The Issue At issue in this proceeding is whether a citation and imposition of a $1,500.00 fine for installing a septic tank without a permit was properly imposed on Respondent, Paul Ware, a/k/a Paul Montgomery-Ware, by Petitioner, the Department of Health, Polk County Health Department (the "Department").
Findings Of Fact Respondent is the owner of three contiguous lots in Polk County (Bevington Manor, PB 20 PG 47, Lots 100 through 102), purchased via tax deed recorded on October 21, 2003. Respondent's lots are surrounded by property owned by Irma Walker, whose son, William Walker, testified at the hearing. Respondent apparently intended to develop his lots as a commercial enterprise and had erected a Quonset-type structure on the property. From his mother's adjoining property, Mr. Walker regularly observed Respondent's activities. Mr. Walker testified that Respondent was using his property to operate a motorcycle repair shop. On June 4, 2004, Mr. Walker observed Respondent using a backhoe on his property. Mr. Walker testified that Respondent was installing a septic tank. Mr. Walker told his mother, who then initiated inquiries as to whether Respondent had a permit to install a septic tank. When her inquiries met with a negative response, Ms. Walker called in a complaint to the Department. On June 7, 2004, the Department sent environmental specialist Susan Patlyek to the site. Ms. Patlyek observed infiltrator chambers on the site. Infiltrator chambers are used only in connection with OSTD systems. Ms. Patlyek also observed a recently excavated area and a rented backhoe, commonly used to dig out areas for septic tank installation. It was obvious to Ms. Patlyek that a septic tank and drainfield had been installed on Respondent's property, though no permit had been issued by the Department allowing installation of an OSTD system. Installation of an OSTD system without a permit constitutes a sanitary nuisance. The Department sent a letter to Respondent dated June 8, 2004, advising him of the need to abate the nuisance by obtaining a permit. With the letter, the Department enclosed a blank application form that Respondent could have completed and returned to the Department's permitting office. Respondent replied by contending that the Department lacked jurisdiction over activities on his land and suggested that the Department initiate court action. Respondent also returned the application form in its original blank form. The Department then issued Respondent a citation for violations of Subsection 381.0065(4), Florida Statutes (2003), and Florida Administrative Code Rule 64E-6.003(1), constructing an OSTD system without a permit; and for a violation of Subsection 386.041(1)(b), Florida Statutes (2003), maintaining a sanitary nuisance. The citation provides for a $1,500.00 fine. The Department's citation also informed Respondent of his right to a hearing pursuant to Chapter 120, Florida Statutes (2003). Respondent contends that the relegation of this matter to an administrative forum is unconstitutional.
Recommendation RECOMMENDED that Petitioner, the Department of Health, Polk County Health Department, enter a final order imposing a $500.00 fine for the violations described in the above Findings of Fact and Conclusions of Law. DONE AND ENTERED this 30th day of November, 2004, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of November, 2004. COPIES FURNISHED: Roland Reis, Esquire Polk County Health Department 1290 Golfview Avenue, Fourth Floor Bartow, Florida 33830-6740 Paul Ware 6557 Crescent Lake Drive Lakeland, Florida 33813 R.S. Power, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 Quincy Page, Acting General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701
The Issue Whether Respondent is in violation of various provisions of Chapter 403, Florida Statutes, as alleged in the Notice of Violation and Orders for Corrective Action dated October 30, 1991.
Findings Of Fact BEI's composting facility is a potential source of water and air pollution and to operate the facility, BEI requires a permit issued by DER. The original permit issued to DER for this facility expired on June 1, 1991 and has not been renewed. Although its permit had expired, BEI was allowed to continue to operate while informal proceedings were ongoing between BEI and DER. When these informal proceedings were terminated by DER on May 20, 1992, further operation of this composting facility was in violation of Chapter 403.707(1), Florida Statutes, and Rule 17-709.400(1), Florida Administrative Code. On at least two occasions while this composting facility was in operation, the air around the facility was polluted by foul odors. During the period following the expiration of BEI's license, BEI failed to submit monthly operating reports and did not conduct quarterly samplings and testing of the compost and submit the testing to DER as required.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Secretary of the DER enter a Final Order finding that BEI has violated Section 403.161(1)(b), Florida Statutes, on each of five counts; and that BEI should immediately cease operation of its solid waste facility, volume reduction plant, until and unless it obtains an appropriate and valid permit from DER and in that regard, BEI shall: Immediately cease acceptance of all materials on the property. In the event that Respondent does not receive a permit from the Department to resume operations at the facility, within 90 days of the effective date of the Final Order, Respondent shall remove all solid waste from the property to an approved solid waste management facility and provide the Department written documentation of its disposal within 30 days of removal. In the event that Respondent does receive a permit from the Department to resume operation at the facility, Respondent shall remain in strict compliance with all terms and conditions of such permit. Within 30 days of the effective date of the Final Order, Respondent shall, if it has not already done so, provide the following to the Department: All records of testing and monitoring conducted on the compost material since January 1, 1990, including daily reports on the temperature and moisture content of compost material, and any testing of compost material conducted prior to distribution. All records documenting application rates of stillage, manure, and leachate to the compost withdrows since January 1, 1990. All records, documenting distribution of composted or mulch material, including amount of compost or mulch material delivered, date of delivery, specific destination of compost or mulch, and intended use of compost or mulch material delivered, since January 1, 1990. All records documenting amount of yard trash received at the facility since January 1, 1990. Within 30 days of execution of the Final Order, Respondent shall make payment to the Department for costs and expenses in the amount of $500.00. Payment shall be made by, cashier's check or money order to the "State of Florida Department of Environmental Regulation". Payment, specifying Office of General Counsel Case No. 91-2006, shall be sent by certified mail to Administrator, Division of Waste Management, Department of Environmental Regulation, 3804 Coconut Palm Drive, Tampa, Florida 33619. DONE AND ENTERED this 16th day of June, 1993, in Tallahassee, Florida. K. N. AYERS 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 16th day of June, 1993. COPIES FURNISHED: Tracey S. Hartman, Esquire Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Howard C. Batt, Esquire 611 Druid Road East Suite 712 Clearwater, Florida 34616 Virginia B. Wetherell, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Ken Plante, Esquire General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400
Findings Of Fact Respondent Jackson County proposes to build a Class I landfill in western Jackson County, about 1.5 miles south of Campbellton on the west side of State Road 273. The named petitioners live near the proposed site, and all parties stipulated to petitioners' standing or party status on account of the proximity of their homes. The forecast is that the proposed landfill would be in service for 15 years, during the last of which it would receive wastes generated by 16,000 persons. Contingent on issuance of the construction permit it seeks in these proceedings, Jackson County has agreed to purchase 85 to 89 acres in section 15, township 6N, range 12W, of which 55 acres would be devoted to the proposed landfill. About ten of the remaining acres are covered by the southern reaches of Grant Pond. Grant Pond may be a sinkhole, but there is no connection between its waters and the Florida aquifer. There is no evidence of sinkhole activity on the site at the present time. One hundred ten feet from the southwest boundary of the proposed site long-time residents have shallow wells from which they once drew water with buckets. There are mostly small farms in the area. A trailer and 6 to 8 homes are located within 1,000 yards of the proposed site. LEACHATE NOT ANTICIPATED Jackson County contemplates eventually dumping 215 cubic yards daily of residential, commercial and agricultural wastes including sewage sludge, in a series of "cells" to H developed seriatim on the site. Developing a cell would entail digging a pit 15 feet deep, 200 feet wide and 650 feet long, lining it with some of the clay removed in excavating, and compacting the two-foot-thick clay bottom liner to 90 percent Proctor. The uncontroverted testimony was that such a liner would be impermeable. A cell is expected to accommodate about a year's worth of refuse. The plan is to have one cell in operation and another in reserve at all times. Waste would be compacted and then covered over with clay soils daily to minimize the possibility of leachate formation. In addition, a six-inch layer of clay would be put down at the end of each "lift," more or less weekly. Once the cell was completely filled, it would be covered with an even thicker layer of clay and/or other materials specified by applicable regulations. Against the possibility of leachate formation before the cell is finally sealed off, the bottom of the cell would be sloped (4:1) so that any leachate generated would accumulate at one point in the cell, from which it could be pumped to a leachate holding pond. The leachate holding pond is also to be lined with impermeable clays. The engineer who designed the project predicts that no leachate whatsoever will be generated and the project plans do not identify the specific method for disposing of leachate, once it reaches the holding pond. Depending on the quality and consistency of any leachate, it could be left in the holding pond to evaporate, or be removed by truck for disposal off site; or be treated biologically and/or chemically before being spread on site. STORMWATER The stormwater management system consists of a series of elongated detention ponds and two ditches, or swales, that drain into Grant Pond. The detention ponds are to be 1.2 feet deep, have varying widths (26.5 to 64 feet), with sides sloping at a 4:1 ratio, and vary in length from 1,000 to 1,600 feet. Water that would accumulate in them as a result of 3.2 inches of rainfall (the amount a 25-year one-hour storm would bring) would fill the ponds. The ponds are designed to overflow through baffled culverts along the swales into Grant Pond. The soils are such that 3.2 inches of rainfall could percolate into the unsaturated soil from the holding ponds in 72 hours. The closest baffle to Grant Pond would be some 200 feet distant; significant sheet flows would also enter Grant Pond. The landfill is designed to insulate stormwater runoff from contamination by waste or leachate. Only when wastes in an almost filled cell had not yet been covered would there be danger that stormwater falling on wastes would end up in the flow of stormwater draining across the surface of the proposed site and ultimately into Grant Pond. This danger could be all but eliminated by placing the last layer of wastes deeply enough in the cell. The plan is to ring the cells with excavated material, as well. If leachate is generated and pumped to the leachate holding pond and if there is enough of it to fill the pond or nearly to fill it, a storm might result in an overflow from the leachate holding pond that would drain eventually into Grant Pond. This danger, too, could be all but eliminated by operating the landfill so that the level of leachate in the holding pond always remained low enough, and by disposing of all leachate, if the facility generates any, off site, rather than "by landspreading on site." Jackson County's Exhibit No. 6. The same people who manage the landfill in eastern Jackson County would manage the landfill here proposed. No leachate has been generated at Jackson County's eastern landfill, but litter that can blow out of the cells at the eastern landfill does. If the same practices obtain at the new site, airborne litter that does not reach Grant Pond on the wing, may later be washed into the Pond by stormwater, even though the baffles would eliminate floatables in the water flowing out of the detention ponds. TWO AQUIFERS The parties are in agreement "that the leachate and or other pollutants will probably never reach the Floridan Aquifer." Petitioners' Closing Argument, p. 4. The Floridan aquifer is a limestone rock formation underlying the proposed site at depths varying between 30 and 130 feet, and separated by a layer of stiff clay from the overlying silts and sands. The stringers of saturated sands lying near the surface comprise a distinct, surficial aquifer that lies between five and twenty feet below ground over most of the site but crops out as Grant Pond on the northern edge of the property. No cell would be built within 200 feet of the highwater line of Grant Pond. The water table in the surficial aquifer, which yields potable water, is a subdued replica of the ground topography. Surface water from the southwest part of the proposed landfill site, where wells are closest, flows into Grant Pond. Water sometimes stands on the southeast part of the site, an area one witness described as boggy. A trailer stands on a parcel adjoining the property to the southeast with its near boundary 300 or 400 feet from the site proposed for the first working cell. No cell is to be dug within 500 feet of any existing or proved potable water well. The application contemplates monitoring wells. Groundwater in the Floridan aquifer flows south. Three wells to a depth of about 45 feet each are planned for south of the cells so that, in the unlikely event that pollution reached the Floridan aquifer, it could be promptly determined. There will also be a monitoring station in Grant Pond so the effect of stormwater runoff on water quality in the pond can be gauged. One well, 250 feet east of the west property boundary and 250 feet south of the north boundary, is planned for monitoring the surficial aquifer. TOXIC WASTES Toxic wastes are generated in Jackson County. Hundreds of drums with a little something still left in them are brought to the County's eastern landfill. No toxic wastes can lawfully be dumped at landfills like the one Jackson County proposes to build near Campbellton, but containers which once held toxic substances can lawfully be disposed of at such landfills, provided they have been rinsed out with water three times. Signs to this effect are to be posted. The landfill would have a single entrance. An attendant would be on duty during the landfill's hours of operation (8 to 5, five days a week), but would not be expected to have sampling equipment or to enforce the triple rinsing requirement, if past practice at the eastern landfill is any indication. When the landfill is not open, according to the applicant's engineer, green boxes will nevertheless be available for dumping. SCREENING Litter fences are planned only "if needed." A green belt 100 feet wide is proposed along the southern and the eastern perimeter of the property. "Appropriate trees and shrubs" are to be planted there, perhaps bamboo or oleander. SEPTAGE DISPOSAL PITS In a letter dated December 1, 1982, under the heading "septage disposal pits", C. G. Mauriello, the engineer who designed the proposed landfill, wrote DER's Wayne Hosid: This item was not shown on the original application but should be included. It has been recognized by the County that disposal of this type waste material should be handled at the new west site and therefore, provisions will be made for the disposal. Basically, a trench type operation similar to the East Site will be provided. The location of the disposal area will be to the south of the Future Holding Pond and north of the Salvage Area. Jackson County's Exhibit No. 6. A drawing prepared by the same person in July of 1982 shows a "septic tank/drainfield" southeast of the location described for the "septage disposal pits." DER's Exhibit No. 1. The permit DER proposes to issue contains numerous conditions, including the following: Construction of septage drying beds will be identical to those permitted under Permit No. 5032-22067 for Jackson East Sanitary Landfill as modified on July 20, 1981. Jackson County's Exhibit No. 9. Permit No. 5032-22067 was not made a part of the record in these proceedings. Incidentally, the word "septage" does not appear in Webster's Third New International Dictionary (1971). A septic tank or any similar system would differ significantly from the systems described by the witnesses who testified at hearing. Septic tanks eventually discharge their contents into surrounding soils, after treatment by anaerobic bacteria. Septic tanks cannot be sealed off by clay or anything else from the earth around them, if they are to function properly. Sooner or later discharge from any septic tank on site could be expected to enter the surficial aquifer and, ultimately, through the groundwater, Grant's Pond. Nothing in the evidence indicates how long it might take for any such effluent to reach the groundwater or leach into Grant Pond; or what its chemical composition might be. MORAL OBJECTION STATED Petitioners' witness Frederick L. Broxton, Sr. testified that, even conceding the absence of a scientific or legal basis for objection to the proposed project, it was immoral for the County Commission to choose a site so close to people's homes, when there was so much land available in that part of the county, where nobody lived. PROPOSED FINDINGS CONSIDERED All parties filed posthearing submissions which have been considered in preparation of the foregoing findings of fact. Respondent Department of Environmental Regulation filed proposed findings which have been adopted, in substance, for the most part. Where proposed findings have not been adopted, it is because they have been deemed immaterial, unsupported-by the weight of the evidence, subsidiary or cummulative.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That the Department of Environmental Regulation issue Jackson County a permit for construction of a landfill at the site proposed subject to the conditions (except condition No. 24) stated in the proposed permit, Jackson County's Exhibit No. 9, and subject to the following additional conditions: (a) any leachate generated shall be disposed of off site (b) the whole landfill shall be fenced, and the view from State Road 273 shall be obstructed (c) portable fences shall be placed around any cell in use (d) an additional monitoring well shall be placed between the well southeast of the site and the nearest cell and (e) no septic tank or "septage" disposal pits shall be built on site. DONE and ENTERED this 17th day of August, 1983, in Tallahassee, Florida. ROBERT T. BENTON, II 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 17th day of August, 1983. COPIES FURNISHED: Robert L. Travis, Jr., Esquire 229 East Washington Street Quincy, Florida 32351 J. Paul Griffith, Esquire P. O. Box 207 Marianna, Florida 32446 E. Gary Early, Esquire Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 Victoria Tschinkel, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301
The Issue The issue to be determined is whether Destin is entitled to attorney’s fees pursuant to section 120.569(2)(e), from Respondents related to litigation between the parties in DOAH Case No. 19-3356.
Findings Of Fact On November 14, 2016, DEP issued a Permit Modification to the Corps which modified the location upon which spoil from the dredging of East Pass in Destin, Florida could be placed, from being on “a portion of the beach on Eglin Air Force Base (to the west of East Pass),” to “the Gulf-front beaches on the eastern and western sides of East Pass.” The modification deleted language from an original permit that prohibited, with minor exception, placement of dredged material “on any beach east of the Main Channel.” On November 16, 2018, John S. Donovan, David H. Sherry, and Rebecca R. Sherry filed a Petition for Administrative Hearing challenging the Permit Modification, which was referred to DOAH and assigned as DOAH Case No. 19-1915. The Petition in Case No. 19-1915 was dismissed as not being timely filed. A full account of the procedural history of that case is contained in the docket of Case No. 19-1915. On June 5, 2019, Thomas Wilson filed his Petition for Formal Administrative Hearing (Wilson Petition). The Wilson Petition was substantively identical to that filed in Case No. 19-1915. The Wilson Petition was referred to DOAH on June 19, 2019, and assigned as DOAH Case No. 19-3356. On June 28, 2019, David H. Sherry, Rebecca R. Sherry, and John S. Donovan filed a Motion for Leave to Intervene in Case No. 19-3356, which was granted on July 8, 2019. On August 20, 2019, Destin moved to intervene in DOAH Case No. 19-3356, which was granted on August 26, 2019. On August 21, 2019, DEP filed a proposed amendment to the Permit Modification, which changed the condition directing placement of dredged material to “the eastern and western sides of East Pass” to one requiring that “[b]each compatible material dredged from the initial maintenance dredge event following issuance of [the Permit Modification], shall be placed to the east of East Pass” (the Proposed Change). The Proposed Change also extended the term of the Permit. On September 4, 2019, John S. Donovan, David H. Sherry, and Rebecca R. Sherry filed a Petition for Formal Administrative Hearing to challenge the Proposed Change, which was referred to DOAH and assigned as DOAH Case No. 19-4979. On September 20, 2019, Case No. 19-4979 was consolidated with Case No. 20-3356.1 On October 21, 2019, Petitioners filed a First Amended Petition for Formal Administrative Hearing (Amended Petition) to address the August 21, 2019, Proposed Change. On November 5, 2019, the Amended Petition was accepted as filed. On November 15, 2019, Destin filed its Motion for attorney’s fees pursuant to the authority in section 120.569(2)(e). Also on November 15, 2019, Petitioners filed a Second Amended Petition for Formal Administrative Hearing. 2 The final hearing was convened on November 20, 2019, as scheduled. Issues related to the disposition of DOAH Case No. 19-1844 were taken up at the final hearing as a preliminary matter. Case No. 19-1844 involved the issuance of a permit to Destin to perform maintenance dredging of East Pass north of the U.S. Highway 98 bridge, with placement of dredged material to the beaches to the east of East Pass. A Recommended Order had 1 At the commencement of the final hearing, DOAH Case No. 19-4979 was severed, and a written Order Granting Renewed Motion to Dismiss, Relinquishing Jurisdiction, and Closing File was entered on January 29, 2020. Since the May 1, 2020, Renewed Motion was filed only with regard to Case No. 19-3356, further discussion of Case No. 19-4979 is unnecessary. 2 The purpose of the Second Amended Petition was primarily to drop Petitioners’ objection to the extended term of the Permit authorized by the Proposed Change, and is of no consequence to the disposition of this proceeding. been entered on October 14, 2019, which determined that dredged material from the maintenance dredging of East Pass should, to be compliant with section 161.142, Florida Statutes, be placed on adjacent eroding beaches east of the inlet. It also determined that the East Pass IMP is not an unadopted rule as described in section 120.57(1)(e). At the commencement of the final hearing, a Final Order in Case No. 19-1844 had not yet been entered. The substantial similarities in the issues of law and fact between Case No. 19-1844 and this case were discussed, and it was determined that if the Final Order in Case No. 19-1844 substantially adopted the Recommended Order, an Order to Show Cause would be entered, asking the parties to address whether collateral estoppel applied to some or all of the issues in this case. During the pendency of Case No. 19-1844, Destin filed a Motion for Attorney’s Fees, Expenses and Costs pursuant to sections 120.569(2)(e) and 120.595. The Recommended Order in Case No. 19-1844 reserved ruling on Destin’s Motion for Attorney’s Fees, Expenses and Costs under section 120.569(2)(e), “provided [Destin] renews its Motion within 30 days of DEP’s entry of the final order” in Case No. 19-1844. No renewed motion was filed. With regard to section 120.595 fees, the Recommended Order included a “determination” that John S. Donovan, David H. Sherry, and Rebecca R. Sherry did not participate in Case No. 19-1844 “for an improper purpose, i.e., primarily to harass or to cause unnecessary delay or for frivolous purpose or to needlessly increase the cost of litigation, licensing, or securing the approval of an activity…,” and recommended that the motion for attorney’s fees be denied. On November 20, 2019, after the final hearing in Case No. 19-3356 had convened, DEP entered its Final Order in Case No. 19-1844. The Final Order adopted the Recommended Order with minor modifications that are not pertinent here. An Order to Show Cause was issued on November 22, 2019, as to whether disposition of issues in Case No. 19-1844 would collaterally estop the challengers to the Permit in Case No. 19-3356 as to some or all of the issues in that case. It was thereafter determined, for reasons set forth in the Recommended Order in Case No. 19-3356, that Respondents were not estopped from challenging the Corps’ Permit Modification and Proposed Change. The Recommended Order in Case No. 19-3356 was entered on February 20, 2020. The Recommended Order considered the evidence offered by Destin, DEP, and Respondents, primarily expert in nature except for testimony as to standing, and found and concluded that the Corps was entitled to the Permit Modification as modified by the Proposed Change. Destin filed its Renewed Motion as authorized in the Recommended Order, and Respondents filed a Response. On July 27, 2020, oral argument was held on the Motion and Amended Motion as renewed. It was noted by the undersigned during a series of questions that the Motions did not identify a specific “pleading, motion, or other paper” alleged to have been filed for an improper purpose. Counsel for Destin thereupon stated that the pleadings alleged to have been signed for an improper purpose were the June 5, 2019, Wilson Petition, and the October 21, 2019, Amended Petition. No other pleadings, motions, or papers were identified as having been signed for an improper purpose. Thus, the analysis in this Order is limited to those pleadings.
The Issue The issue presented is whether the application of Respondent Robbie's Safe Harbor Marine Enterprises, Inc., for a general permit to construct and operate a solid waste transfer station should be granted.
Findings Of Fact In April 1998 Respondent Robbie's Safe Harbor Marine Enterprises, Inc., filed an application with Respondent Department of Environmental Protection, seeking a general permit to construct and operate a solid waste transfer station at the end of Shrimp Road on Stock Island in Monroe County, Florida. The application was accompanied by the required supporting documentation, including a site plan and an engineering report. The site plan submitted with the application depicted access to the transfer station by using Shrimp Road. The access road was also designated as a private road. What the site plan and remainder of the application did not reveal is that Shrimp Road, the private road providing access from the public road system to the proposed solid waste transfer station, is not owned by Robbie's. Rather, the road is owned by the adjoining property owner, Petitioner Safe Harbor Enterprises, Inc. Robbie's is the holder of an easement allowing use of Shrimp Road. Robbie's published notice of its application for a general permit to construct and operate a solid waste transfer station. As a result of that notice, the adjoining property owner, Safe Harbor Enterprises, Inc., filed the petition initiating the instant proceeding, objecting to the issuance of a general permit to Robbie's. On February 2, 1998, prior to Robbie's filing its application for a general permit to construct and operate its solid waste transfer station, Robbie's entered into a Consent Order with the Department which resolved the Department's allegations that Robbie's had been operating a solid waste transfer facility without a permit.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered denying Robbie's Safe Harbor Marine Enterprises, Inc.'s, application for a general permit to construct and operate a solid waste transfer station. DONE AND ENTERED this 29th day of January, 1999, in Tallahassee, Leon County, Florida. LINDA M. RIGOT Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of January, 1999. COPIES FURNISHED: Roger M. Bernstein, Vice-President Safe Harbor Enterprises, Inc. Post Office Box 144235 Coral Gables, Florida 33144 Tracy J. Adams, Esquire Tracy J. Adams, P.A. 617 Whitehead Street Key West, Florida 33040 W. Douglas Beason, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 Kathy Carter, Agency Clerk Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 F. Perry Odom, General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000
Findings Of Fact At all times pertinent to the issues herein, the Respondent conducted an auto salvage operation under the name, All-States Auto Salvage, Inc., at its site located at 1331 22nd Street North in St. Petersburg. Petitioner, Department of Environmental Protection, was the state agency responsible for enforcing the terms of the rules and statutes of this state dealing with pollution of the land, air and waters of Florida. As a part of Respondent's salvage operation, it dismantled derelict automobiles to salvage parts for further use, if possible, and to obtain scrap metal for processing. This operation is carried out at its business site located on a roughly triangular piece of land in St. Petersburg bordered on one side by 13th Avenue North, by 22nd Avenue North on another side, and on the third side by a water filled ditch which ultimately empties into Booker Lake, classified as an Outstanding Florida Water. On June 9, 1991, Investigator Weeks, of the Department's Southwest District office, conducted an inspection of the Respondent's business site on the land in question, which was rented from someone else, based on a complaint filed with the Department on December 19, 1990. That complaint was that Respondent's salvage operation was discharging various types of polluting fluids from the vehicles being dismantled at the site. Mr. Weeks found that car fluids were being discharged onto the ground during engine removal. He was told by Respondent's employees that the entire site was paved with concrete under the surface dirt. Respondent confirmed that at hearing, indicating further that the eight inch concrete slab was underlaid by a non-porous plastic sheet designed to act as a barrier against seepage. Though neither Mr. Weeks or subsequent investigators who visited the site confirmed the presence of the barrier, neither was its presence disproved, and it is found such a plastic sheet indeed exists. Mr. Weeks noticed, however, that no berms existed to control and contain fluids for later collection and disposal. When Ms. Hinson, also a Department investigator, visited the site again on April 29, 1992, she did not notice any berms surrounding the property, and saw puddles of standing water which had a sheen on them indicating the presence of petroleum products. Mr. Weeks report indicates that storm water falling on the site has been washing these polluting fluids off the property and into the adjacent ditch which ultimately empties into a jurisdictional water. This ditch had distressed vegetation on the side adjoining Respondent's property. This same situation was observed by Ms. Hinson during her April, 1992 visit to the site. Ms. Hinson has an undergraduate degree in biology with minors in chemistry and physics. She is but one semester from completing her Master's degree in environmental health. Based on her education and experience, she concluded the ditch vegetation was damaged because of the contamination of petroleum products from Respondent's yard. If a concrete pad exists and is not properly pitched and sloped, it would increase wastewater runoff into the ditch, and since concrete is somewhat permeable, contaminants could leach through it into the soil beneath unless stopped and rerouted by any existing barrier. She took no water or soil samples from either the site yard or the ditch, however. No direct evidence was presented as to whether the polluted water runoff actually went into the ditch, and no direct evidence was introduced to show that the water in the ditch was ever tested for pollutants at the time of either visit. Mr. Kristensen indicated the distress to the vegetation was caused by weed control spraying by the county or the city. A check with the city office responsible for spraying in the area revealed the last spraying at that site was in October, 1993, and the only one before that was 18 months previously, in June, 1992, after Ms. Hinson's first visit. It is found, therefore, that the vegetative distress was caused by runoff from Respondent's salvage yard though no evidence of pollution was identified in the ditch water. On April 29, 1992, Ms. Hinson was asked by a member of the St. Petersburg Police Department to accompany a team on a joint inspection of Respondent's operation. This is not unusual as she receives similar requests from law enforcement agencies in the several counties which make up the Department's Southwest District. In this case, the police were going to look for stolen vehicles and wanted Ms. Hinson to look for possible environmental violations. When she went through Respondent's site on that occasion, she saw automobiles being dismantled on what appeared to her to be the bare ground to the left of the entrance to the yard. Autos awaiting dismantling were being stored to the right of the entrance. Also on the right side, progressing toward the back of the site, beyond the autos, was a large pile of tires which, she estimated to number between 1,200 and 1,800, lying against the building toward the back of the property and against the side fence. There were no fire lanes provided as the pile extended against the side of the building and the fence. Ms. Hinson saw auto parts lying on the ground all over the site. It appeared to her, from the appearance of the ground, that it was made up of a black, sticky substance smelling of petroleum, whereas regular soil in that area of town was grey and sandy. She did not dig into this covering and does not know how deep it was or whether it overlaid a concrete pad, as Mr. Kristensen asserts. She did notice puddles of fluid on the ground which had a sheen on them, and she did not see any containment efforts being made. There were barrels available for waste fluids, but it was clear to her that not all fluid was getting into them. In fact, she saw an employee removing gasoline tanks from vehicles, and this process was dripping fluid, presumably gasoline, right onto the ground. Admittedly, not much leakage occurred at any one time, but from the condition she observed on the ground, it was evident to her the practice had been going on for a long time. Ms. Hinson asked Mr. Kristensen about how fluids were accumulated, stored, and disposed of. In response, he showed her receipts indicating he had sold reclaimed oil to a processor. Receipts from 1989 - 1993, introduced at the hearing, indicate that waste oil and diesel was periodically sold to processors and in January, 1991, some 20 gallons of waste water was delivered to a recovery firm. Ms. Hinson again visited the site shortly before the hearing but did not go in. She noted, however, that the yard had far fewer vehicles on it, and the dismantled pieces are now neatly stacked. The soil still appears black, however, and the ditch still appears the same as on her previous visit. In her professional opinion, a need exists for a contamination assessment. Though the volume has been substantially reduced since her initial inspection, the contamination she observed then does not appear to have been corrected. There is a need to prevent contamination, and if some occurs, to contain it. She did not observe any control measures in progress. Sometime after Ms. Hinson's visit in April, 1992, Mr. Kristensen received a Final Order from the District Director requiring him to make certain corrections to his place of business and its operation. This Final Order was issued by mistake, however, but at no time until late in 1993 did anyone from the Department notify Mr. Kristensen of that fact or of his responsibilities in light of that mistake. Upon receipt of the Order, Mr. Kristensen set upon a course of corrective action designed to rectify the identified violations. The tire pile was reduced; a suction pump was purchased to collect standing water; an expensive piece of equipment to drain fluids from vehicles was purchased and put into operation; berms were constructed which, with the existing pitch and slope of the slab, should keep all fluids on site for mechanical removal; and all hazardous waste is now stored in a manner approved by the fire department. In addition to the above, since 1986 or before, a standing written procedure has been in existence regarding the handling of hazardous waste. Though this directive is required reading for all employees, it is obvious it was honored more in the breach than in the compliance. According to Mr. Kristensen, the soil which overlays the concrete slab is no more than one quarter of an inch thick. This would appear to be a rather conservative estimate, however. Review of the photographs introduced by both parties reveals the thickness of the mixture to be much greater. Regardless, Mr. Kristensen asserts this soil is periodically collected and dried to remove the petroleum before being put down again and used as an absorbent. This process, however, is not likely to remove more than the odor of petroleum as a result of evaporation. The actual contaminants remain. This absorbent was present as late as October 26, 1993, when the site was visited by Ms. Cangro. At the time of her visit it was raining and the ground was covered with a wet, black substance which gave off an odor of petroleum. Ms. Hinson spent between six and eight hours on this case. She earns approximately $120.00 per hour. Other expenses incurred on the matter include attorney and clerical time. No figures were provided to establish actual or estimated costs in this regard. Taken together, the evidence indicates Respondent is a person within the meaning of the pertinent statutes; automobile fluids and tires constitute solid waste within the meaning of the pertinent statutes; and Respondent's operation at the property constitutes a solid waste management facility within the meaning of the appropriate statutes.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that a Final Order be entered finding that Respondent has violated those provisions of Florida Statutes cited on the Department's Notice of Violation and Order for Corrective Action, and imposing such restrictions and conditions upon Respondent's continued operation as are lawful, necessary and proper under the circumstance. Costs are not assessed. RECOMMENDED this 29th day of March, 1994, in Tallahassee, Florida. ARNOLD H. POLLOCK, 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 29th day of March, 1994. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 93-5517 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. FOR THE PETITIONER: - 3. Accepted and incorporated herein. 4. & 5. Accepted and incorporated herein. - 20. Accepted and incorporated herein. Presumed correct but not proven. - 25. Accepted and incorporated herein. Accepted as likely but not proven to have occurred. Accepted and incorporated herein. - 31. Accepted and incorporated herein. & 33. Accepted. Accepted. & 36. Accepted and incorporated herein. 37. - 39. Accepted and incorporated herein. FOR THE RESPONDENT: None submitted. COPIES FURNISHED: Tracey S. Hartman, Esquire Department of Environmental Protection 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Carl H. J. Kristensen, Jr. Qualified Representative All-States Auto Salvage Incorporated 1331 22nd Street North St. Petersburg, Florida 33713 Virginia B. Wetherell, Secretary Department of Environmental Protection 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Kenneth Plante General Counsel Department of Environmental Protection 2600 Blair Stone Road Tallahassee, Florida 32399-2400
The Issue Whether the Department of Environmental Regulation's proposed award of contracts for innovative recycling projects pursuant to a Request for Proposal, solicitation number 9002C, is proper?
Findings Of Fact The Parties. Ramco is a sole proprietorship owned by Joe Dean Ramsey. Mr. Ramsey is engaged in the business of recycling roofing materials. Ramco currently operates three sites in Florida which accept roofing debris: Manatee, Lee and Duval Counties. Ramco operates two machines which grind roofing debris for use as road and base material. The Department is the agency of the State of Florida assigned responsibility for regulating solid waste management. The Request for Proposal. Pursuant to Section 83(12), of Chapter 88-130, Laws of Florida, the Department was appropriated $750,000.00 to be used "for grants to private persons for innovative recycling projects which will demonstrate applications and products from recyclable materials." On November 3, 1989, the Department issued a Request for Proposal, solicitation number 9002C (hereinafter referred to as the "RFP"), seeking proposals for awards of the $750,000.00. The RFP proposed to award grants of "up to $75,000.00" to the winning proposals. Therefore, the RFP required at least ten winning proposals be selected by the Department. The Department also decided to designate the eleventh through fifteenth best proposals as alternates. Section A.10 of Attachment B of the RFP provides, in part, the following "Description of Work Being Procured": The 1988 Solid Waste Act Appropriated $750,000 from the Solid Waste Management Trust Fund to be used by DER for grants to private persons for innovative recycling projects. . . . The ultimate goal of the Innovative Recycling Grants is to help manage the state's solid waste and to foster the expansion of markets for recyclable materials. Eligible projects, therefore, must demonstrate applications and products derived from recyclable materials which have the potential for significantly reducing the amount of waste that requires disposal in Florida's landfills. [Emphasis added]. "Innovative recycling projects" are defined in the RFP as follows: "Innovative recycling projects" means recycling processes and techniques which have not been fully proven under the circumstances of their contemplated use and which represent a significant advancement over the state of the art, when compared to an appropriate conventional technology in terms of the following: significant waste reduction; cost reduction; environmental quality; and increased energy conservation or recovery Innovative recycling projects can also mean an unusual application of an existing technology. The Description of Work Being Procured section of the RFP also provided that "[p]rojects received should be considered commercially available recycling technology not presently in widespread use. Research and development should be substantially completed." [Emphasis added]. The terms "commercially available" are defined in the RFP as follows: "Commercially available" means a recycling process or technique in which research and development are substantially completed and the process or technique has been shown to be technically feasible. Finally, Section A.10 of Attachment B of the RFP provided that "[o]ther projects will be considered, if the proposals fully explain how the project will be innovative and meet the criteria in this request for proposal." The RFP was not challenged by Ramco or any other substantially affected party. The parties included the following stipulated fact concerning the issuance of the RFP in their Prehearing Stipulation: The procedures followed by the Department in developing and promulgating the RFP, including all notices to all bidders, were consistent with Chapter 287, F.S., and all rules promulgated thereunder. In pertinent part, the RFP provided that proposals received in response to the RFP were to be ranked as follows: Each RFP will be reviewed by a technical committee of at least three persons with technical knowledge about the Solid Waste Program. Each of the reviewers will work independently using the outline shown in Attachment C. Each reviewer will use the total point scores to rank the responders and a mean rank for each responder will be calculated. The mean rank scores, without accompanying responders names, will be presented to the chairman of the selection committee who will determine the final rank of the proposals. . . . . The technical committee required by the RFP was comprised of William Kahn, Julie Gissendanner and Barry A. Swihart. The committee members have experience and technical knowledge about the Department's Solid Waste Program. The weight of the evidence failed to prove that the technical committee was not properly constituted and consistent with the RFP. Section A.25 of Attachment B of the RFP provided the following evaluation criteria which were required to be used by the technical committee in evaluating proposals: Introduction Scope and Schedule Qualifications Level of innovation Scientific/Technical Quality Commercialization Potential Applicability to Florida's Specific Solid Waste Needs Technology Transfer Cost effectiveness of the Project Anticipated Benefits of the Project Minority Business Utilization The parties stipulated to the following fact concerning the evaluation criteria in their Prehearing Stipulation: The criteria contained in the RFP, by which the Department rated the bidders, were in accordance with Chapter 403, F.S., and were appropriate for determining which projects should be awarded Innovative Recycling Projects grants, subject to 7.d. below. Section A.24C. of Attachment B of the RFP and Attachment C of the RFP explained the evaluation criteria listed in Section A.25 of Attachment B of the RFP. The information concerning each of the evaluation criteria sought by the Department in its RFP was explained. Section A.24C. of Attachment B of the RFP also set a limitation on the number of pages explaining how a proposal would meet each criterion could be submitted. Section A.25 of Attachment B of the RFP provided the following with regard to nonresponsive proposals: Nonresponsive RFP's include, but are not limited to, those that: (a) are irregular or not in conformance with the solicitation requirements and instructions; (b) fail to utilize or complete prescribed forms; (c) are conditional, incomplete, indefinite or ambiguous; (d) are intended to accomplish only a portion or portions of the overall work; or (e) have improper or undated signatures. A NONRESPONSIVE RFP WILL NOT BE CONSIDERED. The FDER may waive minor informalities or irregularities in the RFP's received where such are merely a matter of form and not substance, and the corrections of which ARE NOT PREJUDICIAL to other responders. Responses to the RFP. A total of 39 responses to the RFP, including one from Ramco, were received by the Department. Responses to the RFP were sealed when received. The responses were evaluated individually by each member of the technical committee by application of the criteria to each proposal. The proposals were not rated comparatively or even discussed by the members of the technical committee. The members of the technical committee were not familiar with any of the proposals. The members of the technical committee were not biased against Ramco nor in favor of any proposal. The evidence failed to prove that the technical committee acted improperly in evaluating the proposals. Two of the 39 responses to the RFP were rejected by the Department as nonresponsive pursuant to Section A.25 of Attachment B of the RFP. One of the nonresponsive proposals was rejected because it was a project involving incineration. On page 4 of Attachment B of the RFP it was provided that incineration technologies would not be considered. Therefore, the Department's action in rejecting this proposal before evaluation was consistent with the RFP. The other nonresponsive proposal was rejected because it contained no information. The Department's action in rejecting this proposal before evaluation was consistent with page 8 of Attachment B of the RFP. The RFP did not require that a determination be made as to whether proposals were "commercially available" and "innovative recycling projects" before the proposal was evaluated. These factors were not specific criteria. Instead, the RFP contemplated a determination of whether proposals were commercially available and innovative recycling projects by application of all of the evaluation criteria. The RFP required the Department to take into account innovativeness of proposals and their commercial availability in ranking the proposals. It would have been improper for the Department to reject a proposal solely because it determined that the proposal was not commercially available or innovative. As used in the RFP, "commercially available" did not require that a product be available. In fact, the RFP, by defining commercially available to mean a process or technique in which research and development are substantially completed contemplated projects which did not yet have a product. "Commercially available" was properly interpreted by the technical committee to allow projects that had the potential for commercialization. Projects which were somewhere between merely completing a feasibility study and a finished project in their development were acceptable under the RFP. The evidence failed to prove that the Department's determination that all of the 37 proposals that were evaluated had some commercial availability and innovativeness was improper. The weight of the evidence failed to prove that the proposals submitted by the other bidders should have been rejected as nonresponsive because they lacked an available product or lacked innovativeness. The Evaluation of Ramco's Proposal. Ramco proposed to develop its roofing debris recycling process throughout Florida. Ramco represented that it recycles roofing debris for use as road and base material. Ramco requested $335,000.00 to implement its proposal; $5,000.00 per County. Ramco's proposal was ranked 34th out of the 37 proposals evaluated by the technical committee. Evaluator A, Barry A. Swihart, gave Ramco's proposal a rank of 27th. Evaluator B, Julie Gissendanner, gave Ramco's proposal a rank of 34.5. Evaluator D, William Kahn, gave Ramco's proposal a rank of 37. Based upon the rankings of Ramco's proposal and the testimony of the members of the technical committee, Ramco's rank was reasonable and appropriate. Mr. Swihart's lower ranking of the proposal was the result of his stricter application of the evaluation criteria. Mr. Swihart's lower ranking was offset by Mr. Kahn's more generous approach. Several times during Mr. Kahn's testimony he indicated that he had given the Ramco proposal "the benefit of the doubt." Ms. Gissendanner's application of the evaluation criteria was the most reasonable. During her testimony, Ms. Gissendanner consistently and accurately referred to the evaluation criteria. It was apparent that Ms. Gissendanner reasonably and accurately evaluated the Ramco proposal consistent with the specific requirements of the RFP. The overall ranking of Ramco by the entire technical committee was consistent with Ms. Gissendanner's reasonable ranking of Ramco. Mr. Ramsey testified during the formal administrative hearing that the Ramco proposal should have received the maximum score for all of the evaluation criteria except minority business utilization. Mr. Ramsey's testimony, however, consisted primarily of self-serving conclusions unsupported by any backup data which could be appropriately considered. While it is true that Ramco presented an exhibit (exhibit 1) containing photographs, contracts and other documentation concerning the operation of Ramco, most of the evidence included in the exhibit was not part of the proposal submitted by Ramco to the Department. Therefore, it would not be appropriate to consider those portions of the exhibit in this proceeding. To do so would have the effect of allowing an inappropriate amendment to the Ramco proposal. The Ramco proposal, like Mr. Ramsey's testimony, contained in large part self-serving and unsupported conclusions. Details concerning how Ramco has actually recycled roofing debris (how much material has actually been used for roads or as base and who in particular has used the recycled material), and the nature of the machine used by Ramco to recycle roofing material (how is it fueled and how efficiently), were not provided in Ramco's proposal. The scores awarded Ramco's proposal properly reflect the lack of detailed explanation of the proposal. The following findings of fact concern the application of the evaluation criteria to Ramco's proposal. Although the explanations of the evaluation criteria contained in Section A.24C. of Attachment B of the RFP and Attachment C of the RFP have not been quoted, these explanations are hereby adopted as facts and have been considered in making the following findings of fact. Scope and Schedule Criterion. Ramco received scores of 2, 1 and 3 points of a possible of 7. The scores were based upon the lack of detailed work plans, milestone charts or quarterly due dates. The evidence failed to prove that the scores for this criterion were not reasonable or consistent with the RFP. Qualifications. Ramco received scores of 6, 7 and 2 points of a possible 7. Mr. Ramsey was given credit by Mr. Kahn and Ms. Gissendanner for his experience since 1985 in the roofing recycling business of Ramco. The low score awarded by Mr. Swihart was based upon Mr. Ramsey's lack of formal education. Mr. Swihart's score was not reasonable or consistent with the RFP. The evidence failed to prove, however, that a modification of Mr. Swihart's score would have affected the Department's decision not to award Ramco a contract. The evidence also failed to prove that the other scores for this criterion were not reasonable or consistent with the RFP. Level of Innovation. Ramco received scores of 7, 4 and 7 points of a possible 14. The Ramco proposal lacked a sufficiently detailed description of the project's innovation. The evidence failed to prove that the scores for this criterion were not reasonable or consistent with the RFP. Scientific ("Significant" in Attachment C)/Technical Quality. Ramco received scores of 2, 0 and 4 points of a possible 10. Again, Ramco provided very little information requested as part of this criterion. Although proposals could include as many as 6 pages to describe the information required for this criteria, Ramco barely used a half page. The response to this criteria is representative of the problem with Ramco's proposal: We will cost evaluate and design roofing recycling facilities for all 67 Counties in Florida. To remove roofing debris from Florida's wolid [sic] waste stream and recycle it into an excellent road and base material to be purchased and used by counties road works department [sic]. We have collected, recycled, sold, transported, and applied thousands of tons of these recycled materials. There are no negatives, only positives to recycling roofing debris. We can have a LARGE impact on Florida's landfill needs by removing and recycling roofing debris. Approx 900,000 tons per year. This response does not address the criterion as required by the RFP. The evidence failed to prove that the scores for this criterion were not reasonable or consistent with the RFP. Commercialization Potential. Ramco received scores of 8, 5 and 4 points of a possible 10. Again, supporting information was not provided by Ramco. The evidence failed to prove that the scores for this criterion were not reasonable or consistent with the RFP. Applicability to Florida's Specific Solid Waste Needs. Ramco received scores of 10, 10 and 2 points of a possible 10. The lower score was awarded because the Ramco proposal will impact only a part of the construction and demolition debris waste in Florida. This conclusion is consistent with the RFP. If anything, Ramco could have received fewer points for this criterion. The evidence failed to prove that the scores for this criterion were not reasonable or consistent with the RFP. Technology Transfer. Ramco received scores of 6, 2 and 3 points of a possible 7. Again, lack of specific information concerning this matter was provided. The evidence failed to prove that the scores for this criterion were not reasonable or consistent with the RFP. Cost Effectiveness of the Project. Ramco received scores of 7, 5 and 2 points of a possible 10. The specific information requested concerning this criterion was not provided. The evidence failed to prove that the scores for this criterion were not reasonable or consistent with the RFP. Anticipated Benefits of the Project. This criterion was worth a total of 15 points, Five points were available for each of three subparts: (a) technical/market barriers to the project; (b) proposed results impact on reducing waste needed to be disposed of; and (c) potential for significant commercialization and technology transfer. Ramco's proposal was awarded 1, 0 and 0 points for the first subpart (it was not addressed), 4, 5 and 3 points for the second subpart and 3, 3 and 0 for the last subpart. The evidence failed to prove that the scores for this criterion were not reasonable or consistent with the RFP. Minority Business Utilization. Ramco received no points. Ten points were available. Ramco did not question the scoring of this criterion. The weight of the evidence failed to prove that the scores awarded to Ramco, with one minor exception, were unreasonable or inconsistent with the RFP. Although Ramco should have received a higher score from one evaluator for Mr. Ramsey's qualifications, the evidence failed to prove that the additional points would significantly affect the proposed award winners. The Department's Proposed Action and Ramco's Challenge. On January 17, 1990, the Department posted a list of the ten proposed contract winners and the five alternates. The winners consisted of the ten proposals which received the highest scores from the technical committee. Ramco was not selected as one of the ten contract winners or one of the five alternates. On January 18, 1990, Ramco filed a letter indicating its intent to protest the Department's proposed action. On January 29, 1990, Ramco filed a Petition for Formal Administrative Hearing with the Department. On February 7, 1990, the Department filed Ramco's Petition with the Division of Administrative Hearings. Conclusion. The weight of the evidence failed to prove that the Department's ranking of Ramco's proposal or any other proposal was unreasonable or inconsistent with the requirements of the RFP. The weight of the evidence failed to prove that the Department's proposed ten contract award winners or the five alternates were unreasonably determined by the Department or were inconsistent with the RFP Department Costs. The costs incurred by the Department in this proceeding have been set out in four Affidavits of Cost filed by the Department with its proposed recommended order.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be issued dismissing Ramco's Petition for Formal Administrative Hearing. DONE and ENTERED this 12th day of April, 1990, in Tallahassee, Florida. LARRY J. SARTIN 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 12th day of April, 1990. APPENDIX The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. Ramco's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection Although general true, this is not the crucial issue in this case. 32. The last two sentences are not supported by the weight of the evidence. The first sentence is hereby accepted. The rest of the proposed findings of fact are not supported by the weight of the evidence. 4-5 Hereby accepted. 6-7 Not supported by the weight of the evidence. Generally true. The proposed facts concerning scope and schedule are not supported by the weight of the evidence. The proposed findings of fact concerning qualifications are generally accepted in finding of fact 40. Not supported by the weight of the evidence. See 41. Not supported by the weight of the evidence. See 42. Not supported by the weight of the evidence. Not supported by the weight of the evidence. See 43. Not supported by the weight of the evidence. See 44. Not supported by the weight of the evidence. See 45. Not supported by the weight of the evidence. See 46. Not supported by the weight of the evidence. See 47. The first sentence is hereby accepted. The rest of the proposed findings are not relevant to this proceeding. Not supported by the weight of the evidence or based upon evidence not included with Ramco's proposal. 20-28 See 15. Most of these proposed findings of fact are summaries of testimony taken out of context, are not supported by the weight of the evidence or not relevant to this proceeding. See 8-10 and 16. "Innovative recycling projects" and "commercially available" were not precisely speaking "criteria." Not supported by the weight of the evidence. 31-58 Although the nature of the proposals discussed in these proposed findings of fact are correct the conclusions concerning alleged deficiencies with the proposals were not supported by the weight of the evidence or were not relevant to this proceeding. The Department's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1 3. 2 1. 3 4-5. 4 6-7, 12-13 and 50. 5 16-17. 21 and hereby accepted. 15 and hereby accepted. 8 22-23. 9 7-10. 10 9 and 11. 11-12 Hereby accepted. 13-14 27-30. 15 Hereby accepted. 16 27-30. 17 19. 18 24-26. 19 27-28. 20 27-30. 21 See 32. 22-23 See 31. 24 32 and 34. 25-26 36. 27 37. 28 39. 29 40. The last sentence is not supported by the weight of the evidence. 30 41. 31 42. 32 43. 33 44. 34 45. 35 46. 36 47. 37 48. 49 and hereby accepted. Hereby accepted. 40 57-58. Copies Furnished To: Steven W. Huss, Esquire 1017-C Thomasville Road Tallahassee, Florida 32303 Chris D. McGuire Assistant General Counsel Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32299-2400 Leonard J. Shore, Esquire 515 Route 111 Hauppauge, New York 11788 Dale H. Twachtmann, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400
Findings Of Fact On November 16, 1988, Industrial Waste Service, Inc. (IWS), obtained approval to provide garbage and trash collection services to the City of Pembroke Pines (City) when the City passed and adopted Resolution No. 1876 approving the assignment of the contract for such services between the City and Citywide Sanitation Company, Inc. (Citywide), to IWS. Citywide's contract was to expire June 30, 1993. On November 6, 1991, the city amended Chapter 112 of its Code and passed and adopted a solid waste franchise ordinance, called the "City Solid Waste Franchise Ordinance," Ordinance No. 975, effective November 6, 1991. The Ordinance provides in pertinent part: Sec. 112.39 FRANCHISE REQUIRED TO OPERATE; RESTRICTIONS ON OPERATING IN THE CITY; AWARD OF FRANCHISE It shall be unlawful to commence or engage in the business of collecting and disposing of solid waste originating in the city without a franchise issued by the franchising authority in accordance with the provisions of this subchapter. It shall be unlawful for any hauler operating in the city to dispose of solid waste collected in the city at any location other than to the Resource Recovery System transfer station or facilities designated in the plan of operation under the Solid Waste Disposal Agreement, as defined in section 94.22 of the code, the City's Flow Control Ordinance. (Underscore and strike through omitted) On February 13, 1992, the City and IWS entered into a "Solid Waste Collection & Disposal Agreement" (Agreement). The Agreement provides in pertinent part: 2. DEFINITIONS Contract Collection Area shall include all of the City of Pembroke Pines, Florida, as the boundaries of said City shall exist at all times during the life of this Contract. * * * 4. TERM & EFFECTIVE DATE The term of this Contract shall be for a five (5) year period beginning February 1. 1992 and termi- nating January 31, 1997. This Agreement shall become effective upon execution by the parties hereto. On April 1, 1992, the Agreement was amended, "First Amendment to Solid Waste Collection & Disposal," which provides in pertinent part. DEFINITIONS * * * Commercial Service shall mean the collection and disposal of Garbage, trash, Solid Waste and Processable Waste for all Business, Commercial, Industrial, hospital, school, governmental and quasi-governmental establishments, including the collection and disposal of Construction and Demolition Debris. * * * Processable Waste shall mean that portion of Waste Stream that is capable of being processed in the Corporation's resource recovery and compost facility, including but not limited to materials which are recyclable and all acceptable Waste other than Non- Processable Waste (as defined herein). * * * Solid Waste shall mean all waste accumulations consisting of garbage, residential/household trash, commercial/business trash and construction and demolition debris, including but limited to all materials which are recyclable. * * * CONTRACTOR'S RIGHTS (D) The City further grants to Contractor the exclusive right to service all Residential Curbside, Apartment, Condominium, Business, Industrial, and Commercial establishments that are certified for occupancy after February 1, 1992, provided, however, a certificate of occupancy issued as a result of remodeling with no change in ownership shall not require the owner to change service to the Contractor except for the Solid Waste (i.e. Construction Demolition and Debris) created thereby. * * * The City grants to the Contractor the exclusive right to provide Solid Waste collection and disposal services to any Residential Apartment, Business, Commercial or Industrial establishments for the following customers as of February 1, 1992: For CONTRACTORS's existing customers; and For customers that have a change in ownership after the City's approval of the Agreement; and For customers which received Solid Waste collection and disposal services in the City prior to the City's approval of the Agreement and whose contract for such services expires and is not renewed with the same provider in the future. (Underscore and strike through omitted) On November 4, 1992, the City passed and adopted an ordinance, Ordinance No. 1016, amending Chapter 94 of its Code providing for a new subchapter entitled "Garbage Collection" and providing new sections. The Ordinance provides in pertinent part: Sec. 94-10 Agreement with Private Collector. The City acting by and through its City Commission, and in accordance with the provisions of Section 112.37 through 112.41 of the Code, approved a Solid Waste Collection & Disposal Franchise Agreement dated January 15, 1992, as amended by the First Amendment dated April 1, 1992 ("Agreement") between the City and Industrial Waste Service Inc. ("Collector"). All providers of Solid Waste collection and disposal services other than Collector who provide such services within the City boundaries shall be referred to herein as "Haulers". All terms not otherwise defined in this Subchapter shall have the meaning ascribed thereto in the Agreement. The Agreement is specifically made a part hereof as Appendix A, and a copy of same will be maintained at the City Clerk's Office at City Hall. Pursuant to the Agreement the City has granted the Collector the following rights and obligations to provide Solid Waste collection and disposal services: * * * The exclusive right and obligation to provide solid waste collection and disposal services within the City boundaries, present and future, for all Residential Curbside, and all Apartment, Condominium, Business, Industrial and Commercial establishments that are certified for occupancy after February 1, 1992, and govern- mental establishments to the extent permitted by law, provided, however, that a certificate of occupancy issued as a result of remodeling with no change in ownership of the property shall not require the Customer to change to Collector except for construction/remodeling demolition and debris created thereby; and The exclusive right and obligation to provide solid waste collection and disposal services within the City boundaries for all construction or remodeling demolition and debris within the City; and As of February 1, 1992, the exclusive right and obligation to provide solid waste collection and disposal services within the City boundaries for; [sic] Collector's existing Customers; Customers/property owners in the City that have a change in ownership; and customers/property owners whose contract for solid waste collection and disposal services expires and is not renewed with the same provider. Sec. 94.14 Certain Acts Prohibited. * * * (C) It shall be a violation of this subchapter for any person, firm, corporation or other entity, other than Collector to collect and/or dispose of Solid Waste originating in the City except to the extent the same is specifically permitted by the terms of this subchapter. (Underscore and strike through omitted) By letter dated June 10, 1992, IWS notified South Florida State Hospital that it (IWS) was the exclusive contractor for solid waste collection and disposal. South Florida State Hospital (Hospital) is a state mental health treatment facility operated and administered by the Division of Health and Rehabilitative Services (HRS) pursuant to Chapter 394, Florida Statutes. The Hospital is located on state property and is situated within the city limits of the City of Pembroke Pines (City), Broward County, Florida. In December 1993, HRS published an Invitation To Bid (ITB) on Bid # 595-591 for waste disposal services at the Hospital. Browning Ferris Industries, IWS, and Southern Sanitation Service submitted bids. On December 8, 1993, a pre-bid conference was held which included an opportunity for questions and answers. At this conference, HRS pointed out, among other things, that the City had an exclusive contract with IWS for waste disposal services but it (HRS) was also obligated by Florida Statutes to ensure the bidding remained competitive and that all waste collected from the Hospital had to be deposited at land fill sights designated by the City. In or around January 1994, HRS notified the bidders of Bid # 595-591 that, due to the bid document being flawed, a contract would not be awarded. All the bidders filed protests but none raised the City's exclusive contract with IWS as an issue. Ultimately, the contract was awarded to IWS but for only a six-month period. In April 1994, HRS published another ITB on Bid # 595-594 for waste disposal services at the Hospital. In the section entitled "SECTION A. INTRODUCTION," the ITB provides in pertinent part: STATEMENT OF NEED [T]he department requires the services of a qualified waste disposal company to provide waste disposal services to maintain sanitary conditions essential to the health, safety and well being of residents and staff living and working at the hospital. STATEMENT OF PURPOSE Pursuant to Florida Statutes, Chapter 287, this Invitation to Bid is being issued by the State of Florida, Department of Health and Rehabilitative Services, South Florida State Hospital, to obtain the services of a suitably qualified provider to enter into a contract for the removal and disposal of garbage from the hospital campus, and related services; in keeping with hospital requirements and the waste flow control ordinance of the City of Pembroke Pines. In the section "SECTION B. ITB SPECIFICATIONS: MINIMUM DEPARTMENTAL REQUIREMENTS," the ITB provides in pertinent part: PROGRAMMATIC REQUIREMENTS Method of Service Delivery 13) The provider will dispose of waste collected from the hospital at disposal site(s) specified by the City of Pembroke Pines, in keeping with the city's waste flow control ordinance. * * * Other Special Requirements * * * 2) Bidders Eligibility Requirements The successful bidder, in order to contract with the department to provide the services requested by this Invitation to Bid, must have all licenses and/or permits in accordance with city and county ordinances, rules, regulations, and provisions. All licenses and/or permits must be obtained at provider's expense. All costs for tests and inspections shall be paid for by the provider. GENERAL INFORMATION * * * Acceptance of Bids [T]he department reserves the right to reject any or all bids or waive minor irregularities when to do so would be in the best interest of the State of Florida. Minor irregularities are those which will not have a significant adverse effect on overall competition, cost or performance. In the section entitled "SECTION E. BID EVALUATION CRITERIA AND BID TABULATION," the ITB provides in pertinent part: 1) Evaluation Committee An evaluation committee of at lest three (3) members will be established to select the lowest responsive and qualified bidder. * * * 3) Evaluation of Bids Following the bid opening, the committee will review bid packages, beginning with the lowest cost bid, for compliance with the ITB requirements. A Fatal Items Checklist (Appendix IX) will be used to evaluate all bid packages. All items on the checklist MUST be met in order for the proposal to be considered. Receipt of a "No" response for any item will result in automatic rejection of the bid. All references will be checked. Only bidders with a good record of satisfactory performance will be considered. The contract will be awarded to the lowest responsive and qualified bidder who meets all the criteria specified in this ITB. The section entitled "General Conditions" of the ITB Contractual Services Bidder Acknowledgment form provides in pertinent part: 7. AWARDS: As the best interest of the State may require, the right is reserved to make award(s) by individual service, group of services, all or none, or a combination thereof; to reject any and all bids or waive any minor irregularity or technicality in bids received. Bidders are cautioned to make no assumptions unless their bid has been evaluated as being responsive. In response to the ITB, HRS received bids from Browning Ferris Industries which had previously bid on Bid # 595-591, Coastal Carting, Ltd., IWS which had also previously bid on Bid #595-591, Son Mar South Sanitation, Inc. (SON MAR), and Southern Sanitation Service which had also previously bid on Bid # 595-591. SON MAR was the apparent lowest bidder with a bid of $72,200.48 for the first year, $79,420.52 for the second year, and $87.362.57 for the third year, totalling $238.983.57, and IWS was the apparent second lowest bidder with a bid of $106,739.84 for the first year, $112,734.46 for the second year, and $121,971.12 for the third year, totalling $341,445.42. Subsequently, IWS' bid was recalculated due to HRS discovering a calculation error by IWS. The recalculation was performed without a reconvening of the Evaluation Committee and resulted in IWS' bid being $113,579.84 for the first year, $119,814.46 for the second year, and $129,291.12 for the third year, totalling $362,685.42. The Evaluation Committee reviewed all the bids and evaluated them using, among other things, the Fatal Items Checklist. If one item in the checklist were not satisfied, a bid would be disqualified. Pertinent to this case, both SON MAR and IWS satisfied the Checklist and all other evaluation criteria used by the Committee. On May 12, 1994, the Bid Tabulation sheet was posted. HRS indicated its intent to award Bid # 595-594 contract to SON MAR as the apparent lowest and responsive bidder. At that time, HRS was aware that SON MAR had no licenses or permits issued by the City. The Evaluation Committee considered the absence of a license or permit as not material to awarding the bid 1/ and were aware that an awardee obtaining a license or permit would involve a simple process of the awardee completing an application for and paying a fee to the City. By letter dated May 20, 1994, HRS requested that the City advise it of any permits and/or licenses required by the City for an awardee to provide waste removal services to the Hospital. HRS did not receive a written response to its letter. Instead, the City orally advised HRS that it (the City) would issue SON MAR a special permit which would be issued upon SON MAR making application for an occupational license and paying a franchise fee. SON MAR was agreeable to complying with the City's terms and conditions. SON MAR dispatched one of its representatives to the City to obtain an application for the license. However, the City refused to provide SON MAR an application. By letter dated June 13, 1994, IWS filed its formal bid protest of Bid # 595-594 with HRS alleging, among other things, that SON MAR did not have a license from the City to provide waste removal services because it (IWS) had the exclusive waste removal contract with the City, that, without a license, SON MAR could not comply with the bid eligibility requirements and that, therefore, the bid should be awarded to it (IWS). On or about June 28, 1994, SON MAR notified the City that its refusal to issue it (SON MAR) an occupational license was unconstitutional per a U.S. Supreme Court case and requested immediate issuance of the license. SON MAR forwarded HRS a copy of this notification and request. By letter dated June 30, 1994, the City notified SON MAR that it would not issue it (SON MAR) a permit to provide waste removal services in the City, as such an action would violate the exclusive franchise agreement that it (the City) had with IWS. On or about June 30, 1994, HRS was aware that the City would not permit SON MAR to provide waste removal services in the City as it received a copy of the City's letter to SON MAR. On July 14, 1995, HRS and IWS settled the protest filed by IWS, without involving SON MAR in the negotiations. The terms of the settlement, which were communicated to SON MAR on July 15, 1995, were that IWS would dismiss its protest if, within ten days, 2/ SON MAR obtained a license/permit from the City, produced the license to HRS and otherwise remain qualified for the award and that, if SON MAR was unable to obtain a license from the City, HRS would declare SON MAR unqualified and declare IWS the lowest responsive and qualified bidder and award the bid to IWS. SON MAR was unable to obtain a license from the City. Moreover, the City refused to provide SON MAR with an application, remaining consistent with its letter of June 30, 1994, to SON MAR. As SON MAR was unable to obtain a license within the prescribed ten- day period, by letter dated July 29, 1994, HRS notified all bidders to Bid # 595-594 that it was declaring SON MAR unqualified and of its intent to award the bid to IWS, as the next lowest and qualified bidder. Further, HRS notified the bidders that the bids of IWS and another bidder were recalculated to correct a calculation error, which would not affect the order of the bids. By letter dated August 9, 1994, SON MAR notified HRS of its intent to file a formal protest. On or about August 24, 1994, SON MAR filed its formal protest. At no time material hereto, has SON MAR pursued any civil action to challenge the validity of the exclusive contract between the City and IWS or the constitutionality of the City's Ordinance.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health and Rehabilitative Services enter a final order awarding Bid # 595-594 to Industrial Waste Service, Inc. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 28th day of March 1995. ERROL H. POWELL 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 28th day of March 1995
