge work, shore the bridge, or close Southwest 8th Street under the bridge. Mr. Robertson opined that the re-tensioning operation of the bridge should have been peer reviewed. In his opinion, BPA failed to use sufficient independent judgment. BPA, as the CEI, should have recognized the bridge was in danger and known to stop traffic and shut down the road. However, Mr. Roberston admitted that he did only a cursory review of the PowerPoint presentation provided on the morning of March 15, 2018, in which FIGG, as the EOR, stated it had no safety concerns. Mr. Robertson stated that he performed no analysis on anything other than BPA's CEI work relative to the FIU bridge. He had no information about BPA's design group or its qualification in any work category. However, he suggested the denial of BPA's application for qualification across the board, in all work categories because he questioned "the culture at BPA." Significantly, concerns regarding "the culture" of BPA was not cited by DOT as a basis for the NOID. Most significantly, Mr. Robertson testified that six months prior to the issuance of the NOID, he had a conversation with Mr. Drummond during which Mr. Drummond recommended that the qualification of all parties involved with the FIU Pedestrian Bridge project should be suspended. Importantly, this was prior to the issuance of either the OSHA or NTSB reports and seemingly with no analysis of the role of any party to the possible prevention of the bridge collapse, injuries, or loss of life. Ultimate Findings of Fact DOT failed to demonstrate that BPA, as the CEI, fell below the standard of care by failing to exercise its independent professional judgment by not acting to cease bridge work, shore the bridge, or close Southwest 8th Street under the bridge in light of the documented cracking on the structure in the days leading up to the collapse. The evidence shows that BPA documented, monitored, and reported the cracks pursuant to the CPAM, Section 400 of the Standard Specifications, and industry standards. BPA involved the EOR in evaluating the cracks even before it was required by the CPAM, Section 400 of the Standard Specifications, and industry standards. BPA was assured time and again by the EOR that the bridge did not pose a danger to the travelling public and that the structure was safe. At the meeting on the morning of March 15, 2018, BPA inquired as to whether temporary shoring was needed, and the suggestion was rejected by the EOR who had inspected the cracks on the structure just moments before the meeting. There is no evidence that BPA deviated from the standard of care for CEIs on design-build projects or that BPA failed to exercise its independent professional judgment. To the contrary, BPA met all of its obligations pursuant to contract and state regulation. DOT failed to demonstrate that BPA, as the CEI, fell below the standard of care by failing to exercise independent professional judgment by not acting to cease bridge work, shore the bridge, and close Southwest 8th Street under the bridge pending a peer review of the re-tensioning plan proposed by the EOR at the March 15th meeting. At the March 15th meeting, BPA was reasonably convinced by the EOR that the structure was safe and that the re-tensioning plan was a temporary measure that should be implemented as soon as possible. BPA had already engaged the EOR to prepare an EAR to address the cracking observed on the bridge, which would have included signed and sealed calculations and a repair protocol that would have been implemented in a later phase of construction. On March 15, 2018, the cracks were not a safety concern such that BPA should have overridden the EOR’s directive to MCM and required that the re-tensioning operation be postponed pending a peer- review of the re-tensioning plan. There is no evidence in the record that BPA deviated from the standard of care for CEIs on design-build projects or allegedly failed to exercise its independent professional judgment by allowing the re-tensioning procedure to proceed as directed by the EOR. Conversely, the evidence supports a finding that BPA acted appropriately in relying on the recommendations of the EOR who was uniquely qualified to evaluate the safety of the structure and who had specialized knowledge of its design. DOT failed to demonstrate that BPA, as the CEI, fell below the standard of care by failing to exercise independent professional judgment by not acting to cease bridge work, shore the bridge, and close Southwest 8th Street under the bridge until the Corradino Group could arrive on the project site to observe the re-tensioning operation proposed by the EOR during the meeting on March 15, 2018. Corradino’s role on the project was to monitor and document post-tensioning operations. By the time the meeting was over, MCM’s specialty contractor, VSL, was mobilized and prepared to proceed with the re-tensioning operation. BPA was not involved in the pre- coordination of this work. Ultimately, the bridge collapsed due to an inherent design error in the plans and not due to Corradino’s absence from the re- tensioning operations. The findings of the OSHA report and the pendency of the NTSB investigation, standing alone, were insufficient "good cause" for DOT to deny BPA’s 2019 Request for Qualification.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered by the Department of Transportation finding that good cause does not exist to deny BPA’s 2019 Request for Qualification. DONE AND ENTERED this 17th day of April, 2020, in Tallahassee, Leon County, Florida. S MARY LI CREASY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of April, 2020. COPIES FURNISHED: George Spears Reynolds, IV, Esquire Florida Department of Transportation 605 Suwannee Street, Mail Stop 58 Tallahassee, Florida 32399-0450 (eServed) Scott Kirschbaum, Esquire Cole, Scott & Kissane, P.A. 9150 South Dadeland Boulevard, Suite 1400 Miami, Florida 33156 Anthony Lopez, Esquire Cole, Scott & Kissane, P.A. 9150 South Dadeland Boulevard, Suite 1400 Miami, Florida 33156 George Richard Truitt, Esquire Cole, Scott & Kissane, PA 9150 South Dadeland Boulevard, Suite 1400 Miami, Florida 33156 (eServed) John Ashley Peacock, Esquire Department of Transportation 605 Suwannee Street, Mail Stop 58 Tallahassee, Florida 32399-0450 (eServed) Andrea Shulthiess, Clerk of Agency Proceedings Department of Transportation Haydon Burns Building 605 Suwannee Street, Mail Stop 58 Tallahassee, Florida 32399-0450 (eServed) Erik Fenniman, General Counsel Department of Transportation Haydon Burns Building 605 Suwannee Street, Mail Stop 58 Tallahassee, Florida 32399-0450 (eServed) Kevin J. Thibault, P.E., Secretary Department of Transporation Haydon Burns Building 605 Suwannee Street, Mail Stop 57 Tallahassee, Florida 32399-0450 (eServed)
The Issue The issues in this case are whether Respondent violated Subsections 489.129(1)(g)1., 489.129(1)(g)2., 489.129(1)(j), 489.129(1)(m), and 489.129(1)(o), Florida Statutes (2005),1 and, if so, what discipline should be imposed.
Findings Of Fact At all times material to this proceeding, Mr. Calleja had a valid and active license as a commercial certified pool/spa contractor. His license number is CP 1456568. At all times material to this proceeding, Mr. Calleja was the owner of or did business as Nautica Pools & Spa (Nautica). The Board is charged with regulating the practice of contracting in the State of Florida pursuant to Chapters 455 and 489, Florida Statutes. On April 2, 2005, Mr. Calleja, as the representative for Nautica, entered into a contract with Jack Coleman to renovate Mr. Coleman’s existing pool. From April 2005 to July 27, 2005, Nautica installed rebar in the pool and set a new skimmer. Nautica subcontracted with Prestige Gunite of Melbourne, Inc. (Prestige), to put the gunite in the pool. Gunite is concrete that is sprayed out of a hose to form the walls of the pool. Personnel from Prestige arrived on the project site on the afternoon of July 27, 2005, to apply the gunite, but did not do so because the application would have taken longer to do than one afternoon. The following day, July 28, 2005, Mr. Calleja and a crew from Prestige returned to the project. A representative from Prestige told Mr. Calleja that the steel rebar had not been laid properly. Mr. Calleja told Prestige to apply the gunite and do what was necessary to cover the steel. Mr. Calleja left the project site, and Prestige began applying the gunite. During the application of the gunite, it became evident that the first spraying of gunite was not going to cover the steel. Attempts were made to reach Mr. Calleja, but Mr. Calleja was not available to solve the problem. Prestige began applying additional coats of gunite in an attempt to cover the steel. After the gunite was applied, two problems were identified. The first problem was in the fountain area. The gunite had not been applied properly, and there were hollow areas. The second problem was in the wet deck area. The steel rebar was too close to the surface of the floor, and the steel was visible. In order to remedy the problems, the concrete in the areas would have to be jack hammered to remove the concrete, and new gunite would have to be applied. By letter dated August 28, 2005, Nautica requested Mr. Coleman to pay Prestige $954.57. Nautica advised Mr. Coleman that when that amount had been paid, Nautica would pay the balance owed to Prestige and forward a release to Mr. Coleman. Mr. Calleja claimed that Mr. Coleman owed the $954.57 because Mr. Coleman had damaged Mr. Calleja’s saw. In the letter, Nautica acknowledged that there was additional work which had not been completed. The letter was signed by Mr. Calleja’s wife. Mr. Calleja had verbally told Mr. Coleman that he wanted Mr. Coleman to pay him $2,000.00, and he would take care of paying Prestige. The general specifications in the contract required that the contractor was responsible for “[s]tandard structural engineering plans and permits required by code.” Prior to commencing work on the pool renovation, Mr. Calleja did not secure the required building permits for the project. Mr. Coleman called Clifford Stokes, who is the building official with the town of Indialantic, and asked whether a permit had been issued. Mr. Stokes went to the project site. At that time, the gunite had been shot, and there was exposed steel rebar. Since no permit had been pulled, no inspection had been done after the steel was put in place. On September 15, 2005, Mr. Calleja applied for a building permit. Because the steel had been placed, and the gunite shot, it was impossible to do a visual inspection to determine whether the steel had been placed properly. In order to get a permit after the construction had been commenced, certain affidavits had to be submitted to the building official of Indiatlantic. Mr. Calleja had to submit an affidavit stating that the steel had been placed properly. An affidavit stating that the work had been performed properly had to be submitted from an engineer, who had made a site visit to the project and had determined that the work performed had been according to code. Additionally, Mr. Coleman was required to submit an affidavit that stated that he understood that no inspection had been done of the work by the building official. Mr. Calleja also had to pay a fine to Indiatlantic for commencing work without a building permit. On October 19, 2005, Mr. Calleja and Robert Lee from Lee Engineering came to the project site for the purpose of preparing the affidavits necessary to secure a building permit. Mr. Calleja did not return to the project site after October 19, 2005. Mr. Coleman sent a letter to Mr. Calleja dated October 13, 2005, noting that no work had been done on the project since July 28, 2005, and requesting that Mr. Calleja remedy a number of deficiencies with the work performed on the project and complete the job in accordance with the contract. The letter was returned to Mr. Coleman by the postal service because the time for forwarding mail from the address listed in the letter had expired. When Mr. Calleja came to the project site on October 19, 2005, Mr. Coleman requested a current address from Mr. Calleja, but Mr. Calleja refused to give him one. Mr. Coleman wrote another letter to Mr. Calleja dated October 25, 2005, again stating that no work had been done since July 28, 2005, and requesting that Mr. Calleja correct the deficiencies in the work and complete the contract. Mr. Coleman filed an action in small claims court attempting to recover the money for the lien filed by Prestige. However, Nautica had filed for bankruptcy, and Mr. Coleman did not proceed with the small claim action. A building permit for the project was issued in January 2006. The issuance of the building permit did not relieve Mr. Calleja from the responsibility of assuring that the work in the shallow end of the pool area where the rebar was sticking up was redone properly. After the building permit was issued, neither Mr. Calleja nor Mr. Coleman called for inspections by the Indiatlantic building official. The permit expired in June 2006. After the issuance of the building permit, Nautica performed no further work on the project. The total contract price was $9,340.00. Mr. Coleman and Mr. Calleja entered into an addendum to the contract on July 27, 2005, which increased the contract price to $13,000.00. The contract called for a down payment of $934.00, which was ten percent of the contract amount. After completion of excavation and the form and steel work, a payment of $3,736.00 was due, representing 40 percent of the total work. After completion of the pool shell, a payment of $2,802.00 was due, representing 30 percent of the total work. Prior to plastering, which represented 20 percent of the total work, a payment of $1,868.00 was to be paid. The contract addendum of $3,660.00 called for 50 percent of the addendum amount to be paid at the completion of the pool shell, and the remaining 50 percent of the addendum amount was to be paid at the completion of the pool. By check dated April 22, 2005, signed by Mr. Coleman’s wife, Mr. Coleman paid Mr. Calleja $1,000.00 as down payment on the project. In June 2005, Mr. Coleman gave Mr. Calleja a check for $573.42 for a pool and spa light. Mr. Coleman was to receive a credit of $380.00 toward the contract for the light. Additionally, Mr. Coleman overpaid Mr. Calleja by $166.90. By check dated July 27, 2005, and signed by Mr. Coleman’s wife, Mr. Coleman paid Mr. Calleja $7,396.00. This payment was to include half of the addendum amount, but Mrs. Coleman inadvertently included the full amount of the addendum. By check dated August 1, 2005, and signed by Mrs. Coleman, Mr. Coleman paid Mr. Calleja $739.10. Thus, by August 1, 2005, Mr. Coleman had paid Mr. Calleja, $9,682.00 on the contract. In December 2005, Mr. Coleman asked a representative of Paradise Pools, Patrick McDonough, to come to the project site and give an estimate to complete the pool. The estimate of $7,800.00 from Paradise Pools was for a cosmetic plaster of the existing pool, and the work was not warranted against leakage. Mr. McDonough would not warrant the work, because he saw a lot of potential liability problems with the work performed by Mr. Calleja. Mr. McDonough did not recommend that a cosmetic plaster be performed because of the potential problems. On October 26, 2005, Prestige filed a Claim of Lien against the property of Mr. Coleman for $4,227.40 plus interest, costs, and attorney’s fees. The lien was for the work which Prestige had performed on the project on July 28, 2005, and for which Mr. Calleja had failed to pay. Mr. Coleman called Mr. Calleja and told him that a lien had been filed. Mr. Calleja assured him that he would pay the lien, but he failed to do so. Mr. Coleman satisfied the lien by check dated April 11, 2006, for the amount of $5,139.58. David Bogenrief, P.E., viewed the project in June 2008 and provided Mr. Coleman with a quote to develop structural plans to repair Mr. Coleman’s pool. There was no testimony on the amount of the quote, and the Department did not request that the written proposal be admitted in evidence. Mr. Bogenrief did not know what it would cost to repair the pool. The Department has incurred $470.49 for costs in the prosecution of this case.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Mr. Calleja did not violate Subsection 489.119(2), Florida Statutes, and that Mr. Calleja violated Subsections 489.129(1)(g)1., 489.129(1)(g)2., 489.129(1)(j), 489.129(1)(m), and 489.129(1)(o), Florida Statutes; for the violation of Subsection 489.129(1)(g)1., Florida Statutes, imposing a fine of $2,000.00, suspending Mr. Calleja's license for six months, and requiring Mr. Calleja to pay Mr. Coleman $5,139.58 as restitution for the payment of the lien filed by Prestige; for the violation of Subsection 489.129(1)(g)2., Florida Statutes, imposing a fine of $2,000.00, suspending Mr. Calleja's license for six months, and requiring Mr. Calleja to pay Mr. Coleman $9,682.00, which represents the amount that Mr. Coleman paid to Mr. Calleja; for the violation of Subsection 489.129(1)(j), Florida Statutes, imposing a $1,000.00 fine and four years of probation; for the violation of Subsection 489.129(1)(m), Florida Statutes, imposing a $1,000.00 fine and four years of probation, which shall run concurrently with the other probation imposed; and, for the violation of Subsection 489.129(1)(o), Florida Statutes, imposing a $1,000.00 fine and two years of probation to run concurrently with the other probation imposed; and requiring payment of $470.49 as costs for the prosecution of this case. DONE AND ENTERED this 29th day of August, 2008, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of August, 2008.
The Issue Has Dr. Steinberg been guilty of malpractice; willful negligence; or misconduct in his business affairs which could bring discredit upon the dental profession contrary to the provisions of Section 466.24, Florida Statutes, (Supp. 1978).
Findings Of Fact Dr. Edward M. Steinberg is licensed by the Board of Dentistry to practice dentistry in `he State of Florida. He has been so licensed since February 1973. Mrs. Elizabeth Betzler Mrs. Betzler was a dental patient of Dr. Steinberg between October 1978 and July 20, 1979. During that time he performed a variety of dental treatments for her including equilibration, two cores, an extraction, periodontal care, and the construction and placement of a 3-unit temporary acrylic bridge. This treatment extended over at least 10 to 12 long office visits. The 3-unit acrylic bridge was cemented in the patient's mouth on May 14, 1979. Mrs. Betzler was led to believe by Dr. Steinberg that the acrylic bridge was the permanent bridge for which she had paid $800.00. 1/ At the final hearing Dr. Steinberg testified that he never told Mrs. Betzler that tie acrylic bridge was permanent. This testimony is not accepted as credible. While Dr. Steinberg and Mrs. Betzler had originally agreed that he would construct for her a 5-unit porcelain on on gold bridge, Dr. Steinberg later told her that the acrylic bridge was even stronger and more satisfactory than the gold one. Subsequent to its installation, Mrs. Betzler's bridge broke numerous times. She had to frequently return to Dr. Steinberg to have it repaired. Acrylic bridges are not of a permanent nature. They are used to cover teeth previously prepared for the later installation of a permanent bridge. An acrylic bridge is an interim measure until the permanent one is prepared by a laboratory. This preparation usually takes no longer than one month. Even though Dr. Steinberg installed Mrs. Betzler's temporary bridge in May of 1979, by July, 1979, when she last saw him, he still had not constructed a permanent bridge for her. Mrs. Betzler ceased going to Dr. Steinberg for treatment in July, 1979, because of what she believed to have been rude treatment of her daughter Ms. Mary Jo Holland by Dr. Steinberg and his receptionist. For all of her treatment by Dr. Steinberg, Mrs. Betzler paid a total of $1,115.00. Three hundred fifteen dollars was for the cores, equilibration, periodontal treatment, etc., and $800.00 was for her permanent bridge. Dr. Steinberg told Mrs. Betzler that he would not install her bridge until she paid him in full for it. She made the last payment on May 14, 1979. Dr. Steinberg's request that a patient pay his full fee in advance before the patient's treatment would be concluded is contrary to the general practice of dentistry in the Fort Lauderdale area where Dr. Steinberg has his office. Mary Jo Holland Ms. Mary Jo Holland was a patient of Dr. Steinberg's during the same time he treated her mother. She was initially diagnosed by Dr. Steinberg to need a root canal on tooth number 20 and a crown on tooth number 19. Because the prescribed treatment was more than she could afford to pay at once, she and Dr. Steinberg agreed to treat tooth number 20 first. It was excavated and a temporary filling was installed. An appointment to place a permanent filling in that tooth was made for sometime in July 1979. Shortly before that scheduled appointment, the temporary filling chipped and Ms. Holland secured a special appointment on July 17, 1979 to have it repaired. This special appointment was scheduled through Dr. Steinberg's mother, who is also his receptionist. Mrs. Steinberg never informed Dr. Steinberg on July 17, 1979, what treatment Ms. Holland wanted, and apparently he never inquired. Upon her being seated in the dental chair Dr. Steinberg began to treat Ms. Holland without inquiring of her what treatment she required. Instead, he assumed that she was there to have the crown placed on tooth number With that aim in mind, Dr. Steinberg excavated tooth number 19 in preparation for its crown. During the course of the appointment Ms. Holland learned that the chipped filling on tooth number 20 was not being repaired. This discovery lead to an argument between her and Dr. Steinberg and Mrs. Steinberg. Because of the argument Ms. Holland fled Dr. Steinberg's office in tears. The chip on tooth number 20 was never repaired by Dr. Steinberg.
Recommendation Based on the foregoing findings of fact and Conclusions of Law, it is RECOMMENDED: That the Board of Dentistry find the Respondent guilty of unprofessional conduct as set forth above and enter a final order suspending his license to practice dentistry in the State of Florida for a period of two (2) years; provided however; that the last year and 11 months of the suspension be stayed under the following conditions: that Dr. Steinberg return the $800.00 fee to Mrs. Betzler which she paid him for a 5-unit porcelain on gold bridge, that Respondent during the next two (2) years from the date of the final order complete at least 48 hours of continuing dental education. The Respondent shall propose a schedule of courses to the Board in order to obtain its prior approval for such courses, that Dr. Steinberg appear before the Board at its meeting immediately prior to the conclusion of his probationary period to certify that he has complied with the terms of the Board's final order. DONE and RECOMMENDED this 4th day of February, 1981, in Tallahassee, Florida. MICHAEL PEARCE DODSON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of February, 1981.
The Issue The issues in this case are: (1) whether proposals by Richard and Mildred Olson to widen an existing bridge (designated Bridge 1) and construct two new pedestrian bridges (designated Bridges 2 and 4) across Bessey Creek in Martin County, Florida, qualify for the Noticed General Permit established by Rule 62-341.475; and (2) whether Petitioner participated in this proceeding for an improper purpose under Section 120.595(1). (Citations to sections are to the 2000 codification of Florida Statutes. Rule citations are to the current Florida Administrative Code.)
Findings Of Fact Richard and Mildred Olson own property in Rustic Hills Phase III in Martin County, Florida. The Olsons own lots 191, 192, 195, 212, 213, and 214. Each lot is approximately two acres in size. The Olson home is on lot 213, and a rental home is on lot 195. On their property, the Olsons raise miniature goats, guinea hens, and peacocks; they also have ducks, geese, chickens, and dogs. Bessey Creek winds through Rustic Hills and the Olsons' lots. The Olsons propose to use DEP's NGP for Minor Activities established by adoption of Rule 62-341.475 to widen one existing bridge and construct two others for access to their property across Bessey Creek. Bessey Creek is a tributary of the St. Lucie River, through man-made Canal 23. Navigating upstream on Bessey Creek, a boat would have to pass under the Murphy Road Bridge, which is 9 feet, one inch above mean high water (MHW), just before reaching the first of the four bridges involved in this case, Bridge 1. Bridge 1 is a steel span bridge (with no pilings in the water) that connects two portions of lot 191, which is split by the creek. The Olsons propose to widen existing Bridge 1. It is not clear from the evidence whether pilings will be required to widen Bridge 1. But it seems clear that a centerline stream clearance (horizontal width) of 16 feet and a bridge height above mean high water (MHW) (vertical clearance) of 9 feet will be maintained. Proposed pedestrian Bridge 2 is the next bridge upstream, at a point where the creek is only approximately 24 feet wide from MHW to MHW. It is designed to be a 192 square foot piling-supported bridge, with an 8-foot wide by 24-foot long walkway. To support Bridge 2, sets of pilings will placed in the creek bed so as to maintain a centerline stream clearance of 16 feet. The proposed vertical clearance for Bridge 2 is 8 feet above MHW. Existing Bridge 3, the next upstream, is at a point where the creek is approximately 35 feet wide from MHW to MHW. Bridge 3 is a wooden bridge approximately 25 years old. It connects lots 192 and 193 to lot 191. The Olsons use existing Bridge 3 on a daily basis. Bridge 3 was built to span the creek; later, two sets of wooden piles were added. There is a centerline stream clearance of 13 feet between the piles. Vertical clearance is 8 feet above MHW. Proposed pedestrian Bridge 4, the farthest upstream, is designed in the same manner as proposed pedestrian Bridge 2. It is located at a point where the creek is approximately 35 feet wide from MHW to MHW. Bridge 4 will connect lots 195 and 212. Navigability Proposed pedestrian Bridges 2 and 4 are designed to have the same 8-foot vertical clearance as existing Bridge 3; they are designed to have three feet more horizontal clearance than existing Bridge 3. Neither they nor widened Bridge 1 will restrict navigation as much as existing structures, natural conditions (including numerous fallen trees, underwater snags and low, overhanging vegetation), and docked boats. The United States Coast Guard and the Florida Fish and Wildlife Conservation Commission (FFWC) concur that the bridges would not have any deleterious effect on the navigation in this area of Bessey Creek. While not specifically alleging impedance of navigation, Petitioner alleged that existing Bridges 1 and 3 are lower than measured by the Olsons' environmental consultant. But there was no evidence to support such a finding. Meanwhile, the Olsons' consultant explained how he determined the vertical clearance of those bridges above MHW by measurements adjusted for MHW using NOAA tide charts. Even if existing Bridges 1 and 3 had less vertical clearance than determined by the Olsons' consultant, Bridges 2 and 4 are designed to have the same vertical clearance as the consultant determined Bridge 3 to have. For that reason, even if the consultant's determinations were incorrect, the vertical clearances of Bridges 2 and 4 are designed to be the same as the vertical clearance of Bridge 3, and the vertical clearance of Bridges 2 and 4 will not impede navigation any more than Bridge 3. Flooding Bessey Creek is a typical tidal creek. It has low volume and low velocity. Being influenced by tidal ebb and flow, its flow is not continuously downstream except during and just after times of high precipitation, such as hurricanes. Under these conditions, build-up of debris around pilings of these bridges would not be expected, and none was observed around at the existing bridges. The chances of vegetation or organic matter building up over time in the area of these bridges to create a beaver dam effect and cause flooding are small. The proposed new pedestrian bridges have four pilings, which is typically less than a single-family dock. The pilings of a single-family dock are closer to the shoreline and, particularly with a boat alongside, would have more potential to trap debris and cause flooding than the proposed bridges. The same can be said of the fallen trees and low, overhanging vegetation existing under natural conditions in Bessey Creek. The proposed bridges are not expected to have an adverse impact of a significant nature with respect to off-site flooding. Petitioner did not present any expert testimony regarding allegations of off-site flooding potential. Dan White testified as a lay person that flooding occurs in the area during times of high precipitation and that Petitioner was concerned that the proposed bridges would exacerbate those conditions. But, while the evidence was clear that flooding is a condition to be expected under certain conditions in low-lying areas like Rustic Hills Phase III, White failed to make any causal connection between existing periodic flooding and the bridges, existing or proposed. Improper Purpose Petitioner's request for hearing, by letter dated November 16, 2000, thanked DEP for "this opportunity to contest the granting of a Noticed General Permit to the Olson's [sic]" and also requested "an Administrative Review to ensure your department has all the information needed to make a fair decision regarding this matter." It also requested: "Since we are a small community, I hope the Department will review this petition in light of the author's lack of familiarity with the specific form and format used by the environmental consultants and those who work with you on a regular basis." Petitioner "respectfully submit[ted] the following information which is required to dispute the Department's actions and to request an Administrative hearing if necessary." In response to Petitioner's letter, DEP referred the matter to DOAH. Apparently, Petitioner (and the other parties) did not receive a copy of the Initial Order. Petitioner, which was not represented by counsel at the time, failed to comply with the Amended Initial Order entered on March 23, 2001. But apparently neither did the Olsons, who also were not represented by counsel at the time, or DEP, which was. The Olsons complained by letter filed April 26, 2001, that Petitioner had not contacted them. But there was no indication or evidence that, up to that point in time, the Olsons attempted to contact Petitioner or DEP, or that DEP attempted to contact Petitioner or the Olsons, in response to the Amended Initial Order. The Joint Response to Initial Order filed by the Olsons and DEP on May 1, 2001, recited that Petitioner's contact person-of-record, Treasurer Jim Fyfe, "no longer was associated with Rustic Hills" and that Petitioner's President, Dan White, was "out of town and could not be reached." Based on the Joint Response to Initial Order filed by DEP and the Olson's, final hearing was scheduled for May 24, 2001. The Order of Pre-Hearing Instructions entered along with the Notice of Hearing on May 3, 2001, required that the parties exchange witness lists and copies of exhibits and file their witness lists by May 14, 2001. Petitioner complied with the requirement to file a witness list and also included a list of exhibits. There was no indication or evidence that Petitioner did not exchange exhibits as well. The Order of Pre-Hearing Instructions also required: "No later than May 18, 2001, the parties shall confer with each other to determine whether this cause can be amicably resolved." When the Olsons' environmental consultant, Bruce Jerner, went to Dan White's home on May 14, 2001, to provide him a copy of the Olsons' exhibits, he invited White to discuss settlement in accordance with the Order of Pre-Hearing Instructions. White responded to the effect that, even if Petitioner did not have a strong case, Petitioner preferred to go to hearing, and White did not want to mediate or discuss settlement with Jerner. At that point, Jerner indicated that he would be sending White a letter confirming the Olsons' attempt to comply with the Order of Pre-Hearing Instructions. The letter dated the next day requested "an informal conference to determine whether the above referenced case can be amicably resolved and avoid hearing proceedings." Significantly, there was no indication or evidence that DEP complied with the Order of Pre-Hearing Instructions in any respect. It appears that DEP distanced itself from the dispute between Petitioner and the Olsons, preferring to allow them to settle or litigate as they saw fit. In view of DEP's noncompliance, DEP at least certainly may not rely on Petitioner's noncompliance as a ground for an award of attorney fees and costs. In addition, while DEP's noncompliance does not excuse Petitioner from complying, it helps put Petitioner's actions in context and is relevant on the question whether Petitioner's noncompliance was evidence of improper purpose. In this regard, White testified to his belief that he had complied with all ALJ orders but did not "know why I would be obligated to respond to the consultant for Mr. Olson with regard to hearing or any other matters." While DEP and the Olsons in part cite Petitioner's failure to follow prehearing procedures, they primarily rely on the weakness of Petitioner's presentation at final hearing and posthearing efforts as evidence of improper purpose. But this evidence must be evaluated along with other factors resulting in the weakness of Petitioner's case. Not only did White misinterpret the Order of Pre- Hearing Instructions, the evidence indicated that he was unfamiliar with the administrative process in general and also was confused about the difference between the administrative hearing scheduled for May 24, 2001, and the County permitting proceedings on the bridges which also were on-going. White indicated repeatedly during final hearing that he and Petitioner had just recently learned more about distinctions between the administrative and County permit proceedings. As a result, White was beginning to recognize that several issues Petitioner had attempted to raise in this administrative proceeding may be relevant to on-going County permit proceedings but not this administrative proceeding. When it was established and explained at final hearing that DEP had no jurisdiction to require demolition or repair of existing bridges in this proceeding, White agreed to withdraw that part of Petitioner's request for relief. When it was established and explained that issues Petitioner raised relating to the "public interest" test under Rules Chapter 21-18 were premature, White did not object to those issues being dropped. Later, when Petitioner attempted to raise water quality issues relating to excrement from Olson livestock crossing these bridges, and it was ruled that no such issue was raised in Petitioner's request for hearing, White accepted the ruling. Final hearing proceeded on the only remaining issue specifically raised by Petitioner (alleged off-site flooding) (together with navigability--an issue addressed in the Olsons' presentation but not raised in Petitioner's request for hearing). To use White's words, Petitioner did not "have a very sophisticated presentation." Petitioner had no expert testimony, and White's lay testimony did not make a causal connection between flooding and the bridges. After the presentation of evidence, Petitioner did not withdraw its request for hearing in view of the evidence presented; but, in fairness, neither was Petitioner asked to do so. Petitioner did not order a Transcript, or a copy after the Olsons ordered a Transcript, and did not file a PRO. It is fairly clear from the evidence that Petitioner did not participate in this proceeding primarily to cause unnecessary delay. Even if Petitioner had never requested a hearing, the Olsons did not have all of the authorizations required of DEP for their proposals. In addition, County permits apparently also are required. It seems reasonably clear that, had Petitioner retained a competent expert to evaluate its case, the expert probably would have advised Petitioner that it would not be able to make a causal connection between flooding and the bridges. Had Petitioner retained counsel prior to final hearing, counsel probably would have advised Petitioner not to proceed with its request for hearing because, without a causal connection between flooding and the bridges, Petitioner would not be able to prevail. But there was no indication or evidence that Petitioner had and disregarded the benefit of professional advice. Under the totality of these circumstances, it was not proven that Petitioner's participation in this proceeding was for an improper purpose--i.e., primarily to harass or to cause unnecessary delay or for frivolous purpose or to needlessly increase the cost of licensing or securing the approval of the Olsons' applications.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that DEP enter a final order: denying Petitioner's challenge to the propriety of the Olsons' use of the NGP for minor activities for their proposals; authorizing the Olsons to use the NGP for their proposals (DEP File Nos. 43- 0137548-002 and 43-0158123-002) subject to the design criteria limitations and other conditions in the applicable general permit rules; and denying the Motion for Attorney's Fees from Petitioner under Section 120.595(1). Jurisdiction is reserved to enter a final order on the part of the Motion for Attorney's Fees seeking sanctions under Section 120.569(2)(e). DONE AND ENTERED this 30th day of July, 2001, in Tallahassee, Leon County, Florida. J. LAWRENCE JOHNSTON 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 30th day of July, 2001. COPIES FURNISHED: Francine M. Ffolkes, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard The Douglas Building, Mail Station 35 Tallahassee, Florida 32399-3000 Dan White, President Rustic Phase III Property Owners Association 3337 Southwest Bessey Creek Trail Palm City, Florida 34990 Tim Morell, Esquire 1933 Tom-a-Toe Road Lantana, Florida 33426 Elizabeth P. Bonan, Esquire Cornett, Googe, Ross & Earle, P.A. 401 East Osceola Street Stuart, Florida 32991 Kathy C. Carter, Agency Clerk Office of General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard, Mail Station 35 Tallahassee, Florida 32399-3000 Teri L. Donaldson, General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard, Mail Station 35 Tallahassee, Florida 32399-3000 David B. Struhs, Secretary Department of Environmental Protection 3900 Commonwealth Boulevard The Douglas Building Tallahassee, Florida 32399-3000
The Issue Whether the Respondent's license as a registered building contractor should be disciplined for violating Section 489.129(1)(m), Florida Statutes?
Findings Of Fact At all times relevant to this proceeding, the Respondent was licensed by the State of Florida as a registered building contractor. The Respondent held license number RB 0047309. In June of 1983, the Respondent, doing business as Gamble's Construction Company, contracted with James B. Sampson, Jr., to construct an open steel shelter on Mr. Sampson's property, the Bull Frog Dairy Farm. The contract called for the payment of $42,052.00 for the construction of the shelter. The shelter measures 108 feet by 150 feet. The shelter consists generally of a tin roof sitting on columns. The sides of the shelter are open. The shelter was to be, and is, used as a feed barn for dairy cows. The Respondent purchased the shelter to be constructed on Mr. Sampson's property from Steel Concepts, a steel manufacturing company in Sparks, Georgia. The Respondent had purchased steel structures from Steel Concepts for several years prior to 1983. The Respondent had not, however, purchased or erected a steel structure of the size and design of the shelter to be erected on Mr. Sampson's property. The steel structure purchased by the Respondent for erection on Mr. Sampson's property was designed by Donald Gibbs, then President of Steel Concepts. Mr. Gibbs was not licensed or trained as an engineer, an architect or a contractor. Mr. Gibbs' design of the steel structure purchased by the Respondent for erection on Mr. Sampson's property was never reviewed by a licensed engineer. The Respondent made no effort to ensure that the design of the steel structure purchased for erection on Mr. Sampson's property had been approved by a licensed engineer. Construction of the shelter began in August, 1983, and was completed in September, 1983. The Respondent first designed and constructed the foundation for the shelter. The foundation consisted of a series of concrete-block piers. The concrete-block piers rested on concrete footers (concrete under the ground). The shelter included twenty-eight vertical columns which were each to be attached to one of the concrete block piers by four nuts and anchor bolts. The anchor bolts were embedded into the piers. The Respondent supervised and assisted several employees in constructing the foundation and erecting the steel structure. The Respondent used all the materials furnished to him by Steel Concepts for the shelter. Although cross bracing was provided for, and attached to, the roof of the shelter, no cross-bracing was provided for use in bracing the columns. Holes for the attachment of cross bracing of the vertical columns were provided in the columns. The Respondent should have known that cross-bracing of the vertical columns was necessary. Therefore, the Respondent should have questioned Steel Concepts about the lack of such bracing or the Respondent should have added cross-bracing on the columns. On January 22, 1987, a wind and rain storm struck the Bull Frog Dairy Farm. The next morning, Mr. Sampson discovered that the shelter erected by the Respondent was listing to the east. The structure was approximately twelve to twenty degrees off vertical. Mr. Sampson arranged for emergency repairs to prevent the shelter from collapsing. The Respondent did not make the emergency repairs because it was Friday and the Respondent had released his employees. The Respondent personally helped, however, with the emergency repairs. The damage caused to the shelter by the storm was caused by the lack of cross-bracing on the columns and the failure to properly tighten approximately one-half of the nuts to the anchor bolts connecting the columns to the piers. The Respondent should have insured that the nuts were properly tightened on the anchor bolts holding the columns to the piers. The Respondent's failure to properly supervise the tightening of the anchor bolts constituted a failure to meet acceptable industry standards of supervision. The Respondent's erection of the shelter was not within acceptable industry standards. The Respondent's failure to insure that cross-bracing was provided or to ask Steel Concepts why no bracing was provided, and the Respondent's failure to insure that all the nuts were properly tightened constituted incompetency. Although there had been erosion of the soil around the shelter, the erosion did not contribute to the damage to the shelter. The possibility of erosion should have been taken into account by the Respondent before constructing the footers and piers. This is the first complaint ever filed against the Respondent. The Respondent attempted to resolve the matter with Mr. Sampson.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department issue a final order finding that the Respondent violated Section 489.129(1)(m), Florida Statutes. It is further RECOMMENDED that the Department impose a fine of $1,500.00 on the Respondent payable within thirty (30) days from the date of the final order in this case. DONE and ENTERED this 5th day of May, 1988, in Tallahassee, Florida. LARRY J. SARTIN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 5th day of May, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-5391 The parties have submitted proposed findings of fact. Petitioner's Motion to Strike Respondent's Proposed Recommended Order has been granted and no consideration has been given to the Respondent's proposed recommended order. It has been noted below which of the Department's proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those findings of fact proposed by the Department which have been rejected and the reason for their rejection have also been noted. The Department's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 2 2 and 4. 3 11. 4 5-8. 5 10, 12-13 and 15-16. 6 17-19. 7-10 See 16, 20 and 22-23. These proposed findings of fact are pertinent in determining the weight to be given to the testimony of various witnesses or recite opinions of those witnesses. COPIES FURNISHED: David L. Swanson, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 J. Victor Africano, Esquire Post Office Box 1450 Live Oak, Florida 32060 Fred Seely Executive Director Post Office Box Jacksonville, Florida 32201 William O'Neil General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
The Issue The issue presented for decision in this case is whether Respondent, the Florida Department of Transportation ("FDOT"), acted contrary to the agency’s governing statutes, rules or policies, or the proposal specifications, in rejecting the proposal of Petitioner, Old Tampa Bay Enterprises, Inc. ("Old Tampa Bay"), to RFP-DOT-97/98-1003, Bridge Tending/Maintenance and Repair Services for Five Movable Bridges, Sarasota and Manatee Counties (the "RFP" or "RFP 1003"), and awarding the contract to Intervenor, General Electric Industrial Systems ("GE"). GE also raises the issue whether Old Tampa Bay lacks standing because it submitted a materially false or fraudulent proposal.
Findings Of Fact Based on the oral and documentary evidence adduced at the final hearing, and the entire record in this proceeding, the following findings of fact are made: On or about April 10, 1998, FDOT issued RFP 1003, requesting proposals for a bridge-tending, maintenance and repair service contract for five movable bridges within Manatee and Sarasota Counties. The contract would run for a period of one year, with an option for two annual renewals. FDOT contemporaneously issued RFP 1004, for the performance of identical bridge tending, preventive maintenance and repair services on four other movable bridges in Sarasota County. The RFP required, among other things, that proposers must employ an experienced bridge tender supervisor and an experienced registered electrical engineer. The RFP required that the contractor must be licensed to perform electrical and mechanical work in the State of Florida, and that a copy of the license be submitted as part of the proposal package. RFP 1003, Section 1.7.5. (In this and some other sections of the RFP, FDOT employed the undefined term "Consultant" rather than the term "Contractor" or "Proposer" used through the bulk of the RFPs. Absent a clarifying explanation, it is assumed that all three terms are used interchangeably.) The RFP required the proposers to provide the names of "key personnel," a resume for each of these individuals, and a description of the functions and responsibilities of each key person relative to the task to be performed. The approximate percent of time to be devoted exclusively to this project was also to be provided. FDOT’s prior written approval was required for the removal and substitution of any of the key personnel proposed. "Key personnel" included project engineers, bridge superintendents, mechanics, and electricians. Under the heading "preventive maintenance," the RFP required the proposers to provide "sufficient and competent personnel to perform the inspection, troubleshooting and work for all bid item requirements." The electrician must be "a licensed electrician with experience in industrial maintenance and troubleshooting." RFP 1003, Exhibit A-3, Section 3.0. The RFPs incorporated by reference the "Bridge Operations and Maintenance Manual" (the "Bridge Manual"), an FDOT document establishing procedures for bridge operations and maintenance requirements statewide. The Bridge Manual set forth the following qualifications for electricians: All electricians working on movable bridges or electrical equipment on any bridge must hold at least a journeyman electrician’s license in at least one Florida county and have skills in industrial electrical work. Ability to read and understand blueprints and written instructions. Ability to communicate effectively orally and in writing. Ability to plan, organize and coordinate work assignments. Ability to install, alter, repair and maintain electrical systems, equipment and fixtures. Bridge Manual, pages 2-3. Another section of the Bridge Manual elaborated on the minimum qualifications for electricians as follows: All electricians working on movable bridges or electrical equipment on any bridge must hold at least a journeyman electrician’s license in at least one Florida county and have at least two years experience in industrial electrical work. Vocational/training in industrial electricity can substitute at the rate of 720 classroom hours for each year of the required experience. After employment, they should attend the Bridge Inspection school and Movable Bridge Inspection school. They should also receive continuing training on motor controls, National Electric Code and applicable safety training. They should be able to read blueprints, and written instructions, communicate effectively, be able to plan, organize, and coordinate work assignments, and have the ability to install, alter, repair and maintain electrical systems, equipment and fixtures. Bridge Manual, pages 2-17 through 2-18. The RFP awarded a maximum of 100 points to responsive proposals. A maximum of 60 points could be awarded for the technical proposals, which were scored by a three-member technical committee that included Hendrik Ooms, FDOT’s assistant maintenance engineer for District One. Each member of the committee scored the proposals independently. Their scores were then averaged to arrive at the final technical score. The RFP listed Richard Marino, the head of contracts for District One, as the project manager who should receive all technical questions from prospective proposers. Regardless of the formal designation, Mr. Ooms was in fact the project manager and the person capable of answering technical questions. The technical proposal scoring subsumed a maximum of 35 points for the "management plan," including 20 points for identified "key personnel." A maximum of 35 points could be awarded for the price proposal. The low price proposal received the maximum 35 points, with the remaining proposals scored according to the formula: (Low price/proposer’s price) x Price points = Proposer’s total points. The technical committee was not aware of the contents of the price proposals prior to scoring the technical proposals. Finally, proposers could obtain 5 preference points for Disadvantaged Business Enterprise (DBE) participation of at least 10 percent of the total dollar amount of the contract, or 2 preference points for DBE participation of between 5 and 10% of the total dollar amount. On or about May 11, 1998, three companies submitted proposals for RFP 1003 and 1004: GE; Old Tampa Bay; and C & S Building Maintenance Corporation. GE is the incumbent vendor for these contracts. Until this bid, Old Tampa Bay was a subcontractor to GE on these contracts. On May 22, 1998, FDOT posted the proposal tabulations indicating the intended awardees of the two contracts. Old Tampa Bay was the apparent awardee of the contract for RFP 1003, the contract at issue in this case, with a total score of 79.67 points. GE was the second high scorer, with 79.45 points. GE was the apparent awardee of the contract for RFP 1004. As to RFP 1003, the averaged technical score for Old Tampa Bay was 39.67 points. The averaged technical score for GE was 49 points. All three members of the technical committee awarded GE more points than Old Tampa Bay, though Mr. Ooms saw a greater difference between the two bids than did the other committee members, Richard Marino and Kenneth Clark. Mr. Marino awarded 56 points to GE and 52 points to Old Tampa Bay. Mr. Clark awarded 53 points to GE and 47 points to Old Tampa Bay. Mr. Ooms awarded 38 points to GE and 20 points to Old Tampa Bay. Despite the difference in the technical proposals, Old Tampa Bay was named the intended awardee for RFP 1003 on the strength of 35 points for its significantly lower price proposal ($539,915 per year, versus $621,340 per year for GE) and obtaining the full 5 points for DBE participation. GE was awarded 30.45 price points according to the RFP formula and obtained no DBE points. No formal protest having been received, FDOT moved forward to the next step in the award process. The agency sent substantially identical letters to Old Tampa Bay as the intended awardee of the contract for RFP 1003 and to GE as the intended awardee of the contract for RFP 1004. The letters, dated June 15, 1998, and signed by Felipe Alvarez, FDOT’s purchasing agent, informed the vendors that they had each proposed the same people as "key personnel" who would devote 100 percent of their time to the project. This situation "concerned" FDOT, as these persons obviously could not devote 100 percent of their time to RFP 1003 as employees of Old Tampa Bay and 100 percent of their time to RFP 1004 as employees of GE. The letters requested each of the vendors to clarify the employment of the following persons: Mr. W. Bruce Chapman, whom GE had identified as its bridge superintendent and Old Tampa Bay had identified as its project manager; Mr. Gary Berkley, whom GE had identified as its mechanic and Old Tampa Bay had identified as its primary mechanic; Kelly Green, whom both GE and Old Tampa Bay had identified as primary electrician; and John Vance, whom both GE and Old Tampa Bay had identified as supporting electrician. The letters concluded with the following statement: The Proposal Package stated that if awarded the Agreement, the Consultant is to provide the services of the key personnel proposed. Removal and substitution of any of the key personnel proposed will require the Department’s prior written approval. Please advise the Department if your firm plans to provide the same key personnel or will be providing an equivalent substitution; equivalent meaning as of [sic] the same caliber, experience, and expertise or better than the individual originally proposed. (Emphasis added.) As noted in FDOT’s letter, the Old Tampa Bay proposal listed Kelly Green and John Vance as electricians. Old Tampa Bay’s proposal emphasized that Vance and Green were the current electricians performing electrical maintenance and repairs on the bridges, with nine years combined experience on the District One contract. Old Tampa Bay's proposal emphasized the ease of transition to the new contract that FDOT would enjoy should it select Old Tampa Bay: There will be no transition pain from the existing prime contractor [GE] to [Old Tampa Bay] as ALL personnel currently serving are already on the [Old Tampa Bay] payroll and have been for several years. FDOT will have no new relationships to establish or unknowns with which to be concerned. (Emphasis in original.) Old Tampa Bay’s proposal emphasized in several places that Old Tampa Bay would provide the same electricians who were already working on the bridges. In describing its technical approach to the electrical systems, Old Tampa Bay emphasized that its electricians would require no orientation before commencing work: The electrical system is a critical link in the operation of the bridge. Its maintenance is crucial to reliable operation. [Old Tampa Bay's] comprehensive maintenance program is designed to meet and exceed contract requirements. The [Old Tampa Bay] electrician (Resume attached) is knowledgeable and experienced in the performance of this program. He has performed this service under other FDOT contracts. Old Tampa Bay's proposal emphasized the experience of its electricians with respect to the electro-mechanical control systems, stating that "All [Old Tampa Bay] service personnel including electricians have been trained to work on, maintain, and troubleshoot as required each intricate system." Old Tampa Bay emphasized the experience of Vance and Green, and stated that they had "never failed to correct any problems on this system on any of the bridges in this contract." Old Tampa Bay made similar representations in regard to equipment malfunctions and computerized control systems, emphasizing the quick, successful responses by and experience of its electricians. The evidence indicated that Old Tampa Bay knew, or should have known, at the time it submitted its proposal, that John Vance had no intention of working for Old Tampa Bay on these contracts. Old Tampa Bay included Mr. Vance’s name and license in its proposal without his consent. Mr. Vance never stated orally or in writing that he agreed to be included in Old Tampa Bay's proposal. Old Tampa Bay never asked Mr. Vance’s permission to include his name as a proposed supporting electrician. Old Tampa Bay never asked Mr. Vance’s permission to include a copy of his electrical contractor’s license in Old Tampa Bay's proposal. About two weeks prior to the proposal submission date, Old Tampa Bay's president, Donald Abernathy, asked Mr. Vance for a copy of his license, but did not tell him that Old Tampa Bay intended to include the license in its proposal. Rather, Mr. Abernathy told Mr. Vance that Old Tampa Bay needed the license for purposes related to insurance. Mr. Vance refused to provide Old Tampa Bay with a copy of his license. Old Tampa Bay obtained a copy of Mr. Vance’s license by making a public records request to Manatee County, and submitted that copy with its proposal. Mr. Bruce Chapman has served for nearly four years as a bridge tender supervisor, employed by Old Tampa Bay under a GE contract with the FDOT. At the time of the hearing, Mr. Chapman was still an Old Tampa Bay employee. Mr. Chapman assisted Mr. Abernathy in trying to obtain permission of various people to use their names in Old Tampa Bay's proposal. Mr. Chapman testified that he knew from conversations with Mr. Vance that Mr. Vance did not want to work for Old Tampa Bay on the new contract. Old Tampa Bay also knew at the time of proposal submission that it had obtained no assurances from Kelly Green that he would work for Old Tampa Bay on the contract for RFP 1003. As detailed below, Mr. Green ultimately signed a letter-of-intent to work for GE on the contract for RFP 1004. Mr. Abernathy contended that Old Tampa Bay was entitled to include Vance and Green in its proposal without permission because they were Old Tampa Bay employees. However, Mr. Abernathy also conceded that Vance and Green were at-will employees, and his prior attempt to secure their permission to use their names in the Old Tampa Bay proposal was a tacit admission that Old Tampa Bay had no control over them. Further, in the fall of 1997, Mr. Abernathy attempted to obtain the signatures of Mr. Vance and several other bridge employees to a non-compete agreement for the purpose of binding them to Old Tampa Bay. Mr. Vance refused to sign the agreement. Old Tampa Bay provided payroll services to Vance and Green during their work on the bridges under GE’s existing contract with the FDOT, but Old Tampa Bay never supervised the work of the bridge electricians, never provided Vance or Green with the tools, equipment or supplies they used in their work as bridge electricians, and never had any control over the day-to- day activities of any electricians on any FDOT contract. The electricians worked on a daily basis with GE’s project engineer, Douglas Blake. Mr. Blake had trained Mr. Vance on bridge electrical equipment when the latter commenced work on the bridges. The electricians looked to Mr. Blake for technical and substantive assistance in working on the bridges. Mr. Vance testified that he considered himself an employee of GE. Mr. Green did not testify at the hearing. On June 26, 1998, both Old Tampa Bay and GE submitted responses to the FDOT letter of June 15, 1998. In a letter signed by William Trainor, contract leader, GE set forth its staffing plan for RFP 1004. GE identified the following as "key personnel" proposed for the positions discussed in the FDOT letters: John Vance as bridge superintendent (replacing W. Bruce Chapman); Bruce Morris as mechanic (replacing Gary Berkley); Kelly Green as primary electrician; and John Vance as Supporting electrician. GE attached résumés for each of these personnel. GE indicated that it would utilize PRM, Inc. as a subcontractor to secure the required contract personnel for the contract under RFP 1004, and GE attached letters-of-intent for employment for each of the named key personnel. Each of these letters was signed either by the named employee or by the president of PRM, Inc. FDOT accepted GE’s response in full. The award of the contract for RFP 1004 to GE was not protested. In a letter dated June 26, 1998, signed by Donald R. Abernathy, president, Old Tampa Bay proposed the following key personnel: W. Bruce Chapman as project manager; Gary Berkley as mechanic; Charles Adam Kenney as bridge superintendent (not mentioned in the FDOT letter); and Kelly Green as primary electrician. Old Tampa Bay attached résumés for each of these personnel. The letter made no mention of a supporting electrician. Old Tampa Bay also attached agreements of the employees to serve in their respective positions. However, the signature line on Kelly Green’s statement of acceptance was left blank. Mr. Abernathy testified that he asked Mr. Green to sign the document indicating his acceptance of employment with Old Tampa Bay, but Mr. Green refused. Mr. Abernathy did not reveal this information to FDOT, continuing to maintain that he was within his rights as Mr. Green's employer to include his name in the proposal. FDOT knew from its review of the GE submission that Mr. Green had in fact signed a letter of intent for employment with PRM, Inc. to work on the GE contract. Mr. Alvarez, the FDOT purchasing agent, acted chiefly as a coordinator and as the person ensuring that the procedural requirements of competitive bidding laws were met by FDOT. He admittedly lacked the expertise to make decisions as to the technical aspects of the project. Thus, Mr. Alvarez forwarded the vendors’ responses to Mr. Ooms, the project manager, for his evaluation. Mr. Ooms is a professional engineer, and for the past five years has supervised the operations of all nine bridges covered by RFPs 1003 and 1004. In a memorandum to Mr. Alvarez, dated July 2, 1998, Mr.. Ooms reported his findings and conclusions regarding the vendors’ submissions. As noted above, he found the GE submission acceptable in its identification of PRM, Inc. as a subcontractor and its naming of Vance, Morris, and Green as intended key personnel. Mr. Ooms found acceptable the submission of Old Tampa Bay insofar as it named Chapman, Kenney, and Berkley as key personnel. However, Mr. Ooms noted that the Old Tampa Bay submission provided no documentation of Kelly Green’s commitment to work for Old Tampa Bay. Mr. Ooms also noted that the Old Tampa Bay submission made no mention of John Vance, who had been listed as support electrician in Old Tampa Bay’s original proposal, and listed no substitute who would take over those duties. Mr. Vance had also accepted an offer from PRM, Inc. to work on the GE contract. Thus, Mr. Ooms concluded that the proposed key personnel roster submitted by Old Tampa Bay was not acceptable. By letter to Donald R. Abernathy dated July 8, 1998, Mr. Alvarez conveyed to Old Tampa Bay the "discrepancies" found by FDOT in the Old Tampa Bay submission of June 26, 1998. While stating that FDOT accepted the proposal of Chapman, Kenney, and Berkley for their respective positions, Mr. Alvarez pointed out the problems noted by Mr. Ooms as to Green and Vance. The letter concluded that "the Department still requires that your firm provide, in writing, clarification as to the positions of Primary and Supporting Electricians," and required the response by July 13, 1998. Old Tampa Bay responded by letter to Mr. Alvarez from Mr. Abernathy dated July 10, 1998. The letter provided no explanation as to Mr. Green’s unsigned agreement or Old Tampa Bay's failure to mention Mr. Vance or otherwise address the position of supporting electrician. The letter stated no objection to any of the conclusions contained in FDOT’s letter of July 8, 1998. The letter took no issue with the standard described for "equivalent" electricians. Old Tampa Bay's letter stated that it had selected Mr. Gary McCormick as its primary electrician. The letter noted that Mr. McCormick was finishing a project but would be available for this contract no later than July 27, 1998. The letter stated that while Mr. McCormick was a "skilled and valuable electrical and hydraulic specialist," he had never been required to have an electrician’s license by any prior employer. The letter requested that FDOT waive the license requirement for 90 days, during which time Mr. McCormick would obtain the required license. The letter attached Mr. McCormick’s résumé, which indicated that he had been involved with the Stickney Point bridge from September 1997 until July 1998. The résumé provided no dates for any of his other employment since 1973. The résumé indicated that most of Mr. McCormick’s electrical experience involved repair and installation of elevators. Old Tampa Bay's submission made no attempt to relate Mr. McCormick’s elevator experience to the electrical specifications of the RFP. The letter further stated that Old Tampa Bay was "actively seeking" a supporting electrician, and that Mr. Abernathy would fill the position until the search was completed over the "next few weeks." The letter gave no further indication of the status of Old Tampa Bay's attempt to locate a support electrician. The letter attached the résumé of Mr. Abernathy. Mr. Alvarez forwarded Old Tampa Bay’s July 10, 1998, letter to Mr. Ooms for his review. By memorandum dated July 15, 1998, Mr. Ooms responded to Mr. Alvarez, concluding that the proposed key personnel roster of Mr. McCormick and Mr. Abernathy as primary and supporting electricians was not acceptable. Mr. Ooms’ memorandum first addressed Old Tampa Bay's original statements in its proposal as to Vance and Green, noting that Old Tampa Bay represented both electricians as follows, in his words (punctuation and capitalization not corrected): [Mr. Green] "has worked on FDOT movable bridge contracts for the past 4 years in Sarasota and Manatee counties. His duties range from preventive maintenance to emergency repair" . . . "an intimate knowledge on the operation of bridges so that during malfunction he can use the bypass functions to keep bridge down time and repair time to a minimum." Mr. Green has a Journeyman’s electricians license. * * * [Mr. Vance] has worked on FDOT movable bridge contracts for the past 5 years in Sarasota and Manatee counties. The maintenance he performs covers the entire bridge--the gates, lock motors, drive motors, variable frequency drives, programmable controllers, contactors, limit switches, control panels and resistors." "intimate knowledge on the operation of bridges so that during malfunction he can use the bypass functions to keep bridge down time and repair time to a minimum." Mr. Vance has a [sic] Electrical Contractor’s license. Mr. Ooms contrasted Mr. Green’s qualifications with those of Mr. McCormick, whose résumé showed that he had less than one year’s experience with bridges, did not hold a journeyman electrician’s license, and thus was not "an equivalent substitution for Mr. Kelly Green." Mr. McCormick’s résumé listed his current employer as "Acutec Inc.," his position as "project electrical foreman," and stated that he was "currently finishing Stickney Point drawbridge rehabilitation project. In charge of electrical, PLC, and hydraulic systems installation, trouble-shooting, and start-up. Working closely with Gregg Martin of FDOT, Sarasota." Mr. Ooms testified that Mr. McCormick did not have the qualifications claimed in his résumé. He testified that Mr. McCormick was not in charge of electrical, PLC and hydraulic systems installation on the Stickney Point bridge. He testified that Mr. McCormick was strictly a "wire puller," with "no experience whatsoever to do this type of work." Mr. Ooms took issue with Mr. McCormick’s claim that he was "in charge" of the installation of the PLC, or programmable logic controls. Mr. Ooms testified that Mr. McCormick’s employer, Acutec, was involved with writing the PLC program, setting up the parameters, checking out the hydraulics, and performing the interfacing, but that Mr. McCormick was simply running wires from point-to-point pursuant to instructions from others. Mr. Ooms testified that he knew these facts from watching at first-hand the work being performed on the Stickney Point bridge. Mr. Ooms did not call Acutec to verify the statements in Mr. McCormick’s resume. Mr. Ooms stated that there was no need to call Acutec, as he was out on the bridge and could see for himself what Mr. McCormick was doing. PLCs, or programmable logic controls, are the means by which newer bridges are controlled by computer. The PLC sequences the computer program to constantly monitor the condition and operation of the bridge. The PLC technology is not unique to bridges. It is common in many manufacturing operations, and is in place on two of the five bridges covered by RFP 1003. The remaining three bridges have a manual relay control system. Old Tampa Bay did not dispute that PLC experience is necessary to perform the work as an electrician on this contract. Mr. Ooms noted that Mr. McCormick’s résumé claimed PLC experience, but that when the time came for the contractor to deliver the laptop computer with the PLC programs to run the renovated Stickney Point bridge, Mr. McCormick could not even run the program on the computer. Mr. Ooms testified that if one cannot run the computer program, one cannot do anything on a computer controlled bridge. Mr. Ooms’ testimony as to the qualifications of Mr. McCormick is credited. While Mr. Ooms might have confirmed his conclusions with Mr. McCormick’s employer, he cannot be found to have acted arbitrarily in relying on his own extensive observations of Mr. McCormick’s job performance. Old Tampa Bay offered no evidence to dispute the factual underpinnings of Mr. Ooms’ decision that Mr. McCormick was not an equivalent substitute for Kelly Green. Mr. Ooms’ July 15, 1998, memorandum also rejected Mr. Abernathy as the temporary supporting electrician. As quoted above, the memorandum noted Old Tampa Bay's representation that John Vance, the supporting electrician it originally proposed, has worked on FDOT movable bridge contracts for the past five years in Sarasota and Manatee counties, has intimate knowledge of these bridges, and has an electrical contractor’s license. Mr. Ooms noted that Mr. Abernathy does not have an electrical contractor’s license. Mr. Ooms also took issue with Mr. Abernathy’s résumé statement that he has acted as a bridge inspector for the past eight years for Kisinger Campo and Associates, a company that FDOT hires to perform bridge inspections. Mr. Ooms wrote that in the five years that FDOT has let out the operations and maintenance contracts, he has never "seen or known of Mr. Abernathy visiting a Sarasota or Manatee county bridge or troubleshooting a bridge problem." He testified that Kisinger Campo could not have used Mr. Abernathy as a bridge inspector because he lacked the required engineer’s license or certification as a bridge inspector. Mr. Ooms admitted that Kisinger Campo does not always tell him who is performing the inspections. Mr. Ooms made no inquiries of Kisinger Campo to verify Mr. Abernathy’s résumé. Mr. Abernathy testified that he was in fact an electrical inspector for Kisinger Campo for eight years and that in 1997 he personally performed inspections on every bridge covered by RFP 1003, including the electrical, lighting, and PLC systems. Mr. Abernathy conceded that he does not have an electrical contractor’s license. Mr. Abernathy’s testimony is credited as to his experience as a bridge inspector. In the case of Mr. McCormick, Mr. Ooms reasonably relied on his own extensive observations. As to Mr. Abernathy, Mr. Ooms attempted to rely on what he did not observe. Mr. Ooms chose to assume, without knowledge or verification, that Mr. Abernathy’s résumé was false. This assumption was arbitrary, and cannot be credited. Mr. Ooms’ decision to reject Mr. Abernathy was nonetheless reasonable. Mr. Abernathy did not possess the requisite license, and admitted that his most recent experience in actually performing bridge electrical maintenance and repair was more than twenty years ago. By letter to Mr. Abernathy dated July 17, 1998, Mr. Alvarez conveyed FDOT’s rejection of Old Tampa Bay’s proposal pertaining to the electrician positions. The reason for rejection was stated as follows: As stated within the Request for Proposal Package, if you are proposing to substitute key personnel you must provide an equivalent substitution; equivalent meaning as of [sic] the same caliber, experience, expertise or better than the individual originally proposed. . . . Please understand, the Department is looking forward in [sic] entering into an Agreement with your firm, [sic] however, it cannot accept anything less than what was originally proposed. Mr. Alvarez’ letter enclosed Mr. Ooms’ memorandum of July 15, 1998, and offered Old Tampa Bay another opportunity to submit substitute electricians no later than July 27, 1998. By letter from Mr. Abernathy to Mr. Alvarez, dated July 27, 1998, Old Tampa Bay submitted a new list of proposed substitutes. The text of the letter stated, in full: We have selected Mr. Steven Manning, Master Electrician License Number 3994, Hillsborough County to be our primary electrician. Attached is his resume. We have selected Mr. Adrian Cook as the supporting electrician, Journeyman License Number JE776, Hillsborough County. We have selected Mr. Wayne Cano as an electrician’s helper. Hillsborough County licenses have full reciprocity with Manatee and Sarasota Counties. Résumés of all three proposed employees were attached, along with copies of the relevant licenses and certificates of completion of various professional training courses. Mr. Manning’s résumé contained sketchy descriptions of the kinds of electrical work he had performed, and gave no indication that he had any experience working with computers or PLCs. Mr. Manning’s résumé revealed no experience with moveable bridge maintenance or repair. Mr. Manning had no experience as an electrician on the FDOT bridges. Mr. Manning’s résumé indicated that his experience included industrial electrical experience intermittently during eight years of electrical work. The résumé indicated "industrial and commercial electrical work," "working in fuel terminals, working with motor controls," "remodeling tenant spaces," "working with new commercial," "working with commercial remodeling, and service work," "traveling around Florida and Georgia remodeling Pizza Huts," "residential and commercial sales, estimating jobs, job foreman, billing and scheduling, handling of permits," and "working with industrial and commercial, service work, remodeling and new construction." Old Tampa Bay's submission offered no specific information or explanation of how Mr. Manning’s varied experience related to the specifications for electrical maintenance and repair in the RFP. Old Tampa Bay had obtained Mr. Manning’s name by calling an electrical company, Southern Power and Controls, and asking for recommendations of personnel with qualifications and experience equivalent to Mr. Green’s. Southern Power and Controls is an industrial electrical firm specializing in industrial controls, motor controls, switch gears, limit switches, and PLCs. Old Tampa Bay would have paid a finder's fee to Southern Power & Controls for any employees who went to work for Old Tampa Bay on this contract. Old Tampa Bay provided Southern Power and Controls with the documentation it had submitted to FDOT regarding the qualifications and experience of Vance and Green. Robert Harwell, a registered electrical engineer and principal of Old Tampa Bay, had discussions with Southern Power and Controls as to the qualifications of the candidates it sought. No person from Southern Power and Controls appeared at the hearing to explain the process by which they selected Mr. Manning. No person from Old Tampa Bay ever interviewed Mr. Manning. Mr. Manning did not testify at the hearing. Old Tampa Bay proposed Adrian Cook as a supporting electrician. Mr. Cook’s résumé indicated that he was a licensed journeyman electrician, with four years’ experience as an electrician and two years as an apprentice. Mr. Cook’s résumé indicated two years of unspecified commercial and industrial work, but no moveable bridge experience. Old Tampa Bay obtained Mr. Cook’s name from Southern Power & Controls, asking for personnel with qualifications and experience equivalent to Mr. Green’s. No person from Southern Power & Controls appeared at the hearing to explain the rationale for choosing Mr. Cook. No person from Old Tampa Bay ever interviewed Mr. Cook. Mr. Cook did not testify at the hearing. Old Tampa Bay submitted Mr. Wayne Cano as an "electrician’s helper." Old Tampa Bay did not specify what function Mr. Cano would serve or what actions he would perform as an "electrician’s helper." Neither the RFP nor Old Tampa Bay's proposal contains any mention of an "electrician’s helper." Mr. Cano’s résumé did not indicate an electrician’s license. Old Tampa Bay did not state that it had any intention to require Mr. Cano to obtain an electrician’s license. Mr. Cano’s résumé did not indicate any moveable bridge experience or experience on other FDOT projects. Again, Mr. Alvarez forwarded the Old Tampa Bay letter and attachments to Mr. Ooms for his review. Mr. Ooms provided his response by memorandum dated August 6, 1998. Again, Mr. Ooms outlined the qualifications and experience of the electricians originally proposed, Kelly Green and John Vance, as set forth in Old Tampa Bay's own proposal. Mr. Ooms wrote as follows (punctuation and capitalization not corrected): Mr. Green’s experience were [sic] listed as follows. "has worked on FDOT movable bridge contracts for the past 4 years in Sarasota and Manatee counties. His duties range from preventive maintenance to emergency repair . . . an intimate knowledge on the operation of bridges so that during malfunction he can use the bypass functions to keep bridge down time and repair time to a minimum." Mr. Green has a Journeyman’s electrician license. Mr. Vance’s experience were [sic] listed as follows. "has worked on FDOT movable bridge contracts for the past 5 years in Sarasota and Manatee counties." "The maintenance he performs covers the entire bridge-- the gates, lock motors, drive motors, variable frequency drives, programmable controllers, contactors, limit switches, control panels and resistors." "intimate knowledge on the operation of bridges so that during malfunction he can use the bypass functions to keep bridge down time and repair time to a minimum." Mr. Vance has a [sic] Electrical Contractor’s license. Mr. Green and Mr. Vance each have over four years of "on the Bridge" experience trouble shooting non functioning systems. They have worked on nine different bridges that were 30-40 years old with antique controll [sic] systems and on bridges recently rehabilitated with modern computer controlled systems. They have years of experience in reading and analyzing bridge ladder logic programs and trouble shooting problems and solutions. All these bridges were operational and any loss of service was quickly reported. An outage can easily block traffic for several miles in minutes generating calls from the sherrifs [sic] department. In addition, any breakdown in service has severe political consequences due to the Ringling bridge and Anna Maria Bridge replacement program. A problem on Ringling Bridge can cause a [sic] hour detour and missed flights. On page C-1 of the contract it states "The Contractor’s personnel that will perform the work required by this Section shall be trained and well experienced in start-up and maintenance of equipment . . . and will have headquarters within Sarasota/Manatee County" . . . On page A-3.2 is [sic] states "the Contractor shall initiate corrective action within fifteen (15) minutes following the malfunction." further down on Page C-1 of the contract "the Contractor agrees to provide men and equipment to a bridge sites [sic] within 30 minutes of notification of any emergency equipment failure". Mr. Ooms contrasted the experience and qualifications of the proposed substitutes as follows (punctuation and capitalization not corrected): Mr. Steven Manning experience [sic] in industrial electrical work does not start until 1997. It does not show any bridge related work. His training certificate in Electrical ladder Drawings" is for a one day 7 contact hours session. The "well experienced" requirement is not clearly indicated by his resume. Mr. Adrian Cook also does not show any bridge related work and the "well experienced". Mr. Wayne Cano has 11 years of industrial experience but no bridge experience or electricians license. In conclusion Old Tampa Bay enterprises needs to provide us with equivalent substitutions. Specifically licensed electricians with a minimum of four years experience in diverse bridge electrical configuration; with old relay logic operation, well experienced in PLC controllers from various manufactures [sic]; the ability to read and interpret ladder logic drawing; the ability to program plc’s. The Department’s inclusion of response time in the contract clearly indicates our desire for prompt and efficient emergency repair work. In other words the Department would like the equivalent of Mr. Green and Mr. Vance in the original proposal who’s [sic] experience will "keep bridge down time and repair time to a minimum." By letter to Mr. Abernathy dated August 13, 1998, Mr. Alvarez forwarded FDOT’s rejection of Old Tampa Bay’s proposed substitutes. The letter essentially reiterated the contents of the memorandum quoted above, and informed Old Tampa Bay that it would have one last opportunity to provide FDOT with equivalent or better substitutions for the electrical key personnel. Old Tampa Bay’s response would be due no later than August 24, 1998. Mr. Alvarez testified that as to this and his prior letters to Mr. Abernathy, he essentially acted as a conduit for the actual decision-maker, Mr. Ooms. Mr. Alvarez wrote the letters because he was the designated contact person in the FDOT contracts office, not because of any personal expertise or authority he possessed to deal with the issue of the qualifications of the proposed key personnel. By letter from Mr. Abernathy to Mr. Alvarez, dated August 21, 1998, Old Tampa Bay informed FDOT that "we are unable to locate electricians which meet or exceed the qualifications of those we proposed, i.e., Mr. Green and Mr. Vance. Please proceed as necessary." Old Tampa Bay’s letter did not take issue with any of the conclusions set forth in Mr. Alvarez’ letter of August 13, 1998. On August 24, 1998, FDOT posted a revised proposal tabulation finding Old Tampa Bay nonresponsive and listing GE as the intended awardee of the contract for RFP 1003. At the hearing, Mr. Ooms testified that he did not know Mr. Manning, Mr. Cook, or Mr. Cano, had no personal knowledge of their background or experience, and relied on their résumés in making his decision. Mr. Ooms felt that Mr. Manning, while a master electrician, lacked sufficient experience on PLCs and had no experience working on bridges. Mr. Ooms noted that the only indication of electrical ladder drawing or computer experience on Mr. Manning’s résumé was a seven-hour continuing education course in electrical ladder drawing. Mr. Ooms’ undisputed testimony was that a single seven-hour course was insufficient to provide the expertise needed to perform the duties required of an electrician on these bridges. Mr. Ooms admitted that John Vance and Kelly Green lacked PLC experience when they started working on the bridges, and were trained by FDOT. However, Mr. Ooms rejected Old Tampa Bay’s suggestion that Mr. Manning could be similarly trained on the job. Vance and Green were trained in connection with the installation of PLC equipment on the Cortez Bridge in 1996. Mr. Ooms testified that this training was simply a part of the rehabilitation of the bridge, and that PLC experience was not a prerequisite at the time Vance and Green were hired. Mr. Ooms further distinguished this situation by noting that the issue here is not simply qualifications, but equivalency. Mr. Ooms stated that because Old Tampa Bay’s winning proposal was based on the presence of Vance and Green, any substitutes for Vance and Green must not only meet the RFP specifications but must be equivalent to the experience of Vance and Green, which included PLC experience. Mr. Ooms testified that he rejected Adrian Cook for the same lack of PLC experience. Mr. Cook held the required journeyman electrician’s license, but his résumé gave no indication of PLC or troubleshooting experience. Mr. Ooms testified that he called Mr. Cook’s current employer, who vouched for him as a "good man," but provided no details as to his PLC experience. Mr. Ooms also admitted that he did not ask the employer about Mr. Cook’s PLC experience. As to Mr. Cano, Mr. Ooms testified that he appeared well qualified but lacked the required journeyman electrician’s license, and lacked bridge experience. Mr. Ooms was impressed by Mr. Cano’s PLC and ladder logic experience, and might have approved him but for the lack of the required license. Mr. Ooms acknowledged that Kelly Green did not have his journeyman electrician’s license when he started work on the bridges. Mr. Ooms testified that he was unaware of that fact at the time Mr. Green was hired. Douglas Blake, project engineer for GE, affirmed that in the five years GE has been performing bridge operations and maintenance, FDOT has never asked any electrician to produce a license. Mr. Blake testified that performance of an electrician’s job on these bridges does not require permitting, and that there is no license exposure to an electrician working these jobs. Mr. Blake’s opinion was that the license requirement is merely a contract tool FDOT can use to eliminate substandard bids. No witness for FDOT assented to Mr. Blake’s characterization of the license requirement. FDOT’s consistent position was that a prospective electrician must have at least a journeyman electrician’s license, as set forth in the RFP and the Bridge Manual. Mr. Blake testified that Manning, Cook, and Cano all appeared to be worthy candidates to be bridge electricians, insofar as their electrical technical qualifications appeared to compare favorably to those of Vance and Green. No evidence was presented that Mr. Ooms had any knowledge of Mr. Blake’s opinion at the time he made his decision, or that such knowledge would have altered that decision. Lane Tyus, a GE electrical engineer with experience on these bridges, likewise testified that the résumés of Manning, Cook, and Cano would pass his initial screening and that he would make a final decision in a face-to-face interview. No evidence was presented that Mr. Ooms had any knowledge of Mr. Tyus’ opinion at the time he made his decision, or that such knowledge would have altered that decision. At the hearing, Old Tampa Bay produced a list purporting to show 25 electricians whose hiring for bridge work was approved by FDOT for various districts during the period 1991 through 1998, despite the fact that none of the 25 had prior bridge experience. This list included Mr. Vance and Mr. Green in District One, where Mr. Ooms works. Mr. Ooms disclaimed knowledge as to the approval practices of other districts, which in any event have no relevance to this proceeding. Mr. Ooms again averred that this situation is different than that prevailing when Vance and Green were hired, because the substitutes here proffered by Old Tampa Bay must not only meet the RFP requirements but must be the equivalent of Vance and Green in experience and expertise. Mr. Abernathy testified that he believed the team of Manning, Cook and Cano was the equivalent of Vance and Green. He testified that any modern industrial electrician must have experience with PLCs, and will not necessarily spell-out that experience on his résumé. He testified that it was his "absolute firm belief" that no matter whose names he submitted to FDOT as substitute electricians, they would be rejected. Mr. Ooms testified that he neither favored GE nor disfavored Old Tampa Bay. He admitted having greater familiarity with GE’s personnel because they have been working on the bridges for the last five years. He testified that he considers it his professional obligation to work with whoever holds the contract. Aside from the obvious licensure deficiency for Mr. Cano, these proposed substitutes may well have been equivalent to Vance and Green. However, their equivalence could not be ascertained from Old Tampa Bay's submissions. Their résumés did not clearly establish their qualifications in areas that Old Tampa Bay knew or should have known were critical to FDOT. The agency made its expectations very clear to Old Tampa Bay as to what was expected of equivalent substitutes. Old Tampa Bay did nothing to expand upon the sketchy résumés of these persons, or to explicate the relationship between their experience and the work to be performed on the bridges. Mr. Ooms cannot be faulted for failing to consider information that the proposer did not provide. It is found that Mr. Ooms was not biased in rejecting Manning, Cook, and Cano. Old Tampa Bay argues that the disparity in the scoring of the technical proposals between Mr. Ooms and the other two evaluators demonstrates his bias in favor of GE. However, as noted above, all three evaluators gave GE the highest marks for RFP 1003. In fact, the scores for GE’s proposal given by the other two evaluators were significantly higher than the score Mr. Ooms gave to GE’s proposal. The fact that Mr. Ooms found an 18-point disparity between the proposal of GE and the proposals of the other two bidders does not of itself indicate bias in favor of GE on his part, any more than the fact that his score for GE was 15 to 18 points lower than the GE scores by the other evaluators indicates a bias against GE. FDOT demonstrated no bias against Old Tampa Bay in this process, providing Old Tampa Bay repeated opportunities to provide satisfactory substitutes for Green and Vance. Old Tampa Bay attempted to show disparate treatment by introducing evidence showing that FDOT allowed GE to substitute Kelly Green for an electrician named Charles Cave in 1995, after award of the previous contract, despite the fact that Green at the time had no experience working on the bridges and did not obtain a journeyman electrician’s license until approximately two months after he commenced work. Assuming arguendo that FDOT’s actions in awarding this contract may be attacked by showing different agency behavior in prior contracts, the evidence adduced by Old Tampa Bay is insufficient because it gives no indication of the qualifications of Charles Cave, the electrician replaced by Mr. Green. There is no way to determine whether Mr. Green was or was not an equivalent substitute for Mr. Cave, and thus no way to establish disparate treatment by FDOT from one contract to the next. Old Tampa Bay further asserts that FDOT’s treatment of Mr. Green when he commenced work indicates that FDOT had the discretion to allow Mr. McCormick to obtain his journeyman electrician’s license after commencing work. Assuming arguendo that Old Tampa Bay’s assertion is correct, the facts establish that the lack of a license was a secondary concern in the rejection of Mr. McCormick. Mr. Ooms testified that his rejection of Mr. McCormick was primarily based on lack of bridge and PLC experience, and the overstatement of qualifications on Mr. McCormick’s résumé. Even if Mr. McCormick possessed the required license, Mr. Ooms would have properly rejected him. Old Tampa Bay challenged FDOT’s allowing GE to make changes in its management personnel after being awarded the contract for RFP 1003. The three upper-level managers in question were located in Atlanta, had nothing directly to do with the operation of the bridges, and were not "key personnel" as described in the RFP and Bridge Manual. GE informed FDOT of the change in a courtesy letter, dated October 20, 1998, more than five months after submission of the original proposals. The RFP did not require these remote persons to be identified by name at all, let alone require GE to freeze them in place as a condition of its contract. As noted above, the facts established that Old Tampa Bay included the name of John Vance in its proposal though it knew or should have known that Mr. Vance had no intention of working for Old Tampa Bay on this project. Old Tampa Bay attempted to demonstrate that GE did substantially the same thing when it included the name of Mr. Lane Tyus in its proposal as its registered electrical engineer. Mr. Tyus indeed testified that he did not know that GE had included his name in the proposal at the time it was submitted, and was not made aware of his inclusion until some time after Old Tampa Bay filed its protest. However, Mr. Tyus also testified that he knew his résumé was kept on file by GE precisely for inclusion in proposals. Further, he testified that he has been involved with the contract for these bridges since 1992, that he was not surprised at his inclusion, and that he was prepared to undertake the tasks described in the GE proposal. Thus, there is no comparison between Mr. Tyus’ situation with GE and that of Mr. Vance with Old Tampa Bay. Finally, Old Tampa Bay attempted to demonstrate bias in the fact that FDOT allowed GE to submit John Vance's name as bridge superintendent for RFP 1004, despite his lack of experience in that position. However, Mr. Ooms testified that Mr. Vance was in fact more than qualified for the position, in that the training requirements set forth in the Bridge Manual for electricians such as Mr. Vance include all the requirements for bridge superintendents as well as electrical courses.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is recommended that the Department of Transportation enter a final order dismissing the protest filed by Old Tampa Bay Enterprises, Inc. and awarding the contract for RFP-DOT-97/98- 1003, Bridge Tending/Maintenance and Repair Services for Five Movable Bridges, Sarasota and Manatee Counties, to General Electric Industrial Systems. DONE AND ENTERED this 27th day of May, 1999, in Tallahassee, Leon County, Florida. LAWRENCE P. STEVENSON 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 27th day of May, 1999. COPIES FURNISHED: Jonathan Sjostrom, Esquire Steel, Hector & Davis LLP 215 South Monroe Street, Suite 601 Tallahassee, Florida 32301-1804 Brian F. McGrail, Esquire Office oif the General Counsel Department of Transportation 605 Suwannee Street, Mail Station 58 Tallahassee, Florida 32399-0458 Robert A. Rush, Esquire Robert A. Rush, P.A. 726 Northeast First Street Gainesville, Florida 32601 Thomas F. Barry, Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street, Mail Station 58 Tallahassee, Florida 32399-0458 Pamela Leslie, General Counsel Department of Transportation Haydon Burns Building 605 Suwannee Street, Mail Station 58 Tallahassee, Florida 32399-0458
Findings Of Fact By an application filed with the Department of Environmental Regulation on October 28, 1980, Pinellas County requested a dredge and fill permit to- construct a road and bridge crossing with an associated stormwater treatment system in connection with the improvement of County Road No. 1 across Curlew Creek and its wetland flood plain. The specific location of the project is in Section 12, Township 28 South, Range 15 East, in the City of Dunedin, Pinellas County, Florida. The project will involve the dredging of approximately 2,639 cubic yards of soil and include the placement of approximately 1,605 cubic yards of fill in the creek bottom. After an evaluation of the initial application the Department issued a letter of intent to deny the application on March 17, 1982, but the denial suggested several modifications to the project which were accepted by the County when it filed an amended application on September 30, 1932. It is on the basis of this amended application that the Department issued its notice of intent to grant on November 5, 1982. The County's initial application was complete before February I, 1982, the effective date of Chapter 17-25, Florida Administrative Code, the Department's new stormwater discharge rules. The Petitioners jointly own real property on which they reside immediately to the west and downstream of Curlew Creek. Their property is riparian to the creek. Curlew Creek is a natural water body which runs from near U.S. Highway 19 in a westerly direction to the Gulf of Mexico in Dunedin, Florida. It is an unnavigable Class III water of the state. At times it carries a heavy stormwater runoff load and passes private residences such as Petitioners' which border the creek in many areas. During design storm events there has been flooding when the creek exceeds its historic flood plain. That flooding has come up into Petitioners' back yard. At the project site where the creek now runs under the existing span for County Road No. 1, the creek is approximately 25 feet wide and 2 feet deep. The creek bottom is flat and consists of deep fine sand. The banks are well vegetated with a dense scrub layer and many large trees. This vegetation provides good soil stabilization and prevents erosion of the creek banks. Curlew Creek is presently traversed by County Road No. 1 over a two- lane bridge. Because of increased traffic flow the County proposes adding another bridge span to carry two more lanes of traffic. When the additional two lanes are complete the center line of the entire bridge complex will be moved to the west of its present location and therefore be closer to Petitioners' residence. Petitioners primary concern in opposing the project is their belief that when completed the project will increase the potential of Curlew Creek to flood their land. Curlew Creek, which generally runs in an east-west direction, takes a sharp bend to the south on the downstream side of the existing bridge. It later resumes its course to the west toward St. Joseph's Bay and the Gulf of Mexico. The creek's rapid change of direction underneath the bridge caused some confusion when the Department of Environmental Regulation issued its notice of intent dated November 5, 1982, to grant the requested dredge and fill permit. Condition number one for issuing the permit stated "The existing vegetation in an area more than 50 feet up and downstream from the bridge railing will not be disturbed except in the area of detention pond number 3 on the northeast side of the bridge." The author of the notice had intended that the condition mean vegetation would not be disturbed any further than 50 feet to the east or 50 feet to the west of the planned bridge railing, and not 50 feet upstream or downstream. The project plan is to remove a small sand spit which projects into the creek from the east bank immediately to the south of the bridge. Additional minor dredging is planned to smooth the water flow through the bridge area. Fill will be deposited to also provide a smoother water flow and consequently cut down on the eddies which presently arise under the bridge. The result of improved stream flow will be a reduction in the erosion of the creek banks and a lessening of turbidity in the creek water. Because the construction proposed will result in removal of certain vegetation along the creek bank which now provides soil stabilization, the County plans to use wet sand cement riprap or gabions for slope protection to stabilize the soil. Either method provides adequate erosion protection to ensure that the standards for Class III surface waters of the state will not be violated if the conditions of the proposed permit are followed. The expanded stormwater runoff facilities which are part of the project, as modified and subject to the condition in the Department's letter of intent to grant, will not have a significant impact on the water quality of Curlew Creek. These facilities provide adequate retention and settling capacity to ensure that the stormwater which eventually discharges into the creek will not cause pollution.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Department of Environmental Regulation enter a Final Order approving the application of Pinellas County for a dredge and fill permit in order to construct the above described project in accordance with the conditions set out in the Department's letter of intent to grant dated November 5, 1982. DONE and RECOMMENDED this 24th day of October, 1983, in Tallahassee, Florida. MICHAEL P. DODSON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of October, 1983.
Findings Of Fact Existing Bridge, Application for Dredge-and-Fill Permit, and Proposed Bridge Existing Bridge Manatee Avenue, which is part of State Road 64, connects Bradenton on the east with Anna Maria Island on the west. The road segment between the mainland and the island is a minor urban arterial. The road spans Sarasota Pass (also known as Anna Maria Island Sound) by a drawbridge (i.e., bascule bridge) about 7.2 miles west of U.S. Route 41 (Business) in downtown Bradenton. The bridge is known as the Anna Maria Island Bridge. The Anna Maria Island Bridge was built 40 years ago. The deck of the drawbridge is 25 feet above the water. (All elevations over the water and all water depths are relative to mean water, unless otherwise stated.) The bridge spans are 48 feet long, and the bascule span is 128 feet long. The bridge is scuppered so that untreated stormwater runs off the edge of the bridge into the water below. Manatee Avenue consists of two lanes on both sides of the Anna Maria Island Bridge. A shorter, two-lane bridge lies between the Anna Maria Island Bridge and the mainland. The speed limit along the approaches and on the Anna Maria Island Bridge is 50 miles per hour. The approach roadway consists of two 12-foot traffic lanes with 8-foot gravel shoulders. There are no sidewalks or bicycle paths along the approaches to the bridge. Bicycles, joggers, and pedestrians use the Anna Maria Island Bridge, but not extensively. However, DOT acknowledges that the bridge is "heavily used by fishermen, principally recreational or low volume commercial mullet netters using large cast nets." DOT Exhibit 30, page 20. These fishermen use the 400 feet at either end of the bridge and up to 200-300 feet of the margins of the pass. Gulf Drive, which is the major north-south road on Anna Maria Island, intersects Manatee Avenue one-half mile west of the Anna Maria Island Bridge. The intersection has a traffic signal. Gulf Drive is a two-lane arterial under state jurisdiction south of Manatee Avenue and a two-lane collector under city jurisdiction north of Manatee Avenue. Average daily traffic across the Anna Maria Island Bridge in 1988 was 14,000-15,000 vehicles. The traffic signal at Gulf Drive is the major cause of traffic congestion on Manatee Avenue at the bridge. On Friday and Saturday nights, traffic at the light often backs up past the bascule. Another frequent source of traffic congestion is a minor intersection with turn and through lanes for a store/marina one-quarter mile east of the bridge. The drawbridge contributes to traffic congestion on the infrequent occasions when it opens; during peak periods, the drawbridge opens only three times an hour. The Anna Maria Island Bridge is 3123 feet long and 37.4 feet wide. It contains two 12-feet traffic lanes, no shoulders, and two five-foot sidewalks separated from the traffic lanes by nine-inch curbs. The bridge is not lighted except for navigation lighting in its below-deck structure. The vertical clearance at mean high water with the bascule span closed is 17.5 feet. The Anna Maria Island Bridge has an excellent safety record with a below-average number of collisions. During the three-year period from 1984-86, the bridge was the site of 24 collisions: 10 rear-end vehicular collisions, three angle/head- on vehicular collisions, five collisions with the bridge, and six other collisions. During the same period, there were 38 collisions on the approaches to the bridge, including 17 rear-end vehicular collisions, five angle/head-on vehicular collisions, and one motorist who hit the bridge from the approach. The rear-end collisions on the bridge involve vehicles trying to turn into a boat ramp off the west approach to the bridge and the store/marina off the east approach to the bridge. There is no evidence that the operation of the drawbridge caused any of the collisions on or near the bridge. There was only one collision involving a vehicle and a pedestrian during the three years in question. This took place on the eastern approach. There were no collisions involving bicyclists. The Anna Maria Island Bridge was constructed with a design load of H- It has no posted weight restrictions. The most recent DOT inspection, which took place in 1987, indicated that the deck, superstructure, and substructure of the bridge were in "fair" condition, meaning that there was "early to moderate deterioration that does not reduce element capacity." The channel protection was in "excellent" condition. A 1988 DOT inspection of the bascule span revealed that it was in "good" condition, meaning that there was "moderate incidence of significant early deterioration." About 650 marine vessels monthly require operation of the drawbridge in order to navigate the Intracoastal Waterway, which runs under the Anna Maria Island Bridge between Tampa Bay and Sarasota Bay. This traffic consists of 83.5 percent sailboats, 14.9 percent power boats, and 1.6 percent tugboats or barges. The tugboats are typically 35 feet by 195 feet. There have been no reported marine collisions with the bridge. Navigability is not difficult at the drawbridge with its moderate tidal range of 1.5 feet. Incoming and outgoing tides run at 0.6 and 0.1 knots, respectively. The width of the navigation channel is 90 feet at the fender system under the bascule, which easily accommodates the largest vessels that typically use the pass. The water depth is 12 feet at mean low water. The alignment of the channel is only 19 degrees from perpendicular with the bridge. A variety of sailboats using this portion of the Intracoastal Waterway have masts that require a vertical clearance greater than 65 feet. Such sailboats include a number of Hunters and Catalinas, which are manufactured in Florida. Sailboats with masts as high as 80 feet have passed through the opened drawbridge. During a survey conducted by DOT, one boatyard operator suggested a clearance of 70-75 feet, rather than 65 feet, because the Intracoastal Waterway was an important route due to the closing of passes and increasing use of taller-masted boats. Application for Dredge-and-Fill Permit By letter dated August 11, 1992, Department of Transportation (DOT) submitted an application to Department of Environmental Protection (DEP; references to DEP include its predecessor agencies, Department of Environmental Regulation and Department of Natural Resources) for a dredge-and-fill permit. The permit was to replace the Anna Maria Island Bridge with a fixed-span, high- level bridge immediately south of the existing bridge. By letter dated January 21, 1993, to James Wilt, the DOT district permit engineer responsible for the bridge project, a DEP administrator in the Tampa office advised that he could not recommend the project for approval. Although the letter was not final agency action, it was sent "to allow applicant time to assess fully the further commitment of financial resources for this project." The January 21 letter suggests several alternatives that would reduce the project's impacts. The suggested alternatives include relocating the proposed bridge to deeper water to the north of the Anna Maria Island Bridge and providing details how construction would not impact productive shallow bottoms, especially extensive seagrass beds. By letter dated February 3, 1993, Mr. Wilt informed the DEP administrator in Tampa that DEP had long known of seagrass impacts from the proposed bridge in the southern alignment. The February 3 letter complains that DEP neglected to mention the possibility that the bridge project might not be permitted in a September 1992 letter stating that the application was complete or in a December 1992 letter stating that processing of the application had begun. The February 3 letter also complains that a DOT representative called DEP in late December "to inquire about the anticipated date of issuance of the Dredge/Fill permit. [She] was advised that a final field review of the site had to be conducted and the DOT could expect to receive a permit the 2nd or 3rd week in January, 1993." Concluding the February 3 letter, DOT warned DEP: Based upon the early and extensive coordination that has occurred on this project, the absence of any adverse comments during the processing of the application and the fact that DER esti- mated the issuance of a permit in January of this year, anything other than the issuance of a permit for the southern alignment is unacceptable. The portion of the February 3 letter addressing the merits of the application asserts that "DOT considers the proposed design to be the maximum minimization possible." The letter assures that the bridge contractor would be advised that he would be responsible for any damages caused by construction to shallow bottoms or seagrass beds. On February 10, 1993, DEP issued a Notice of Permit Denial. The notice states that the proposed southern alignment would take the bridge through "the most productive and prolific seagrass nursery areas and impact approximately 2.5 acres of productive shallow bottom." The notice suggests that modifications could correct the problems. The notice reports that DEP expressed "significant concerns" about the project in January 1990, including the concern that DEP "'could not expect the applicant to be able to provide reasonable assurances that they could offset the loss of this valuable resource (seagrass beds) through mitigation.'" Thus, DEP recommended that the proposed bridge should be located at the location of the existing bridge. The notice explains that the permit is denied because DOT failed to provide reasonable assurance that the project would not significantly degrade an Outstanding Florida Water or that the project would be clearly in the public interest. In particular, the notice finds that the project would be adverse to fish and wildlife endangered species and threatened habitats, adverse to fishing and marine productivity, permanent in nature, and adverse to the current condition and relative value of functions being performed. As to the last factor, the notice states that the project would significantly reduce nutrient assimilation due to the loss of 0.37 acres of shallow estuarine wetland and at least 2.5 acres of viable nursery area and habitat. The 0.37 acres refers to herbaceous wetlands, and the 2.5 acres refers to seagrass. DOT advised DEP that DOT would file a petition challenging the denial of the permit. DEP agreed to extend the deadline for filing the petition. Mr. Wilt advised the DEP Deputy Assistant Secretary in Tampa, by letter dated April 5, 1993, that an alternative northern alignment would have "significant, permanent impacts to seagrasses north of the existing bridge." The letter adds that unspecified areas under the existing and proposed bridges would support seagrass. In the ensuing months, DOT provided DEP with additional information concerning such matters as construction techniques, seagrass mitigation, the maintenance costs for the existing bridge, and the effect of bridge height on bridge closings due to high winds. DOT revised its plans in several regards to respond to DEP's concerns. By letter dated October 11, 1993, Mr. Wilt informed the DEP Tampa administrator that the northern alignment would impact a greater area of seagrass than the southern alignment. The letter concludes that the project is clearly in the public interest and DOT has shown that the southern alignment is superior both environmentally and economically. By letter dated January 26, 1994, Mr. Wilt confirmed that the parties had resolved that the height of the bridge was no longer an issue and discussed the northern and southern alignments. By letter dated June 7, 1994, the DEP Tampa administrator responded that the northern alignment would be feasible and practical and would reduce permanent and temporary impacts to seagrass, nursery habitat, and manatees. After further negotiations, DEP approved the project with the originally proposed southern alignment and, on May 2, 1995, issued an Intent to Issue a dredge-and-fill permit for the removal of the Anna Maria Island Bridge and construction of a fixed-span, high-level bridge. The permit allows construction of the proposed bridge and demolition of the existing bridge to impact 0.37 acres of herbaceous wetlands (mostly mangrove, marsh, and Brazilian pepper) and 0.12 acres of seagrass. The 0.12- acre finding of lost seagrass is limited to the direct displacement of seagrass by two foundations for the proposed bridge and ignores any loss due to shading, which was the basis two years earlier of the finding in the Notice of Permit Denial that 2.5 acres of seagrass would be lost. The permit requires mitigation of the 0.37 acres of lost herbaceous wetlands and 0.12 acres of seagrass. For the seagrass, the permit requires DOT to remove 1000 plants, which would represent only a small part of the number of plants that would be actually destroyed by the two foundations of the proposed bridge. The permit directs DOT to plant 800 seagrass plants in a 0.19-acre transplant receiving area located south of the west end of the bridge. The permit requires DOT to remove another 200 seagrass plants that would go to the City of Tampa and Florida Marine Research Institute for transplant to Hillsborough, Tampa, and Sarasota bays. The allocation of these seagrass plants reflects the fact that seagrass is not typically disturbed and is therefore not usually available for transplant except where it must be removed due to proposed activities. The permit states that DOT shall conduct a test transplant in the transplant receiving area prior to transplanting all 800 seagrass plants. If DEP determines that the test plot is not successful, it may require an alternative mitigation plan. The permit also orders DOT to develop an alternative mitigation plan if the transplant receiving area fails. DOT must monitor the transplant receiving area. (Specific Condition 41 requires monitoring quarterly during the first year and semi- annually for the second and third years. A Seagrass Mitigation Plan incorporated into the special conditions requires DOT to monitor the 800 seagrass plants at the time of transplant, six months later, and at the first three anniversaries of the transplantation.) The permit sets limited monitoring criteria for the test plot and transplant receiving area. These criteria are cover and shoot density, but omit seagrass function as habitat, food, and water quality enhancement. Regardless of the adequacy of the monitoring criteria, the permit fails to specify the "success criteria" for the test plot or the larger transplant receiving area. There is thus no indication of satisfactory levels of cover, shoot density, or habitat, food, and water-quality function. Additionally, nothing in the permit supplies any guidelines for alternative mitigation in case the test plot or transplant receiving area fail. The permit is silent as to how to find a donor site or its required characteristics in terms of the ability to yield seagrass. The permit is silent as to the characteristics of a presumably barren or sparsely vegetated receiving site in terms of its ability to sustain seagrass. There are no parameters as to effective water depths, water transparency, or other factors crucial to seagrass. The permit assumes that seagrass would recolonize under the existing and proposed bridges after their respective demolition and construction. The Seagrass Mitigation Plan contains a contingency plan if this recolonization fails to take place. The contingency plan would require DOT to transplant 4000 seagrass plants from an unspecified donor bed to an unspecified contingency receiving site. If no area in Sarasota Pass were scheduled for destruction of seagrass, then DOT would have to recruit plants from a seagrass bed adjacent to the contingency receiving site. There is again no discussion of the necessary characteristics of contingency donor and receiving sites. The permit grants DOT a 200-meter mixing zone for turbidity. However, the duration of the mixing-zone allowance ends prior to the demolition of the existing bridge, which is scheduled to take place after the construction of the proposed bridge. The mixing zone is limited to the earlier of two years or the completion of "bridge construction." (Special Condition No. 46 in SAM Exhibit No. 2. Special Condition No. 46 in DOT Exhibit No. 70 starts the two-year term from the award of the contract. Generally, the permit is compiled from SAM Exhibit No. 2, DOT Exhibit No. 70 (general and specific conditions), and DOT Exhibit No. 39 (page 2 of 23). Although DOT Exhibit No. 70 is the more reliable source of special conditions than SAM Exhibit No. 2, there are other errors in DOT Exhibit No. 70, such as the reference in Special Condition No. 45b to the waters as Class III waters when, as stated in Special Condition No. 45b in SAM Exhibit No. 2, they are Class II waters.) The mixing zone is for the sole purpose of permitting turbidity values to exceed state water quality standards. The permit allows turbidity in the mixing zone to exceed background turbidity by 29 NTUs, but prohibits turbidity in excess of background values outside the mixing zone. The permit also addresses manatee. Special conditions call for signage requiring idle speed for boats and cessation of the operation of construction equipment if a manatee comes within 50 feet of the operation. The conditions require that manatee injuries be reported immediately to the Florida Marine Patrol toll-free number and the contractor shall log all sitings and injuries. Proposed Bridge The proposed bridge would be 3372 feet long and 54 feet wide. On a 4 percent grade, the deck would be 75 feet high at the center with two 12-foot travel lanes, two 10-foot shoulders, and one six-foot wide sidewalk separated from the traffic lane by a sturdier divider than those separating the sidewalks from traffic lanes on the Anna Maria Island Bridge. The spans of the proposed bridge would be farther apart than the spans of the Anna Maria Island Bridge. At mean high tide, the vertical clearance at the edge of the navigation channel would be 65 feet. In general, the proposed bridge would provide greater vertical clearance on either side of the channel than does the Anna Maria Island Bridge. The northern edge of the proposed bridge would be 20 feet south of the southern edge of the Anna Maria Island Bridge. Construction of the proposed bridge would take about two years. Demolition of the existing bridge would be by unspecified means, probably explosives. The proposed bridge would combine stormwater treatment with scuppers. The stormwater treatment would extend from the ends of the bridge 300 feet toward the center, leaving untreated stormwater along most of the proposed bridge. The untreated area on the proposed bridge would exceed the untreated area on the Anna Maria Island Bridge by over one-half acre. However, the additional amount of stormwater contaminants entering the water would be limited to road surface particles and road cleaners because no additional traffic would use the proposed two-lane bridge. Anna Maria Island and Sarasota Pass Anna Maria Island is a barrier island between Sarasota Pass to the east and the Gulf of Mexico to the west. For the most part, Anna Maria Island is less than one-half mile wide, except for a canalized area at the north end where a minor bridge connects the island to a small key. The Anna Maria Island Bridge connects the island to the mainland indirectly by way of Perico Island, a noncoastal barrier island to the east of Anna Maria Island. Sarasota Pass is about 6000 wide at the bridge. However, when the bridge was constructed in 1957, long fingers of fill were deposited at the east and west ends of the bridge. The west finger is about 2000 feet long, and the east finger is about 1000 feet long. Thus, as a result of man-made modifications, Sarasota Pass at the bridge is a little over 3000 feet wide. The City of Holmes Beach lies at the west end of the Anna Maria Island Bridge, although its jurisdiction probably does not extend to the 2000 feet of fill added when the bridge was built. The City of Anna Maria lies to the north of Holmes Beach at the north end of Anna Maria Island. The Anna Maria Island Bridge is about three miles south of the north end of the island. About two miles south of the Anna Maria Island Bridge lies the Cortez Bridge, which is also a drawbridge of the same vintage as the Anna Maria Island Bridge. The Cortez Bridge, which is shorter than the Anna Maria Island Bridge, serves Cortez Road and connects the mainland to the island at the City of Bradenton Beach, which is the third municipality on Anna Maria Island. Bradenton Beach is a little less than two miles from the south end of the island. The remaining major bridge on Anna Maria Island connects Gulf Drive to Longboat Key to the south. A bridge at the south end of Longboat Key runs to Lido Key, which is joined to the mainland at Sarasota by the Ringling Bridge. The Anna Maria Island Bridge is about 9000 feet south of the confluence of Sarasota Pass and Lower Tampa Bay. Sarasota Pass connects the expansive Tampa Bay estuary to the north with the Sarasota Bay estuary to the south. Sarasota Pass and Sarasota Bay are Outstanding Florida Waters. The water in the vicinity of the Anna Maria Island Bridge is Class II water. Seagrass Effect of Proposed Bridge on Seagrass Seagrass is a key component of the Sarasota Pass estuary. Seagrass is vital to water quality and provides essential habitat and food for wildlife, including wading and diving birds, fish, shellfish, and manatee. Providing nursery habitat for juvenile marine life that may in itself be important to recreational or commercial fishermen, seagrass beds are important foraging areas for such recreationally important fish as snook, spotted seatrout, and red drum or redfish. Seagrass aids water quality by filtering suspended material from the water column and stabilizing the bottom. The resulting improvements in water transparency increase the depths to which sunlight can penetrate. Seagrass are dependent on sunlight. Thus, the deeper that water transparency, water color, and other water-quality parameters allow sunlight to penetrate, the deeper the water in which seagrass can grow. Seagrass is not hardy and is especially sensitive to changes in the amount of light that it receives. Submerged in water, seagrass can be killed by reductions in water transparency, such as those typically accompanying nutrient loading (which can lead to phytoplankton in the water blocking light generally and epiphytes on the seagrass leaves directly interfering with the plant's absorption of light). Seagrass can also die off due to the introduction or resuspension of sediments in the water column, which may result from stormwater runoff, agricultural drainage, boat prop dredging, and construction or demolition activities. Another source of seagrass mortality is the introduction or elevation of certain toxic substances in the water column or sediments by way of stormwater runoff, agricultural drainage, boat emissions, or construction or demolition activities. Toxic substances include heavy metals and petrochemicals, such as those associated with urban stormwater runoff. Discrete patches of seagrass may also destroyed by the burrowing and feeding of fish such as rays. Relatively small reductions in sunlight can destroy seagrass over a wide area. If, while all other factors remain constant, reductions in transparency or increases in turbidity reduce by one foot the maximum water depth at which seagrass can grow, the effects may be widespread in estuarine bottoms, which are often gently sloped. Two factors discourage seagrass recolonization following their destruction, even assuming the elimination of the cause of the seagrass mortality in the first place. First, the species of seagrass involved in these cases spread very slowly. Second, even a temporary loss of seagrass may change background conditions to discourage recolonization. Once the seagrass in an area is destroyed, it is possible for bottom sediments to build up, turbidity to increase, and water transparency to decrease. This process may effectively prevent seagrass recolonization transplantation--at depths at which seagrass previously grew. If an area is so well-flushed as to remove sediments, the loss of the stabilizing bottom vegetation may result in erosion, critically deepening the water depth so that seagrass cannot capture enough light to recolonize the area. The existing bridge is at the north end of a flourishing seagrass meadow featuring Thalassia, Halodule, and Syringodium. Important areas of seagrass exist north of the bridge, but the dense, lush seagrass meadow to the south is more prolific. Near the existing bridge, seagrass grows in water as deep as five to six feet. The record lacks evidence of a comprehensive, detailed bathymetry, but several important facts are clear from available evidence of water depths. First, the water in the middle of the pass under the existing or proposed bridge is too deep for seagrass. Seagrass would not grow in the middle of the pass at this location even if there were no bridge. Second, the water is deeper under the existing bridge than it would be under the proposed bridge. The only place where the water under the Anna Maria Island Bridge is not deeper than the water under the proposed bridge is the westernmost 100 feet where the water depths are about the same. Most importantly, the depths under the Anna Maria Island Bridge are too great for seagrass growth along nearly the entire length of the bridge, even if the bridge were removed. On the other hand, seagrass thrives upon the bottom that would be under at least 1600 feet of the proposed bridge. Suitably shallow depths exist 800 feet along either end of the proposed bridge, and seagrass occupies these areas, which amount to over two acres of seagrass. Despite the known sensitivity of seagrass to changes in lighting, DOT provided no data or analysis regarding how much shading of this two acres of seagrass would be caused by the proposed bridge. DOT did not provide any data or analysis regarding the effect of turbidity due to construction and demolition on the seagrass under the proposed bridge. There is no reasonable assurance that seagrass would survive this construction and demolition. If seagrass did not survive the construction and demolition, DOT supplied no reasonable assurance of recolonization given prevailing conditions, such as reduced sunlight from the new bridge and either turbidity from stirred- up, unstabilized sediments or deeper water from erosion. If seagrass did survive the construction and demolition, DOT supplied no reasonable assurance that the long-term sunlight reductions caused by the new bridge would permit the seagrass to survive. It is more likely than not that the two acres of seagrass presently growing in the area that would be covered by the proposed bridge would not survive the proposed project. But more than two acres of seagrass are imperilled by the proposed project. The record is devoid of any analysis of bottom sediments. For 40 years, the scuppered Anna Maria Island Bridge has dumped untreated stormwater into the water below. Stormwater contaminants include a wide variety of potentially toxic materials, such as road materials, tire materials, lubrication, road cleaners, paint, building materials, and virtually anything that might be loaded onto vehicles using the bridge. Common runoff contaminants are heavy metals, hydrocarbons, oil and grease, zinc, and copper. Stormwater pollution of the sediments along the drip line of the Anna Maria Island Bridge is more than a theoretical possibility. DOT Exhibit No. 83 shows that seagrass is generally absent at all depths in the 20 feet immediately south of the existing bridge. The general absence of seagrass in the 20 feet immediately to the south of the bridge is unlikely the result of shading because DOT Exhibit No. 83 reveals that dense seagrass grows in the 20 feet immediately to the south of the west end of the bridge. Off-bridge shading appears to exist to the north of the bridge, not the south. The general absence of seagrass in the 20 feet adjacent to the bridge is unlikely the result of prop dredging because nearby seagrass is dense. The general absence of seagrass along the dripline may be due to the biochemical or mechanical disturbance caused by the stormwater rushing off the bridge. To the extent of mechanical disturbance, the presence of seagrass in the adjacent 20 feet at the west end of the bridge may be due to a lack of proximity to an unblocked scupper drain at that location. To the extent the disturbance may be biochemically caused, this anomaly may reflect variations in flushing. At least 1000 feet of seagrass (500 feet at either end) just south of the proposed bridge would receive untreated stormwater rushing through the scuppers of the proposed bridge. The width of the affected band would presumably be the same 20 feet as the width affected by the existing bridge. DOT has provided no reasonable assurance that this half acre of seagrass would survive the proposed project. To the contrary, it is more likely than not that this half acre of seagrass would not survive the proposed project, especially after consideration of the additional prop dredging from small boats finding it easier to bypass the channel and run under the higher bridge with wider spans. Two foundations for the proposed bridge would occupy 0.12 acres of seagrass. However, this seagrass would be under the deck of the proposed bridge, so this area has already been taken into account under the shading analysis. In addition to the likely permanent destruction of 2.5 acres of seagrass under and 20 feet south of the proposed bridge, it is more likely than not that construction would at least temporarily destroy additional seagrass farther to the south. The proposed project calls for the construction of large work platforms parallel to, and south of, the new bridge and small fingerplatforms running from the work platforms toward the new bridge. The work platforms would be placed in water shallower than six feet and would cover areas vegetated by seagrass. The platforms would be 1100 and 1200 feet long and 40 feet wide and would thus cover a little over two acres of seagrass. The platforms would be low on the water--lower than the existing bridge--and effectively shade the seagrass below them. DOT witnesses promised the use of slatted platforms to minimize shading, but there was no showing that the slats would pass sufficient sunlight at critical water depths except when the sun is directly overhead. What seagrass survived the construction of the platforms would not survive the shading and turbidity during construction, as this area is well within the mixing zone allowed by the permit. Absent permanent alteration of the bathymetry, introduction of persistent toxic substances, or collection of substantial amounts of sediment during construction in the area under the work platform, the likely loss of the two acres of seagrass from the work platform would not be permanent. Recolonization would probably begin once construction ended. The platforms would not remain in place during the entire period of construction. There would no need for the platforms on the south side of the proposed bridge during the demolition of the existing bridge to the north. It is also possible that the platforms would be removed as construction was finished along the bridge. However, the slow growth of the seagrass suggests that years, not months, would be required for recolonization of the two acres to the present density. There is no reason to calculate lost seagrass from the construction of the fingerplatforms. They will span the area from the south edge of the proposed bridge to the north edge of the work platforms. Thus, they cover the area already affected by the stormwater running off the bridge. The 600 x 20 foot area proposed to be served by stormwater management system, where adjacent seagrass presumably would not be affected, might be affected by the fingerplatforms but the small size of the platforms renders the loss negligible. Mitigation of Seagrass Impacts DEP nonrule policy is to consider the mitigation of lost natural resources only after the applicant has minimized the effects of the proposed activity. The effect of this sensible policy is to avoid excessive reliance on the mitigation of avoidable impacts to natural resources. Mitigation is premature in these cases. DOT has not minimized the proposed project. Minimization is the no-build alternative, as discussed below. Only after DOT proposes the no- build alternative should DEP consider the mitigation of the environmental impacts of extensive bridge repair or rehabilitation. In any event, the seagrass mitigation offered by DOT is deficient in three respects. First, the transplant receiving site is too small. It is 0.19 acres as compared to the likely permanent loss of 2.5 acres and temporary loss of 2.0 acres. This is a dramatic departure from the normal seagrass mitigation ratio of 1:1 required by DEP. Although less important due to the gross inadequacy of the size of the transplant receiving site, there is also a major discrepancy between the densely vegetated donor area and the sparse transplantation pattern specified for the receiving area. It was no accident that DOT badly underestimated the impact to seagrass from shading. DEP initially denied the application based on a more realistic estimate of seagrass loss. This permit reduces DEP's original estimate of lost seagrass by over 90 percent. When DOT's environmental subconsultant estimated larger areas of seagrass to be impacted by shading, DOT's prime consultant twice ordered him in late 1988 and early 1990 to reduce these estimates, once telling him that shading is a "non- issue which is not even addressed in any agency regulations." DOT's prime consultant thus attempted to ignore data, without which DOT could not reasonably project likely seagrass losses. The resulting analysis of seagrass impacts is not based on good data and is unpersuasive. The second deficiency is that the primary seagrass mitigation is too speculative. The transplant receiving area is near the natural western shore of the pass. Unlawful boat use of a nearby fishing pier and bioturbation have resulted in barren patches in the transplantation area, but the recolonization process is proceeding naturally. Consistent with the slightly more colored water and somewhat poorer flushing than is found at the bridge, natural recolonization is already establishing as extensive and dense a seagrass bed as boating and bioturbation will permit. The natural recolonization process now taking place in the transplant receiving area will revegetate more quickly and completely the portion of the bottom capable of supporting seagrass than would DOT's mitigation effort. DOT's proposed seagrass transplantation might even disrupt the natural recolonization process. The success of the proposed seagrass transplantation is speculative at best. Compared to the mangrove mitigation in these cases, seagrass transplantation is complicated and remains experimental. Under the best of circumstances, seagrass transplantation is a complicated process that has not been demonstrated consistently to prevent net habitat loss. The DEP witness who reviewed DOT's application is an Environmental Specialist III who has been with DEP nearly nine years and has reviewed over 500 dredge-and-fill permits. Testifying against the permit and particularly the seagrass mitigation plan, he noted that DOT's seagrass mitigation plan promises uncertain benefits. As was the case with the estimates of seagrass impacts, DOT and DEP failed to obtain the necessary data and perform the necessary analysis to provide reasonable assurance of the success of the mitigation provisions of the permit. Lacking comprehensive bathymetric and water-quality data, DOT cannot provide reasonable assurance that any of the mitigation proposals would work. To the contrary, the primary seagrass mitigation plan, which is the only one sufficiently detailed to evaluate, is more likely than not to fail. The third deficiency of the seagrass mitigation plan is its contingent nature, which is perhaps inevitable when the primary seagrass mitigation plan is widely conceded as unlikely to succeed. The importance of alternative and contingent seagrass mitigation plans is underscored by the likelihood of the failure of the main transplant receiving site and the unlikelihood that seagrass will recolonize under the existing or proposed bridge. But the alternative and contingent mitigation plans create only the illusion of assurance. The alternative and contingent mitigation plans are worthless because they lack success criteria, detailed guidelines for identifying donor and receiving areas, and practicality. The alternative and contingent mitigation plans amount to nothing more than vague and unenforceable undertakings to find seagrass somewhere and transplant it somewhere else. Such a difficult task demands more detail. The mitigation in this permit is a reasonable assurance only, as stated in exhibits, of the continuation of the trend of the last half century during which Florida has lost one-third of its nearshore seagrass meadows and of the wisdom of the principle that conservation of existing beds is a more certain means by which to maintain well-functioning seagrass habitat. Manatee Seagrass in the immediate area of the Anna Maria Island Bridge is frequented and consumed by manatee. Although the southern edge of the existing bridge marks the limit of an extensive seagrass meadow in the area, manatee also feed in an area just north of the bridge about one-quarter of the way across the bridge starting at the western terminus. Between 1985 and 1991, there were 432 adult manatee sightings and 44 manatee calf sightings in the vicinity of the Anna Maria Island Bridge. About two-thirds of these 476 sightings were north of the bridge and one-third south of the bridge. Manatee use Sarasota Pass to travel between Tampa Bay and Sarasota Bay. The fill added in 1957 already constrains their passageway under the bridge by artificially narrowing the pass by about one-third. Construction at either end of the bridge would tend to concentrate the manatee even more toward the center of the bridge where they would more likely encounter boats in the main channel. The southeast corner of Sarasota Pass just north of the east end of the bridge is an area of heavy manatee use. When a nearby marina reopened, manatee sightings decreased 58 percent from 1987 levels, but then returned to prior levels in 1989, before decreasing again in 1990. Manatee frequent a hole near the marina that was probably dredged in the 1950s. Estimates in 1987 were that Florida's manatee population is about 1200, with equal numbers on the east and west coasts. Manatee populations are slow-breeding. Gestation runs 13-15 months with one or sometimes two calves born. The breeding cycle is 3-5 years. The natural life expectancy and reproductive life of a female are unknown. The risk of extinction heightens when the low reproductive rate and manatee mortality attributable to collisions with boats and barges are combined with the probable loss of seagrass, which provide both food and habitat for the manatee, and a two-year narrowing of an already-narrowed, heavily used manatee passageway. Mangroves DOT revised its initial proposal to minimize impacts on intertidal and upland wetlands. The original proposal would have displaced 0.55 acres of such wetlands. Altering slopes of the approach and eliminating a spreader swale resulted in a reduction of such displaced wetlands to 0.37 acres. The displaced upland and intertidal wetlands comprise about as much Brazilian pepper as they do mangroves (0.126 acres versus 0.173 acres). DOT proposes to mitigate the loss of these intertidal or upland wetlands by creating a 0.652-acre intertidal salt marsh, removing an additional 0.143 acres of Brazilian pepper, and incorporating this area into the wetland creation site, for a total of 0.795 acres of herbaceous mitigation. The displaced herbaceous wetland vegetation is performing limited natural functions. Compared to seagrass, mangroves lend themselves to successful mitigation efforts. Except for the failure to minimize the impacts by proposing the no-build alternative, DOT has successfully mitigated the minor disruptions caused by the upland and intertidal disturbances associated with the proposed project. Water Quality The water-quality data in these cases are limited. The record contains little evidence of water quality at the bridge, except what may be inferred from the Outstanding Florida Waters and Class II designations. The water at this location is in the upper 25 percent of water-quality parameters for Sarasota Bay. DOT has supplied DEP no water quality data in advance of the issuance of the permit except for temperature, salinity, secchi depth, dissolved oxygen, and conductivity. After issuance of the permit but before construction, DOT would have to supply DEP background turbidity values. This means that DEP has issued the permit without any values for such critical water-quality parameters as biological integrity, lead, cadmium, zinc, copper, oil and grease, or, as noted above, turbidity. There are no data concerning the chemical composition of the sediments in the vicinity of the bridge. There are no data as to the extent to which these sediments may have been contaminated over the years by stormwater- borne heavy metals or oil and grease. There are no data describing the sediments by grain size and percentage of fine organic materials so as to indicate the susceptibility of bottom sediments to disturbances and the likelihood of the resuspension of contaminants into the water column. Absent these vital data, DEP cannot determine, in advance of issuing the permit, if the proposed project would degrade ambient water quality. Crucial turbidity readings would be available only for enforcement, coming as they would after the permit had been issued. The project would likely eliminate 2.5 acres of seagrass permanently and 2.0 acres of seagrass for an extended period of time. The loss of seagrass would impede the assimilation of nutrients and stabilization of bottom sediments. The project would eliminate benthic macroinvertebrates. The project would resuspend sediments, thereby increasing turbidity and reintroducing into the water column whatever is contained in the sediments. During the demolition of the Anna Maria Island Bridge, the project would violate turbidity standards because the mixing zone would no longer be in effect. DEP and DOT have not analyzed these water-quality impacts attributable to the probable destruction of an extensive area of seagrass. Underestimating the seagrass losses by an order of magnitude and lacking many important measures of water quality, DOT cannot provide reasonable assurance that the proposed project would not degrade ambient water quality in the area of the bridge. To the contrary, the proposed project would likely degrade water quality. Public Interest and Public Health, Safety, and Welfare Why Most Residents Oppose the Proposed Bridge A large majority of the people of Anna Maria Island do not want the proposed bridge. Referenda conducted by the three municipalities in November 1992 reveal that opponents outnumber proponents by nearly a 4:1 margin. Some residents reject the bridge because they believe that it is only the first of two bridges, which would double the lanes onto the island and probably result in greater traffic on the island. DOT has no present intent to build a second bridge, nor is the Metropolitan Planning Organization (MPO) seeking such a bridge at present. Some bridge opponents distrust DOT and the mainland-dominated MPO on this point, but the record does not indicate that such plans are presently under active consideration. Most if not all residents opposing the bridge focus on the height of the proposed bridge. They worry in part that the wind speeds will be dangerously greater on a high-level bridge, so as to increase the risk of vehicles, pedestrians, and bicycles blowing off the bridge and require more frequent and earlier bridge closures due to storms. DOT offered the testimony of Dr. Bob Sheets, formerly director the National Hurricane Center. Graciously termed the "Walter Cronkite of meteorologists" by Petitioner VanWagoner, Dr. Sheets explained why the higher bridge did not pose a significantly greater risk to bridge users than the lower bridge. The vertical exchange of energy characteristic of predominantly convective storms like thunderstorms and hurricanes precludes much difference in wind speeds at the two heights in question. The difference in wind speeds during nonconvective storms like "no- name storms" or "storms of the century" is larger, but still not great. No-name storms lack the vertical exchange of energy of hurricanes and thunderstorms, so wind speeds at 75 feet are greater than at 25 feet. A high-level bridge might encounter critical wind speeds of 45 miles per hour, at which local emergency management and law enforcement officials would close the bridge, perhaps 20 minutes earlier than they would the existing bridge. Perceived dangers of high winds on a high-level bridge could pose a problem for a short while in terms of evacuation. But as a high-level bridge proved safe to use, the reluctance to use the bridge in approaching storms would give way to the pressing need to leave the island. Island residents understand from past experience that flooding on the island and bridge approaches means that they must evacuate without delay if they are to get off the island. DOT has thus provided reasonable assurance that the height of the proposed bridge would not pose a threat to public safety through early bridge closures or mishaps to users of the bridge due to high wind speeds. But residents' concerns about the height of the proposed bridge extend beyond wind-safety issues. Some residents oppose the bridge because they believe that it is unsuitable for their small island community. A high-level bridge would not permit fishing from anywhere but the extreme ends. Many of the area residents--some of whom are older persons--who walk, bicycle, or jog over the existing bridge would find the 4 percent grade and bridge height forbidding. But the objections to the bridge height involve more than reduced access for nonmotorists. Except for one condominium permitted under prior law, nothing manmade on the island stands over 38 feet high. Bridge opponents claim that the size and appearance of the bridge would not blend well with the subdued appearance and casual ambience of their island. Bridge opponents prefer their timeworn drawbridge that allows motorists, bicyclists, and pedestrians to view the water just a few feet below them as they approach or leave the island. Though better scaled to the island community, the drawbridge provides a marked boundary between the island and the mainland. Such a boundary is less apparent from a wide expanse of new roadway across a high-level bridge, from which motorists, bicyclists, and pedestrians would have little if any view or feeling of the water separating the island from the mainland. Most if not all residents oppose the bridge as a dramatic alteration of the daily gateway to their community. These residents are trying to preserve the special lifestyle moving to the island in the first place. Why DOT Favors the Proposed Bridge In the Final Preliminary Engineering Report dated November 3, 1989 (DOT Exhibit No. 107), the "Environmental Determination," which was prepared seven or eight months later, asserts that DOT developed the bridge project along the southern alignment to minimize wetland impacts. Recognizing that only the no-build alternative would avoid impacts to the wetlands, the "Environmental Determination" states: "this alternative is not feasible considering the structural deficiency of the bridge, the absence of shoulders (functional obsolescence) and projected traffic increases indicating the need for two additional lanes." "Environmental Determination," page 5. The Anna Maria Island Bridge is not structurally deficient. DOT has not imposed weight restrictions on the bridge. It has not failed any safety inspections. Although it could use some repairs, the Anna Maria Island Bridge is not unsafe. The two-lane Anna Maria Island Bridge provides adequate capacity and will continue to do so for the reasonable future. After initially proposing a four-lane facility in response to a request for four lanes from the MPO, DOT has consistently disavowed any present intention of adding capacity to the existing road segment. There is no evidence that a four-lane bridge is required to accommodate, at satisfactory level-of-service standards, the projected traffic for this segment of Manatee Avenue at anytime in the next 25 years. To the contrary, there is some question as to the utility of a four-lane bridge between a two-lane facility to the east and a typically congested, often constrained barrier-island road system one-half mile to the west. DOT's assertion of functional obsolescence encompasses a number of arguments. Most of the arguments involve safety issues. Most of the safety issues are based on the failure of the existing bridge to conform to published design standards. Three safety-based arguments do not involve design standards. DOT presented evidence that bridge tenders are susceptible to crime: a DOT witness testified that the shelter of a bridge tender in Dade County was pockmarked by numerous bullet holes. Another DOT testified that a bridge tender was crushed by the gears of a drawbridge he was trying to fix when the power company suddenly restored power after an outage. Both narratives are anecdotal and do not establish widespread problems with drawbridges. There is nothing to suggest that a bridge tender on Anna Maria Island Bridge must contend with drive-by shootings. Even if so, motorists and other users of the bridge might be safer if a bridge tender were available to telephone the police. The death of the bridge tender crushed by the drawbridge gears was tragic, but easily avoidable simply by shutting down the power to the bridge before working on it, as is required by common sense. DOT also argued that island evacuation could be impeded by an open drawbridge. Evacuations are necessary, on average, about once every six years. Although the U.S. Coast Guard may order the bridge be opened at anytime, its sensible practice is to allow the bridge to remain closed while land- based traffic is evacuating the island. Likewise, island evacuation would not require the addition of two shoulders that could be converted into travel lanes during evacuations. Successful evacuations have taken place with the existing bridge, whose two lanes can be used one- way east in emergencies. The two-lane bridge is not a bottleneck considering the two-lane facility to the east and the floodprone bridge approaches and island road system to the west. The remaining DOT arguments of functional obsolescence involve design standards and the safety of highway and marine traffic on and under the bridge. DOT's road-safety arguments are undermined by the fact that the Anna Maria Island Bridge has proved to be safe during 40 years' operation. The approach has had in excess of 50 percent more collisions than the bridge. The opened drawbridge accounts for traffic stoppages and backups far less often than do the traffic light to the west and store/marina to the east. DOT primarily claims that the bridge is functionally obsolete in part due to the absence of shoulders or breakdown lanes on the bridge. Although the safety of a road segment is enhanced by the presence of breakdown lanes, the added margin of safety is not as great as DOT implies in these cases. Countering suggestions of greater safety, the shouldered approach to the bridge has experienced 50 percent more collisions than the unshouldered bridge. Undoubtedly, modern design standards favor a shouldered bridge, but not at any cost. In fact, design standards calling for a shouldered bridge are conditioned on various factors, including environmental, economic, social, and aesthetic concerns. The record contains three sources of design standards for bridges: DOT's Index No. 700 or Design Criteria Related to Highway Safety, dated September 1991 (SAM Exhibit No. 123); Chapters 1 and 2 of Volume I of DOT's Plans Preparation Manual (SAM Exhibit No. 126); and the 1990 standards of the American Association of State Highway and Transportation Officials (AASHTO) (SAM Exhibit No. 105). The Plans Preparation Manual specifies that through lanes should be "as wide as practical, up to 12 feet." Index No. 700 specifies that clear widths for bridges with undivided travel lanes on urban arterials with design speeds of 30-50 miles per hour, such as this road segment, should be the "travel lanes plus approach shoulder widths." The introduction to Chapter 1 of the Plans Preparation Manual states that projects are normally based on established design standards for the various elements of the project, such as width of roadway . . .. Selection of the appropriate standards is influenced by traffic volume and composition, desired levels of service, terrain features, roadside developments, environmental considerations and other individual characteristics. Addressing the aesthetics of road projects, Chapter 1 states that the designer should consider, after functionality, how a highway will be perceived by users, ensuring that "[h]orizontal and vertical alignment should be coordinated so that a driver has an opportunity to gain a sense of the local environment." Notes to Index No. 700 stress the conditionality of the design standards. One note states: "Values shown above shall be used on all new construction and on reconstruction projects to the extent that economic and environmental considerations and [right-of-way] limitations will allow." Another note adds for clear zones: Standard values are to be used for all new construction projects. These values may be reduced only where individually justified to mitigate critical social, economic, and environmental impacts or to lessen right-of- way costs. Standard values are also to be used for reconstruction projects; however values down to AASHTO minimum may be used where individually justified due to critical social, economic and environmental impacts and/or excessive right-of-way costs or when existing roadside obstacles are not considered hazardous as evidenced by field review and by accident history or accident potential. AASHTO standards call for a minimum width of the travel lanes plus three feet per side. But AASHTO standards recognize that reasonably adequate bridges . . . that meet tolerable criteria may be retained. Some of the nontechnical factors that should be considered are the esthetic value and the historical significance attached to famous structures, covered bridges, and stone arches. The bridge approach has eight-foot gravel shoulders, although no design shoulders. However, as noted above, the design standards do not provide for bridge shoulders of eight feet or even three feet without consideration of environmental, aesthetic, social, and economic factors. After consideration of all the factors, DOT has not proved that the applicable design standards mandate the widening of the existing bridge to add shoulders. DOT proposes to construct a new bridge to replace an existing bridge with a good safety record, largely to add shoulders to the bridge roadway. However, the proposed project has extensive environmental impacts to the seagrass, on which the health of the Outstanding Florida Waters and estuarine system of Sarasota Pass depends. The area is heavily used by the endangered manatee. And the proposed bridge is widely rejected as unsuitable by island community that it would largely serve. If highway safety were a real issue, DOT could always reduce the speed limit on the Anna Maria Island Bridge. There is little to justify constructing a new bridge to accommodate wide, shouldered travel lanes that permit motor vehicles to hurtle across the pass at 45 or 50 miles per hour where, a half-mile to the west, they encounter a traffic signal, barrier-island road system, and the Gulf of Mexico. The situation to the east offers little more justification for highway speeds. There, motorists encounter traffic trying to turn into a store/marina one-quarter mile from the bridge and, a relatively short distance to the east, an increasingly urbanizing area that does not lend itself to reasonable driver expectations of throughway speeds. Another aspect to DOT's argument that the Anna Maria Island Bridge is functionally obsolete is that it does not meet current load standards for bridges. The AASHTO minimum design standard for new bridges "should be HS-20." The existing bridge is rated HS-15. However, the same conditions attach to the load standard of a bridge as apply to the presence and width of shoulders. HS-15 is a "tolerable" criterion. There is nothing in the record suggesting that the current load limit of the Anna Maria Island Bridge is deficient or unsafe. If DOT were concerned about the load capacity of the bridge, it would have imposed weight limits on the bridge. After consideration of all the factors, the design standards no more call for a new bridge to increase the load rating to HS-20 than they call for adding shoulders to the bridge. DOT also argues that the Anna Maria Island Bridge is functionally obsolete because it does not meet current ship- impact standards. The evidence failed to establish the bridge's ability to resist ship impacts. Also, DOT did not prove up the standards sufficiently to show that they, unlike the other design standards, apply unconditionally. In any event, the Anna Maria Island Bridge has suffered no significant damage from marine traffic, of which only a very small fraction constitutes potentially threatening tug boats or barges. And there have not even been any accidents in the memory of one bridge tender who has worked at the bridge for 12 years. This record is not surprising given the good navigation conditions that normally prevail at the bridge. Last, DOT argues that cost efficiency demands the removal of the Anna Maria Island Bridge, which has undergone expensive repairs in the recent past. DOT generally decides to replace rather than rehabilitate a structure when rehabilitation is projected to cost 60 percent or more of the cost of a new structure. Cost comparisons between the proposed project and no- build alternative are deterred by the absence of any specific estimate for the proposed bridge. Cost comparisons between the proposed bridge and no- build alternative are also deterred by the failure of DOT to prove the costs associated with the no-build option. What evidence DOT produced as to the costs of maintaining the Anna Maria Island Bridge was unpersuasive. These costs supposedly include a major rehabilitation job at an interval substantially less than 40 years. But the current drawbridge never required this major work over its 40-year life. DOT cost estimates ignore environmental costs. Perhaps incapable even of approximation as to lost seagrass beds, degraded water quality, and reduced wildlife, including manatee, environmental costs can be partly quantified in terms of lost recreational opportunities, lost property values and business income in the event of degraded waterbodies, and increased governmental expenditures to reverse environmental degradation. Interestingly, DOT recently completed the rehabilitation of the Cortez Bridge. Abandoning earlier plans to replace the bridge, DOT instead repaired and rehabilitated the drawbridge without widening the bridge or bascule spans. Minimization of the Proposed Project Failing to show the necessity of the bridge project, DOT has failed to show that it has minimized the project, which is a precondition to consideration of mitigation proposals. Reduced to its bare essentials, DOT has proposed transportation improvements to maintain or enhance highway safety and efficiency. The no-build alternative, rather than the proposed southern alignment or the discarded northern alignment, minimizes what could otherwise be significant environmental impacts while still achieving reasonable levels of highway safety and efficiency. Ultimate Findings No Reasonable Assurance of No Water Quality Violations DOT has provided no reasonable assurance that the proposed project would not reduce water quality. DOT and DEP lack data as to background values for important measures of water quality. The omission of comprehensive, pre-permit data about water quality and sediments is exacerbated by the absence of analysis of the effects of shading on the seagrass and of the likely permanent and temporary losses of 2.5 and 2.0 acres of seagrass, respectively. On these facts, DOT has not provided reasonable assurance that the proposed project would not degrade water quality. No Reasonable Assurance that Proposed Bridge Is in Public Interest Proposed Bridge Not in Public Interest DOT has failed to prove its nonrule policy treating "welfare" as included in "health" and "safety." The American Heritage Dictionary defines "welfare" as "Health, happiness, and general well-being." As defined, "welfare" explicitly means more than "health" and implicitly means more than "safety." DOT has failed to provide reasonable assurance that the proposed project would be clearly in the public interest. A large majority of the public most directly served by the project does not find it to be in their interest. Aside from the reactions of these island residents, the proposed project is not clearly in the public interest when the scant benefits claimed by DOT are outweighed by the project's substantial environmental and other costs. DOT has provided reasonable assurance that the proposed project would not adversely affect the public safety, but it has failed to provide reasonable assurance that the proposed project would not adversely affect the public welfare. To the contrary, a fixed-span, high-level bridge would likely destroy acres of seagrass, jeopardize water quality, endanger the already-endangered manatee, adversely affect the estuarine resources of Sarasota Pass, and detract from the island ambience. DOT has failed to provide reasonable assurance that the proposed project would not adversely affect the conservation of fish and wildlife, including endangered or threatened species, or their habitats. To the contrary, the proposed project would probably destroy valuable seagrass habitat that is crucial to the welfare of manatee and other wildlife. During construction, the proposed project would directly endanger the manatee by narrowing an important manatee passageway so as to increase the chances of boat-manatee collisions and introducing dangerous construction equipment to the area. DOT has failed to provide reasonable assurance that the proposed project would not adversely affect navigation. To the contrary, the proposed project would limit an increasingly important access point for sailboat traffic, which constitutes 83.5 percent of the traffic using the pass and requiring drawbridge openings. And the trend is toward taller-masted boats, many of which are manufactured by Florida manufacturers. DOT has failed to provide reasonable assurance that the proposed project would not adversely affect the fishing or recreational values or marine productivity in the vicinity of the proposed project. The likely permanent loss of 2.5 acres of seagrass would adversely affect marine productivity directly through loss of habitat and indirectly through probable reductions in water quality. The construction of the proposed bridge and removal of the existing bridge would eliminate a heavily used fishing site by area fishermen and would discourage pedestrian and bicycle use. The proposed project is relatively permanent, but would not affect known archeological resources. The Anna Maria Island Bridge is of greater aesthetic and cultural value than historic value. DOT has failed to provide reasonable assurance that the proposed project would not adversely affect the current condition and relative value of functions being performed by areas affected by the proposed activity. The proposed project would probably destroy acres of well-functioning seagrass whose health is linked to the health of the estuary and all of its inhabitants and visitors. 2. Mitigation Insufficient DOT has not minimized the project by proposing the no- build alternative, so consideration of seagrass mitigation is premature. But even if the southern alignment represented minimization, the seagrass mitigation would be clearly insufficient to offset the environmental losses. The seagrass mitigation in this permit is vague, unenforceable, and ultimately nonexistent. Led by a clearly insufficient seagrass mitigation ratio, the problems include a failure to collect and analyze data on the suitability and need of the main transplant receiving site for seagrass transplants, a reliance on seagrass recolonization under the existing and proposed bridges where seagrass is unlikely to grow, a failure to identify success criteria, and a failure to prepare realistic alternative and contingency seagrass mitigation plans in the likely event of the failure of the main receiving site and under-bridge sites.
Recommendation It is RECOMMENDED that the Department of Environmental Protection enter a final order denying the Department of Transportation's application for a dredge-and- fill permit to construct a fixed- span, high-level bridge at Manatee Avenue at Sarasota Pass and demolish the Anna Maria Island Bridge. ENTERED on February 16, 1995, in Tallahassee, Florida. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings on February 16, 1995. APPENDIX Rulings on DOT's Proposed Findings 1-4: adopted or adopted in substance. 5: adopted or adopted in substance, except that the waters are Class II waters. 6 (except last sentence): adopted or adopted in substance. 6 (remainder): rejected as irrelevant. 7-9 (except for second to last sentence): adopted or adopted in substance. 9 (second to last sentence): rejected as irrelevant. 10-11 (first sentence): rejected as subordinate and irrelevant. 11 (second and third sentence): rejected as unsupported by the appropriate weight of the evidence. 11 (remainder): adopted or adopted in substance, subject to conditions discussed in recommended order. 12: rejected as subordinate, except that the MPO recommended four-lane bridge for awhile and DOT has no plans to construct two more lanes. 13: rejected as irrelevant. 14-31: adopted or adopted in substance. 32: adopted or adopted in substance, except as to finding of minimization. 33-47: adopted or adopted in substance, except for the failure to minimize the impacts by proposing the no-build alternative. 48-52: adopted or adopted in substance. 53: adopted or adopted in substance, assuming that direct impacts means direct displacement, not mortality through shading. 54: rejected as recitation of evidence. 55: rejected as irrelevant and unsupported by the appropriate weight of the evidence. 56-57 (first sentence): adopted or adopted in substance. 57 (second sentence): rejected as unsupported by the appropriate weight of the evidence. 58-59: rejected as unsupported by the appropriate weight of the evidence. 60: adopted or adopted in substance insofar as this is DOT's expressed reason for the primary transplant receiving area. 61: adopted or adopted in substance. 62: rejected as subordinate and irrelevant. 63: rejected as unsupported by the appropriate weight of the evidence, except that area has been subject to disturbance historically and except that considerable recovery of seagrass has taken place through natural recolonization. 64-67: rejected as subordinate and irrelevant. 68-72 (second sentence): adopted or adopted in substance. 72 (remainder)-73: rejected as subordinate and irrelevant. 74-75: rejected as unsupported by the appropriate weight of the evidence. 76: rejected as irrelevant. 77-78: rejected as subordinate and irrelevant. 79 (first and last sentence): adopted or adopted in substance. 79 (remainder): rejected as subordinate and irrelevant. 80: adopted or adopted in substance. 81: rejected as speculative. 82-84: rejected as irrelevant. 85 (first and third sentences): adopted or adopted in substance. (second sentence): rejected as unsupported by the appropriate weight of the evidence. (first sentence): adopted or adopted in substance. 86 (remainder)-87: rejected as unsupported by the appropriate weight of the evidence as to the effectiveness, not existence, of these permit provisions. 88 (except last sentence): adopted or adopted in substance, except that the standards do not call unconditionally for shoulders on the bridge or 12-foot shoulders. Also, Table 2.3.4 is not for use on an arterial road. 88 (last sentence): rejected as irrelevant. 89: rejected as irrelevant. 90-91 (first sentence): adopted or adopted in substance. (remainder): rejected as subordinate, recitation of evidence, and unsupported by the appropriate weight of the evidence. (first sentence): rejected as irrelevant. 92 (second sentence): adopted or adopted in substance. 92 (second to last sentence): rejected as unsupported by the appropriate weight of the evidence. (remainder): rejected as irrelevant. (first sentence): adopted or adopted in substance as to some theoretical advantage in safety and efficiency, but rejected as to meaningful advantage in safety or efficiency. 93 (remainder): rejected as subordinate, irrelevant and unsupported by the appropriate weight of the evidence, except that proposed barrier would better protect pedestrians from traffic lanes. 94: rejected as recitation of evidence and unsupported by the appropriate weight of the evidence. 95: rejected as unnecessary. 96: adopted or adopted in substance. 97 (except second sentence): rejected as subordinate, recitation of evidence, and irrelevant. 97 (second sentence): adopted or adopted in substance. 98: rejected as unsupported by the appropriate weight of the evidence, except that Coast Guard would not require opening of drawbridge during an evacuation. 99-100: adopted or adopted in substance, except that 10 minutes may be as much as 20 minutes--still not a significant difference. 101-04 (first sentence): adopted or adopted in substance. 105 (first two sentences): adopted or adopted in substance. 105 (remainder): rejected as unnecessary. Rulings on Proposed Findings of DEP 1-5: rejected as subordinate, legal argument, and unnecessary. 6 (first three sentences): adopted or adopted in substance. 6 (remainder): rejected as subordinate and legal argument. 7: rejected as subordinate, recitation of evidence, and unnecessary. 8: rejected as unsupported by the appropriate weight of the evidence and legal argument. The criterion of historical or archaeological value transcends environmental issues, as used in DEP's proposed recommended order. Rulings on Proposed Findings of SAM and VanWagoner 1-6: adopted or adopted in substance. 7: rejected as unsupported by the appropriate weight of the evidence. This ignores turbidity and other impacts. 8-13: adopted or adopted in substance. 14: rejected as unsupported by the appropriate weight of the evidence. 15-22: adopted or adopted in substance. 23-27: rejected as subordinate. 28: rejected as unsupported by the appropriate weight of the evidence. 29: adopted or adopted in substance. 30-32: rejected as unnecessary. 33-35: adopted or adopted in substance. 36: rejected as unsupported by the appropriate weight of the evidence. 37-60: adopted or adopted in substance. 61: rejected as unsupported by the appropriate weight of the evidence. Finding should have been for "not more than 60 days." 62-67: adopted or adopted in substance. 68-69: rejected as unnecessary. 70-76: adopted or adopted in substance. 77-79: rejected as legal argument and irrelevant. 80-83: adopted or adopted in substance. 84: rejected as unnecessary. 85 and 87: rejected as subordinate. 86: adopted or adopted in substance. 88-92: rejected as subordinate. 93-96: adopted or adopted in substance. 97: rejected as unnecessary. 98: rejected as irrelevant if pertaining to bridge approach. Rejected as unsupported by the appropriate weight of the evidence if pertaining to bridge. 99-102: rejected as subordinate. 103-08: adopted or adopted in substance. 109-17: rejected as subordinate and irrelevant. 118-19: rejected as subordinate. 120: adopted or adopted in substance. 121-22: rejected as subordinate. 123-33: adopted or adopted in substance. 134: rejected as subordinate. 135-40: adopted or adopted in substance. 141-42: rejected as subordinate. 143: adopted or adopted in substance. 144-45: rejected as subordinate. 146-49: adopted or adopted in substance. 150: rejected as unsupported by the appropriate weight of the evidence. 151: rejected as subordinate and irrelevant. 152: rejected as unsupported by the appropriate weight of the evidence and recitation of testimony. 153: rejected as unsupported by the appropriate weight of the evidence as to reality and even lasting perception. 154-58: rejected as subordinate. 159-60: adopted or adopted in substance. 161-67: rejected as subordinate. 168: adopted or adopted in substance. 169: rejected as subordinate. 170-73: adopted or adopted in substance. 174-75: rejected as irrelevant. 176-78: rejected as subordinate. 179-83: adopted or adopted in substance. 184: rejected as subordinate. 185-90: adopted or adopted in substance. 191-200: rejected as subordinate. 201: adopted or adopted in substance. 202-12: rejected as irrelevant. 213-14: adopted or adopted in substance. 215-26: rejected as subordinate. 217-18: adopted or adopted in substance. 219: adopted or adopted in substance, except that it is not a matter of aesthetic appeal but compatibility with the island ambience. 220-21: adopted or adopted in substance. 222-24: rejected as unsupported by the appropriate weight of the evidence and irrelevant. 225-34: adopted or adopted in substance. 235-36: rejected as subordinate. 237-38: rejected as irrelevant and unsupported by the appropriate weight of the evidence. 238-53: adopted or adopted in substance. 254-56: rejected as subordinate and unnecessary. 257-64: adopted or adopted in substance. 265: rejected as recitation of evidence. 266-73: adopted or adopted in substance. 274: rejected as unsupported by the appropriate weight of the evidence. It would be more than 2 acres of seagrass. 275: adopted or adopted in substance. 276-77: rejected as recitation of evidence. 278-87: adopted or adopted in substance. 288: rejected as unnecessary. 289-301: adopted or adopted in substance. 302: rejected as subordinate. 303-09: adopted or adopted in substance. 310-13: rejected as subordinate and unnecessary. 314-22: adopted or adopted in substance. 323-25: rejected as subordinate. 326: adopted or adopted in substance. 327-30: rejected as subordinate. 331: adopted or adopted in substance. 332-37: rejected as subordinate. 338: adopted or adopted in substance. 339: rejected as subordinate. 340-42: adopted or adopted in substance. 343: rejected as subordinate. 344-47: adopted or adopted in substance. 348-49: rejected as subordinate. 350-52: rejected as unnecessary. 353-54: adopted or adopted in substance. 355-60: rejected as subordinate. 361-63: adopted or adopted in substance. 364: rejected as subordinate and recitation of testimony. 365: adopted or adopted in substance, as to boats requiring drawbridge openings. 366-68: rejected as subordinate. 369: adopted or adopted in substance. 370: rejected as recitation of evidence. 371-403: adopted or adopted in substance. 404-07: rejected as subordinate, recitation of evidence, and unnecessary. 408-56: adopted or adopted in substance. 457: rejected as unsupported by the appropriate weight of the evidence. The evidence is insufficient to base findings as to the extent of the flushing at the bridge except that it is probably at least barely adequate. 458-61: rejected as subordinate. 462-66: adopted or adopted in substance. 467: rejected as recitation of evidence. 468: rejected as subordinate. 469-76: adopted or adopted in substance. 477-81: rejected as subordinate. 482-84: adopted or adopted in substance. 485-86: rejected as subordinate. 487-89: adopted or adopted in substance. 490: adopted or adopted in substance, except that it is likely, not merely possible. 491-506: adopted or adopted in substance. 507-14: rejected as subordinate and unnecessary. 515-16: adopted or adopted in substance. 517-19: rejected as subordinate and recitation of testimony. 520-30: adopted or adopted in substance. 531-47: rejected as recitation of evidence and subordinate. 548: adopted or adopted in substance. 549: rejected as unnecessary. 550-51: adopted or adopted in substance. 552: rejected as subordinate and recitation of evidence. 553: adopted or adopted in substance. 554-55: rejected as recitation of evidence. 556: adopted or adopted in substance. 557: rejected as subordinate. 558-75: adopted or adopted in substance. 576-77: rejected as unnecessary. 578-621: adopted or adopted in substance. 622-24: rejected as subordinate. 625: rejected as repetitious. 626-29: rejected as subordinate. 630-38: adopted or adopted in substance. 639-42: rejected as recitation of evidence. 643: adopted or adopted in substance. 644-46: rejected as subordinate. 647: adopted or adopted in substance. 648: rejected as recitation of evidence. 649-50: adopted or adopted in substance. 651-52: rejected as recitation of evidence. 653: rejected as repetitious. 654-56: adopted or adopted in substance. 657: rejected as subordinate. 658-60: rejected as repetitious. 661: rejected as unsupported by the appropriate weight of the evidence. 662: rejected as subordinate. 663: adopted or adopted in substance. 664: rejected as subordinate. 665-68: rejected as unnecessary. 669-71: adopted or adopted in substance. COPIES FURNISHED: Virginia B. Wetherell, Secretary Department of Environmental Protection 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Kenneth Plante, General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 David M. Levin Icard Merrill 2033 Main Street, Suite 600 Sarasota, Florida 34237 Paul Sexton Chief, Administrative Law Department of Transportation Haydon Burns Building, MS 58 605 Suwannee Street Tallahassee, Florida 32399-0458 Francine Ffolkes, Assistant General Counsel Department of Transportation Haydon Burns Building, MS 58 605 Suwannee Street Tallahassee, Florida 32399-0458 Robert E. VanWagoner Post Office Box 4121 Anna Maria, Florida 34216 Christine C. Stretesky, Assistant General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000
Findings Of Fact Petitioner took the mechanical contractor examination in February, 1989. A passing score was 69.01. Petitioner received a score of 67.5, which was later adjusted to 68 after the review/regrade process was completed. Petitioner timely challenged seven questions. However, at the hearing, he dropped his challenge to six of these questions. The sole question that Petitioner challenges is MC 430, question 17. The question, which is worth two points, is: Given: A fibrous glass air duct conveys 15,000 cfm at a velocity pressure of 4.0" WG. The velocity of the air in the duct is: less than 6000 fpm. between 6001 fpm and 7000 fpm. between 7001 fpm and 8000 fpm. more than 8000 fpm. Petitioner answered "(C)." The correct answer is "(D"). The examination was an open-book test. Some, but not all, questions provided the candidate with a reference from which he could often find a formula that would help him answer the question. Question 17 did not provide a reference. However, the formula for deriving the answer to question 17 was contained in one of the reference materials that candidates, including Petitioner, brought with them to the test for use during the test. At the top of page 17-1 of the SMACNA publication entitled, "Energy Recovery Equipment and Systems," a formula appears that will solve the problem. The formula is that velocity in feet per minute equals the square root of the velocity pressure in water gauge multiplied by 4005. In this case, the square root of 4" WG is 2, which multiplied by 4005 is 8010 fpm. Petitioner did not use the SMACNA publication or the formula contained in the publication. Instead, he used what is called a ductulator to calculate the answer. The ductulator is a device consisting of two cardboard circles attached by a rivet. By sliding the two circles to line up markings indicating two factors, the operator can derive additional information concerning the design specifications' of a duct system. In this case, Petitioner lined up the air volume with the velocity pressure to derive the velocity. The ductulator is calibrated to show 7000 fpm, 7500 fpm, and 8000 fpm in the relevant range. A finer reading requires extrapolation, which is difficult because a distance of only 1/16" represents 500 fpm at this point on the ductulator. On Petitioner's ductulator, which is a Trane ductulator bearing a 1976 copyright, the answer was about 7700 fpm. However, another Trane ductulator bearing a 1950 copyright disclosed the answer as slightly over 8000 fpm, although a different 1950 Trane ductulator showed the answer as about 7700 fpm. Petitioner's reliance on a ductulator was misplaced. The scale of calibration alone should have placed him on notice of the danger of using this rough instrument to answer question 17. When he derived an answer so close to the 8000 fpm break point, he could no longer rely on the ductulator, assuming that it was reasonable to do so in the first place, especially in view of the easy-to-use formula that provided the precise answer.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Department of Professional Regulation enter a Final Order dismissing Petitioner's challenge to the grading of the mechanical contractor's examination that he took in February, 1989. ENTERED this 26th day of February, 1990 in Tallahassee, Florida. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of February, 1990. COPIES FURNISHED: Kenneth D. Easley General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 Robert A. Berki, pro se 2641 Capp Circle Kissimmee, FL 32743 G. W. Harrell, Senior Attorney Department of Professional Regulation Northwood Centre 1940 North Monroe Street, Suite 60 Tallahassee, FL 32399-0792 Fred Seely, Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, FL 32201
