Findings Of Fact The certified general contractors examination given on February 23-24, 1993, consisted of two parts. Petitioner received a score of 71 on the first part and a score of 67 on the second part. The minimum score required to pass each part is 70. Petitioner challenged question 5 in the second part. The question related to the "angle of repose". The term "angle of repose" has been used for a number of years in the field of construction. The angle of repose is used when calculating the stability of soils for purposes of excavation. Petitioner chose answer "B" to question 5. The correct answer to question 5 is answer "D", i.e., 5 feet 6 inches. The testimony of Respondent's expert witness was credible and persuasive. Petitioner also challenged question 9 relating to the extra square feet needed for fire resistant partition walls. The problem required calculating the linear feet first and then multiplying by the height of the walls after subtracting for slab thickness. The examination was open book. Petitioner was permitted to refer to the Standard Building Code. The correct answer to question 9 was "B". Petitioner chose answer "D". The testimony of Respondent's expert witness was credible and persuasive. Petitioner challenged question 10 which required a calculation of the time to lay interior masonry walls. The correct answer to question 10 was "A". Petitioner chose answer "C". The testimony of Respondent's expert witness was credible and persuasive.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a final order denying Petitioner's challenge to his score of 67 on the general contractors examination given on February 23-24, 1993. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 2nd day of December, 1993. DANIEL MANRY 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 2nd day of December, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-3938 Respondent submitted proposed findings of fact. It is noted below which proposed findings of fact were accepted and the paragraph number(s) in the Recommended Order where they were accepted, if any. Those proposed findings of fact which were rejected and the reason for their rejection are also noted below. No notation is made for unnumbered paragraphs. The Respondent's Proposed Findings of Fact Respondent's paragraphs 2-3 are rejected as irrelevant and immaterial. Respondent's remaining proposed findings of fact are accepted in substance. COPIES FURNISHED: Daniel O'Brien, Executive Director Department of Business and Professional Regulation Construction Industry Licensing Post Office Box 2 Jacksonville, Florida 32202 Jack McRay General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Vytas J. Urba, Asst. General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0750 Behzad Khazaree 142 Tollgate Trail Longwood, Florida 32750
Findings Of Fact The following findings of fact are based upon the evidence presented, Respondent's admissions and matters deemed admitted due to Respondent's failure to timely respond to Petitioner's Second Request for Admissions: At all times material hereto, Respondent was licensed by the Construction Industry Licensing Board as a registered air conditioning contractor with license number RA-0035721. He was the qualifying agent for Wallace's Air Conditioning and Heating. Respondent's address of record is 4710 Cypress Ridge Place, Tampa, Florida 33624, and it was to this address that notice of the hearing was sent. At no time prior to the hearing did Respondent contact counsel for Petitioner or the undersigned regarding any problem he had with the date scheduled for this hearing. Respondent did not appear, and was not represented at the hearing which commenced at 9:00 a.m. on May 11, 1988. However, at 1:56 p.m. on the day of hearing, a letter from Respondent addressed to Petitioner's counsel was filed at the Division of Administrative Hearings in Tallahassee, Florida. This letter was postmarked on May 9, 1988 and requests rescheduling of the hearing due to his being out of town on "urgent business." By Order entered on May 13, 1988, Respondent's untimely and insufficient motion for continuance was denied for failure to comply with Rule 22I-6.017, Florida Administrative Code, and this case has proceeded to the issuance of this Recommended Order in accordance with the procedures established at hearing. On or about March 18, 1986, Respondent, as qualifying agent for Wallace's Air Conditioning and Heating, entered into a contract with General Engineering and Machine Company for the installation of heating, ventilation and cooling services (HVAC) at the Sebring Square Plaza shopping mall in Sebring, Florida. The work to be performed included the installation of heating, ventilation, air conditioning and temperature control systems for stores in the mall, which included Zayre's Department Store and thirty "strip stores." The contract price for this work was $275,460. Respondent thereafter began work on the mall under this contract. However, he has never held any certificate of competency, occupational license, or registration in the City of Sebring, as required by local ordinance sections 5-18 and 5-19. On or about May, 1986 Respondent entered into a subcontract agreement with Long's Air Conditioning and Heating for sheetmetal duct work, venting of exhaust fans and installation of flex duct and grilles at the Sebring Square Plaza. The original amount of Respondent's contract with Long's Air Conditioning was $69,200, but this was increased by agreement to $72,200. On or about June 19, 1986, work on the thirty "strip stores" was deleted from this subcontract agreement, and the contract price was then reduced by $3,760, making a final contract price of $68,440. Respondent received draw requests totaling $68,440 from Long's Air Conditioning for work performed under this subcontract. Although all contracted work was performed by Long's Air Conditioning, Respondent has only made payments totaling $66,500, leaving an unpaid amount of $1,940. In connection with his work on the Sebring Square Plaza, Respondent purchased equipment and supplies from Florida Air Conditioners, Inc., in the total amount of $122,019.80, but made no payments on this account. On October 6, 1986, Respondent's account with Florida Air Conditioners was paid in full by Highway 27 Associates, the owners of the Sebring Square Plaza, who in turn charged this amount to the general contractor, General Engineering and Machine Company, by reducing the amount they paid to said general contractor on the Sebring Square Plaza. Charles R. Baldwin was the general administrator on this shopping mall job for the general contractor, General Engineering and Machine Company. In accordance with his subcontract agreement with Respondent, if Respondent did not pay his materialmen, the general contractor was responsible, and, in fact, in this case the general contractor was charged for payments made by the mall owner on Respondent's account at Florida Air Conditioners. Respondent failed to regularly attend weekly job site status meetings with Baldwin. When schedules were established, Respondent voiced no objection, but he then frequently failed to complete work in accordance with those schedules. Respondent made little effort to complete his work on time, or to make up for delays. He failed to supervise the work he was performing at the Sebring Square Plaza. On or about June 24, 1986 Respondent walked off the job without completing the work which he had contracted to perform, and this caused further delay in the mall's completion since Baldwin had to find another contractor to complete Respondent's job. Baldwin paid Respondent $174,467.70 on June 18, 1986 in connection with this job after Respondent signed an affidavit certifying that he had paid all his materialmen and subcontractors. The record establishes that said affidavit was false. With the amount Baldwin was charged for Respondent's unpaid account with Florida Air Conditioners, and the amount paid on June 18, 1986, General Engineering and Machine Company paid or was charged approximately $296,000 for work performed by Respondent, although their contract with Respondent was only $275,460. According to Bernard Verse, who was accepted as an expert in commercial construction, Respondent's failure to pay for supplies and equipment, and his failure to complete his contract with General Engineering and Machine Company constitute misconduct in contracting. In addition, Respondent failed to properly supervise the work he was performing, and for which he contracted, on this job.
Recommendation Based upon the foregoing, it is recommended that the Construction Industry Licensing Board enter a Final Order suspending Respondent's license number RA- 0035721 for one (1) year and imposing an administrative fine of $5,000; provided that after the expiration of thirty (30) days from the issuance of the Final Order if Respondent pays said administrative fine in full, his license shall be immediately reinstated. DONE AND ENTERED this 23rd day of May, 1988, in Tallahassee, Florida. DONALD D. CONN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of May, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-5050 Rulings on Petitioner's Proposed Findings of Fact: 1 Adopted in Finding of Fact 1. 2-3 Adopted in Finding of Fact 3. 4 Adopted in Finding of Fact 4. 5 Adopted in Finding of Fact 9 6 Adopted in Finding of Fact 5. 7 Adopted in Finding of Fact 7. 8 Adopted in Findings of Fact 7, 8. 9-10 Adopted in Finding of Fact 6. Adopted in Finding of Fact 10. Adopted in Finding of Fact 6. Rejected as irrelevant and not based on competent substantial evidence. Adopted in Finding of Fact 7. Rejected as irrelevant. COPIES FURNISHED: David L. Swanson, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Frank W. Wallace 4710 Cypress Ridge Place Tampa, Florida 33624 Fred Seely Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32201 William O'Neil, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
Findings Of Fact The Petitioner is a HVAC contractor primarily in the business of contracting with governmental entities for such work. The Respondent is an agency of the State of Florida which operates the West Florida Community Care Center in Milton, Florida, and is the owner who invited bids on the subject project and announced the award of the pertinent bid to MCI. On January 15, 1993, MCI was notified by the Department that it had been awarded the contract for HVAC renovation at West Florida Community Care Center in Milton, Florida. The proposed contract was submitted to the Petitioner, who retained the contract for 45 days before executing it and returning it to the Respondent. Thus, although the Petitioner maintained at hearing that it expected to receive a notice to secure permits and to begin work in early February, 1993, MCI, rather, held the contract document until March 1, 1993 before signing it and returning it to the Department as a valid contract. On March 4, 1993, the Department sent a "notice to secure permits" to the Petitioner. In reality, it was the Department's responsibility to obtain the relevant construction permits according to the terms of the contract between the parties. The Department was initially unaware that it was designated in the contract to obtain the permits. From March 4, 1993, there was a 21-day delay, caused by the Department, before it realized that it was required to obtain the construction permits. After that time period, it requested the Department of Management Services to complete its permit review and approval process which also took some time to accomplish. The period of time actually taken by the Department of Management Services to do its permit review and approval process was not delay caused by the Department, however. In any event, however, the contract time did not begin to run until the Notice to Proceed was issued from the Department to the Petitioner. On April 28, 1993, MCI submitted its mechanical and electrical submittals or shop drawings for the project to the project engineer's employee or designee, Kenny Lewis. Mr. Lewis was responsible for receiving and reviewing the submittal drawings. The control system submittal drawings were not submitted at this time because, in Mr. Morgan's experience, these should not have been due until the mechanical and electrical submittals had been approved. Some items contained in the submittal were approved and others were rejected. Mr. Lewis instructed Mr. Morgan, MCI's President, on or about May 14, 1993, as to which drawings or portions thereof were acceptable and which were rejected. He instructed Mr. Morgan that everything should be re-submitted in one binder, including the items that needed correction and the control system. The corrected submittals, including the control system, were submitted on or about June 2, 1993. Thereafter, Mr. Lewis had the submittals before him for approval until June 28, 1993, when they were approved. Therefore, most of the month of June 1993 involved a wait by the Petitioner for the Department's approval of its drawings of those aspects of the mechanical and electrical components of the project which were found to need correction during Mr. Lewis' first review. Upon the Petitioner's showing of this amount of lag time in the approval of the submittals from June 2, 1993 to June 28, 1993, the Department did not demonstrate why such a period of time delaying the progress of the project was necessary. There is no doubt that some reasonable period of time for Mr. Lewis to approve the re-submittal drawings was necessary, but certainly no more than two weeks should have been required since the first drawings for the entire project were reviewed and variously approved or rejected by Mr. Lewis during the period of time between April 28, 1993 and May 14, 1993. Consequently, it is reasonable to infer that approximately two weeks of the period of time in June, 1993, while the re-submitted drawings were pending for Mr. Lewis' review, can be deemed "Owner caused delay". In any event, the air-handlers portion of the submittal drawings was approved with the remainder of the submittals by Mr. Lewis on June 28, 1993. It developed immediately thereafter, however, that the manufacturer of those air handlers represented in those submittal drawings was found to be unable to deliver that equipment for some 12 to 14 weeks. In order to avoid this inordinate delay, Mr. Morgan re-submitted the air-handler portion of the shop drawings changing the brand and depiction of equipment to propose Trane air- handler equipment, which would take less time for delivery. The record does not reflect what date the re-submittal of the air-handler portion of the shop drawings was made by Mr. Morgan, calling for the Trane machinery, but Mr. Lewis approved the re-submittal for the Trane equipment on August 9, 1993. The Petitioner claims that the manner in which Mr. Lewis handled the shop drawing submittals resulted in owner-caused delay, which is compensable using the so-called "Eichleay formula", derived from a relevant court decision and at issue in this proceeding. Mr. Lewis, however, can clearly not be faulted in the delay caused by the rejection of certain portions of the original submittals he considered to be unacceptable. No evidence was submitted to prove that his decision concerning certain portions of the original drawings submitted was improper. Further, the approximate two-week period of time during which Mr. Lewis reviewed the original submittals from April 28, 1993 to May 14, 1993 was not shown to be in excess of a reasonable time to perform his task under the circumstances. It was not shown, however, that it should have been necessary to take from June 2, 1993 to June 28, 1993 to approve the re-submittal of the shop drawings, inasmuch as much of the work had already been approved by Mr. Lewis, and it certainly should not have taken longer than two weeks to approve the drawings in June, since much of the work represented thereon had already been approved in May, 1993. However, for the reasons delineated below, that owner- caused delay is not actionable in this proceeding. It is also true that a substantial delay occurred for, in essence, the entire month of July and first week of August, during the period of time that Mr. Morgan had to re-submit the air-handler portion of the shop drawings to reflect the change to Trane equipment, when the originally-proposed air-handler equipment could not be timely made available. That delay, however, was not shown to be the fault of either party to the contract. The Petitioner finally submitted a written claim pursuant to the terms of the contract to the project engineer, H.M. Yonge, on or about March 30, 1994. The latest event which could possibly have given rise to a claim by the Petitioner for additional compensation based upon owner-caused delay, caused by failure to finally approve submittals on a timely basis, would have been August 9, 1993, when the final approval for the Trane equipment-related change was rendered by Mr. Lewis. The delay during July and the first week of August was not shown to be the fault of either party. The earliest date that the 21-day waiver period for making a claim, pursuant to the terms of the contract referenced below, could have began running, concerning owner-caused delay in approving plan submittals, would have been May 5, 1993 or May 10, 1993. That was the time when Mr. Morgan informed Mr. Lewis that re-submittal with corrections, and to include the control systems, would "delay the submittals if you make me wait on the controls, because we don't have them and it's going to be weeks before we do have them." The claim for owner-caused delay with regard to either possible claim date or any other should have been made within 21 days of the point when the delay occurred or the contractor became aware of the delay. In the circumstances at bar, Mr. Morgan was surely aware, on both an immediate and ongoing basis, of these potential elements of owner-caused delay, such that the Petitioner has been unable to justify waiting until March 30, 1994 to submit such a claim. Had the claim been timely submitted in accordance with paragraph 4.3.3 of the contract documents, the Respondent would have had some opportunity to attempt to cure the defect or otherwise mitigate any resulting damages to the contractor which might have been attributable to the owner. The failure to file a claim for any owner-caused delay perceived by the Petitioner in approving the plan submittals within 21 days of the event, even if it was the date of final plan approval, was prejudicial to the Department inasmuch as the Department was thus not aware of the claim such that it could have taken immediate steps to take corrective action or to mitigate any damages thus incurred by the contractor, the Petitioner herein. The contract between the parties clearly contemplates the issuance by the Respondent of a Notice to Proceed. The Petitioner was not obligated to commence work until a Notice to Proceed was issued by the Department, and the contractual time period for performance of the contract by the Petitioner did not commence until the date of issuance of the Notice to Proceed. Instead of waiting for the Notice to Proceed, however, the Petitioner began work a few days prior to April 20, 1993 by demolition and removal of the existing air-handling units. The time for performance of the contract, however, did not begin to run until the Notice to Proceed was issued on May 24, 1993. The Petitioner commenced work before receipt of a Notice to Proceed because he wished to demolish and remove the original air handlers in hopes of getting the new air- conditioning system installed and operational prior to the hot season of the year in mid summer. This may have been a commendable reason for proceeding early on the work at hand, but it also represents poor planning on the Petitioner's part in that, with the delays which developed, some of which might have been reasonably foreseen, the new air-handling equipment did not become available until late summer at the earliest. In the meantime, because of the premature demolition of the existing air handlers, the building was left without air-conditioning for its occupants, mental health patients. Therefore, the Petitioner had to obtain and install temporary air-handling units to provide air-conditioning until the permanent system could be obtained from the manufacturer and installed. Better coordination between the Petitioner and the project engineer would seem to dictate that the existing air-handling system not be removed until shortly before the new air-handling equipment would be on site and ready to install in order to minimize the down time of the air-conditioning system of the facility, which was critical to the comfort of the patients and staff at the facility. Thus, any delay caused by the Petitioner's demolition of the existing air handlers and the work he performed prior to the Notice to Proceed was not shown to be attributable to the owner but, rather, to the Petitioner's voluntary commencement of the work on the contract prior to the contractually-provided commencement date. No owner-caused delay resulted in the necessity for the contractor to obtain the temporary air-conditioning or air- handling equipment. Thus, the contractor was not shown to be entitled to reimbursement from the owner, the Department, for that expense. The Petitioner's claim also contains a request for $268.31 as payment for additional work performed but not required by the contract. The Petitioner attributes this sum to the installation of a "drop ceiling" to accommodate an over-sized fan located in the ceiling. There is no written request for authorization for this additional work from the Petitioner to the owner or the owner's engineer. No proof was presented to show that the use of an over-sized fan was the fault of the owner. In fact, Mr. Morgan testified that the fan mounted by the Petitioner was too large for the space above the ceiling. The evidence concerning this circumstance reveals that use of an excessively-sized fan in the initial installation should have been a problem foreseen by the Petitioner. It was not shown to be fault of the owner, and there is no evidence that the requisite, prior written authorization for the additional work involving installing the fan and the drop ceiling was obtained from the owner, as the contract requires. The petitioner's claim letter of March 30, 1994 also requests a total of $951.36 for extra work related to "addition of chilled and hot water lines". Mr. Morgan testified that Mr. Hester, an employee and representative of the owner at the site, "wanted, and in fact, insisted that I install isolation valves at this point . . . so they could shut that off and isolate that air handle unit five . . . ." Mr. Morgan then offered to re-use some of the existing valves he had taken out as part of his demolition effort. The Petitioner did not show why the portion of the additional requested charge of $951.36 related to the installation of isolation valves to isolate air-handler unit no. 5 was really necessary in view of the fact that existing valves that had been taken out as part of the demolition work carried out at the start of the project, prior to issuance of the Notice to Proceed, were proposed to be used by Mr. Morgan for this purported additional work requested by Mr. Hester, the owner's representative on the site. It was not shown by the Petitioner that had the existing valves been left in place, they could not have been used for that portion of the work related to the requested additional $951.36 charge for additional work related to chilled and hot water lines concerning air-handler unit no. 5. The claim letter also requests $388.31 related to purported additional work concerning "electric circuit to HVAC panels". The Respondent never provided a written authorization to the contractor for this work. The Respondent contends that the engineer required that MCI agree to provide a fully-functional system, which would not be possible without all necessary power wiring being installed, including the related circuitry concerning the panels in question. The Petitioner failed to establish that any additional work should be paid for by the Respondent related to the electric circuit to the HVAC panels because the Petitioner did not establish by preponderant evidence that such work should be deemed an addition to the scope of work and related price described in the original contract, nor that the claim was supported by a proper written request for authorization and corresponding approval, and/or change order, as required by the contract. The Petitioner failed to file written proposals for the additional work it believed was required to the Respondent at the times it perceived the additional work to be necessary during the course of the project. It did, however, induce the Petitioner to agree to a change order giving a substantial extension of time for performance of the contract to the Petitioner. Timely- filed written proposals for the purported required additional work would have enabled the Respondent to have investigated and included its approval of any legitimate extra work in the change order. In fact, however, the Petitioner never actually completed the contract and failed to thus completely perform the change order. One reason for this might have been that the Trane Company from which the Petitioner was to obtain the air-handling equipment was owed $9,010.00 by the Petitioner. It appears from the evidence, particularly the testimony of Mr. Jenkins, that Trane was unwilling to fill the order for the air-handling equipment in spite of the Petitioner's attempts to obtain it because it had never been paid for the $9,010.00 back debts owed to Trane by MCI. Pursuant to the terms of the contract (page 81), a contractor is required to submit an affidavit swearing that all costs incurred for equipment, materials, labor, and services against the project had been paid before being entitled to final payment. At the time the March 30, 1994 claim was filed, MCI had received $87,784.89 in payment for the work performed. The change order entered into by the parties raised the total scope of the work to $109,760.98. On or about March 30, 1994, the claim filing date, $30,000.00 was still owed to subcontractors and suppliers. The contract between the parties recognizes remedies for the contractor "for delays in the progress of the work" or "for changes in the work". Specifically, Article 8.4.2, at page 66, provides that: [t]he Contractor's exclusive remedy for delays in performance of the contract caused by events beyond its control shall be a claim for equitable adjustment in the contract time; provided, however, inasmuch as the parties expressly agree that over- head costs incurred by the Contractor for delays in performing the Work cannot be determined with any degree of certainty, it is hereby agreed that in the event Contractor is delayed in the progress of the Work after Notice to Proceed to mobilize on a site and to proceed with construction for causes beyond its control and attributable only to acts or omissions of Owner, Contractor shall be entitled to compensation for overhead and profit costs either as a fixed percentage of the actual cost of the change in the Work if the delay results from a change in the Work, as calculated in Section G, Supplementary General Conditions, or (b) if the delay results from other than a change in the work, at an amount for each day of delay calculated by dividing an amount equal to percent of the original contract sum by the number of calendar days of the original contract time. In the event of a change in the Work, Contractor's claim for adjustments in the contract sum are limited exclusively to its actual costs for such changes plus fixed percentages for overhead, additional profit and bond costs, as specified in Section G. The foregoing remedies for delays and changes in the Work are to the exclusion of, and thus eliminate, the total cost concept (that is, computing Contract's additional costs for changes in Work or for the cost of a delay in the progress of the Work by comparing Contractor's total actual costs with its original estimate, see McDevitt & Street Company v. Department of General Services, State of Florida, 377 So.2d 191 (Fla. 1st DCA 1979)) as a method of determining Contractor's costs associated with a change in the Work or delay in the progress of the Work. The parties also agreed, at page 10 of 13 of the contract, that the contractor shall have no right to compensation other than or in addition to that provided by the contract to satisfy any claim for costs, liabilities, or debts of any kind whatsoever resulting from acts or omissions attributable to the owner, unless the contractor has provided notice, as required by Article 8 and 12 of the AIA General Conditions (incorporated in the contract) and unless the claim is delivered to the owner. Article 8.3.1 of the AIA General Conditions, at page 16-A201-1987, provides: If the Contractor is delayed at any time in progress of Work by an act or neglect of the Owner or Architect, or of an employee of either, or of a separate contractor employed by the Owner, or by changes ordered in the Work, or by labor disputes, fire, unusual delay in deliveries, unavoidable casualties or other causes beyond the Contractor's control, or by delay authorized by the Owner pending arbitration, or by other causes which the Architect determines may justify delay, then the Contract Time shall be extended by Change Order for such reasonable time as the Architect may order. Article (paragraph) 8.3.2 provides that Claims relating to time shall be made in accordance with applicable provisions of Paragraph 4.3. Article (paragraph) 4.3.3, Time Limit on Claims, provides: Claims by either party must be made within 21 days after occurrence of the event giving rise to such Claim or within 21 days after the claimant first recognizes the condition giving rise to the Claim, whichever is later. An additional Claim made after the initial Claim has been implemented by Change Order will not be considered unless submitted in a timely manner. Article (paragraph) 4.3.1, Definition, provides: A Claim is a demand or assertion by one of the parties seeking, as a matter of right, adjustment or interpretation of Contract terms, payment of money, extension of time or other relief with respect to the terms of the Contract. The term "Claim" also includes other disputes and matters in question between the Owner and the Contractor arising out of or relating to the Contract. Claims must be by written notice. The responsibility to substantiate Claims shall rest with the party making the Claim. Article (paragraph) 4.3.7, Claims for Additional Cost, at page 12 A201-1987 of HRS Composite Exhibit 1, provides: If the Contractor wishes to make Claim for an increase in the Contract sum, written notice as provided herein shall be given before proceeding to execute the Work. Prior notice is not required for Claims relating to an emergency endangering life or property arising under Paragraph 10.3. If the Contractor believes additional costs are involved for reasons including but not limited to (1) a written interpretation from the Architect, (2) an order by the Owner to stop the Work where the Contractor was not at fault, (3) a written order for a minor change in the Work issued by the Architect, (4) failure of payment by the Owner, (5) termination of the Contract by the Owner, (6) Owner's suspension, or (7) other reasonable grounds, Claim shall be filed in accordance with the procedures established herein. The Petitioner did not submit its original claim nor its addendum to its claim in a timely manner and with proper notice in accordance with these provisions referenced above. The parties have agreed, by the terms of their contract, that disputes concerning such claims are to be resolved exclusively in this administrative forum and in accordance with Chapter 60-4, Florida Administrative Code.
Recommendation Based on the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is RECOMMENDED that a Final Order be entered by the Department of Health and Rehabilitative Services denying the Petitioner's claim and the addendum to its claim in its entirety. DONE AND ENTERED this 31st day of March, 1995, in Tallahassee, Florida. P. MICHAEL RUFF 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 4th day of April, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-2916 Petitioner's Proposed Findings of Fact None submitted. Respondent's Proposed Findings of Fact 1-44. Accepted, to the extent they are not inconsistent with the findings of fact made by the Hearing Officer. To the extent that they are so inconsistent, they are deemed to be not supported by the preponderant evidence of record, or subordinate to the Hearing Officer's findings of fact on the same subject matter, or as unnecessary. In such circumstance, they are rejected. COPIES FURNISHED: Harold D. Callaway, Jr., Esquire Qualified Representative Callaway & Associates Post Office Box 2323 Gulf Shores, Alabama 36524 Robert L. Powell, Sr., Esquire Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Kimberly J. Tucker, Esquire General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue Whether Respondent committed the violations alleged in the Administrative Complaint issued against him and, if so, what disciplinary action should be taken.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: Respondent is a Spanish-speaking native of Cuba with little or no understanding of the English language. He has resided in Miami-Dade County since coming to this country 18 or 19 years ago. In or around 2006, Respondent decided he wanted to start an air conditioning contracting business in Miami-Dade County, and he went to the downtown Miami location of the Miami- Dade County Code Compliance Office (Compliance Office) to inquire about the licensing requirements with which he would have to comply to legally operate such a business in the county. The Compliance Office is responsible for licensing construction contractors (in various trades) operating in Miami- Dade County. The contractors whom the Compliance Office licenses include mechanical contractors doing air conditioning work. Individuals who desire to go into the air conditioning contracting business in Miami-Dade County must complete and submit to the Compliance Office an eight-page "initial application," accompanied by "letters of experience" and a $315.00 application fee. The application is reviewed by the Miami-Dade County Construction Trades Qualifying Board (CTQB). If the CTQB determines that the applicant is qualified to take the licensure examination, the applicant is allowed to sit for the examination. Passing the examination is a prerequisite to licensure. If a passing score is attained, the applicant is notified by the Compliance Office and given the opportunity to submit a "business application" and supporting material (including proof of liability insurance and workers' compensation coverage), accompanied by another $315.00 application fee. If the CTQB approves the "business application," the "applicant is issued a contractor's license number" and given a "competency card" (reflecting such licensure) by the Compliance Office. The applicant then must register with the Department before being able to engage in any contracting work in the county. When Respondent went to the Compliance Office's location in downtown Miami, he was approached by a man carrying a clipboard who spoke Spanish. Respondent was led to believe by the man that he worked for the county (although the man did not present any identification verifying his employment status). The man offered to help Respondent apply for a license, an offer Respondent accepted. After obtaining information from Respondent, the man filled out an application form (which was in English) for Respondent and "kept" the completed form. He then collected from Respondent $350.00. The man told Respondent that Respondent would be receiving his license "by mail." Respondent did nothing further (including taking the licensure examination) to obtain a Compliance Office-issued license for his air conditioning contracting business. Given what he was told by the man (whom he trusted) at the Compliance Office's downtown Miami location, Respondent did not think anything else was required of him, and he acted accordingly. Approximately a month after his visit to the Compliance Office, Respondent received what, on its face, appeared to be a Compliance Office-issued "competency card" indicating that his business, G & G Air Conditioning, Inc., had been issued an "A/C UNLTD" license, License No. 05M000987, with an expiration date of September 30, 2007, and that he was the "qualifying agent" for the business. Although Respondent did not realize it at the time, the "competency card" was a "fraudulent document." The Compliance Office had never in fact issued any license to Respondent or his air conditioning contracting business. Indeed, the Compliance Office had not even received a licensure application, or, for that matter, anything else, from Respondent (including the $350.00 he had paid for what he thought was an application fee). Reasonably, but erroneously, believing that the "competency card" was authentic, Respondent, with the assistance of a friend able to read and write English, completed and submitted the paperwork necessary to register with the Department so that he would be able to engage in the business of air conditioning contracting in Miami-Dade County. Respondent had picked up the application packet (the contents of which were in English) when he had visited the Compliance Office's downtown Miami location. Respondent's friend translated the contents of the application materials for Respondent. For each item requiring a response, Respondent told his friend what entry to make. The final page of the application materials contained the following "Attest Statement," which Respondent signed (after it was translated for him by his friend): I have read the questions in this application and have answered them completely and truthfully to the best of my knowledge. I have successfully completed the education, if any, required for the level of licensure, registration, or certification sought. I have the amount of experience required, if any, for the level of licensure, registration, or certification sought.[1] I pledge to comply with the applicable standards of practice upon licensure, registration, or certification. I understand the types of misconduct for which disciplinary proceedings may be initiated. Among the representations Respondent made in his completed application was that he possessed a valid "local competency card" issued by the Compliance Office. He believed, in good faith, but again, incorrectly, that the "competency card" he had received in the mail was such a card. In accordance with the instructions in the application materials, Respondent attached a copy of this card to his application. The Department received Respondent's completed application for registration on April 20, 2006. On May 23, 2006, the Department issued the registration for which Respondent had applied. Had the Department known that the "competency card" Respondent had attached to his application and had falsely, but not fraudulently, claimed to be valid was in fact a counterfeit that did not accurately represent the local licensure status of Respondent and his business, the Department would have denied Respondent's application for registration. Following a police investigation, two Compliance Office employees, along with a former Compliance Office employee, were arrested for selling "fraudulent licenses." The police alerted the Compliance Office of the results of its investigation in or around July 2006 (after the Department had already granted Respondent's application for registration). The Compliance Office thereupon conducted an audit, which revealed that Respondent was among those who had received a "fraudulent competency card" from the arrestees. Respondent was so notified by letter (sent by the Compliance Office). Prior to his receipt of the letter, Respondent had no idea that the "competency card" he had received in the mail was not what it purported to be. Had he known it was a "fraudulent document" he would have never applied for registration with the Department. The total investigative and prosecutorial costs incurred by the Department in connection with the instant case (excluding costs associated with any attorney's time) was $32.66.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Board issue a Final Order revoking Respondent's registration and requiring him to pay the Department $32.66 (representing the Department's investigative and prosecutorial costs, excluding costs associated with attorney time) for the violation of Section 489.129(1)(a), Florida Statutes, Section 455.227(1)(h), Florida Statutes, and Section 489.129(1)(m), Florida Statutes, described above that the Department alleged in its Administrative Complaint and subsequently proved by clear and convincing evidence at the final hearing. DONE AND ENTERED this 22nd day of October, 2007, in Tallahassee, Leon County, Florida. S STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of October, 2007.
Findings Of Fact The Petitioner, John L. Horn, applied for and took the February 22, 1980, examination for a Class B air conditioning contractor's license, having been qualified, and meeting all preliminary requirements to sit for this examination. Mr. Horn answered Question 6 of the exam by selecting multiple choice Answer E. Question 6 of the February 22, 1981, examination was as follows: The contractor for the classroom and office building shown on Drawing AC-3 is required to accurately measure the air flow from each of the air handling units. Which of the following methods should be used? A magnehelic gauge with the high pressure port connected to the supply duct and the low pressure port connected to the return duct. An inclined draft gauge with a pitot tube traverse at several points in the supply duct to determine the mean velocity. An inclined draft gauge with a pitot tube traverse in the centerline of the supply duct to determine the actual velocity. A rotating vane anemometer located in the supply duct air stream. A velometer located at each sidewall outlet. All answers except Answer B were graded as incorrect, including the answer submitted by Mr. Horn. The February, 1980, Class B air conditioning contractor's examination was developed by American Community Testing Services, located in Jacksonville, pursuant to a contract with the Department of Professional Regulation. Question 6 was prepared by Mr. Larry Simmons for the testing service. This question seeks multiple Choice Answer B as the correct answer. Each examination question is written by an expert in the field, and is then checked by another expert for accuracy. The questions are then reviewed by a consultant to the testing service who is a professor of mechanical engineering. These internal review procedures are utilized to minimize the existence of errors. Prior to the time an examination question is used, it is subjected to Departmental review to assure that any grammatical errors are corrected. Subsequent to the examination, Question 6 and the various answers given by examinees were analyzed. Based upon testing criteria, Answers C and D in Question 6 were judged to possibly be correct, in addition to Answer B. Based on this same testing criteria, however, Answers A and E were not possibly correct. A discrimination index disclosed that Question 6 was a difficult question. Nevertheless, every examinee is qualified by experience to sit for the examination, which is designed for competition among peers. The post-examination review procedures used by the Department are for the purpose of assuring that there is not another correct answer. This review is performed by the writer of the question and an expert in the field being reviewed. The preferred method for measuring air flow is to use a pitot tube traverse, as suggested by Answer B. Other methods are available alternatives, but are not given as choices in the answers to Question 6. Answer A is incorrect because it measures static pressure and not air flow. Answer D is not correct because of the large hole that would have to be cut in the duct in order to insert the instrument, and after sealing the duct no reading could be taken. Answer E is also incorrect because it would allow air to flow into the room. Answer C could be correct in a small duct, but not in the duct shown on the drawing accompanying Question 6. The question seeks the best answer among the five choices; Answer B is the only acceptable choice and the correct answer. Twelve of the 14 persons who scored in the upper 27 percent on the examination answered Question 6 correctly, by choosing Answer B. Only 7 of the 19 persons who scored in the lower 27 percent on the examination answered this question correctly. This difference produced a discrimination index of .47 percent, which is within professional testing standards as an accurate measure of the validity of the question. This evidence was not controverted. Thus, based upon generally accepted testing criteria, the discrimination index shows Question 6 to be a valid question, and Answer B to be the correct answer. Mr. Horn's contentions are not supported by the weight of the evidence presented. The burden of proof is upon an applicant for a license to demonstrate that he meets all standards for eligibility. Mr. Horn did not present sufficient evidence to meet this burden of proof, and the Board established by substantial, competent evidence the validity of Question 6 and the correctness of Answer B.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the application of John L. Horn for a license as a state certified Class B Air Conditioning Contractor be denied. THIS RECOMMENDED ORDER entered on this 15th day of April, 1981. WILLIAM B. THOMAS 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 15th day of April, 1981. COPIES FURNISHED: John L. Horn 114 Willow Branch Avenue Jacksonville, Florida 32205 Charles F. Tunnicliff, Esquire Assistant General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Patricia R. Gleason, Esquire Assistant Attorney General The Capitol Tallahassee, Florida 32301
Findings Of Fact At all times material, Addison Baureis has been a registered residential contractor, having been issued license number RR 0012163, by the State of Florida. Sometime prior to November 1987, Don and Marion Lippert solicited a bid from Respondent for building a single family home in Cape Canaveral, Florida. The customers provided Respondent a plan of the home, prepared by a draftsman, and a list of specifications. Subsequently, Respondent was awarded the bid and a contract was entered on November 7, 1987, between Addison Baureis and the Lipperts, for construction of the home for $102,045. The contract is a standard construction contract form, provided and filled in by Addison Baureis. The contract provides for payment through bank draws; both the contract and the estimate sheet completed by Baureis require that any changes to the specifications be approved, in advance in writing. The contract also provides for completion within six months, except for delays occasioned by inclement weather or the inability to obtain materials through no fault of the contractor. Some of the work items under the contract were left to be performed by the Lipperts. These included painting, panelling, wallpaper and landscaping. The plans provided by the Lipperts lacked certain details; specifically they failed, to include plumbing and electrical risers, heating and air conditioning (HVAC) detail, or a site plan which could be approved by the city building department. It is common that HVAC specifications are excluded, and in such cases these details are left to the professional judgement of the contractor. Baureis obtained a drawing for the risers and the site plan. The permit was issued and work commenced in December 1987. All subcontractors, with the exception of the painters, were under contract with Addison Baureis. This was to be the Lipperts' "dream home". Mrs. Lippert was an interior decorator and had planned the details of the home, even to the point of providing manufacturers' specification numbers and brochures describing the products she wanted. There were, however, certain items that she had questions on, and she consulted Baureis and his subcontractors as building progressed. She drove over from Orlando two or three times a week to check on the house. During the course of the work by Baureis and his subcontractors, a substantial number of changes were made. Instead of a brick exterior, stucco and flagstone were substituted; a lower-grade, lighter weight roof shingle was installed; an exterior bay window was not extended to the roofline, as desired by the Lipperts; and the upstairs wooden flooring and ceiling were reversed. Because of the lack of plans regarding placement of heating and air conditioning duct work, soffits had to be constructed to accommodate the ducts. Changes in the entrance way had to be made to accommodate a 400-pound chandelier that was not included in the plans. Web floor joists were substituted for wood I-beams,, between the first and second story. The evidence is inconclusive as to discussions and agreements regarding these changes, but it is undisputed that they, and myriad smaller changes, were never reduced to writing nor agreed to in writing, as required by the contract. Baureis received draws from the bank totalling approximately $87,000.00, for the Lippert job. In May 1988, claims of liens were filed by two of Baureis' subcontractors: Babcock Building Supply, Inc., and Sawyer Plumbing, Inc., for materials and work related to the Lippert contract. At that point the bank refused to release further funds. The draws Baureis had received included funds for the plumbing. Some work was done on the home in May 1988, but by June the work stopped. The parties were at a standoff, as the bank refused to release further funds and neither Baureis nor the Lipperts satisfied the liens. The bank initiated foreclosure action against the Lipperts. In August 1988, the Lipperts discharged Baureis for nonperformance and hired their own subcontractors to finish the house. Baureis admits that he was negligent in failing to obtain written change orders. He also admits that substantial changes were made. Several of those changes were blamed on the inadequacy of the plans and specifications provided by the Lipperts, but he submitted his bid based on those submittals and did not question the requirements at that time. Change orders are not only required by the parties' contract; they are standard, essential practice in the industry. Baureis denies that he failed to supervise the job. His supervision was undermined by Mrs. Lippert's involvement with his subcontractors. She directed them to make changes and hired them to do special tasks. She tried to tell them how to do their job and created a morale problem at the site. Dispute as to the customer's role was a factor in the Lippert's discharge of their contractor. Addison Baureis' license was disciplined previously in 1984, when he admitted falsifying the value of a contract on a building permit application and abandoned a job. The case was resolved by stipulation and payment of a $750.00 fine.
Recommendation Based on the foregoing, it is hereby, RECOMMENDED That a final order be entered finding Addison Baureis guilty of violations of Sections 489.129(1)(h) and (m), F.S., and assessing the penalty of $1,000. fine and one year suspension. DONE AND RECOMMENDED this 23rd day of February, 1990, in Tallahassee, Leon County, Florida. MARY CLARK 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 23rd day of February, 1990. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 89-2586 The following constitute rulings on the parties' proposed findings of fact. Findings Proposed by Petitioner Adopted in paragraph 1. Adopted in paragraph 2. Adopted in paragraph 3. Adopted in substance in paragraph 11. and 6. Adopted in paragraph 3. 7. and 8. Adopted in paragraph 11. 9. A. Rejected as unsupported by the weight of evidence. The testimony by Mr. Lippert regarding actual costs was not clear. Adopted in substance in paragraph 7. Rejected as contrary to the weight of evidence (as to the supervision). substandard work was not alleged in the administrative complaint and is not at issue. Adopted in substance in-paragraph 9. 10. Rejected as unsupported by competent evidence. 11. Adopted in paragraph 13. Findings Proposed by the Respondent Adopted in paragraph 4. Adopted by implication in paragraph 6. Adopted in part in paragraphs 3, 7 and, 11; otherwise rejected as unnecessary. Rejected as unnecessary. Rejected as irrelevant. Rejected as unnecessary. Adopted in substance in paragraph 9. Adopted by implication in paragraph 10 Rejected as contrary to the evidence. and 11. Rejected as unnecessary. 12. Adopted in paragraph 7. COPIES FURNISHED: Larry G. McPherson, Jr., Esquire Wellington H. Meffert, II, Esquire Dept. of Professional Regulation 1940 N. Monroe St., Suite 60 Tallahassee, FL 32399-0792 Mark S. Peters, Esquire 775 D. Merritt Island Causeway, Suite 310 Merritt Island, FL 32952 Fred Seely, Executive Director DPR-Construction Industry Licensing Board P.O. Box 2 Jacksonville, FL 32202 Kenneth D. Easley, General Counsel Dept. of Professional Regulation 1940 N. Monroe St., Suite 60 Tallahassee, FL 32399-0792
The Issue There are three issues to be determined in this case: (1) whether the Petitioner, Arlington Ridge Community Association, Inc. (Arlington Ridge), demonstrated standing to challenge the proposed agency actions; (2) whether the terms of Consent Order OGC No. 18-0077 (proposed Consent Order) constituted a reasonable exercise of the Respondent, Department of Environmental Protection's (Department), enforcement discretion; and (3) whether the Department's notice of intent to issue minor source air construction permit 0694866-009-AC (009 Permit) to the Respondent, GI Shavings, LLC (GI Shavings), met the applicable rule and statutory criteria for issuance.
Findings Of Fact The Parties The Arlington Ridge community is located in Lake County comprising approximately 500 acres. The community is a 55-year- old plus active adult community with approximately 730 homes. The community includes an 18-hole golf course, swimming pool, tennis courts, pickle ball courts, walking trails, conservation areas, and common areas. Arlington Ridge is a Florida not-for-profit community association governed by its Declaration of Restrictive Covenants for Arlington Ridge, recorded on April 15, 2005, at Official Records Book 2809, Page 1622, of the Public Records of Lake County, Florida, as amended. Arlington Ridge's Articles of Incorporation demonstrate that it was formed, in part, to promote the health, safety, and welfare of the owners within its community and to provide for the ownership, operation, maintenance, and preservation of the common areas. Arlington Ridge is made up of the Declarant, CB Arlington Ridge Landco, LLC, as long as the Declarant still owns lots and the residents who own lots. Robert Salzman is vice president of the Declarant. He serves as president and is a member of the board of directors of the community association. The Declarant still owns 170 undeveloped lots and 91 lots that are under development. There are 730 existing homes that are owned by individual residents who are members of the community association along with the Declarant. The community association owns a section of the roadway and land around the rear gate of the subdivision. GI Shavings is a Florida limited liability company and is the applicant for the minor source air construction permit at issue in this proceeding. The GI Shavings property is located adjacent to the Arlington Ridge community. The address is 26444 County Road 33, Okahumpka, Lake County, Florida 34736. GI Shavings also signed the proposed Consent Order at issue in this proceeding. The Department is the administrative agency of the state having the power and duty to protect Florida's air and water resources and to administer and enforce the provisions of chapter 403, Florida Statutes, and rules promulgated thereunder in Florida Administrative Code Title 62 regarding activities which have the potential to cause air pollution. Facility History of Permitting and Operations On February 7, 2014, GI Shavings' predecessor, Quality Shavings of South Florida, LLC, applied to the Department for an initial air construction permit. The application described the proposed project as a wood chip dryer that included a 30 million British thermal unit per hour (mmBtu/hr) burner fueled by wood chips and sawdust. The burner provided heat to the rotary kiln chip dryer and exhausted to a cyclone dust separator prior to venting to the atmosphere through an exhaust stack. The application materials contained information about the United States Environmental Protection Agency's (USEPA) AP-42 emissions factors for combustion of wood products, with estimations of regulated air pollutant potential and estimated actual emissions from the wood chip drying process. The potential emissions for each pollutant and group of pollutants were listed in tons per year (TPY), and were based on a 30 mmBtu/hr facility running 8,760 hours per year, i.e., no hourly limit. The estimated actual emissions were based on the facility running a typical production schedule of 3,600 hours per year. The listed air pollutants were carbon monoxide (CO), nitrous oxides (NOX), particulate matter (PM), volatile organic compounds (VOCs), sulphur dioxide (SO2), carbon dioxide (CO2), and hazardous air pollutants (HAPs). Although there were potential emissions and estimated actual emissions for each pollutant and group of pollutants, the major source thresholds were not triggered. Therefore, the facility would be classified, from a regulatory standpoint, as a minor source of air pollution. The only air pollution control device was the cyclone dust separator that was rated at 99 percent removal efficiency for PM10, i.e., particulate matter of grain size 10 microns or less, from the exhaust airstream. The application reflected that there were no controls proposed for CO, NOX, VOCs, SO2, CO2, or HAPs. The application was silent as to control of fine particulates or PM2.5, i.e., particulate matter of grain size 2.5 microns or less. The application contained a site location map based on an aerial map. The proposed location of the facility was on a parcel adjacent to the Arlington Ridge community's golf course, and further east a road labeled as Arlington Ridge Boulevard. Other roads, in what appeared to be a not fully built-out subdivision, were White Plains Way and Manassas Drive. The facility plot plan in the application located the wood drip dryer, rotary kiln, cyclone dust separator and exhaust stack on the eastern end of the parcel closest to the boundary with the Arlington Ridge community's golf course. On April 4, 2014, the Department issued minor source air construction permit 0694866-001-AC (001 Permit). The 001 Permit established a visible emissions (VE) limit of five percent opacity, which is the limit specified under the materials handling rules. Like all air permits issued under the Department's rules, the 001 Permit was also subject to certain general conditions. These included the prohibition against "objectionable odor" as defined in the Department's air pollution rules. At the time the 001 Permit was issued, neither GI Shavings nor the Department recognized that the rules for carbonaceous fuel burning equipment were applicable to GI Shavings and that there should also have been a limit for PM in the 001 Permit. Instead, the rules for a materials handling operation were applied to the facility, which required a VE limit of five percent opacity. The 001 Permit required GI Shavings to demonstrate initial compliance and apply for an operating permit no later than 60 days before it expired on June 30, 2015. On December 18, 2014, the Department issued an amendment of the 001 Permit to grant a transfer of ownership from Quality Shavings of South Florida, LLC, to GI Shavings (002 Permit). On May 11, 2015, GI Shavings submitted a request for additional time to demonstrate initial compliance. The reason given for the request was that operations had not started because GI Shavings was waiting on a certificate of occupancy from Lake County, which was expected within the next 60 days. On May 28, 2015, DEP granted the request and issued a permit amendment (003 Permit), which extended the expiration date from June 30, 2015, to December 31, 2015. On November 24, 2015, GI Shavings submitted a second request for additional time to demonstrate initial compliance. The reason given for the request was coding issues at the new warehouse. The request noted that "[a]ll the equipment has been up and runs." On December 7, 2015, the Department granted the request and issued a permit extension (004 Permit), which extended the expiration date from December 30, 2015, to June 30, 2016. In the 004 Permit extension, the Department reminded GI Shavings that there must be notification to the Department within five days of commencing operations, compliance testing within 30 days of commencing operations, 15 days notification to the Department prior to compliance testing, and application for an initial air operation permit no later than 60 days prior to the new expiration date. On April 27, 2016, GI Shavings submitted a third request for additional time to demonstrate initial compliance. There was not any reason given for this 120-day extension request. On May 11, 2016, the Department granted the request and extended the permit's expiration date to October 31, 2016 (005 Permit). The Department reiterated the same reminders as in the 004 Permit extension. On October 24, 2016, the Department conducted its first formal site inspection of GI Shavings in response to complaints from Arlington Ridge residents about smoke, airborne PM, and odor. The Inspection Report confirmed it was a complaint inspection. The Inspection Report also stated that the Department's permitting engineer, Jeff Rustin, had made a previous site visit at which time he had requested to review facility records. The inspection revealed that GI Shavings had commenced operations without notifying the Department, and had not scheduled or submitted a VE compliance test to demonstrate compliance with the permit's five percent opacity limit. During the site inspection, Jeff Rustin and his supervisor, Tom Lubozynski, also a professional engineer, noted that GI Shavings was emitting white smoke from the exhaust stack that did not dissipate quickly and that the smoke may have both moisture and particulates. As they stood 60 feet from the burner and the burner's smoke stack, there was the odor of burning smoke, and particles fell onto Mr. Lubozynski's notepad. Based on their observations, the Department's engineers concluded that the cyclone dust separator was not adequately controlling PM emissions, that the method of operations was unlikely to keep emissions below the five percent opacity VE limitation, and that the equipment should not be operated, except for test purposes. On October 26, 2016, GI Shavings submitted a fourth request for additional time to demonstrate initial compliance. The request was for a 180-day extension with no reason given for the request. On November 23, 2016, the Department granted the request and extended the expiration date from October 31, 2016, to April 4, 2017 (006 Permit). The Department specifically stated in the 006 Permit that the facility was not authorized for normal operations and suggested the alternatives of adding another pollution control device in the form of a bag house, or replacing the cyclone dust separator. Despite the Department's limitations on operations stated in writing at the times of issuing the 004 and 005 Permit extensions, the credible and persuasive evidence was that GI Shavings operated throughout 2016 up until it hired Bruno Ferraro in late November 2016. Actions Taken Before Rerating the Burner Mr. Ferraro is the president of Grove Scientific and Engineering Company, and an expert in air emissions, combustion and visible emissions testing, and air permitting. Mr. Ferraro contacted the Department in early December 2016, stating that he was hired by GI Shavings to evaluate emissions and hoped to visit the facility that month. He requested the original emissions calculations and was provided the original air construction permit application, which contained that information. On December 22, 2016, Mr. Ferraro provided to the Department a report of his initial investigation of the GI Shavings facility. He conducted a site visit on December 20, 2016, accompanied by three representatives from the Department that included Jeff Rustin, Brianna Gowan, and Wanda Parker- Garvin. Ms. Parker-Garvin was the environmental manager for the Central District Office's compliance assurance program. Of particular relevance in the report was the following statement: The cyclone works as designed by separating the dry wood shavings and sawdust from the hot combustion air. However, the cyclone is not designed to remove fine particulates from the combustion of wood. The particulate matter (PM) emitted from the combustion of wood is unburned carbon and too small a particle size to be removed by the cyclone. This carbonaceous PM is best controlled by increasing the efficiency of combustion or through the use of post combustion control equipment. (Emphasis added). J. Ex. 1 at DEP 1-360. Mr. Ferraro recommended certain actions to increase the efficiency of combustion, such as changing the starter fuel to wood logs and varying the sawdust feed rate. He also recommended that GI Shavings seek a permit modification to allow excess emissions during startup, shutdown, and malfunction. He also recommended seeking a permit modification to allow a higher VE limit, such as 20 percent opacity, for normal operating conditions. He recommended, as a last resort, the use of post combustion control equipment. This would involve the installation of a bag house, which he described as a "very costly alternative and an excessive measure for controlling carbonaceous PM from the combustion of clean wood." The Department responded to Mr. Ferraro's report on January 5, 2017. Ms. Parker-Garvin provided the Department's comments and response in a lengthy email that also approved a two-week experimental testing phase. The email specifically limited opacity to no more than 20 percent for a smoke plume that would be carried by a west wind in an easterly direction toward the adjacent residents and golf course in a 90-degree quadrant designated on an aerial map as the area of concern or "AOC." The email summarized an expectation that a future air operation permit would require a showing of reasonable assurance that the relevant carbonaceous fuel burning rules for a 30 mmBtu/hr burner could be met. This would include a VE limit of 30 percent opacity and a PM limit of 0.2 pounds per mmBtu of heat input of carbonaceous fuel. Both limitations would need to be initially demonstrated before an air operation permit could be issued. On January 8, 2017, Mr. Ferraro provided a draft startup, shutdown, and malfunction operation plan (SSMOP) to the Department. In his email, Mr. Ferraro stated that the facility would start the two-week experimental testing phase the next day, on January 9, and keep the Department updated. He also stated that they would submit an application to modify the air construction permit. On January 17, 2019, GI Shavings applied for a permit modification, specifying only a change in VE limit from five percent opacity to 30 percent opacity. On March 8, 2017, the Department met with Mr. Ferraro, and an attorney for GI Shavings who attended by telephone. The meeting summary documented a discussion of issues that included requirements for annual PM testing, annual VE testing, and the SSMOP's restrictions on hours of operation and wind direction. The Department's response referred to "health concerns of the complainants," "adverse impacts off property," "numerous complaints," and "proximity to a retirement-age community" as reasons for the SSMOP's restrictions. On March 31, 2017, the Department's intent to modify GI Shavings' air construction permit was published. Arlington Ridge residents made verbal comments and filed complaints with the Central District Office regarding the draft air construction permit. The residents also filed a petition for administrative hearing that was eventually resolved in some manner, because the evidence showed that the final permit was issued on June 26, 2017. On June 26, 2017, the Department modified the air construction permit (007 Permit). The 007 Permit authorized a change in the VE limit, added a PM limit, added a SSMOP, added initial compliance requirements, and extended the expiration date to November 30, 2017. The 007 Permit also included a separate hours of operation agreement (HOA) between the Department and GI Shavings. The HOA initially provided for "[t]wo consecutive 8-hour shifts per day, between the hours of 6:00am and 10:00pm, Sunday thru Friday." These hours could be increased based on lack of compliance issues and lack of complaints over a 90-day period after the 007 Permit was issued. Mr. Ferraro testified that one of the permit requirements was to do a PM compliance test using EPA Method 5. This involved establishing a protocol that would be approved by the Department prior to conducting the compliance test. He testified that during June and July of 2017, the facility started having operational problems that made it difficult to calibrate the fuel feed system to establish the maximum fuel rate and the maximum shavings production rate. During calibration, the sawdust feed system motor kept burning out. Finally, he was able to schedule and conduct the PM compliance test on August 25, 2017. Mr. Ferraro testified that he ran the burner at maximum capacity during the test, which turned out to be an average of 18.252 mmBtu/hr. That is when he observed that this burner's maximum capacity was not 30 mmBtu/hr. The facility failed the PM compliance test with a three-run average PM of 0.531 pounds per mmBtu of heat input of carbonaceous fuel. The facility complied with the VE limit using the EPA Method 9 test, with the highest six-minute average of 13.33 percent opacity. The compliance test results were reported to the Department on September 8, 2017. In his report, Mr. Ferraro concluded "[i]t is our opinion that the PM caused by the burning of carbonaceous fuel, plus the process emission from the wood shavings dust combined in the method 5 sample filter to cause the observed PM emission rate." He stated that GI Shavings wanted to resolve the situation by exploring a change to the PM limit in the permit. Mr. Ferraro testified that there continued to be startup and operational difficulties at the facility. At maximum operation, the facility was not able to get the burner to the specified heat output of 30 mmBtu/hr. After multiple calibrations and tests, the facility was still unable to function as originally specified by the manufacturer. After consulting with the Department, Mr. Ferraro designed a demonstration test in which the sawdust fuel was fed into the burner without the drying of wood shavings. The demonstration test's purpose was to address the PM and VE from the combustion of sawdust. The test was conducted on October 11, 2017, and reported to the Department on October 30, 2017. The facility failed the PM test with a three-run average PM of 0.824 pounds per mmBtu of heat input of carbonaceous fuel. The facility complied with the VE limit using the EPA Method 9 test, with the highest six-minute average of 5.6 percent opacity. Mr. Ferraro concluded that the October test confirmed the PM measured was a result of unburned carbon or incomplete combustion of the carbonaceous fuel, i.e., sawdust. He stated that the cyclone dust separator appears to do a good job of removing all large PM. However, the burner was not designed for complete combustion, i.e., did not burn hot enough for long enough. This resulted in the black soot deposited on the method 5 filters during the compliance tests. Meanwhile, on October 10, 2017, Mr. Ferraro forwarded an email to the Department with a request from GI Shavings to increase its hours of operation since it was "commencing our six months busy season," and was negotiating with additional clients. After receiving the initial October 10, 2017, test results from Mr. Ferraro, the Department's permitting program administrator at the time, Kimberly Rush, responded that "[b]ased upon the requirements outlined in the [HOA], the Department cannot approve the request[ed] hours of operation change at this time due to the pending compliance test and the complaint received on 8/16/17." Mr. Ferraro testified that GI Shavings decided to bring in Energy Unlimited Inc., the equipment manufacturer, to commission the facility. At this time, GI Shavings, through Mr. Ferraro, also requested an extension of the air construction permit that was set to expire in December of 2017. The reason given was that more time was needed to conduct and complete the commissioning process and continue working on facility compliance. On November 20, 2017, the Department extended the expiration date of the air construction permit to November 30, 2018 (008 Permit). The 008 Permit did not make any other changes to the provisions and requirements of the 007 Permit. In January 2018, the manufacturer did significant work to the facility's systems including reworking the fuel feed system, installing a new programmable logic controller and temperature controllers, as well as mechanical and programmatic changes. Upon completion of the commissioning process, Energy Unlimited, Inc., certified and rerated the equipment at a design rate maximum of 26 mmBtu/hr and an actual rate of 21 mmBtu/hr. Mr. Ferraro testified that typical operation was between 15 and 18 mmBtu/hr depending on the temperature outside and the amount of moisture in the air. Impacts to Arlington Ridge Residents Dennis Hartman lives on Arlington Ridge Boulevard and has been a member of the community association since early 2018. Mr. Hartman testified that GI Shavings is located on a diagonal from his home adjacent to the 11th fairway of the golf course. He testified that the smoke and smell from GI Shavings irritates his lungs, throat, and nasal passages. Mr. Hartman testified that he is impacted by the facility, in this manner, at least twice a week. Notably, he does not experience these impacts when he is away from Arlington Ridge. James Piersall has been a member of the community association since July 6, 2018, when he closed on his home in Arlington Ridge. Mr. Piersall testified that on November 27, 2018, while playing golf on the 11th hole, a dark blue wave of smoke came across and covered the green. The smell was prevalent, which he equated to burning wood. Mr. Piersall captured the smoke on video with his cell phone. He testified that it was common knowledge that GI Shavings was located on the other side of the 11th hole. The 150-yard marker and a cell tower serve as landmarks that help the residents locate the GI Shavings facility. Mr. Piersall also testified that this was the time of year to open the windows and doors, and let the breeze blow through the house. However, it was not possible to do so, as there was "sediment and soot that comes out on the patio." Rhonda Lugo has lived in Arlington Ridge since August of 2014, and has been a member of the community association. She testified that GI Shavings began operating two years after she moved to Arlington Ridge. She lives on Arlington Ridge Boulevard, where her home is directly behind GI Shavings and her backyard is approximately 300 yards from the facility. Ms. Lugo testified that her first two years in her home were great. She used her lanai and enjoyed her home. She now describes her home as "unlivable." She does not open any doors or windows, and has not used the lanai for almost two years. The soot and ash covers her lanai furniture. She testified that her eyes burn, and described the odor as more than "just a wood burning smell." Ms. Lugo testified that over the last two years, the residents as a group, have gone to the City of Leesburg and to Lake County, have written senators and state representatives, and have contacted the Department many times. Cheryl Thomack has lived on Arlington Ridge Boulevard since August 2017, and has been a member of the community association. She experiences headaches and breathing difficulties, and uses an inhaler, which she attributes to smoke and soot from the GI Shavings facility. She testified that she went on vacation for a week away from her home and did not experience any headaches or breathing problems while away from Arlington Ridge. She also testified that the GI Shavings facility has operated when the wind is blowing in the direction of the community. Michael Becker has lived on Manassas Drive in the Arlington Ridge community since August 4, 2017. Mr. Becker enjoys the outdoor activities at the Arlington Ridge community and is a member of the softball team. He testified that the operations of the GI Shavings facility are disruptive to himself and his wife, and that they stay indoors with all windows and doors closed. He testified that they only enjoy their lanai in the late hours of the night, when GI Shavings is not operating. He described the smoke fumes as "pretty toxic" when the wind is blowing their way, with a scorched wood type of smell. Mr. Becker testified that he and his wife have taken several videos of dark smoke billowing from the GI Shavings facility, and provided them to the community association representatives. Mr. Becker also testified that he was aware of the location of at least two industrial facilities near the Arlington Ridge subdivision. He testified that Covanta, a clean waste facility, was located outside the subdivision's gate, and, what he believed was a cement plant, was located off Rogers Industrial Park Road. Douglas Deforge has lived on Manassas Drive since December 2017. He testified that when he first moved in, there was "a lot of noise and I saw a lot of smoke coming out of the trees that are behind us." Eventually, he figured out that it was the location of the GI Shavings facility. Mr. Deforge testified that his wife likes to go out on the lanai to drink her coffee and read the paper, but she is not able to do so on certain days when the machinery is running. Particles on the lanai have to be removed frequently. Mr. Deforge testified that the smoke has a pungent odor like a paper mill. He expressed concern that he may eventually have respiratory issues because of the particles he inhales when out on his lanai. Mr. Deforge testified that since late November 2018, up until the morning of the final hearing, "[i]t seems more frequently that I'm seeing plumes coming out of GI Shavings." Sherry O'Brien lives on Arlington Ridge Boulevard and has been a member of the community association since October 2014. The GI Shavings facility is directly behind her home across the 11th fairway of the golf course. She has even walked the fence line at the 11th fairway to locate GI Shavings' smoke stack. Ms. O'Brien testified that the dark smoke and odor from the GI Shavings facility prevents her from enjoying the lanai and from golfing. She experiences a more hoarse and raspy voice and sinus problems. Ms. O'Brien testified that even with the windows closed, inside her home smells like burning wood. She testified that she observed the smoke directly behind the 11th green, which is directly behind her home. In her testimony, Ms. O'Brien distinguished between the location of smoke from the GI Shavings facility and the Covanta facility. Robert Salzman has been at Arlington Ridge for several years, four to five days per week, 10 to 12 hours per day. He is involved with the day-to-day activities of the sales office, community association management; and he is on the architectural control committee. He testified that GI Shavings' operations impact the 11th and 12th holes of the golf course, which is still owned by the Declarant. Mr. Salzman testified that resident complaints about GI Shavings have increased over the years, particularly in the months of October and November when the operations increase from five to seven days per week and into the night. He testified that while GI Shavings is operating, the residents are not active outdoors, they do not seem to leave their homes, and golfers skip the 11th and 12th holes. Mr. Salzman testified that he was familiar with the industrial facilities around Arlington Ridge. He testified to the locations of an adjacent peat facility, an aggregate company, and the Covanta waste-to-energy facility. He testified that there was not a cement plant nearby, but that it was a concrete mixing company. Mr. Salzman also testified that Covanta has a giant stack that puts out steam, but it is not located in the same direction as the GI Shavings facility. All the residents who testified stated that they get "black stuff" on their lanais when there is smoke coming from GI Shavings. The residents also testified that they cannot open their windows and cannot enjoy their lanais. All the residents believed that an increase in hours of operation and no restriction on wind direction for GI Shavings would negatively impact their quality of life. Complaints to the Department The preponderance of the competent and substantial evidence showed that the residents lodged complaints with the community association, the Department, and the local governments about GI Shavings' operation for most of 2016, 2017, and 2018. The complaints increased in October of each year when GI Shavings increased operations to meet business demands. The complaints varied from the operations being a nuisance and affecting their quality of life in their retirement community, to genuine concerns for their health and well-being. During the hearing, GI Shavings tried to suggest that its facility was not the source of the smoke seen and videoed by the residents. Although the Arlington Ridge subdivision is adjacent to an industrial park, the residents' description and observation of GI Shavings' location behind the tree line at the 11th hole of the golf course was consistent and was supported by the preponderance of the competent and substantial evidence. Arlington Ridges' expert witness, Mitchell J. Hait, Ph.D., and GI Shavings' expert witness, Mr. Ferraro, both provided similar descriptions of the atmospheric conditions during the summer and winter months. They explained that during the winter months, when the atmospheric conditions are cooler, the plume from the exhaust stack does not dissipate as quickly as during the warmer summer months. Thus, the plume would tend to remain visible and be carried by the wind. The increase in residents' complaints starting in October of each year could be explained by a combination of the cooler atmospheric conditions and GI Shavings' increased operations to meet business demands. GI Shavings tried to suggest that the plumes were only comprised of steam from the drying process and that PM was removed at 99 percent efficiency by the cyclone dust separator. However, the preponderance of the competent and substantial evidence established that the cyclone dust separator did not remove fine PM identified as "unburned carbon . . . too small a particle size to be removed by the cyclone." In other words, the "black stuff" that the residents found on their lanais, and the odor that irritated their noses, throats, and lungs. Enforcement and Consent Order Despite overwhelming lay and expert evidence of ongoing objectionable odor violations, the Department sought only to resolve the August and October 2017 PM emission limit exceedances with the proposed Consent Order. Even though both Mr. Ferraro and Ms. Rush agreed that the October 2017 test was not run under normal operating and compliance conditions, the Department decided to label it as a violation in the proposed Consent Order. The proposed Consent Order gave GI Shavings a choice of corrective actions, and did not impose any monetary penalty. The choice given was to either install a pollution control device, such as a bag house, or perform a rerating of the burner. The preponderance of the competent and substantial evidence established that the cyclone dust separator did not remove the fine PM that was the source of the residents' objectionable odor complaints. The adequate and reasonable course of action would be to order GI Shavings to both install a bag house and perform the rerating of the burner. Instead, GI Shavings was allowed to rerate the unit and apply for the associated permit that would remove the requirement of a PM emission limit. Notably, the proposed Consent Order was not finally executed until April 20, 2018, at which time GI Shavings had already rerated the facility, applied for a permit, and received a notice of intent to issue with the draft 009 Permit. These completed actions were even stated in the proposed Consent Order. The Department's expert witness, Ms. Rush, testified that considering the difficulties with the facility's operations at its original specifications, rerating the burner was a viable option for obtaining compliance. However, giving GI Shavings a choice of corrective actions, which allowed it to avoid addressing the objectionable odor complaints, was not an adequate and reasonable exercise of the Department's enforcement discretion under the facts and circumstances described above. 009 Permit Application On January 31, 2018, Mr. Ferraro, on behalf of GI Shavings, submitted the 009 Permit application to the Department. Mr. Ferraro testified that the purpose of the application was to apply the correct part of the carbonaceous fuel burning equipment rule to the facility. The switch would be from the standards applicable to a 30 mmBtu/hr burner to the standards applicable to a less than 30 mmBtu/hr burner. This switch would entirely remove the PM limit and change the VE limit to 20 percent opacity. Mr. Ferraro testified that the application did not request any other change, and the Department did not request any additional information. The application described its purpose as "to update emission limiting standard for carbonaceous [fuel] burning equipment with a rating of less than 30 mmBtu/hr." The emissions unit control equipment was described as a single cyclone device that "separates wood shavings and sawdust from airstream, but does not control products of combustion." Although the inability of the cyclone dust separator to "control products of combustion" was acknowledged, the application indicated that PM would not be synthetically limited, and that a PM limit would not apply to the facility. The application did not propose a pollutant control device for the continuously acknowledged unburned carbon described as "too small a particle size to be removed by the cyclone." Ms. Rush testified that the only PM expected from the facility was PM10. However, as Mr. Ferraro pointed out in his testimony, actual site specific information and data should be considered whenever it is available, instead of simply relying on what is expected based on the literature from the USEPA. The 009 Permit's notice of intent to issue also stated that "the operational hours agreement has been removed from the permit," although GI Shavings did not apply for any change to the 008 Permit beyond the rule switch. Ms. Rush testified that the HOA was voluntary and the Department did not have the authority to require GI Shavings to incorporate these terms into future permits. However, the HOA continues to be a condition of GI Shavings' current 008 Permit. The Department and GI Shavings did not present any persuasive evidence to show that this condition was now obsolete and should not be carried forward into the 009 Permit. The 009 Application did not request any revision to the current SSMOP. Ms. Rush testified that any minor source air permittee may request to revise its SSMOP at any time. However, such a request would be subject to Department approval as specified in condition A.15. of the draft 009 Permit. Although Dr. Hait testified that the facility should be reviewed as a 30 mmBtu/hr burner, the more persuasive evidence was that the rerating by the manufacturer established a design fire rating of 26 mmBtu/hr and an actual rating of 21 mmBtu/hr. Ms. Rush testified that the draft 009 Permit would contain a feed rate limitation that would restrict the facility to a maximum firing rate of 21 mmBtu/hr. Thus, the carbonaceous fuel equipment burning rule was the most appropriate category for this facility, and it was appropriately regulated as a minor source of air pollution. The preponderance of the competent and substantial evidence proved that GI Shavings did not provide reasonable assurance that the facility would control the cause of the objectionable odor violations, i.e., fine PM identified as "unburned carbon . . . too small a particle size to be removed by the cyclone." In other words, the "black stuff" that the residents had constantly and consistently complained about. Ultimate Findings The preponderance of the competent and substantial evidence established that the GI Shavings facility emits fine PM or "black soot" into the outdoor atmosphere, which by itself or in combination with other odors, unreasonably interferes with the comfortable use and enjoyment of life or property at the Arlington Ridge community, and which creates a nuisance. The preponderance of the competent and substantial evidence established that the cyclone dust separator did not remove the fine PM that was the source of the residents' objectionable odor complaints. Therefore, it was an unreasonable exercise of enforcement discretion for the Department to not require that GI Shavings directly address the objectionable odor issue. In addition, the utility of entering the proposed Consent Order was diminished by the fact that the October 2017 alleged violation was not an appropriate compliance test. Also, by the fact that the proposed Consent Order was not finally executed until April 20, 2018, at which time GI Shavings had already rerated the facility, applied for a permit, and received a notice of intent to issue with the draft 009 Permit. The preponderance of the competent and substantial evidence proved that GI Shavings did not provide reasonable assurance that the facility would control fine PM, which the evidence established was the source of the residents' objectionable odor complaints. All other contentions that Arlington Ridge raised in this proceeding that were not specifically discussed above have been considered and rejected.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter a final order denying GI Shavings' application for minor source air construction permit 0694866-009-AC, and disapproving Consent Order OGC No. 18-0077. DONE AND ENTERED this 19th day of June, 2019, in Tallahassee, Leon County, Florida. S FRANCINE M. FFOLKES Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 19th day of June, 2019. COPIES FURNISHED: Stephen "Toby" Tobias Snively, Esquire Law Offices of John L. Di Masi, P.A. 801 North Orange Avenue, Suite 500 Orlando, Florida 32801 (eServed) John L. Di Masi, Esquire Law Offices of John L. Di Masi, P.A. 801 North Orange Avenue, Suite 500 Orlando, Florida 32801 Dorothy E. Watson, Esquire Foley & Lardner, LLP 111 North Orange Avenue, Suite 1800 Orlando, Florida 32801 (eServed) Matthew J. Knoll, Esquire Department of Environmental Protection Office of the General Counsel Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 (eServed) Peter A. Tomasi, Esquire Foley & Lardner, LLP 777 East Wisconsin Avenue Milwaukee, Wisconsin 53202-5306 Lea Crandall, Agency Clerk Department of Environmental Protection Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 (eServed) Justin G. Wolfe, General Counsel Department of Environmental Protection Legal Department, Suite 1051-J Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 (eServed) Noah Valenstein, Secretary Department of Environmental Protection Douglas Building 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 (eServed)
