The Issue The issue is whether a permit should be issued to Respondent, Lake Environmental Resources, LLC (LER), authorizing the construction and operation of a construction and demolition debris disposal facility in unincorporated Lake County, Florida.
Findings Of Fact Based on the evidence presented by the parties, the following findings of fact are made: The Parties LER, whose mailing address is Post Office Box 2872, Windermere, Florida, is a limited liability company authorized to do business in the State. LER's principals are Linwood Brannon and Richard Bazinet, both of whom have had at least ten years' experience in the operation and construction of demolition debris disposal facilities. The Department is an agency of the State that is authorized under Chapter 403, Florida Statutes (2005)2, to evaluate applications and issue permits for construction and demolition debris disposal and recycling facilities. The permit in issue here was processed, reviewed, and approved for issuance by the Department's Central District Office in Orlando, Florida. Petitioners Miriam Resto and Jim Taylor did not appear at the final hearing or otherwise present any evidence as to where they resided or how their substantial interests would be determined by the issuance of a permit. Petitioner Timothy L. McCormack resides at 11321 Valley View Road, Howey-in-the-Hills, Florida. Mr. McCormack's home is "a little over a mile" north-northwest of the proposed facility. His concern with the proposed facility is generally over contamination from the landfill, and not contamination occurring at the property. Petitioner John A. Mapp, Jr., resides at 21307 County Road 561, Clermont, Florida, which is approximately one-half mile from the proposed facility. Mr. Mapp's home is upgradient from the facility and consequently he has no "individual concerns" as to how the proposed facility would affect his home. He is concerned, however, with potential groundwater contamination from the facility. Petitioners David and Lisa Cimini did not testify at the final hearing or otherwise present any evidence as to where they resided or how their substantial interests would be determined by this proceeding. According to the Partial Pre- Hearing Stipulation filed by Respondents, however, they reside at 21423 County Road 455, Clermont, Florida, which is near the proposed facility. Background On July 26, 2005, LER filed an application with the Department for a permit authorizing it to construct and operate a facility for construction and demolition debris disposal and recycling in an unincorporated area of the County. A lengthy definition of construction and demolition debris is found in Florida Administrative Code Rule 62-701.200(27), which reads as follows: discarded materials generally considered to be not water soluble and non-hazardous in nature, including but not limited to steel, glass, brick, concrete, asphalt material, pipe gypsum wallboard, and lumber, from the construction or destruction of a structure as part of a construction or demolition project or from the renovation of a structure, including such debris from construction of structures at a site remote from the construction or demolition project site. The term includes rocks, soils, tree remains, trees, and other vegetative matter which normally results from land clearing or land development operations for a construction project; clean cardboard, paper, plastic, wood, and metal scraps from a construction project; effective January 1, 1997, except as provided in Section 403.707(12)(j), F.S., unpainted, non-treated wood scraps from the facilities manufacturing materials used for construction of structures or their components and unpainted, non-treated wood pallets provided the wood scraps and pallets are separated from other solid waste where generated and the generator of such wood scraps or pallets implements reasonable practices of the generating industry to minimize the commingling of wood scraps or pallets with other solid waste; and de minimus amounts of other non-hazardous wastes that are generated at construction and demolition projects, provided such amounts are consistent with best management practices of the construction and demolition industries. Mixing of construction and demolition debris with other types of solid waste will cause it to be classified as other than construction and demolition debris. The facility will be located on a 44.33-acre site one- half mile west of State Road 561, off County Road 455, in an unincorporated part of Lake County. Based on this description, it appears that the facility will be located east of Howey-in- the Hills, west of Tavares, and approximately half-way between Astatula and where State Road 561 crosses the Florida Turnpike to the southwest. The site presently has an active sand mine (borrow pit) that covers an area of approximately twenty-two acres. The facility intends to recycle metal, concrete, asphalt, wood chips, and PVC (polyvinyl chloride) and will serve areas in Lake County and nearby communities. In response to LER's initial application, the Central District Office submitted a Request for Additional Information dated August 22, 2005, asking for additional well and site information, operations plan details, and financial assurance clarification. On October 20, 200, LER submitted its Response to Request for Additional Information. While the application was being processed, Mr. Cimini advised the Department that two additional wells surrounded the property, including one that had recently been installed on property owned by Mr. Gary Sprauer that lies within five hundred feet of the limits of waste disposal of the facility. On November 18, 2005, the Department submitted an additional Request for Additional Information, in which it brought up the fact that Mr. Cimini had advised the Department of the existence of these wells. On November 28, 2005, LER submitted its Response to Request for Additional Information, in which it stated that only one well, which belonged to a Mr. Sprauer, had been drilled within five hundred feet of the proposed facility; that there was no electricity to the well; that the nearest residence was approximately seven hundred feet away; and that the well was not approved or being used as a potable water well. Therefore, LER asserted that the Department should not treat the Sprauer well as a potable water well subject to the five-hundred-foot setback from potable water wells for landfills established in Florida Administrative Code Rule 62-701.300(2)(b). LER's submittal provided additional information on the geology and operational aspects of its proposed facility. On December 6, 2005, LER submitted additional information in response to items discussed at a meeting held between the Department and LER on December 2, 2005. The submittal contained further information about potential drinking water wells around the proposed facility, and LER reasserted that the Sprauer well should not be treated by the Department as a potable drinking water well. Based upon its own investigation, however, the Department concluded that the Sprauer well "was a bona fide drinking water well for domestic supply." On January 6, 2006, Mr. Bradner, a Department solid and hazardous waste program manager who was assisting in the processing and review of the application, wrote a memorandum to the file confirming that the Department considered the application complete as of December 6, 2005. On February 10, 2006, LER provided additional hydrologic and operational information in order to try to convince the Department not to apply the five-hundred-foot setback to the Sprauer well. This information showed that the Sprauer well would be upgradient from the proposed facility. The Department allows waste to be placed within five hundred feet of an existing potable water well based upon site-specific conditions as demonstrated by an applicant. See Fla. Admin. Code R. 62-701.300(2)(b). On March 27, 2006, in response to the Department's comments on its submittal of this additional information, LER submitted further hydrologic and modeling information to support its contention that groundwater flowed away from the well belonging to Mr. Sprauer. On April 27, 2006, LER provided the Department with further refinement of its groundwater model to demonstrate that there would be no impact to the Sprauer well. On May 4, 2006, the Central District Office issued notice of its intent to approve the application and issue a permit to LER. Of significance here is the fact that the Department did not require LER to install a liner and leachate collection system. This was consistent with the terms of Florida Administrative Code Rule 62-701.730(4)(a), which does not require a liner unless the Department demonstrates that the facility is "reasonably expected to result in violations of ground water standards and criteria." On May 17, 2006, Petitioners filed their Petition challenging the issuance of the permit. As grounds, Petitioners alleged that there is a substantial risk that the surrounding groundwater will be contaminated by leachates from the facility, and that the Department should accordingly require LER to (a) install a liner and associated leachate recovery system in their facility and (b) post a surety bond necessary to maintain the system in good working order and to fund a toxic cleanup should it become necessary. The Proposed Project Among other things, the application included an engineering report, an operations plan, a geotechnical evaluation of the stability of the site, a hydrological investigation, a stormwater management plan, a reclamation and closure plan, and financial assurance documentation. These elements are required by Florida Administrative Code Rule 62- 701.730, which governs this type of application. The proposed facility is to be located on a 44.33-acre parcel in a rural area that has been the site of a sand and clay borrow pit. The pit has been mined for the last thirty years, has been permitted by Lake County as a mine since 1986, and before being used as a mine was the site of an orange grove. As explained by Mr. Golden, the proposed facility's project manager, the site is "high and dry" and "a good site for a landfill." The water table is at least one hundred feet below the ground surface. There is a confining layer of clays and sandy clays approximately one hundred fifty feet below the ground surface at the site of the proposed facility, and the layer has very low hydrologic conductivity, that is, 1,000 to 10,000 times less permeable than the surface sands. The Floridan Aquifer is approximately two hundred feet below ground surface. The horizontal velocity of the groundwater at the site is approximately two feet per year, and the vertical velocity about 1.3 inches per year. As a result, the groundwater monitoring system at the proposed facility would detect any contamination that might be emitted. In addition, approximately twenty feet of dry soils underlying the landfill would absorb whatever comes out of the landfill to begin with, just like a septic tank. The confining layer would be approximately one hundred to one hundred twenty feet below the landfill base and would be anywhere from twenty to forty feet deep. As a result, it is highly unlikely that any potential contaminants that hypothetically might be emitted from the facility would ever reach the Floridan Aquifer. The Proposed Permit On May 4, 2006, the Central District Office issued its intent to issue the permit. Attached to that intent to issue was a Draft Permit. The Draft Permit restricts disposal of solid waste exclusively to construction and demolition debris (as defined in the rule cited above) and requires LER to comply with an Operations Plan developed by LER. Among other things, the Operations Plan provides for operators trained in spotting and turning away unacceptable waste and other screening procedures to ensure nondisposal of unacceptable waste. The Operations Plan exceeds minimum Department rule requirements. The Operations Plan prohibits disposal of CCA (chromated copper arsenate) pressure treated wood and has a special screening procedure to ensure that these wood products do not come into the facility. The Draft Permit requires LER to install a system of groundwater monitoring wells that surround the property at both shallow and deep depths to detect any potential contaminants coming off of the site. Thus, LER will be required to monitor the surficial aquifer, the Floridan Aquifer, and adjacent wells to ensure protection of area groundwater. The wells will act as a form of early warning indicator so that corrective action can be undertaken in the event the wells show a potential threat to drinking water beyond the property boundary of the proposed facility. The Draft Permit requires two wells to be installed immediately to the north of the Sprauer well, even though it is upgradient from the site. To be conservative and prudent, the Department is requiring that the number of wells that LER must install be substantially greater than the minimum required under Department rules. Based upon the hydrologic evaluation and the proposed permit conditions, Mr. Golden concluded that LER has provided reasonable assurance that the proposed facility will not discharge pollutants in contravention of Department standards or rules. Mr. Bradner agreed with this conclusion and likewise concluded that LER had provided reasonable assurance that the proposed facility will comply with all of the required statutes and rules. The weight of the evidence supports these conclusions. The weight of the evidence also supports Mr. Golden's conclusion that based upon the hydrologic evaluation and the proposed permit conditions, the proposed facility will not be a source of contamination for wells within or greater than five hundred feet of the proposed facility. In the same vein, Mr. Bradner determined that the Sprauer well was the only existing potable drinking water well within five hundred feet. Both experts concluded that the Sprauer well would not be adversely impacted based upon the Department's review of the groundwater modeling data provided to it by LER. Finally, the weight of the evidence supports Mr. Golden's conclusion that, based upon the hydrologic evaluation and the proposed permit conditions, the Department should not require LER to install a landfill liner at the proposed facility. Mr. Bradner agreed with that conclusion. Petitioners' Objections In their Petition, Petitioners have raised the following objections to the issuance of a permit: That because the proposed facility would have no liner, the local environment and drinking water supplies would not be adequately protected from contamination; That the application significantly underestimates the amount of recharge to local aquifers; That the application ignores or underestimates the ecological fragility of the area; and That the location of the Sprauer well should require a reconfiguration of the footprint of the proposed facility. As relief, the Petition asks that the Department require a liner and associated leachate recovery system and adequate financial assurance to ensure proper operation and cleanup if necessary. During opening argument, Petitioners raised one more issue not previously raised in their Petition — - the potential cumulative impacts of the proposed facility in conjunction with two other landfills in the area. This allegation was not timely raised, however, and has been disregarded. The positions taken by Petitioners (other than cumulative impacts) appear to be interrelated, that is, the Department should require a liner because the area is ecologically fragile and recharge is greater than calculated by LER. In support of their position, Petitioners first presented the testimony of Mr. McCormack, who is engaged in the commercial nursery and landscaping business. Mr. McCormack identified the presence of CCA treated wood as his main concern from a contamination standpoint. His concern is that a possible spread of leachate will result from mingling the wood with rainwater or groundwater and that the surrounding groundwater (which ultimately flows into Double Run Springs, the Harris Chain of Lakes, and the Floridan Aquifer) would be adversely impacted. Mr. McCormack estimated that the edge of the Double Run Springs system was approximately 2,500 feet, or around one- half mile, from the site. He expressed the opinion that it was physically impossible to remove such wood prior to its being landfilled. Mr. McCormack conceded, however, that he was not an expert on landfill management or hydrology and had no personal experience with the operation of a landfill. There is specific language in LER's Operations Plan prohibiting the disposal of CCA treated wood and requiring best management practices to enforce the prohibition against the disposal of CCA treated wood. This requirement is mandatory, and not voluntary, and provides reasonable assurance that CCA treated wood would not be a potential source of contamination. The testimony of expert witnesses Bradner and Golden, who expressed this view, is accepted as being more credible on this issue. Petitioners also presented the testimony of Mr. Mapp, who critiqued the hydrological investigation performed by LER by asserting that the recharge to the Floridan Aquifer is four or five times the amount stated in the application. He also opined that LER's evapotranspiration rates were understated.3 Mr. Mapp is a systems analyst for Lockheed Martin Missiles and has a master's degree in business and an undergraduate degree in physics. While highly educated, Mr. Mapp has no prior experience in any kind of hydrologic, geologic, chemical, or similar types of analyses, or any analyses of the rate of transport of chemicals in the environment. The knowledge and opinions rendered in this case by Mr. Mapp were obtained through personal research after the permit application was filed. Mr. Mapp opined that LER's recharge calculations constitute a "significant discrepancy." He acknowledged, however, that his estimate of the true speed of downward flow of water at the site of the proposed facility was "just off the cuff" and did not factor in the effects of applying cover to, and the filling and capping of, the landfill. He did not know how fast particular contaminants may migrate through the groundwater or what volume of waste might be necessary to cause a violation of groundwater quality standards. He also could not give a specific calculation of where a contaminant might be located after a set period of years. Unlike the other experts in this case, the witness had not calculated Floridan Aquifer recharge rates or otherwise used Darcy's Law.4 Even if the permit application underestimated the recharge rate, the thickness of the confining layer below the base of the proposed facility, which was conservatively estimated, would cause groundwater to flow horizontally, not vertically, once the confining layer is reached. As explained by Mr. Golden, LER did not rely exclusively on the recharge calculations that Mr. Mapp relied upon in determining recharge rates. Separate information regarding the permeability of the confining layer provides additional support for the recharge calculations. Mr. Mapp also opined that LER's evapotranspiration rate calculations were underestimated, based upon his review of a study of a deforested site elsewhere in the Lake Wales Ridge. He assumed the evapotranspiration rate in that study (for a site located fifteen miles away) would be applicable to the site of the proposed facility, and he then assumed that the evapotranspiration rate identified in the permit application for the proposed facility would be applicable only to the properties adjacent to the proposed facility. There is, however, no scientific basis for drawing an analogy between the borrow pit that is the location of the proposed facility and the deforested site with different geological characteristics about which Mr. Mapp read in the study he relied upon for his conclusions. Furthermore, LER undertook site-specific analyses of the permeability of the soils underlying the site of the proposed facility, whereas Mr. Mapp's calculations were based upon assumptions drawn from a study of a site fifteen miles away. The testimony of Mr. Golden is found to be credible and persuasive on this issue. Finally, there was no evidence concerning Petitioners' contention that LER should post a surety bond necessary to maintain the system in good working order and to fund a toxic cleanup should it become necessary. Therefore, no modification to the permit in this respect is required.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection enter a final order granting the application of Lake Environmental Resources, LLC, for a permit authorizing the construction and operation of a construction and demolition debris disposal and recycling facility in unincorporated lake County. DONE AND ENTERED this 8th day of November, 2006, in Tallahassee, Leon County, Florida. S DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of November, 2006.
The Issue Whether the Respondent Entrust Recovery Corporation violated Section 493.6118(1)(n), Florida Statutes, and if so, what penalty should be imposed and whether Respondent Patrick C. Simone violated Section 493.6118(1)(g), Florida Statutes, and if so what penalty should be imposed.
Findings Of Fact Phillip Hobbs (Hobbs), is the president of Respondent, Entrust Recovery Corporation (Entrust). Mr. Hobbs holds a Class "C" Private Investigator license; a Class "R" Recovery Agency license; a Class "E" Recovery Agent license; a Class "RI" Recovery School Instructor license; and a Class "RS" Recovery School/Training Facility license. Respondent, Patrick Simone (Simone) did not have a Class "E" Recovery Agent license or a Class "EE" Recovery Agent Intern license on January 13, 1995. On January 13, 1995, Simone was employed as a private investigator for Entrust. On January 13, 1995, at the request of Hobbs, Simone went to Jeff Paull's (Paull) residence to determine if Paull's car was there. Simone advised Hobbs by two-way radio that a white Toyota was parked in the driveway. Hobbs told Simone to wait for him to get to the residence. When Hobbs arrived, he parked his car approximately 100 feet west of Paull's house. Hobbs told Simone to go and knock on the door. Simone walked up to Paull's door and knocked to see if anyone was home. Paull came to the door, identified himself as Jeff Paull and came out of the house to speak with Simone. Simone identified himself as a representative of World Omni and told Paull that he was there to take the car, that he needed to talk to Paull about the car payments, and that World Omni would like to talk to him. Simone, using a cellular telephone, dialed World Omni's number and gave the telephone to Paull to talk to World Omni. After Paull talked to World Omni, he tossed the car keys to Simone. Paull went back into his house to get his own portable telephone and made another telephone call. While the transaction was taking place between Paull and Simone, Hobbs was down the street with a pair of binoculars and a two-way radio trying to find out what was going on. Based on the location of Paull's house, the front door and courtyard are visible only from directly in front of Paull's house. The front door area is not visible from the west because of the foliage and construction of the house. Thus, Hobbs could not have observed the interactions between Paull and Simone as he testified at the final hearing. Because Hobbs was trying to monitor the transaction from a distance with a two-way radio, he could not hear what was being said at the time it was being said and relied on Simone to tell him what was going on when Paull was not there. After Paull gave Simone the keys, Paull asked Simone if he would give him a ride to his luncheon appointment. Simone agreed to do so. Paull went back into the house to finish dressing and someone banged on the door while he was getting ready. When Paull went back outside, only Simone was present. Simone took the white Toyota and dropped Paull off on his way back to Hobbs' office. During the scenario between Paull and Simone, Hobbs did not approach Paull to speak with Paull and did not identify himself to Paul as the repossessor.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Patrick C. Simone violated Section 493.6118(1)(g), Florida Statutes, that Entrust Recovery Corporation violated Section 493.6118(1)(n), Florida Statutes, that an administrative fine of $150 be imposed on Patrick C. Simone, and that an administrative fine of $500 be imposed on Entrust Recovery Corporation. DONE AND ENTERED this 17th day of January, 1996, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND 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 17th day of January, 1996. APPENDIX TO RECOMMENDED ORDER, CASE NOS. 95-4238 & 95-4239 To comply with the requirements of Section 120.59(2), Florida Statutes, the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. Paragraphs 1-5: Accepted. Paragraphs 6-9: Accepted in substance. Respondents' Proposed Findings of Fact Paragraph 1: Accepted. Paragraph 2: Rejected as subordinate to the facts found. Paragraph 3: Accepted. Paragraph 4: Rejected as subordinate to the facts found based on the finding that Simone told Paull that he was there to take the car. Paragraph 5: Rejected as subordinate to the facts found. Paragraph 6: Accepted in substance. Hobbs had directed Simone to see if the car was there. Paragraph 7: Rejected that Hobbs could observe and hear what was going on, otherwise accepted that Hobbs parked down the street from the house. Paragraphs 8-9: Accepted in substance. Paragraph 10: Accepted that Paull gave up his car. Rejected that he was given the option to wait until Monday as not supported by the record. Paull stated that he asked Omni to wait until Monday but the evidence does not support a finding that Omni agreed to wait until Monday. Paragraph 11: Accepted in substance. Paragraph 12: Rejected as subordinate to the facts found. COPIES FURNISHED: Kristi Reid Bronson Assistant General Counsel Department of State, Division of Licensing The Capitol, Mail Station Number 4 Tallahassee, Florida 32399-0205 Mark A. Kamilar, Esquire Penthouse I, United States Justice Building 155 South Miami Avenue Miami, Florida 33130 Honorable Sandra B. Mortham Secretary of State The Capitol Tallahassee, Florida 32399-0250 Don Bell General Counsel Department of State The Capitol, PL-02 Tallahassee, Florida 32399-0250
The Issue The issue to be determined in this case is whether a site certification should be issued to Hillsborough County for the construction and operation of a fourth municipal waste combustor unit (“Unit No. 4”) at Hillsborough County’s Resource Recovery Facility, in accordance with the provisions of the Florida Electrical Power Plant Siting Act.
Findings Of Fact The Applicant The Applicant, Hillsborough County, is a political subdivision of the State of Florida. The County owns the existing Facility and will own the proposed Project. The Facility was designed, built, and is operated by a private company pursuant to a long-term contract with the County. It is anticipated that a private company will design, construct, and operate the Project for the County. Hillsborough County’s Existing Solid Waste System The County has adopted a solid waste Comprehensive Master Plan (the “Master Plan”) in conjunction with the Cities of Tampa, Temple Terrace, and Plant City. The Master Plan provides for state-of-the-art technology and innovative approaches to recycling, waste reduction, and waste disposal. In accordance with the Master Plan, the County has developed: (a) an aggressive recycling program that significantly reduces the quantity of materials requiring disposal; (b) a resource recovery facility for waste reduction and energy recovery from those materials that are not recycled; and (c) a landfill for the disposal of ash and by-pass waste (i.e., materials that are not recycled or processed in the Facility). Hillsborough County and the three cities have used a cooperative, regional approach to solid waste management issues, while providing environmentally protective, cost-efficient programs for local residents. Despite the County’s comprehensive recycling program, the amount of solid waste generated in the County has increased each year since the Facility began operation, primarily due to population growth. The amount of solid waste generated in the County now significantly exceeds the Facility’s design capacity. Consequently, large quantities of solid waste currently are being diverted from the Facility to the County landfill. In 2005, the Board of County Commissioners decided to expand the Facility, consistent with the County’s long-standing Master Plan, rather than dispose of ever-increasing amounts of solid waste in a landfill. The Board’s decision was based on a thorough evaluation of the County’s solid waste disposal options. For these reasons, on November 21, 2005, the County filed an application with DEP for the construction and operation of Unit No. 4. The Site The Facility is located next to Falkenburg Road in an unincorporated area in the County. The Facility is southeast of the City of Tampa, west of Interstate 75 (“I-75"), and north of the Crosstown Expressway and State Road 60. The Facility was built on a 50.4-acre site (“Site”), which is in the southern portion of a 353-acre tract of land owned by Hillsborough County. The Surrounding Area The Facility is surrounded by a variety of governmental and industrial land uses. The Facility is bounded: on the south by the County’s Falkenburg Road Wastewater Treatment Plant and a railroad track that is owned by the CSX railroad company; on the west by a 230 kilovolt transmission line corridor and easement owned by Tampa Electric Company (“TECO”); on the north by vacant improved pasture land, the Falkenburg Road Jail, the Hillsborough County Department of Animal Services, and the Hillsborough County Sheriff’s Office (District 2); and on the east by Falkenburg Road and vacant land. The Facility is compatible with the adjacent and surrounding land uses. The nearest residential area is approximately 1 mile away from the Facility. It is located on the opposite (east) side of I-75. Zoning and Land Use In 1984, the Siting Board determined that the Site and Facility were consistent and in compliance with the applicable land use plans and zoning ordinances. The Siting Board’s determination was based on the County’s plans for the construction and operation of four MWC units at the Facility. The Site is currently zoned “Planned Development”, and is designated “Public/Quasi-Public” under the County’s comprehensive land use plan, specifically to allow the Facility and the Project to be built and operated on the Site. The Existing Facility The Facility currently has three MWC units. Each MWC unit has a nominal design capacity of 400 tons per day (“tpd”) of municipal solid waste (440 tpd when burning a reference fuel with a higher heating value of 4500 British thermal units (“Btu”) per pound). The three MWC units are located inside a fully enclosed building, which also contains the air pollution control systems for the MWC units, the “tipping floor,” the refuse storage pit, and a turbine generator. The Facility also includes an ash management building, cooling tower, stack, stormwater management ponds, water treatment system, transformer yard, electrical transmission lines, and ancillary equipment and facilities. Municipal solid waste (e.g., household and commercial garbage) is delivered to the Site in trucks, which drive inside the refuse storage building to the tipping floor, where the trucks dump the MSW into the refuse storage pit. Two overhead cranes mix the waste in the refuse storage pit and then load the waste into the charging hoppers that feed the three MWC units. The combustion of the municipal solid waste produces heat, which is used to produce steam. The steam is used in a turbine generator to produce approximately 29.5 megawatts (“MW”) of electricity. The Project The Project involves the construction and operation of a fourth MWC unit at the Facility. The new unit will be substantially the same as the three existing MWC units, but larger. The new unit will be designed to process approximately 600 tpd of municipal solid waste (660 tpd @ 5000 Btu/lb). A new turbine generator also will be installed, which will increase the Facility’s electrical generating capacity by approximately 18 MW, thus increasing the Facility’s total net generating capacity to approximately 47 MW. In addition, the Facility’s cooling tower will be expanded, the refuse and ash management buildings will be expanded, two lime silos and a carbon silo will be installed, a new settling basin will be installed, and other related improvements will be made. Construction of Unit No. 4 The Facility was designed and built to accommodate the addition of a fourth MWC unit, thus making the construction of Unit No. 4 relatively simple, without disrupting large areas of the Site. Unit No. 4 will be located adjacent to the three existing MWC units. The construction of the other Facility improvements also will occur adjacent to the existing components of the Facility. Only about 0.3 acres of the Site will be converted from open space to a building or similar use. Construction of Unit No. 4 will occur in previously disturbed upland areas on the Site that are already used for industrial operations. Construction of Unit No. 4 will not affect any wetlands or environmentally sensitive areas. No new electrical transmission lines will need to be built to accommodate the additional electrical power generated by Unit No. 4. No new pipelines or other linear facilities will need to be built for the Project. The construction of Unit No. 4 will not expand the Facility beyond the boundaries of the Site that was certified by the Siting Board in 1984. Operation of Unit No. 4 The basic operation of the Facility will not change when Unit No. 4 becomes operational. Municipal solid waste will be processed at the Facility in the same way it is currently processed. The Facility has operated since 1987 and has an excellent track record for compliance with all applicable regulations, including regulations concerning noise, dust, and odors. All of the activities involving solid waste and ash occur inside enclosed buildings. The tipping floor and refuse storage pit are maintained under negative air pressure, thus ensuring that dust and odors are controlled within the building. Since the operations at the Facility will remain the same after Unit No. 4 becomes operational, no problems are anticipated in the future due to noise, dust, or odors. The Facility’s basic water supply and management system will remain the same after Unit No. 4 becomes operational. Treated wastewater from the County’s co-located Falkenburg Road Wastewater Treatment Plant (“WWTP”) will be provided via an existing pipeline to satisfy the Facility’s need for cooling water. Potable water will be provided to the Facility via an existing pipeline from the City of Tampa’s water supply plant. The Facility does not use groundwater or surface water for any of its operations. The Facility will not discharge any industrial or domestic wastewater to any surface water or groundwater. Most of the Facility’s wastewater will be recycled and reused in the Facility. Any excess wastewater will be discharged to the Falkenburg Road WWTP. Stormwater runoff from the Project will be collected and treated in the existing system of swales and ponds on the Site. The County will modify two existing outfall weirs to provide improved treatment of stormwater and to ensure compliance with water quality standards. A traffic analysis was performed to evaluate the potential traffic impacts associated with the operation of the Facility, after the Project is completed. The analysis demonstrated the Facility will not have any significant impacts on the surrounding roadway network, even when Unit No. 4 is operational. Air Quality Regulations The County must comply with federal and state New Source Performance Standards (“NSPS”) and Best Available Control Technology (“BACT”) requirements, both of which impose strict limits on the Facility’s airborne emissions. The County also must comply with Ambient Air Quality Standards (“AAQS”) and Prevention of Significant Deterioration (“PSD”) standards, which establish criteria for the protection of ambient air quality. Best Available Control Technology BACT is a pollutant-specific emission limit that provides the maximum degree of emission reduction, after taking into account the energy, environmental, and economic impacts and other costs. As part of the BACT determination, all available and feasible pollution control technologies being used worldwide are evaluated. The Department performed a BACT determination for the Project. As part of its BACT analyses, DEP determined that (a) a flue gas recirculation system and a selective non-catalytic reduction system (“SNCR”) will control NOx; (b) a spray dryer with lime injection will control MWC acid gas; (c) an activated carbon injection system (“ACI”) will control MWC organic compounds; (d) a fabric filter baghouse will control particulate matter and MWC metals; and (e) proper facility design and operating methods will control other pollutants. These air pollution control technologies (except flue gas recirculation) and methods are currently used in the three existing MWC units and they have performed extremely well. Unit No. 4 will have better, more modern, and more sophisticated versions of these air pollution control systems, plus a flue gas recirculation system. In its analysis of the Project, DEP determined the emission limits for the Project that represent BACT. All of the emission limits determined by DEP for Unit No. 4 are as low as or lower than the emission limits established in 2006 by the U.S. Environmental Protection Agency (“EPA”) in the NSPS (40 CFR 60, Subpart Eb) for new MWC units. The NSPS are based on the use of Maximum Achievable Control Technology (“MACT”). Unit No. 4 will be subject to the lowest NOx emission limits imposed on any MWC unit in the United States. The Facility will use an array of continuous emissions monitors to help ensure that the Facility is continuously in compliance with the DEP’s emission limits. Indeed, Unit No. 4 will be the first MWC unit in the United States to be equipped with a continuous emissions monitor for mercury. Protection of Ambient Air Quality The EPA has adopted “primary” and “secondary” National Ambient Air Quality Standards ("NAAQS"). The primary NAAQS were promulgated to protect the health of the general public, including the most susceptible groups (e.g., children, the elderly, and those with respiratory ailments), with an adequate margin of safety. The secondary NAAQS were promulgated to protect the public welfare, including vegetation, soils, visibility, and other factors, from any known or anticipated adverse effects associated with the presence of pollutants in the ambient air. Florida has adopted EPA’s primary and secondary NAAQS, and has adopted some Florida AAQS (“FAAQS”) that are more stringent than EPA’s NAAQS. The County analyzed the Project’s potential impacts on ambient air quality, using conservative assumptions that were intended to over-estimate the Project’s impacts by a wide margin. These analyses demonstrate that the maximum impacts from Unit No. 4 will be less than one percent of the amount allowed by the ambient air quality standards. The maximum impact from the Facility (i.e., all four units) will be less than 2.5 percent of the amount allowed by the FAAQS and NAAQS. For these reasons, the emissions from Unit No. 4 and the Facility are not expected to cause adverse impacts on human health or the environment. The maximum impacts of Unit No. 4 and the Facility, when operating under worst case conditions, will be immeasurably small and will be indistinguishable from ambient background conditions. Human Health and Ecological Risk Assessments The County performed a human health and ecological impact assessment of the risks associated with the Facility’s airborne emissions. The County’s risk assessment evaluated the impacts of the entire Facility, with all four MWC units in operation. The risk assessment was designed to over-estimate the potential impacts of the Facility. The County’s risk assessment was conducted in compliance with current EPA guidance. The risk assessment considered hypothetical human receptors (e.g., infants, children, and adults) that were engaged in different types of behavior (e.g., a typical resident; a beef farmer; a subsistence fisherman) and were exposed through multiple pathways (e.g., inhalation; ingestion of soil; ingestion of local produce, beef, and/or fish) to chronic long term impacts from the Facility. The risk assessment also considered the Facility’s potential impacts on sensitive environmental receptors, including aquatic life (benthic dwelling aquatic organisms), wood storks, and river otters. The County’s risk assessment demonstrates that the potential risks associated with the Facility’s emissions will not exceed, and in most cases will be much less than, the risks that are deemed acceptable by the EPA and DEP for the protection of human health and the environment. The County’s assessment is consistent with the findings in environmental monitoring studies, epidemiological studies, and risk assessments that have been performed for other modern waste-to-energy ("WTE") facilities in the United States. The County’s findings also are consistent with the determinations made by the EPA, which has concluded that WTE facilities equipped with modern pollution control systems are a “clean, reliable, renewable source of energy.” The evidence presented by the County in this case demonstrates that the Facility is not likely to have any adverse effect on human health or the environment, even when all four MWC units are operational, if the Facility is built and operated in compliance with the Conditions of Certification. Potential Impacts on Water Quality The Facility’s emissions of nitrogen oxides (i.e., NOx) will not cause or contribute to violations of any water quality standards in any surface waterbody. Environmental Benefits of the Project The addition of Unit No. 4 will provide significant environmental benefits to the County. Unit No. 4 will reduce the volume of processible solid waste by approximately 90 percent. By reducing the volume of processible waste, Unit No. 4 and the Facility will greatly extend the useful life of the County’s landfill, thus postponing the need to build a new landfill. The Facility also will convert putrescible waste into a relatively inert ash, which poses less threat to groundwater resources. The Project will also provide environmental benefits to the State of Florida. For example, the Facility will produce electricity from discarded materials. In this manner, Unit No. 4 will reduce the need to use fossil fuels to generate electricity at traditional power plants. Unit No. 4 will eliminate the need to use approximately 4 million barrels of oil and thus will save approximately $200 million in oil purchases over the next 20 years. Socioeconomic Benefits of the Project The local economy and labor market will benefit from approximately $100 million that the County will spend to construct the Project. A significant amount of construction supplies, goods, and services are anticipated to be purchased from local businesses. The Project will provide jobs for construction workers. The daily workforce is expected to average between 25 and 75 people over a period of approximately 21 months. The addition of Unit No. 4 will also provide approximately 8 new permanent jobs at the Facility. WTE Criteria in Section 403.7061 Section 403.7061, Florida Statutes, establishes several criteria that must be satisfied before an existing waste-to-energy facility may be expanded. The County has provided reasonable assurance that the Project will satisfy all of the standards and criteria in Section 403.7061, Florida Statutes. Among other things, the County has demonstrated that the County’s waste reduction rate has consistently exceeded the State’s 30 percent recycling goal. Consistency With Land Use Plans and Zoning Ordinances As required by Section 403.508(2), Florida Statutes, the County demonstrated that the Site is consistent and in compliance with the Hillsborough County comprehensive land use plan and Hillsborough County’s applicable zoning ordinances. Compliance with Environmental Standards The Department has concluded and the evidence demonstrates that the County has provided reasonable assurance the Project will comply with all of the nonprocedural land use and environmental statutes, rules, policies, and requirements that apply to the Project, including but not limited to those requirements governing the Project’s impacts on air quality, water consumption, stormwater, and wetlands. The County has used all reasonable and available methods to minimize the impacts associated with the construction and operation of the Facility. The location, construction, and operation of the Project will have minimal adverse effects on human health, the environment, the ecology of the State’s lands and wildlife, and the ecology of the State’s waters and aquatic life. The Project will not unduly conflict with any of the goals or other provisions of any applicable local, regional, or state comprehensive plan. The Conditions of Certification establish operational safeguards for the Project that are technically sufficient for the protection of the public health and welfare, with a wide margin of safety. Agency Positions Concerning Certification of the Project On May 4, 2006, the PSC issued a report concluding that the Project was exempt from the PSC’s need determination process, pursuant to Section 377.709(6), Florida Statutes. The DEP, DOT, and SWFWMD recommend certification of the Project, subject to the Conditions of Certification. The other agencies involved in this proceeding did not object to the certification of the Project. The County has accepted, and has provided reasonable assurance that it will comply with, the Conditions of Certification. Public Notice of the Certification Hearing On December 19, 2005, the County published a “Notice of Filing of Application for Electrical Power Plant Site Certification” in the Tampa Tribune, which is a newspaper of general circulation published in Hillsborough County, Florida. On May 25, 2006, the County published notice of the Certification Hearing in the Tampa Tribune. On December 23 and December 30, 2005, the Department electronically published “Notice of Filing of Application for Power Plant Certification.” On May 26, 2006, the Department electronically published notice of the Certification Hearing. The public notices for the Certification Hearing satisfy the informational and other requirements set forth in Section 403.5115, Florida Statutes, and Florida Administrative Code Rules 62-17.280 and 62-17.281(4).
Conclusions For Petitioner Hillsborough County (the “County”) David S. Dee, Esquire Young van Assenderp, P.A. 225 South Adams Street, Suite 200 Tallahassee, Florida 32301-1720 For the Florida Department of Environmental Protection (“Department” or “DEP”) Scott A. Goorland, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard, M.S. 35 Tallahassee, Florida 32399-300
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Governor and Cabinet, sitting as the Siting Board, enter a Final Order granting a site certification for the construction and operation of Unit No. 4 at the Hillsborough County Resource Recovery Facility, in accordance with the Conditions of Certification contained in DEP Exhibit 2. DONE AND ENTERED this 2nd day of August, 2006, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 2nd day of August, 2006.
The Issue Whether the costs incurred by the Department of Environmental Protection, Bureau of Emergency Response (Department) in connection with its response to Incident Number 95-SE-0248 may be recovered from Petitioners pursuant to Chapters 376 and 403, Florida Statutes.
Findings Of Fact The Department is a state regulatory agency charged with the responsibility of administering and enforcing the provisions of Chapters 376 and 403, Florida Statutes. Spill Response, Inc. (Spill Response) is a corporation which was formed in approximately 1986 or 1987, and is presently inactive and without any assets. At all times material to the instant case, George Gordon has been the sole owner, president and director of Spill Response, and, as such, has directed the operations of the corporation. Spill Response was previously in the oil spill response business, as its name suggests. At such time, it had an office in Port Everglades and stored its equipment on fenced and gated property located at 3211 Southwest 50th Avenue, Davie, Florida, on which approximately a dozen large aboveground petroleum storage tanks (surrounded by concrete containment areas) also were situated. At all times material to the instant case, the property located at 3211 Southwest 50th Avenue, Davie, Florida (FPR site) has been owned by Florida Petroleum Reprocessors, Inc. (FPR), an inactive corporation that previously was in the waste oil recovery business. The FPR site, which is presently FPR's only asset, is the subject of a pending foreclosure action initiated by Charles Green, who, at all times material to the instant case, has held a first mortgage on the property. At all times material to the instant case, George Gordon has been the president and director of FPR, and, as such, has directed the operations of the corporation. In the latter part of 1994, the storage tanks on the FPR site were no longer in commercial use. At that time, Gordon, on behalf of FPR, hired Fred Rice to clean and maintain the site in preparation for its closure. Rice was instructed to remove the petroleum residue and sludge from the tanks and from the containment areas. Rice engaged in these petroleum and sludge-removal activities on a part-time basis until the spring of 1995, when he stopped working on the project after not having received timely payment for work he had performed. Rice placed the petroleum residue and sludge that he had removed, as well the rags and other materials that he had used in the removal process, in 55-gallon drums. He filled approximately six or seven such drums. A number of other 55-gallon drums containing petroleum residue and sludge (that some person or persons other than Rice had filled) were already on the FPR site. Rice put the six or seven drums that he had filled on a truck that was parked on the site and had “Spill Response, Inc.” and “Florida Petroleum Reprocessors, Inc.” markings on its sides. The truck was owned by Spill Response and had been on the site for some time. It had no battery and was inoperable. Rice told Gordon that he had put the drums he had filled with petroleum residue and sludge on the Spill Response truck. The next time Gordon went the FPR site, in late May of 1995, he discovered that the locks on the gates had been changed and that there were vehicles and equipment on the property that did not belong there. Gordon telephoned the Davie Police Department to complain about the unauthorized use of the FPR site. A police officer was dispatched to the site to investigate. When the officer arrived on the scene, he encountered Gordon outside one of the gates. Although the gate was locked, Gordon and the officer gained access to the site by squeezing through an opening in the gate. Upon entering the site, they looked around. Based upon what they saw, they correctly "figured out" that Certified Crane and Rigging, Inc., d/b/a Certified Equipment Management Company (Certified) was storing its crane equipment and trucks on the site. At all times material to the instant case, Certified has been owned and operated by William "Skip" Walton. Walton is an acquaintance of the aforementioned Charles Green, the holder of the first mortgage on the FPR site. Certified's telephone number was painted on the equipment and vehicles it was storing on the FPR site. The police officer called the number and spoke with Walton. Following his telephone conversation with Walton, the officer informed Gordon that Walton had indicated, during the conversation, that he was leasing the FPR site from Green. Gordon advised the officer that he did not want to press criminal charges (for trespassing) against either Certified or Walton. Gordon subsequently telephoned Green. Green told Gordon that it was true that he had leased the FPR site to Walton. Green explained to Gordon that he "needed to earn some money from the property." (It had been some time since Green had received any mortgage payments from FPR or Gordon.) Gordon contacted his attorney to discuss with her what legal action, if any, he could take to regain possession of the FPR site and be compensated for the unauthorized use of the property. Gordon's attorney advised him that he "would have recourse if [he] wished to pursu[e] the matter in court," but that it might not be cost-effective for him to do so. Gordon took no action, "in court" or otherwise, to regain possession and control of the FPR site; nor did he take any action to retake possession and control of the Spill Response truck or the filled drums that were in the truck and elsewhere on the site. Furthermore, he made no effort to make sure that the drums and their contents were stored and disposed of properly, believing that the proper storage and disposal of these items were now the responsibility of the new occupant of the site. He did not return to the FPR site for over a year. On or about June 6, 1995, the Department was notified (after its regular business hours) that the Spill Response truck had been discovered abandoned on the side of the road a few blocks from the FPR site. The following day,1 Ann Meador, an Environmental Specialist III with the Department, went to the location where the truck had been abandoned and served as the Department's on- scene coordinator. The truck was in poor condition and still inoperable. It had been brought (not driven) to the location by someone other than Gordon. The truck contained 37 sealed 55-gallon drums, which were in poor condition (but not yet leaking) and had oil residue on the outside. It could not be reliably determined exactly what was in the drums without removing them from the truck and examining and analyzing their contents. Meador made arrangements for OHM Remediation Services Corporation (OHM), with whom the Department had a contract to perform such services on an emergency basis, to assist in the removal of the drums from the truck. OHM personnel (with "Level B" protective clothing and equipment) responded to the scene and removed all 37 drums from the Spill Response truck. After the drums were unsealed, their contents were examined and sampled to the extent possible2 (as were the contents of three additional drums which were filled with the "Level B" protective clothing and equipment that OHM personnel had used during the cleanup operation and then discarded). Each of the drums was assigned a number for identification purposes. To save time and money, samples from some of the drums were composited. The drums were then overpacked and taken to the Department’s hazardous waste storage facility in West Palm Beach, Florida. The Department paid OHM $7,046.93 from the Water Quality Assurance Trust Fund for the services OHM performed. In requesting OHM to perform these services and in paying OHM $7,046.93 for having done so, the Department acted reasonably and prudently. The amount it paid OHM was not excessive. The Department hired Laidlaw Environmental Services (Laidlaw) to analyze the samples that OHM had collected and to then properly dispose of the drums and their contents. Laidlaw's analysis revealed the following: drums numbered 1, 2, 3, 4, 5, 9, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 30, 34, 35, 36, 37, and 38 contained oily sludges, oil, oil mixed with water, or oily residues; drum numbered 6 contained benzene and had a flash point between 73 and 140 degrees Fahrenheit; drum numbered 29 contained benzene and lead and had a flash point of less than 73 degrees Fahrenheit; drums numbered 10 and 11 contained benzene and lead; drums numbered 7, 8, 31, 32, 33 and 39 contained benzene, lead, and cadmium. Laidlaw properly disposed of the drums based upon the results of its analysis. The Department paid Laidlaw $21,163.90 from the Water Quality Assurance Trust Fund for the services it performed. In requesting Laidlaw to perform these services and in paying Laidlaw $21,163.90 for having done so, the Department acted reasonably and prudently. The amount it paid Laidlaw was not excessive. The Department reasonably incurred other expenses (also paid from the Water Quality Assurance Trust Fund) totaling $129.82 in connection with its response to the report it had received concerning the abandonment of the Spill Response truck. The total amount the Department paid from the Water Quality Assurance Trust Fund to have the drums on the truck properly removed and disposed of was $28,340.65. It was not until Gordon received a letter from the Department advising him of the costs the Department had incurred and requesting that Spill Response and he reimburse the Department for these costs that Gordon became aware of the fact that the truck and the drums had been moved from the FPR site.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered by the Department finding that it is entitled to recover from Petitioners, pursuant to Chapters 376 and 403, Florida Statutes, the $28,340.65 in costs the Department reasonably incurred in connection with its response to Incident Number 95-SE-0248. DONE AND ENTERED this 8th day of June, 1998, in Tallahassee, Leon County, Florida. 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 Filed with the Clerk of the Division of Administrative Hearings this 8th day of June, 1998.
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 SJRWMD caused "Request for Qualifications No. 91H157" to be published in the Jacksonville Business Journal on May 3 through 9, 1991. In part, the request stated: Interested firms shall submit a letter of interest (three (3) copies) which contains, but is not limited to, the following: Experience in assessing the environmental fate of pollutants. Familiarity with current and historical agricultural practices employed by vegetable farms in Florida. In particular, knowledge of the storage and application of pesticides and herbicides is required. Ability to perform environmental chemistry and to assess the toxicological, chemical, and physical properties of hazardous materials. Ability to evaluate and/or develop site monitoring plans, industrial hygiene plans, site safety plans, decontamination plans, remediation plans, and abatement measures. Experience in performing environmental audits at potential hazardous waste sites. Staff must have the OSHA required 40 hours Hazardous Waste Site Safety Training pursuant to 29 CFE 1910.120. Documentation of experience in sampling of surface water, ground water, soil, sediment, including installation of temporary and permanent wells and split-spoon borings while following current state and federal approved procedures, and must be capable of preparing and implementing a quality assurance project plan specific to each site assessment. At least $5,000,000 of professional liability insurance. Evaluation of submitted letters of interest will be pursuant to Section 287.055, Florida Statutes. Contracts shall be negotiated pursuant to provisions of Section 287.055, Florida Statutes. Petitioner's Exhibit No. 1. Halff, Jammal and Geraghty & Miller, Inc. (G & M) among others, responded to the request for qualifications with letters of interest. SJRWMD staff evaluated the letters of interest and ranked the respondents in order: Halff was first; Jammal was second; and G & M was third. Staff recommended beginning negotiations with Halff. After tabling the matter at the first Board meeting at which it came up, the Board discussed the staff recommendation on August 14, 1991, and, it seemed from a tape recording of the meeting in evidence, was unfavorably impressed with the fact that Halff had only one full-time employee in Florida, Robert Barnard. (Three other people are in petitioner's Jacksonville office on "a sub-contract basis." T.50.) Mr. Barnard, who would have had charge of the work for SJRWMD if Halff had been chosen, spoke at the Board meeting. He came up to the podium and answered questions, but did not make a formal presentation. No other contender was represented at the Board meeting. As far as the evidence shows, each Board member had read all letters of intent carefully: The record is silent on the point. The Board voted to rerank Jammal and Halff first and second, respectively, and directed staff to begin negotiations with Jammal.
Recommendation It is, accordingly, recommended that SJRWMD proceed with negotiations with Jammal, Halff and G & M in that order. RECOMMENDED this 4th day of March, 1992, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of March, 1992. COPIES FURNISHED: William Lon Allworth, Esquire 1301 Gulf Life Drive, Suite 200 Jacksonville, FL 32207 John W. Williams, Esquire P.O. Box 1429 Palatka, FL 32178-1429 Wayne Flowers, Executive Director St. Johns River Water Management District P.O. Box 1429 Palatka, FL 32178-1429 Daniel H. Thompson, General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, FL 32399-2400
The Issue The issue presented is whether Petitioner City of Opa Locka is responsible for reimbursing the Department of Transportation for the cost of relocating water and sewer lines owned and maintained by Petitioner within the State Road 916 right-of-way.
Findings Of Fact Opa Locka Boulevard and N. W. 135 Street in Dade County, Florida, are paired one-way streets between I-95 and N. W. 27 Avenue. They are located within the city limits of the City of Opa Locka and have been designated as State Road 916. Public records reveal that the portions of Opa Locka Boulevard and N. W. 135 Street which were involved in the Department’s road construction project and the right-of-way attendant to those streets were dedicated to perpetual public use by private landowners platting subdivisions between 1928 and 1956. In 1959 the City of Opa Locka transferred those roadways and rights-of-way to Dade County, Florida, so that the County would be responsible for maintaining them. In 1979 Dade County transferred its interests to the Department. The State Road 916 designation was subsequently made. The Department determined the need to improve those streets by widening them and making other improvements such as installing drainage and lighting. As the Department prepared to begin that project, it conducted a utility pre-design meeting on May 26, 1992. Such a meeting involves the Department’s employees who will be supervising portions of a road improvement project and representatives of the owners of utilities located within the area of anticipated construction. The owners of utilities are advised as to the details and extent of the anticipated construction, and they mark maps as to the location of their utilities. As the road design process proceeds, agreements are made and relocation schedules are prepared. If practical, the Department will design the road around utilities which conflict with the location of the roadway. If designing around the utility is not practical, the owner is required to relocate any utility which conflicts with the Department’s roadway or which interferes with the construction project. If the utility owner intends to relocate its own utilities, a Utility Relocation Schedule is agreed upon by the owner and the Department. If the owner requests that the Department do the relocation work and agrees to pay the costs in advance, a Joint Participation Agreement is entered into, and the Department’s contractor performs the work. The City’s consulting engineer attended the May 1992 utility pre-design meeting and attended many subsequent meetings. Subsequent meetings were also attended by the City’s public works director and the City’s project engineer. During the pre-design and design stages of the road project, the Department was able to design around all utilities or obtain voluntarily removal or relocation by all utility owners except the City. The City maintained that it could not afford to remove or relocate its water and sewer lines. Both the City and the Department were very concerned about the location of the City’s lines and about the lines themselves. The lines were made of cement asbestos and were old. Cement asbestos lines cannot withstand nearby construction and will break. Neither the Department nor the City wanted the lines to break during construction, and the Department did not want to build new roads and have the lines underneath breaking afterward, requiring re-construction. As feared, the City’s sewer line ruptured while another utility owner was relocating its utilities in the area of the City’s sewer line prior to the Department’s construction work. Further, as a result of that other utility owner’s relocation work, it was discovered that the City’s water and sewer lines within the project limits were not in fact located where the City’s maps of the lines reflected. Therefore, the City’s utilities posed a danger to the construction project, and the Department could not allow the lines to remain wherever they were. Due to the City’s position that it could not afford to remove or relocate its water and sewer lines and due to the Department’s need to proceed with the construction project, the Department and the City’s representatives agreed that the Department would issue to the City a 30-day notice to remove or relocate, but the City would not do so. The Department would then do the work for the City, and the City would reimburse the Department for its costs under a reimbursement plan yet to be negotiated. That meeting was attended by the City’s consulting engineer, the City’s former public works director, and the City’s current public works director. Everyone attending agreed that the lines needed to be replaced with newer, stronger lines. The Department agreed to issue the 30-day notice, do the work, and then seek reimbursement from the City since doing so was the only solution to the problem which would allow the road project to proceed without substantial damages and increased costs due to delay. Based upon that agreement and the City’s inability to pay the costs of relocating its water and sewer lines, no Utility Relocation Schedule or Joint Participation Agreement was entered into by the City and the Department. The City’s consulting engineer drew preliminary plans for the relocation of the City’s utilities, and the Department submitted those plans to its contractor to obtain bids for the City’s relocation work. The contractor priced the work and obtained three bids. The subcontract was awarded, the prime contractor added its overhead costs, and that became the anticipated cost. The Department kept the City advised as to additional costs as they were incurred. On July 7, 1993, the Department issued its 30-day notice to the City, expecting the City to respond in the agreed non-adversarial manner. Instead, the City requested this administrative proceeding. As the work was actually performed, the City expressed no disagreement with the materials used or the construction techniques. The City’s representatives were frequent visitors to the construction site since the actual work disclosed more problems. Not only were the City’s utilities not located where the City indicated they were but also the construction crews encountered lines which the City did not know existed. These problems caused additional delays in the project and thereby caused additional expenses to the Department. The reasonable and necessary costs incurred by the Department to remove and relocate the City’s utilities within the project limits total $791,751.07
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED THAT a Final Order be entered finding Petitioner City of Opa Locka responsible for reimbursing the Department of Transportation in the amount of $791,751.07 for the costs incurred in relocating and replacing the City's water and sewer utilities. DONE AND ENTERED this 23rd day of April, 1997, at Tallahassee, Leon County, Florida. LINDA M. RIGOT Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of April, 1997. COPIES FURNISHED: Patricia C. Ellis, City Attorney City of Opa Locka 777 Sharazad Boulevard Opa Locka, Florida 33054 Francine M. Ffolkes Assistant General Counsel Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0458 Ben G. Watts, Secretary Department of Transportation c/o Diedre Grubbs Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0458 Pamela Leslie, General Counsel Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0458
The Issue The issues in each case are whether, pursuant to Sections 489.141 and 489.143, Florida Statutes (2003), a claimant is entitled to payment from the Construction Industries Recovery Fund, and, if so, whether, pursuant to Section 489.143(7), Florida Statutes (2003), Respondent may automatically suspend the residential contractor's license of Petitioner until Petitioner reimburses Respondent for the paid claim.
Findings Of Fact Petitioner is licensed as a certified residential contractor, holding license number CRC 013599. Respondent first issued a residential contractor's license to Petitioner in 1978, and Petitioner has been continually licensed since that time. Petitioner has never been disciplined by Respondent or any local governmental agency. On January 29, 2004, Respondent transmitted to the Division of Administrative Hearings seven files containing administrative complaints alleging disciplinary breaches against Petitioner for many of the transactions covered in the nine subject cases. These seven new cases have not yet been heard, and Respondent has not yet entered any restitution orders against Petitioner. In the past, Petitioner has placed his residential contractor's license with various corporations to qualify them to perform residential construction. In February 1999, Petitioner met with Lori Thomson, president of Thomson Homes, Inc., to discuss placing his license with her residential construction company. Now inactive, Thomson Homes, Inc., had been in the residential construction business since at least 1994, operating out of an office in Palm Beach County, which is also the location of all but one of the residential construction jobs that are the subject of these cases. Since 1994, Thomson Homes, Inc., had used the general contractor's license of Ms. Thomson's husband, Steven Thomson, to qualify to perform residential construction. During the time that his license qualified Thomson Homes, Inc., Mr. Thomson believed that he and his wife owned the corporation equally and that she served as the president and he served as the vice-president. In the summer of 1998, Mr. Thomson filed for divorce from Ms. Thomson. In February 1999, Ms. Thomson fired Mr. Thomson from Thomson Homes, Inc. Shortly thereafter, Mr. Thomson learned that Ms. Thomson had caused all of the stock to be issued to her when the corporation was formed, and that she had assumed all of the officer and director positions. In early March 1999, Mr. Thomson cancelled all of the building permits that he had obtained on behalf of Thomson Homes, Inc., and withdrew his general contractor's license from Ms. Thomson's corporation, effective March 20, 1999. When Mr. Thomson withdrew his license from Thomson Homes, Inc., it was in the process of building or preparing to build about ten homes. At no time during Petitioner's discussions with Ms. Thomson was he aware that Thomson Homes, Inc., was actively involved in construction. Eventually, Ms. Thomson and Petitioner agreed that Petitioner would place his residential contractor's license with Thomson Homes, Inc., and would supervise the corporation's construction activities. In return, Thomson Homes, Inc., would pay Petitioner $500 weekly and 35 percent of the profits. After filing the necessary documentation in April 1999, Petitioner qualified Thomson Homes, Inc. effective April 22 or 26, 1999. Petitioner advised Ms. Thomson that he had other work to do for another month, so he could not start with Thomson Homes, Inc. immediately. Ms. Thomson told him that she had to get financing arranged for several signed contracts and did not have any construction taking place at the time. The record is unclear whether this delay took place after the initial agreement between Petitioner and Ms. Thomson or after Petitioner formally placed his license with Thomson Homes, Inc. However, in either event, from the date that Petitioner formally placed his license with Thomson Homes, Inc., he never had a substantive conversation with Ms. Thomson about any construction activities of Thomson Homes, Inc. Not hearing from Ms. Thomson, Petitioner eventually called her to learn when he would start work. At first, Ms. Thomson took Petitioner's calls and kept explaining that the financing paperwork had been delayed. She promised to call Petitioner when construction was ready to proceed. However, Ms. Thomson never contacted Petitioner, and she later stopped taking or returning Petitioner's calls. In early August 1999, Petitioner called Thomson Homes, Inc., and learned that its telephone had been disconnected. He visited the office of Thomson Homes, Inc., but found it closed and the premises vacated. In fact, Thomson Homes, Inc., discontinued business on or about August 1, 1999. Between the date that Petitioner had qualified Thomson Homes and the point at which Thomson Homes ceased doing business, Thomson Homes, Inc., had entered into construction contracts, taken deposits and draws on construction loans, and performed residential construction--all unknown to Petitioner. Also unknown to Petitioner was the fact that Thomson Homes, Inc., had failed to perform its obligations under many, if not all, of its construction contracts during that period. The record is unclear when Petitioner withdrew his license from Thomson Homes, Inc. Petitioner sent Respondent a letter on August 30, 1999, advising of the withdrawal of his license from Thomson Homes, Inc. Later advised that he needed to file another form to effect the withdrawal, Petitioner did so in March 2000. The difference is not important in these cases. At no time did Petitioner receive any money from Thomson Homes, Inc., or any of the claimants who contracted with Thomson Homes, Inc. At no time did Petitioner enter into any contracts with any of the claimants. Only after Thomson Homes, Inc., had taken the claimants' money and abandoned work or failed to commence work did Petitioner learn that Thomson Homes, Inc., had done construction business under his license. DOAH Case No. 03-3540 involves the claim of Sandra Harvey. Ms. Harvey entered into a construction agreement with Thomson Homes, Inc., on September 9, 1998. Pursuant to the agreement, Ms. Harvey agreed to pay Thomson Homes, Inc., $25,500 for a lot and $115,260 for a home, which Thomson Homes, Inc., agreed to construct to "substantial completion" within 120 days from the date of slab pour. After pouring the slab, constructing the shell, and completing the rough plumbing, air conditioning, and electrical, Thomson Homes, Inc., stopped work on Ms. Harvey's home in early 1999. Ms. Harvey learned of the problem when Mr. Thomson called her in early 1999 and said that he could not finish the home because Ms. Thomson had taken over the business. This call probably took place no later than late March 1999, when Mr. Thomas withdrew as the qualifier for Thomson Homes, Inc. The record does not reveal the extent of payments from Ms. Harvey or her lender or the extent of completed work at the time that Thomson Homes, Inc., abandoned the job. Although the complaint is not part of this record, Ms. Harvey commenced a legal action against Thomson Homes, Inc., but not Petitioner. She obtained a default final summary judgment against Thomson Homes, Inc., on March 30, 2001, for a total sum of $46,267.32, including attorneys' fees, costs, and prejudgment interest. The judgment states, in part: Subsequent to entering into the above referenced contract, Defendant breached its contract by accepting Plaintiff's deposits and construction loan disbursements and thereafter abandoning the project and failing to pay subcontractors and/or materialmen for their labor, services and material provided. As a result of Defendant abandoning the project, Plaintiff was compelled to retain a new contractor to complete her home at an additional cost over and above the original contract amount. As a direct result of Defendant abandoning the project, the misapplication of construction funds and financial mismanagement Plaintiff has been forced to borrow additional funds from the construction lender. On May 3, 2001, Ms. Harvey filed a claim with the Construction Industries Recovery Fund (Recovery Fund). In response to a question asking if she had made a diligent effort to collect payment from the contractor, Ms. Harvey answered "yes," explaining she had "filed lawsuit." Ms. Harvey probably filed her claim within two years of when Thomson Homes, Inc., abandoned her job. By the end of March 1999, Mr. Thomson informed Ms. Harvey that his wife had fired him, so he could not work on her home anymore. A change in qualifier does not mean that Thomson Homes, Inc., would necessarily abandon the job, but, as noted in the Conclusions of Law, abandonment presumptively arises upon the expiration of 90 days without work. No work took place on Ms. Harvey's home after Mr. Thomson withdrew as qualifier, so presumptive abandonment took place by the end of June 1999--after May 3, 1999, which is two years prior to the date on which Ms. Harvey filed her claim. By letter dated June 5, 2001, from James Brogan of WEI Consulting Group to Ms. Harvey, Mr. Brogan states that he had investigated the assets of Thomson Homes, Inc. Mr. Brogan found no bankruptcy filing by Thomson Homes, Inc., in Bankruptcy Court in the Southern District of Florida. Thomson Homes, Inc., was a party to 282 legal actions and owed tangible personal property taxes on furniture in a model home, but the furniture was no longer available. On February 28, 2003, Respondent issued an Order approving Ms. Harvey's claim of $25,000 against the Recovery Fund and automatically suspending Petitioner's license until he reimburses the Recovery Fund for the full amount of the paid claim. The Order, copies of which were served on all parties, states that Ms. Harvey is the Petitioner, the Recovery Fund is a Respondent, and "Larry Shimkus, d/b/a Thomson Homes, Inc.," is a Respondent. The Order advises that "you" may seek a formal hearing, pursuant to Section 120.57(1), Florida Statutes, if material facts are in dispute. On March 17, 2003, Petitioner filed a Petition for Section 120.57 Formal Administrative Hearing. The petition, which was served on Ms. Harvey and Respondent, contests the payment to Ms. Harvey and the automatic suspension of Petitioner's license. The petition contests the payment of Ms. Harvey's claim because she had made insufficient efforts to satisfy the judgment; she had failed to submit all required exhibits with her claim; her judgment is against Thomson Homes, Inc., and not Petitioner; her judgment does not find that Petitioner violated Section 489.129(1)(g), (j), or (k), Florida Statutes; and Ms. Thomson deceived Petitioner in violation of Section 489.132, Florida Statutes. Additionally, the petition contests the automatic suspension because the payment to Ms. Harvey is not authorized, her claim is incomplete, and her judgment is not against Petitioner. Lastly, the petition seeks attorneys' fees under Section 57.111, Florida Statutes. DOAH Case No. 03-3541 involves the claim of John and Kathleen Whitesides. The Whitesides, who lived at the time in Juno Beach, Florida, entered into a construction contract with Thomson Homes, Inc., on February 7, 1999. Pursuant to the agreement, the Whitesides agreed to pay Thomson Homes, Inc., $154,094 for a home, which Thomson Homes, Inc., agreed to construct to "substantial completion" within 120 days from the date of slab pour. After the Whitesides paid Thomson Homes, Inc., $5000 and secured a construction loan, Thomson Homes, Inc., never commenced construction. In a complaint filed April 3, 2000, the Whitesides commenced a legal action against Thomson Homes, Inc., but not Petitioner. The two-count complaint alleges a breach of contract, based on Thomson Homes' alleged "abandon[ment]" of the job "prior to any construction," and unjust enrichment, based on Thomson Homes' alleged receipt of funds and failure to complete construction. The Whitesides obtained a default final judgment against Thomson Homes, Inc., on December 21, 2000, for a total sum of $20,146.67, including attorneys' fees, costs, and prejudgment interest. The judgment states, in part: "Defendant is in breach of the Contract dated February 7, 1999, and has received unjust enrichment from Defendant's failure to fulfill the terms of the Contract to build a home for Plaintiffs." On August 9, 2001, David Tassell, the Whitesides' attorney in the circuit court action against Thomson Homes, Inc., stated, in an acknowledged statement, that he had performed "numerous" real property searches in Palm Beach and Martin counties' public records and determined that Thomas Homes, Inc., "owns no real property in Martin County." The omission of Palm Beach County in the statement is unexplained. Mr. Tassell's statement adds that he has retained a private investigator, who confirmed that Thomson Homes, Inc., owns no boats, planes, or automobiles. On August 10, 2001, the Whitesides filed a claim with the Recovery Fund. In response to a question asking if they had made a diligent effort to collect payment from the contractor, the Whitesides answered "yes," but did not supply an explanation in the following blank. The completed questionnaire accompanying the claim states that the Whitesides discovered the violation in September 1999 and that it occurred in July to August 1999. On September 17, 2002, Respondent issued an Order approving the Whitesides' claim of $18,526.67 against the Recovery Fund and automatically suspending Petitioner's license until he reimburses the Recovery Fund for the full amount of the paid claim. The Order, copies of which were served on all parties, states that the Whitesides are the Petitioners, the Recovery Fund is a Respondent, and "Larry Shimkus, d/b/a Thomson Homes, Inc.," is a Respondent. The Order advises that "you" may seek a formal hearing, pursuant to Section 120.57(1), Florida Statutes, if material facts are in dispute. The Whitesides probably filed their claim within two years of when they reasonably should have discovered that Thomson Homes, Inc., had wrongfully failed to commence construction, as is required for reasons set forth in the Conclusions of Law. As noted in the Conclusions of Law, presumptive abandonment arose when Thomson Homes, Inc., after entering the contract, performed no work for 90 days. Six months elapsed from the signing of the contract to the date that is two years prior to the filing of the claim. Although the record is not well-developed on the point, it is more likely than not that due diligence did not require that the Whitesides discover the abandonment within the first 90 days after it had presumptively arisen. The Whitesides' judgment is probably based on a violation of Section 489.129(1)(g), (j), or (k), Florida Statutes, as is required for reasons set forth in the Conclusions of Law. Although the record is not well-developed on this point either, it is more likely than not that the judgment is based on Thomson Homes' abandonment after entering into the contract. The judgment does not state this basis explicitly, but the complaint, on which the judgment is based, alleges abandonment. On December 23, 2002, Petitioner filed a Petition for Section 120.57 Formal Administrative Hearing. The petition, which was served on Respondent and the Whitesides' attorney in the circuit court action against Thomson Homes, Inc., contests the payment to the Whitesides and the automatic suspension of Petitioner's license. The petition contests the payment of the Whitesides' claim because they did not file certified copies of the final judgment and levy and execution documents and their judgment did not find that Petitioner violated Section 489.129(1)(g), (j), or (k), Florida Statutes. Additionally, the petition contests the automatic suspension because Ms. Thomson deceived Petitioner in violation of Section 489.132, Florida Statutes; Petitioner received no notice of the hearing that resulted in the Order to pay the Whitesides and suspend Petitioner's license; the Whitesides' claim is incomplete; and the Whitesides' judgment is not against Petitioner. Lastly, the petition seeks attorneys' fees under Section 57.111, Florida Statutes. DOAH Case No. 03-3542 involves the claim of Richard and Kathleen Beltz. The Beltzes entered into a construction contract with Thomson Homes, Inc., on July 13, 1999. Pursuant to the agreement, the Beltzes agreed to pay Thomson Homes, Inc., $35,500 for a lot and $140,500 for a home, which Thomson Homes, Inc., agreed to construct to "substantial completion" within 120 days from the date of slab pour. After the Beltzes paid Thomson Homes, Inc., $17,283.70, Thomson Homes, Inc., never appeared at the closing, which had been scheduled for August 10, 1999. Nor did Thomson Homes, Inc., ever commence construction. The record does not disclose the extent, if any, to which Thomson Homes, Inc., completed construction. The Beltzes' discovery of Thomson Homes' failure to commence construction was hampered by the fact that they resided in California at the time. However, the Beltzes had obviously discovered the wrongful acts and omissions of Thomson Homes, Inc., by September 29, 1999, when they sent a letter to Petitioner demanding that he return the money that they had paid Thomson Homes, Inc. On October 19, 1999, the Beltzes signed a claim under the Recovery Fund, but the record contains no indication when the claim was filed. The completed questionnaire attached to the claim does not ask if the claimants had made a diligent effort to collect payment from the contractor. For reasons set forth in the Conclusions of Law, a claim must follow a judgment, so, the Beltzes could not file a valid claim until they had obtained a judgment. Two years from September 29, 1999, at which point the Beltzes obviously knew of a violation, requires that they file the claim, on an already- secured judgment, prior to September 29, 2001. In a complaint filed February 4, 2002, the Beltzes commenced a legal action against Thomson Homes, Inc., but not Petitioner. The two-count complaint alleges a breach of contract, based on Thomson Homes' alleged "abandon[ment]" of the job "prior to any construction" and "fail[ure] and refus[al] to pay subcontractors and/or materialmen which resulted in Claims of Liens against Plaintiffs [sic] residence, which Defendant has failed and refused to satisfy," and unjust enrichment, based on Thomson Homes' alleged receipt of funds and failure to complete construction and pay for goods and services provided by subcontractors and materialmen. The Beltzes obtained a default final summary judgment against Thomson Homes, Inc., on May 22, 2002, for a total sum of $23,280.20, including attorneys' fees, costs, and prejudgment interest. The judgment states, in part: Subsequent to entering into the above referenced contract, Defendant performed some work on the project. However, Defendant breached its contract by accepting deposits and construction loan disbursements and thereafter abandoning the project and failing to pay subcontractors and materialmen for their labor, services and material provided. As a result of Defendant failing to pay Lienors who provided labor, service and materials to Plaintiffs [sic] real property, Construction Liens were recorded against same, which Plaintiffs had to satisfy. As a result of Defendant abandoning the project, Plaintiffs were compelled to retain a new contractor to complete their home at an additional cost over and above the original contract amount. As a direct result of Defendant abandoning the project, failing to pay Lienors, the misapplication of construction funds and financial mismanagement, Plaintiffs were forced to borrow additional funds from their construction lender. By unacknowledged statement dated August 23, 2002, Ms. Beltz declared that someone at the Florida Department of State advised her that Thomson Homes, Inc., was administratively dissolved on September 24, 1999. She also declared that she had found on the internet two pieces of real property owned by Thomson Homes, Inc., but they had been transferred within the past year. Ms. Beltz stated that she searched the database of the "Department of Motor Vehicles in Palm Beach County" in May 2000 and found no vehicles or boats registered to Thomson Homes, Inc. Lastly, she reported that she contacted the "Federal Aviation Association" at an unspecified time and found no "airplanes" registered to Thomson Homes, Inc. On November 26, 2002, Respondent issued an Order approving the Beltzes' claim of $17,222.78 against the Recovery Fund and automatically suspending Petitioner's license until he reimburses the Recovery Fund for the full amount of the paid claim. The Order, copies of which were served on all parties, states that the Beltzes are the Petitioners, the Recovery Fund is a Respondent, and "Larry Shimkus, d/b/a Thomson Homes, Inc.," is a Respondent. The Order advises that "you" may seek a formal hearing, pursuant to Section 120.57(1), Florida Statutes, if material facts are in dispute. On December 27, 2002, Petitioner filed a Petition for Section 120.57 Formal Administrative Hearing. The petition, which was served on the Beltzes and Respondent, contests the payment to the Beltzes and the automatic suspension of Petitioner's license. The petition contests the payment of the Beltzes' claim because they did not submit all of the necessary exhibits with their claim; their judgment is against Thomson Homes, Inc., and not Petitioner; and their judgment does not find that Petitioner violated Section 489.129(1)(g), (j), or (k), Florida Statutes. Additionally, the petition contests the automatic suspension because Ms. Thomson deceived Petitioner in violation of Section 489.132, Florida Statutes; the Beltzes' claim is incomplete; and the Beltzes' judgment is not against Petitioner. Lastly, the petition seeks attorneys' fees under Section 57.111, Florida Statutes. DOAH Case No. 03-3543 involves the claim of Keith and Karen Deyo. The Deyos entered into a construction contract with Thomson Homes, Inc., on October 31, 1998. Pursuant to the agreement, the Deyos agreed to pay Thomson Homes, Inc., $25,500 for a lot and $123,400 for a home, which Thomson Homes, Inc., agreed to construct to "substantial completion" within 120 days from the date of slab pour. Although the Deyos clearly suffered damages from the acts and omissions of Thomson Homes, Inc., the record does not disclose how much they paid the company, how much they had to pay unpaid suppliers and laborers, and how much construction the company completed before abandoning the job. Thomson Homes, Inc., began construction on the Deyos' home about 30-45 days after the parties signed the contract, but all work stopped in July 1999. In an undated complaint, the Deyos commenced a legal action against Thomson Homes, Inc., but not Petitioner. The two-count complaint alleges a breach of contract, based on Thomson Homes' alleged "abandon[ment] of the project prior to completion" and "fail[ure] and refus[al] to pay subcontractors and/or materialmen which resulted in Claims of Liens against Plaintiffs [sic] residence, which Defendant has failed and refused to satisfy," and unjust enrichment, based on Thomson Homes' alleged receipt of funds and failure to complete construction and pay for goods and services provided by subcontractors and materialmen. The Deyos obtained a final summary judgment against Thomson Homes, Inc., on March 15, 2000, for a total sum of $55,458.64, including attorneys' fees, costs, and prejudgment interest. The judgment states, in part: Subsequent to entering into the above referenced contract, Defendant partially performed work under the Contract. However, it breached its contract by accepting deposits and construction loan disbursements and thereafter abandoning the project and failing to pay subcontractors and materialmen for their labor, services and material provided. As a result of Defendant failing to pay lienors who provided labor, services and materials to Plaintiffs [sic] residence, construction liens were recorded against same, which Plaintiffs had to satisfy. As a result of Defendant abandoning the project, Plaintiffs were compelled to retain a new contractor to complete their home at an additional cost over and above the original contract amount. As a direct result of Defendant abandoning the project, failing to pay lienor's [sic], the misapplication of construction funds and financial mismanagement Plaintiffs have been forced to borrow additional funds from their construction lender. On April 27, 2000, the Deyos signed a claim under the Recovery Fund, but the record contains no indication when the claim was filed. A cover letter dated May 8, 2000, suggests that the Deyos mailed their claim a couple of weeks after signing it, so it was probably filed in mid-May 2000, although their questionnaire bears a revision date of November 2001, which would be beyond two years after the violation. In the questionnaire, the Deyos did not respond to the question asking if they had made a diligent effort to collect payment from the contractor. By an undated and unacknowledged statement, Mr. Deyo declared that someone at the Florida Department of State advised him that Thomson Homes, Inc., was administratively dissolved on September 24, 1999. He also declared that he had found on the internet two pieces of real property owned by Thomson Homes, Inc., but they had been transferred within the past year. Mr. Deyo stated that he searched the database of the "department of motor vehicles in Palm Beach County" in on April 14, 2000, and found no motor vehicles or boats registered to Thomson Homes, Inc. Lastly, he reported that he contacted the "Federal Aviation Association" on April 21, 2000, and found no "airplanes" registered to Thomson Homes, Inc. On January 22, 2003, Respondent issued an Order acknowledging the Deyos' claim of $55,458.64, approving the payment of the statutory limit of $25,000 against the Recovery Fund, and automatically suspending Petitioner's license until he reimburses the Recovery Fund for the full amount of the paid claim. The Order, copies of which were served on all parties, states that Mr. Deyo is the Petitioner, the Recovery Fund is a Respondent, and "Larry Shimkus, d/b/a Thomson Homes, Inc.," is a Respondent. The Order advises that "you" may seek a formal hearing, pursuant to Section 120.57(1), Florida Statutes, if material facts are in dispute. On February 3, 2003, Petitioner filed a Petition for Section 120.57 Formal Administrative Hearing. The petition, which was served on Respondent and the Deyos' attorney who represented them in the action against Thomson Homes, Inc., contests the payment to the Deyos and the automatic suspension of Petitioner's license. The petition contests the payment of the Deyos' claim and suspension of Petitioner's license because Petitioner did not receive notice of the hearing at which Respondent entered the Order; the Deyos did not satisfy all requirements for payment from the Recovery Fund; their claim was not accompanied by certified copies of the levy and execution documents; their judgment is against Thomson Homes, Inc., and not Petitioner; their judgment does not find that Petitioner violated Section 489.129(1)(g), (j), or (k), Florida Statutes; and Ms. Thomson deceived Petitioner in violation of Section 489.132, Florida Statutes. Lastly, the petition seeks attorneys' fees under Section 57.111, Florida Statutes. DOAH Case No. 03-3544 involves the claim of Sylvia Reinhardt. Ms. Reinhardt entered into a construction contract with Thomson Homes, Inc., on October 14, 1998. Pursuant to the agreement, Ms. Reinhardt agreed to pay Thomson Homes, Inc., $45,000 for a lot and $147,150 for a home, which Thomson Homes, Inc., agreed to construct to "substantial completion" within 120 days from the date of slab pour. After Ms. Reinhardt paid Thomson Homes, Inc., $144,769, directly and indirectly, by way of her construction lender, the house was little more than half complete when Thomson Homes, Inc., abandoned the job. Thomson Homes also failed to pay various suppliers that filed liens, so Ms. Reinhardt had to pay $8550.41 to RTS Roofing, $882 to Palm Beach Garage Door, and $3421.32 to Woodworks, Inc. In an undated complaint filed in 1999 (actual date illegible), Ms. Reinhardt commenced a legal action against Thomson Homes, Inc., but not Petitioner. The two-count complaint alleges a breach of contract, based on Thomson Homes' alleged "abandon[ment]" of the job "prior to completion" and "fail[ure] and refus[al] to pay subcontractors and/or materialmen which resulted in Claims of Liens against Plaintiff's residence, which Defendant has failed and refused to satisfy," and unjust enrichment, based on Thomson Homes' alleged receipt of funds and failure to complete construction and pay for goods and services provided by subcontractors and materialmen. Ms. Reinhardt obtained a final summary judgment against Thomson Homes, Inc., on March 28, 2000, for a total sum of $61,471.15, including attorneys' fees, costs, and prejudgment interest. The judgment states, in part: Subsequent to entering into the above referenced contract, Defendant performed work under the Contract. However, it breached its contract by accepting deposits and construction loan disbursements and thereafter abandoning the project and failing to pay subcontractors and materialmen for their labor, services and materials provided. As a result of Defendant failing to pay lienors who provided labor, services and materials for the construction of Plaintiff's residence, construction liens were recorded against same, which Plaintiff had to satisfy. As a result of Defendant abandoning the project, Plaintiff was compelled to retain a new contractor to complete their [sic] home at an additional cost over and above the original contract amount. As a direct result of Defendant abandoning the project, failing to pay lienor's [sic], the misapplication of construction funds and financial mismanagement Plaintiff has been forced to borrow additional funds from her construction lender. On April 17, 2000, Ms. Reinhardt filed a claim with the Recovery Fund. In response to a question asking if she had made a diligent effort to collect payment from the contractor, Ms. Reinhardt answered "yes" and explained: "Telephone calls were unanswered. Certified mail requesting response were [sic] never answered. Our attorney made written and personal contact with the owner and there was no intention to pay." The claim states that the violation took place in July 1999. By acknowledged statement dated July 21, 2000, Ms. Reinhardt declared that she had completed a "reasonable search and inquiry" and had not found any property or assets against which to satisfy her judgment. Ms. Reinhardt stated that someone at the Florida Department of State advised her that Thomson Homes, Inc., was administratively dissolved on September 24, 1999. She also declared that she had found one parcel of property owned by Thomson Homes, Inc., and valued at $115,387, but this had been sold to "Joan Thomson" on February 1, 2000. Ms. Reinhardt stated that she had found tangible personal property worth $5000. She added that she had not found any motor vehicles registered with the Department of Highway Safety and Motor Vehicles, nor had she found anything registered with the "FAA." On November 26, 2002, Respondent issued an Order acknowledging Ms. Reinhardt's claim of $58,661.44, approving the payment of the statutory limit of $25,000 against the Recovery Fund, and automatically suspending Petitioner's license until he reimburses the Recovery Fund for the full amount of the paid claim. The Order, copies of which were served on all parties, states that Ms. Reinhardt is the Petitioner, the Recovery Fund is a Respondent, and "Larry Shimkus, d/b/a Thomson Homes, Inc.," is a Respondent. The Order advises that "you" may seek a formal hearing, pursuant to Section 120.57(1), Florida Statutes, if material facts are in dispute. On December 24, 2002, Petitioner served a Petition for Section 120.57 Formal Administrative Hearing. The petition, which was served on Ms. Reinhardt and Respondent, contests the payment to Ms. Reinhardt and the automatic suspension of Petitioner's license. The petition contests the payment of Ms. Reinhardt's claim and suspension of Petitioner's license because Ms. Reinhardt did not submit certified copies of the levy and execution documents; her judgment is against Thomson Homes, Inc., and not Petitioner; her judgment does not find that Petitioner violated Section 489.129(1)(g), (j), or (k), Florida Statutes; and Ms. Thomson deceived Petitioner in violation of Section 489.132, Florida Statutes. Lastly, the petition seeks attorneys' fees under Section 57.111, Florida Statutes. DOAH Case No. 03-3545 involves the claim of Louis and Ann Mahoney. The Mahoneys entered into a construction contract with Thomson Homes, Inc., on June 28, 1999, for the construction of a home in Martin County. Pursuant to the agreement, the Mahoneys agreed to pay Thomson Homes, Inc., $32,000 for a lot and $149,000 for a home, which Thomson Homes, Inc., agreed to construct to "substantial completion" within 150 days from the date of slab pour. After the Mahoneys paid Thomson Homes, Inc., $14,500, directly and indirectly, by way of their construction lender, they suffered damages due to the acts and omissions of Thomson Homes, Inc., although, again, the record does not describe specifically how Thomson Homes caused them damage. In an undated complaint that bears no filing date, the Mahoneys commenced a legal action against Thomson Homes, Inc., but not Petitioner. The two-count complaint alleges a breach of contract, based on Thomson Homes' alleged "abandon[ment]" of the job "prior to completion" and "fail[ure] and refus[al] to pay subcontractors and/or materialmen which resulted in Claims of Liens against Plaintiffs [sic] residence, which Defendant has failed and refused to satisfy," and unjust enrichment, based on Thomson Homes' alleged receipt of funds and failure to complete construction and pay for goods and services provided by subcontractors and materialmen. The Mahoneys obtained a final summary judgment against Thomson Homes, Inc., on April 13, 2000, for a total sum of $43,084.49, including attorneys' fees, costs, and prejudgment interest. The judgment states, in part: Subsequent to entering into the above referenced contract, Defendant breached its contract by accepting Plaintiffs' deposits and construction loan disbursements and thereafter abandoning the project and failing to pay subcontractors and/or materialmen for their labor, and/or services provided. As a result of Defendant failing to pay lienor's [sic] who provided labor, services and materials for the construction of Plaintiffs [sic] residence, a construction lien was recorded against Plaintiffs' property, which Plaintiffs will have to satisfy. As a result of Defendant abandoning the project, Plaintiffs were compelled to retain a new contractor to complete their home at an additional cost over and above the original contract amount. As a direct result of Defendant abandoning the project, failing to pay lienor's [sic], the misapplication of construction funds and financial mismanagement Plaintiffs have been forced to borrow additional funds from their construction lender. On April 30, 2000, the Mahoneys signed a claim under the Recovery Fund. Although the claim form bears no filing date, the completed questionnaire attached to the claim was filed on May 3, 2000, so that is the likely filing date of the claim. In response to a question asking if they had made a diligent effort to collect payment from the contractor, the Mahoneys answered "yes" and explained: "This is explained in General Allegations, enclosed with this paperwork." Evidently, the reference is to a copy of the circuit court complaint. By acknowledged statement dated April 8, 2002, Mr. Mahoney declared that he had completed a "reasonable search and inquiry" and had not found any property or assets against which to satisfy his judgment. Mr. Mahoney stated that someone at the Florida Department of State advised him that Thomson Homes, Inc., was administratively dissolved on September 24, 1999. He also declared that an internet search had disclosed no property owned by Thomson Homes, Inc. Mr. Mahoney stated that the "department of motor vehicles in Palm Beach County" found no motor vehicles or boats registered to Thomson Homes, Inc., and that the "FAA" had found nothing registered to Thomson Homes, Inc. On February 28, 2003, Respondent issued an Order acknowledging the Mahoneys' claim of $38,185, approving the payment of the statutory limit of $25,000 against the Recovery Fund, and automatically suspending Petitioner's license until he reimburses the Recovery Fund for the full amount of the paid claim. The Order, copies of which were served on all parties, states that the Mr. Mahoney is the Petitioner, the Recovery Fund is a Respondent, and "Larry Shimkus, d/b/a Thomson Homes, Inc.," is a Respondent. The Order advises that "you" may seek a formal hearing, pursuant to Section 120.57(1), Florida Statutes, if material facts are in dispute. On March 17, 2003, Petitioner served a Petition for Section 120.57 Formal Administrative Hearing. The petition, which was served on the Mahoneys and Respondent, contests the payment to the Mahoneys and the automatic suspension of Petitioner's license. The petition contests the payment of the Mahoneys' claim and suspension of Petitioner's license because they did not submit all of the required exhibits; their judgment is against Thomson Homes, Inc., and not Petitioner; their judgment does not find that Petitioner violated Section 489.129(1)(g), (j), or (k), Florida Statutes; and Ms. Thomson deceived Petitioner in violation of Section 489.132, Florida Statutes. Lastly, the petition seeks attorneys' fees under Section 57.111, Florida Statutes. DOAH Case No. 03-3546 involves the claim of Dennis and Carolyn DeStefanis. The DeStefanises entered into a construction contract with Thomson Homes, Inc., on April 7, 1999. Pursuant to the agreement, the DeStefanises agreed to pay Thomson Homes, Inc., $137,455 for a home, which Thomson Homes, Inc., agreed to construct to "substantial completion" within 150 days from the date of slab pour. After the DeStefanises paid Thomson Homes, Inc., $15,765, directly and indirectly, by way of their construction lender, Thomson Homes, Inc. never did any work, except to contract with a surveyor, who, unpaid, filed a claim of lien against the DeStefanises's lot. In an undated complaint bearing no filing date, the DeStefanises commenced a legal action against Thomson Homes, Inc., but not Petitioner. The two-count complaint alleges a breach of contract, based on Thomson Homes' alleged "abandon[ment]" of the job "prior to completion" and "fail[ure] and refus[al] to pay subcontractors and/or materialmen which resulted in Claims of Liens against Plaintiffs [sic] residence, which Defendant has failed and refused to satisfy," and unjust enrichment, based on Thomson Homes' alleged receipt of funds and failure to complete construction and pay for goods and services provided by subcontractors and materialmen. The DeStefanises obtained a final summary judgment against Thomson Homes, Inc., on March 15, 2000, for a total sum of $36,701.87, including attorneys' fees and costs. The judgment states, in part: Subsequent to entering . . . into the above referenced contract, Defendant, [sic] breached its contract by accepting Plaintiffs [sic] deposits and construction loan disbursements and thereafter abandoning the project. [sic] As a result of Defendant abandoning the project, Plaintiffs were compelled to retain a new contractor to complete their home at an additional cost over and above the original contract amount. As a direct result of Defendant abandoning the project, the misapplication of construction funds and financial mismanagement Plaintiffs have been forced to borrow additional funds from their construction lender. On April 19, 2000, the DeStefanises filed a claim with the Recovery Fund. In response to a question asking if they had made a diligent effort to collect payment from the contractor, the DeStefanises answered "yes" and explained: "Went to DBPR Investigative Services, hired Attorney Barry W. Taylor [attorney in circuit court action], got Final Summary Judgment against Thomson Homes, Inc." On March 20, 2003, Respondent issued an Order acknowledging the DeStefanises' claim of $34,965.52, approving the payment of $15,765 against the Recovery Fund, and automatically suspending Petitioner's license until he reimburses the Recovery Fund for the full amount of the paid claim. The Order, copies of which were served on all parties, states that the DeStefanises are the Petitioners, the Recovery Fund is a Respondent, and "Larry Shimkus, d/b/a Thomson Homes, Inc.," is a Respondent. The Order advises that "you" may seek a formal hearing, pursuant to Section 120.57(1), Florida Statutes, if material facts are in dispute. On April 7, 2003, Petitioner filed a Petition for Section 120.57 Formal Administrative Hearing. The petition, which was served on the DeStefanises and Respondent, contests the payment to the DeStefanises and the automatic suspension of Petitioner's license. The petition contests the payment of the DeStefanises' claim and suspension of Petitioner's license because they did not submit all of the required exhibits; their judgment is against Thomson Homes, Inc., and not Petitioner; their judgment does not find that Petitioner violated Section 489.129(1)(g), (j), or (k), Florida Statutes; and Ms. Thomson deceived Petitioner in violation of Section 489.132, Florida Statutes. The petition contests the suspension of Petitioner's license on the additional ground that he was not the qualifier for Thomson Homes, Inc., when it and the DeStefanises entered into the construction contract. Lastly, the petition seeks attorneys' fees under Section 57.111, Florida Statutes. DOAH Case No. 03-3547 involves the claim of James and Donna Barr. The Barrs entered into a construction contract with Thomson Homes, Inc., on September 12, 1998. Pursuant to the agreement, the Barrs agreed to pay Thomson Homes, Inc., $30,000 for a lot and $140,900 for a home, which Thomson Homes, Inc., agreed to construct to "substantial completion" within 120 days from the date of slab pour. The Barrs paid Thomson Homes, Inc., $8500 in the form of a down payment. They or their construction lender paid Thomson Homes, Inc., considerably more money and suffered the imposition of claims of lien by unpaid subcontractors and suppliers, but, after negotiating with the bank, emerged from the transaction having lost only the $8500 down payment. Thomson Homes, Inc., obtained permits in April 1999 and started construction in May 1999. Before abandoning the job, Thomson Homes, Inc., worked on the home in May, June, and July of 1999. The Barrs and their lender did not make additional payments after the Barrs found the Thomson Homes, Inc., office empty on August 1, 1999. In a complaint filed October 6, 1999, the Barrs commenced a legal action against Thomson Homes, Inc., but not Petitioner. The two-count complaint alleges a breach of contract, based on Thomson Homes' alleged "abandon[ment]" of the job "prior to completion" and "fail[ure] and refus[al] to pay subcontractors and/or materialmen which resulted in Claims of Liens against Plaintiffs [sic] residence, which Defendant has failed and refused to satisfy," and unjust enrichment, based on Thomson Homes' alleged receipt of funds and failure to complete construction and pay for goods and services provided by subcontractors and materialmen. The Barrs obtained a final summary judgment against Thomson Homes, Inc., on May 8, 2000, for a total sum of $45,435.62, including attorneys' fees, costs, and prejudgment interest. The judgment states, in part: Subsequent to entering into the above referenced contract, partially performed work under the Contract. However, Defendant breached the contract by accepting Plaintiffs [sic] deposits and construction loan disbursements and thereafter abandoning the project and failing to pay subcontractors and/or materialmen for their labor services and materials provided. As a result of Defendant failing to pay lienors who provided labor, services and materials for the construction of Plaintiffs [sic] residence, construction liens were recorded against same, which Plaintiffs will have to satisfy. As a result of Defendant abandoning the project, Plaintiffs will be compelled to retain a new contractor to complete their home at an additional cost over and above the original contract amount. As a direct result of Defendant abandoning the project, failing to pay lienors, the misapplication of construction funds and financial mismanagement Plaintiffs will be forced to borrow additional funds from their construction lender. On June 2, 2000, the Barrs filed a claim under the Recovery Fund. In response to a question asking if they had made a diligent effort to collect payment from the contractor, the Barrs answered "yes" and explained: "I have looked into the assets of Thomson Homes Inc. and they do not have any. My affidavit is attached." The completed questionnaire states that the Barrs discovered the violation on August 11, 1999. They therefore failed to file their claim within two years of the discovery of the violation. By acknowledged statement dated May 23, 2000, Ms. Barr declared that she had completed a "reasonable search and inquiry" and had not found any property or assets against which to satisfy her judgment. Ms. Barr stated that someone at the Florida Department of State advised her that Thomson Homes, Inc., was administratively dissolved on September 24, 1999. She also declared she had found no property owned by Thomson Homes, Inc., in Palm Beach County. Ms. Barr stated that the Department of Highway Safety and Motor Vehicles found no motor vehicles or boats registered to Thomson Homes, Inc., and that the internet site of the "FAA" had revealed nothing registered to Thomson Homes, Inc. On November 26, 2002, Respondent issued an Order approving the payment of the Barrs' claim of $8500 against the Recovery Fund and automatically suspending Petitioner's license until he reimburses the Recovery Fund for the full amount of the paid claim. The Order, copies of which were served on all parties, states that the Barrs are the Petitioners, the Recovery Fund is a Respondent, and "Larry Shimkus, d/b/a Thomson Homes, Inc.," is a Respondent. The Order advises that "you" may seek a formal hearing, pursuant to Section 120.57(1), Florida Statutes, if material facts are in dispute. On December 27, 2002, Petitioner served a Petition for Section 120.57 Formal Administrative Hearing. The petition, which was served on the Barrs and Respondent, contests the payment to the Barrs and the automatic suspension of Petitioner's license. The petition contests the payment of the Barrs' claim and suspension of Petitioner's license because they did not submit a certified copy of the levy and execution documents; their judgment is against Thomson Homes, Inc., and not Petitioner; their judgment does not find that Petitioner violated Section 489.129(1)(g), (j), or (k), Florida Statutes; and Ms. Thomson deceived Petitioner in violation of Section 489.132, Florida Statutes. Lastly, the petition seeks attorneys' fees under Section 57.111, Florida Statutes. DOAH Case No. 03-3633 involves the Joanne Myers. Ms. Myers entered into a construction contract with Thomson Homes, Inc., on February 7, 1999. Pursuant to the agreement, Ms. Myers agreed to pay Thomson Homes, Inc., $29,500 for a lot and $125,400 for a home, which Thomson Homes, Inc., agreed to construct to "substantial completion" within 120 days from the date of slab pour. Ms. Myers directly or indirectly paid Thomson Homes, Inc., $12,840. According to Ms. Myers' claim, Thomson Homes, Inc., never commenced construction before going out of business in August 1999. In an undated complaint bearing no filing date, Ms. Myers commenced a legal action against Thomson Homes, Inc., but not Petitioner. The two-count complaint alleges a breach of contract, based on Thomson Homes' alleged "abandon[ment]" of the job "prior to completion" and "fail[ure] and refus[al] to pay subcontractors and/or materialmen which resulted in Claims of Liens against Plaintiff's residence, which Defendant has failed and refused to satisfy," and unjust enrichment, based on Thomson Homes' alleged receipt of funds and failure to complete construction and pay for goods and services provided by subcontractors and materialmen. Ms. Myers obtained a final summary judgment against Thomson Homes, Inc., on May 31, 2000, for a total sum of $28,307.77, including attorneys' fees, costs, and prejudgment interest. The judgment states, in part: Subsequent to entering . . . into the above referenced contract, Defendant breached the contract by accepting Plaintiff's deposits and construction loan disbursements and thereafter abandoning the project and failing to pay subcontractors and/or materialmen for their labor services and materials provided. As a result of Defendant failing to pay lienor's [sic] who provided labor, services and/or materials for the construction of Plaintiff's residence, construction liens were recorded against same, which Plaintiff will have to satisfy. As a result of Defendant abandoning the project, Plaintiff will be compelled to retain a new contractor to complete her home at an additional cost over and above the original contract amount. As a direct result of Defendant abandoning the project, failing to pay lienor's [sic], the misapplication of construction funds and financial mismanagement Plaintiff will be forced to borrow additional funds from her construction lender. On September 18, 2000, Ms. Myers filed a claim with the Recovery Fund. In response to a question asking if she had made a diligent effort to collect payment from the contractor, Ms. Myers answered "yes" and explained: "Contractor closed corporate office--would not answer telephone calls." By letter dated November 30, 2000, from James Brogan of WEI Consulting Group to Ms. Myers, Mr. Brogan states that he had investigated the assets of Thomson Homes, Inc. Mr. Brogan found no bankruptcy filing by Thomson Homes, Inc., in the Southern District of Florida. Thomson Homes, Inc., was a party to 282 legal actions and owed tangible personal property taxes on furniture in a model home. On February 28, 2003, Respondent issued an Order approving the payment of Ms. Myers' claim of $14,080.66 against the Recovery Fund and automatically suspending Petitioner's license until he reimburses the Recovery Fund for the full amount of the paid claim. The Order, copies of which were served on all parties, states that Ms. Myers is the Petitioner, the Recovery Fund is a Respondent, and "Larry Shimkus, d/b/a Thomson Homes, Inc.," is a Respondent. The Order advises that "you" may seek a formal hearing, pursuant to Section 120.57(1), Florida Statutes, if material facts are in dispute. On March 17, 2003, Petitioner filed a Petition for Section 120.57 Formal Administrative Hearing. The petition, which was served on Ms. Myers and Respondent, contests the payment to Ms. Myers and the automatic suspension of Petitioner's license. The petition contests the payment of Ms. Myers' claim and suspension of Petitioner's license because she did not submit evidence of a diligent search for assets; she did not submit all of the required exhibits; her judgment is against Thomson Homes, Inc., and not Petitioner; her judgment does not find that Petitioner violated Section 489.129(1)(g), (j), or (k), Florida Statutes; and Ms. Thomson deceived Petitioner in violation of Section 489.132, Florida Statutes. Lastly, the petition seeks attorneys' fees under Section 57.111, Florida Statutes. On January 4, 2004, Ms. Myers died. However, the probate court of Lancaster County, Pennsylvania, issued letters testamentary on her estate to James W. Myers III, in whose name Ms. Myers' claim is now being prosecuted. At the hearing, Petitioner contended that most, if not all, of the claims failed because the claimants had not exercised reasonable diligence in searching for assets, although Petitioner has dropped this contention in its proposed recommended order. In his petitions for hearing, Petitioner raised this contention only as to Ms. Myers. Ms. Myers, as well as the remainder of the claimants, made or caused to be made a reasonable search and inquiry for the assets of Thomson Homes, Inc. It is obvious that Thomson Homes, Inc., had no assets by the first letter from Mr. Brogan, dated November 30, 2000, nor did it have assets when Mr. Brogan issued his later letter on June 5, 2001, or when the attorney issued his affidavit on August 9, 2001. What is reasonable, in terms of a search, is dictated here by the fact that Thomson Homes, Inc., had no discoverable assets against which it could be made to answer for the considerable fraud that it perpetrated against these nine claimants. Respondent provided all of the parties, including Petitioner, with notice of its hearings at which it entered Recovery Fund orders. The petitions contend that Petitioner received no such notice in the Whitesides and Deyos cases. Although not litigated at the hearing, the presumption of notice, pursuant to the recitations set forth in each of Respondent's orders, results in a finding that Petitioner received timely notice in all cases.
Recommendation It is RECOMMENDED that Respondent enter a final order dismissing the claims against the Recovery Fund of the Beltzes and Barrs; paying the claims against the Recovery Fund of the remaining claimants, pursuant to the provisions of the orders of Respondent already issued in these cases and pursuant to the provisions of Section 489.143(1)-(6), Florida Statutes; and dismissing Respondent's request for the automatic suspension of Petitioner's license, pursuant to Section 489.143(7), Florida Statutes, without prejudice to any separate disciplinary proceedings that Respondent has commenced or may commence against Petitioner or others for the acts and omissions involved in these nine cases. DONE AND ENTERED this 17th day of February, 2004, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of February, 2004. COPIES FURNISHED: Bruce G. Kaleita Law Office of Bruce G. Kaleita, P.A. 1615 Forum Place, Suite 500 West Palm Beach, Florida 33401 Adrienne C. Rodgers Assistant General Counsel Department of Business and Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-1023 Tim Vaccaro, Director Construction Industry Licensing Board Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Nancy Campiglia, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202
