The Issue Whether Okaloosa County has provided reasonable assurances that its proposed sewage treatment plant and an associated reclaimed water reuse system will not cause pollution significantly degrading the waters of the unnamed stream on the project site and/or the Santa Rosa Sound and that therefore the County's application for a permit to construct such facilities should be granted on the basis of assurances of compliance with applicable rule and statutory criteria.
Findings Of Fact On October 16, 1987, Respondent, Okaloosa County, submitted an application to Respondent, Department of Environmental Regulation, to construct a wastewater treatment plant and related reclaimed water reuse facilities on a site located in southwestern Okaloosa County. The Petitioner is an individual citizen residing in Okaloosa County, Florida. He is the owner of real property which adjoins the northern boundary of the proposed project site. Mr. Ward has used this property as his principal residence for approximately 8 years. The proposed project site is located in southwest Okaloosa County contiguous to the western boundary of the County. The site comprises approximately 45 acres of land bounded on the west by Rosewood Drive and on the south by State Highway 98. The areas to the north and east are residential construction. The site is currently a densely wooded area vegetated with a variety of flora indigenous to the area. The site is essentially bisected by a small fresh water stream system which enters the site at the northwestern corner and runs diagonally to the southeastern corner where it flows through a series of culverts under State Highway 98. The stream system constitutes waters of the state subject to the Department's regulatory jurisdiction. In addition, there is an isolated wetland area of variable size in the northwestern section of the project site. The wetland area is not subject to the Department's regulatory authority. The stream system mentioned above intersects with another larger stream approximately 1000 feet southeast of the project site. These combined streams then meander into a tidal basin which empties into the Santa Rosa Sound approximately 2500 feet south of the project site. The Santa Rosa Sound has been designated as Class II waters of the state. The unnamed stream system on site, as well as the larger stream that it joins south of the site, are designated as Class III waters of the State. Southern Okaloosa County occupies a region of moderate elevation (0-70 feet above sea level) extending along a strip 10 or 15 miles wide along the coast of the Gulf of Mexico. Soils in this area are predominately fine sands low in organic matter. When dry, most of the soils have rapid internal drainage characteristics. The Plant The proposed plant is intended to treat sewage generated by the County's Western subregional service area. Initially, it will treat the flow currently handled by approximately 1400 septic tank systems and 9 package treatment plants within the area. The collection system which will transport the wastewater will be comprised of approximately 98,500 linear feet of 8 to 12 inch diameter gravity sewers. The transmission facilities to convey the raw wastewater from the new collection system will include the construction of approximately 29,400 linear feet of 4 to 10 inch diameter force main, 14 pump stations and approximately 32,100 linear feet of 8 to 12 inch diameter gravity interceptors. By the end of its first year of operation, the proposed facility is projected to receive and treat approximately 750,000 gallons per day ("GPD"). The projected flow through the wastewater facility in the year 2007 is 1,000,000 GPD. The proposed facility is best described as a 1,000,000 GPD capacity oxidation ditch treatment plant with nitrification and denitrification facilities. Reclaimed water reuse will be accomplished by a rapid infiltration basin system (RIB). Sludge from the system will be dewatered by a mechanical belt press system and disposed of at the County landfill. In order to address the question of potential odors which result from the operation of the plant, the facility was located as near the center of the property as possible in order to give as much buffer area as possible between the facility and the surrounding residential area. In addition, the design of the treatment facility incorporates a preprocess aeration tank equipped with an activated carbon airstripper system which is specifically designed to remove the odor from the wastewater influent. The treatment facility was also located near the center of the property in order to keep any noise resulting from the operation of the plant as far away from the surrounding area as possible. The plant utilizes noiseless gravity flow techniques and does not incorporate any blower or pump technology which usually cause a significant amount of noise in wastewater treatment plants. It is expected that the noise level from the operation of this facility would be less than the noise level generated from the traffic on State Highway 98 nearby. The plant is designed to minimize the adverse effects resulting from odors, noise, aerosol drift and lighting. The entire facility is enclosed by a fence. The facility is designed and does comply with the Florida Administrative Code requirements for protection from flooding. The proposed site is at a higher elevation than the established 100 year flood elevation for the area. The plant is designed so that every operational component of the plant has a backup system. The plant is equipped with an emergency generator capable of supplying sufficient power to operate the plant in the event of a power failure. The design of the plant complies with the standards provided by the Environmental Protection Agency for mechanical reliability. The information submitted for the Department's review in relation to the County's construction permit application addressed all the information required in Rule 17-6.037(10), Florida Administrative Code. The proposed plant facility is designed to leave a buffer zone approximately 200 feet wide between the reclaimed water reuse system and the stream system located on the project site. The construction plan prohibits any construction activities and/or clearing within the buffer area. This buffer area contains all the jurisdictional areas which are related to the stream system. The Treatment Process The waste treatment process proposed for this facility consists of secondary treatment, basic disinfection and pH control as defined in Rule 17- 6.060(1)(a)3, (c) and (d). The basic treatment process technology used in the proposed plant is described as a carousel activated sludge process. This process is a superior method of wastewater treatment because of its inherent stability, its reaction to shock and toxic loadings and the degree of process control that is available to the operator. The effluent limitations that the Department has established for this facility require that the effluent, after disinfection, contain not more than 20 mg/1 Biological Oxygen Demand ("BOD") and 20 mg/1 Total Suspended Solids ("TSS"). In addition, effluent standards require a basic level of disinfection which shall result in not more than 200 fecal coliform values per 100 ml of effluent sample. The chlorine residual in recovered water shall be maintained at 0.5 mg/1 minimum, after 15 minutes contact time at peak flow. The pH level in the effluent must be maintained in a range between 6.0 Q and 8.5. The County will be required to retain a Class B operator certified under the provisions of Chapter 17-16, Florida Administrative Code for day-to- day maintenance and operation of the treatment facilities. In addition, the facility must be staffed for a minimum of 16 hours per day, seven days a week by at least a Class C operator certified under the same provisions. A Class B operator shall be on call during all periods that the plant is unattended. At a minimum, the facility must produce reclaimed water which complies with water quality standards provided in Rule 17- 3.404, Florida Administrative Code, as it interacts with groundwater in the established zone of discharge ("ZOD"). The estimated ZOD is an area defined by the boundaries of the facility. These standards are essentially equal to drinking water standards provided in Rule 17-22, Florida Administrative Code. Because the soils under the site are rapid sands, the Department does not rely on them to significantly reduce total nitrogen in the reclaimed water through interaction with the soils and the groundwater table under the rapid infiltration basins. As a result, the proposed facility is limited to a Total Nitrogen limitation of 7 mg/1. This limitation is significantly less than the Department's rapid rate land application treatment standard for Total Nitrogen which is 12 mg/1 in the effluent, with no more than 10 mg/1 in the ground. The proposed plant is capable of producing the 7 mg/1 level under all flow conditions. The Rabid Infiltration Basins In conjunction with the County's application for a construction permit for the wastewater treatment plant itself, the County submitted an application for a reclaimed water reuse system construction permit for a system designed to handle the maximum plant discharge of 1,000,000 gallons of reclaimed water per day. The system is composed of a series of five rapid infiltration basins (RIB's) or percolation ponds designed to receive the daily reclaimed water loads from the operation of the plant and allow the water to percolate into the groundwater beneath the project site. The ponds are proposed to be used so that not all the ponds are working at the same time. On any given day, there will be 3 ponds receiving effluent from the plant and 2 ponds receiving no effluent. The proposed system of rapid infiltration basins is the best approach to effluent disposal on this particular site in consideration of a variety of site specific criteria. While the Department's adopted guidance standards for percolation pond location specifies that areas with average depths to the groundwater table of 10 feet or more are desirable, the guidance document provides that areas with lesser depths may be acceptable. Computer models using highest projected groundwater levels and highest reasonably projected mounding effects related to the effluent disposal system indicate that while at times there may be less than 3 feet of vertical separation between the top of the groundwater mounds beneath any one of the percolation ponds and the floor of those ponds, it is not expected that the groundwater level will intersect the bottoms of the infiltration basin and that an acceptable margin will be maintained. Initially, there was some dispute among Department staff concerning the suitability of the project site to handle the hydraulic loading rates proposed for the facility's pond system. After a significant amount of analysis of the relevant factors affecting site suitability in this regard and after Department staff managed to get the computer program which analyzes this data working properly, the relevant data indicates that the site is suitable for the proposed wastewater treatment plant as designed. Surface and Ground Water Impact The proposed facility is designed to meet applicable Department water quality standards necessary to prevent unacceptable degradation of the water quality in both the unnamed stream system on site and the Santa Rosa Sound. At the Department's request, the County had an independent study performed to assure that the operation of the facility would not have the effect of degrading nearby surface waters. This study, done by Larry Jacobs and Associates, supports the County consultant's projections that, under worst case conditions (highest observed groundwater levels plus maximum effluent loading), approximately 32,000 additional gallons per day of groundwater may enter the stream system as a result of operation of the RIB system. These studies were conducted to address the Department's concern about the potential for increased nitrogen loading into both the stream system and the Santa Rosa Sound as a result of increased groundwater contributions to the stream system on site. The effluent disposal study submitted by the County as part of its application concludes that, discounting any possible reduction of Total Nitrogen content of the effluent as it travels through the ground before its discharged into the stream system, the Total Nitrogen concentration of the groundwater predicted to reach the stream should be diluted at the lowest observed flow volumes in the system to a concentration of less than 1 mg/1 when it reaches the confluence of the two streams approximately 1,000 feet south of the project site. The projection is an improvement in surface water conditions when compared with currently observed average concentrations of Total Nitrogen in the stream system and Santa Rosa Sound of 1.24 mg/1. The performance of existing package plants in the area is generally poor. In fact, one treatment plant was ordered to close, forcing the relocation of residents in its service area. Another plant has continuing groundwater nitrate violations. In addition, the evidence shows that the performance of the septic tank systems in the area is not acceptable to the Environmental Protection Agency. The majority of the population is served by septic systems that fail under high groundwater conditions. The Director of the Okaloosa County Health Department has certified that 60% of the residents in the County West Service Area have failed septic tanks and that the remaining 40% have septic tanks in imminent danger of failing. Three of the eight existing treatment plants are under either Court or Consent orders to cease operations. The United States Environmental Protection Agency has found that the County West area has an immediate need to provide collection, transmission, and treatment facilities to protect surface and groundwaters and eliminate a public hazard. Existing concentration of Total Nitrogen in Santa Rosa Sound and the waterways on and adjacent to the site are attributed to discharge of inadequately treated wastewater from existing septic tanks, existing wastewater treatment plants and stormwater runoff in the area. It is unlikely that the nitrogen concentration in the Santa Rosa Sound will increase as a result of the operation of the proposed facility since whatever wastewater treated at the facility will be eliminated from discharging into the affected waterbodies from other, less efficient treatment facilities. The proposed facility design incorporates a total of seventeen monitoring wells or stations on and around the site. Two wells will monitor background groundwater quality upgradient from the percolation pond system. Twelve wells will monitor groundwater quality down gradient from the percolation pond system as it leaves the established zone of discharge. Two more stations will monitor surface water quality in the on-site system above and below the site. In addition, there is one intermediate monitoring well within the zone of discharge. Samples from these wells will be used to provide quarterly data reports to the Department indicating status of the following parameters in the ground water; water level, pH, BODs, Fecal Coliform, Total Nitrogen, Nitrate/Nitrate and Chloride. The surface water monitoring will provide annual data reports to the Department on the following parameters: Chemical/Physical - Total Nitrogen, Nitrate/Nitrate, Total Phosphorus, Dissolved Oxygen, Temperature and pH Biological Assessment - macroinvertebrate population per species, species diversity per square meter. These data reports will be submitted regularly to the Department in conjunction with operational monitoring data from the treatment plant to allow assessment of the impact of the plant operation on the environment and compliance with permit conditions. Clearly the County has provided reasonable assurances that the proposed plant and related facilities will not cause pollution significantly degrading the waters of the State.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Regulation enter a Final Order Granting the application of Okaloosa County to construct a wastewater treatment facility and related reclaimed water reuse system at the proposed site in southwestern Okaloosa County, Florida, and issuing permits in accordance with the conditions as set forth in the Department's Intent to Issue and draft permit dated August 1, 1988. DONE and ENTERED this 1st day of June, 1989, in Tallahassee, Florida. DIANNE CLEAVINGER 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 1st day of June, 1989. APPENDIX Petitioner's paragraph 1 of his Proposed Findings of Facts (titled Closing Statement) did not contain any factual statements. The facts contained in paragraph 2 of Petitioner's Proposed Findings of Facts are subordinate. All the evidence contrary to the suitability of the Project site was explained by other more credible evidence. The facts contained in paragraphs 1-29 of Respondent's Proposed Findings of Facts are adopted in substance, in so far as material. COPIES FURNISHED: Ron Ward Qualified Representative For J. P. Ward 10 Rosewood Drive Mary Esther, Florida 32569 John R. Dowd, Esquire Representing Okaloosa County P. O. Box 404 Shalimar, Florida 32579 Steven K. Hall, Esquire Assistant General Counsel Representing the Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 (A Dale H. Twachtmann, Secretary State of Florida Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMENDED that the application of Jay Hall for a septic tank permit at Lot 1, Deerwood Estates, Baker County, Florida be DENIED. However, applicant should be given thirty days from date of the final order in this cause to raise the height of the system to Department recommended specifications. DONE and RECOMMENDED this 29th day of April, 1983, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of April, 1983.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: By a Form of Agreement dated August 20, 1974, between petitioner as the contractor and respondent as the owner, petitioner agreed to perform all work required by the Contract Documents for the construction of the R.A. Gray Archives, Library and Museum in Tallahassee, Florida. The Contract Documents consisted of the Form of Agreement, Conditions of the Contract, Drawings, Specifications and all Addenda and Modifications thereof. These were the documents upon which petitioner's bid was based. A portion of the Specifications and Drawings were received into evidence as petitioner's exhibits 1 and 2. Section 15C of the Specifications, Volume 2, Set No. 41, contains the provisions relating to plumbing. Paragraph 3 of Section 15C pertains to soil, waste and vent piping. Paragraph 5 concerns rain water leaders and states "Insulate as specified." Paragraph 19(d) states that: Rain water leaders interior to building construction shall be isolated with 1" thick glass fiber sectional rigid pipe covering with integral vapor barrier (Exhibit No. 2, page 15C-6) The specifications do not appear to call for any particular type of insulation for soil or waste pipes. The legend for the plumbing drawings is contained on drawing P-1 of Exhibit No. 1. This legend illustrates that rain leaders are indicated by a symbol showing straight lines with the initials R.L. in between the lines. Soil or waste pipes are symbolized by a solid straight line. The drawing relevant to the issue in this case is drawing P-17. That drawing utilizes uninitialed, solid straight lines to indicate the type of piping required. No piping is denoted, according to the legend, as rain leader piping. Smith Insulation Company was petitioner's sub-subcontractor to perform the thermal insulation for the project's heating, ventilating and plumbing system. The bid price submitted by Smith was based upon the plans, specifications and drawings supplied by respondent. Frank D. Smith, president of Smith Insulation Company, testified that in interpreting the drawings concerning the plumbing for the project, he relied upon the plumbing legend contained on drawing P-1 of Exhibit 1. Inasmuch as drawing P-17 had no denotation for rain leader piping, Smith interpreted the drawing to require soil and waste pipes for which no insulation was specified. Smith testified that had the items on drawing P-17 been labeled rain leader, his initial bid would have been higher. If he had included the insulation required for rain water leaders, his actual costs would have amounted to an additional $5,000.00 and, with overhead and profit, the amount due petitioner from respondent would be $6,199.68. As a result of the mistake of Smith's superintendent, the piping in dispute on drawing P-17 was in fact initially insulated with "flexible blanket." On October 15, 1975, a site visit of the project was made and among the conditions noted on the respondent's project evaluation report was The contractor has insulated the storm water with flexible blanket. The specs called for rigid pipe covering. (Exhibit A) On October 22, 1975, Mr. Terry N. Thompson conducted a job site visit and reported in part as follows: 3. Insulation on the rain water leaders is not in accordance with the specifications and is not acceptable. Mechanical Contractor has been advised to have the insulation removed and the specified insulation installed. (Exhibit B) Smith Insulation Company removed the flexible insulation from the pipes in questions and replaced it with he specified insulation. Petitioner thereafter requested an increase in the contract price for the insulation by its sub-subcontractor in the amount of $6,199.68. The supervising architects for the project denied this request. Among those who prepared the specifications and the drawings were Fletcher and Valenti, architects and Healy, Hargan, and Matten, consulting engineers. Mr. Terry Thompson with the Healy firm was the project coordinator. He admitted that a difference in interpretation of drawing P-17 was a possibility. Mr. Charles Robert Scott with the Fletcher and Valenti firm admitted that the failure to denote certain piping on P-17 as rain water leaders could have been an error. It was Mr. Scott's opinion, however, that it was obvious from the drawings in question that the function of the pipes in question was to receive rain water. Mr. Nathan Nadler in respondent's Bureau of Construction agreed with Mr. Scott. He felt that the obvious function of the piping system in question was to drain rain water from the plaza decks. Regardless of the "obvious function" of the piping in question, the piping denoted in the drawing were soil and waste pipes. If respondent intended said piping to act as a rain water drain, drawing P-17, when interpreted in conjunction with the plumbing legend contained on P-1, is clearly erroneous.
Recommendation Based upon the findings of fact and conclusions of law recited above, it is recommended that petitioner's request for reimbursement in the amount of $6,199.68 be GRANTED. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 12th day of August, 1977. DIANE D. TREMOR Hearing Officer Division of Administrative Hearings Room 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: William L. Gary Pennington, Wilkinson and Sauls Post Office Box 3985 Tallahassee, Florida 32303 Kenneth F. Hoffman Rogers, Towers, Bailey, Jones and Gay Post Office Box 1872 Tallahassee, Florida 32302 John Barley General Counsel Department of General Services Room 113, Larson Building Tallahassee, Florida 32304
Findings Of Fact When the events herein occurred, respondent, Shalom Manor, Inc. d/b/a King David Manor Retirement Home (King David), was licensed by petitioner, Department of Health and Rehabilitative Services (HRS), to operate an adult congregte living facility (ACLF) at 5800 N.W. 27th Court, Lauderhill, Florida. The corporate headquarters of Shalom Manor, Inc., were located at 901 South Federal Highway, Suite 200, Fort Lauderdale, Florida. On March 29, 1984 two HRS inspectors performed a routine annual survey of King David to determine whether King David was complying with all HRS requirements necessary for licensure. During the course of the survey, the inspectors noted that King David did not have an established fire and emergency plan. They accordingly charged respondent with having violated Section 3-8.a of HRS Manual 140-3. That manual is entitled "Fire Safety Standards for Adult Congregate Living Facilities." The manual is not a formal rule, but has been adopted and incorporated by reference in Rule 10A-5.23(15), Florida Administrative Code. The cited section (3-8.a) provides in relevant part that "a Fire and Emergency plan shall be established." It does not specifically require that the plan be in written form, or that it be posted in each resident's living area. According to the HRS inspectors, respondent was charged with a Class III statutory violation because it had no acceptable written plan, and the plan was not posted in each resident's room. When the survey was completed, the inspectors reviewed this deficiency with the facility's administrator, Graeme Burne, and advised him that the deficiency must be corrected within thirty days, or by April 29, 1984. They also described to him the type of plan necessary to comply with the HRS Manual, and told him it must be posted in each area where a resident resided. A thirty- day compliance period was used since the inspectors considered the deficiency to be a "paperwork" item that could be easily corrected within that time period. After returning to their office, the inspectors had a Form 1806 prepared. This form is entitled "ACLF Corrective Action Plan" and contains each deficiency noted during the survey, the class of violation, date for correction action, provider's plan of correction, when such correction is completed and the status of correction or follow-up. The form noted that the deficiency in question had to be corrected by April 29, 1984. The form was then signed by the HRS area supervisor and mailed to Burne on April 4, 1984. Burne received the form, inserted the comment "Being Prepared" in the column under the provider's plan of correction, signed it as respondent's administrator on April 27, 1984 and returned it to local HRS offices in Miami. On May 1, May 18, June 11, August 22 and October 31, 1984, the two inspectors made repeat surveys of King David's facility. They found no satisfactory fire and emergency plan had been established on any of those dates. On the August 22 visit Burne showed to the inspectors a diagram he had prepared, but was told it did not meet HRS requirements. On the March 29 visit, the inspectors also noted several other deficiencies besides the lack of a fire and emergency plan. All deficiencies, including the lack of a fire and emergency plan, were the subject of administrative complaints issued on July 12 and 26, 1984 in Case Nos. 85-0359 and 85-0360, respectively. 1/ By the issuance of these complaints, the corporate license received actual written notice of the surveys and cited deficiencies. Prior to that time, Burne had apparently neglected to tell the owners about the matter. On July 2, 1985, or approximately one year later, HRS issued the amended administrative complaint in this cause charging respondent with having failed to correct the deficiency by the August 22 visit. 2/ The complaint was served on Shalom Manor, Inc., at its Fort Lauderdale corporate address. After receiving the earlier complaints in July 1984 a representative of Shalom Manor contacted HRS offices in Miami and requested that all future correspondence regarding the matter be sent to the corporate owner's address in Fort Lauderdale. Respondent acknowledged that it had no fire and emergency plan posted on its premises. However, it established that the corporate licensee (Shalom Manor, Inc.) was never given any documentation regarding the alleged violation until the administrative complaints in Case Nos. 85-0359 and 85-0360 were filed. Moreover, neither the licensee or its administrator was given a document entitled "notice of deficiency" as required by Rule 10A-5.27, Florida Administrative Code. However, the corrective action plan sent to the administrator on April 4, 1984, contained all information referred to in the rule. Respondent also points out that after finally learning of the deficiency, it attempted to comply with HRS requirements, and through its administrator, presented a written plan to HRS inspectors on their August 22 visit.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the amended administrative complaint filed on July 2, 1986, be DISMISSED, with prejudice. DONE and ORDERED this 19th day of August 1986, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 19th day of August 1986.
The Issue The issues are whether Respondent's proposed award of four contracts to Intervenor Piper Fire Protection, Inc., is contrary to statutes, rules, policies, or the specifications, pursuant to Section 120.57(3)(f), Florida Statutes, and, if so, whether Respondent's identification of Intervenor Interstate Fire Systems, Inc., as the next lowest responsive bidder for one of the contracts is also contrary to statutes, rules, policies, or the specifications.
Findings Of Fact On February 21, 2002, Respondent issued an invitation to bid under the bid title, "Life Safety Equipment Inspection, Maintenance & Repair Services" (ITB). ITB Section 6.1 provides that Respondent will award a contract to the "responsive, responsible bidder" with the lowest bid; thus, the ITB does not contain business criteria on which responsive bids of responsible bidders are evaluated. ITB Section 2.1 states: "Life Safety Equipment inspection, maintenance and repair services have, in the past, been procured by the individual institution or facility or handled in-house." Electing to centralize the procurement of these services, Respondent "has decided to competitively bid for life safety equipment inspection services by region." ITB Section 2.3 discloses that Respondent intends to contract with a single vendor in each geographical region. ITB Section 2.2 states: The successful bidder/contractor shall provide Life Safety Equipment inspection, maintenance and repair services for the following items . . .: Annual Fire Alarm System inspection, testing, repair and maintenance. Fire Extinguisher six (6) year recharge and maintenance, twelve (12) year recharge and hydrostatic testing, and fire extinguisher replacement. Semi-Annual Kitchen Fire Suppression Systems testing, inspection and maintenance. Annual Sprinkler Systems inspection, repair and maintenance. Kitchen Exhaust Hood Cleaning on an as- needed basis with a minimum of twice annually. ITB Section 3.1.1 states that the selected contractor shall provide "Life Safety Equipment inspection, maintenance and repair services on the following equipment: Fire Alarm Systems, Kitchen Fire Suppression Systems, Sprinkler Systems and Kitchen Hoods." Section 3.1.1 requires that the "Contractor shall be licensed" under Chapter 633, Florida Statutes. ITB Section 3.7.3 states: "The Contractor's staff shall be fully trained and certified to perform the inspection, maintenance and repair of the equipment specified in this ITB. Acceptable proof of certification shall be in accordance with Chapter 633, Florida Statutes." Chapter 633, Florida Statutes, enumerates the responsibilities of the State Fire Marshall, Department of Insurance. In general, the State Fire Marshall has complete licensing and disciplinary jurisdiction over commercial suppliers of the activities described in subparagraphs 2-4 of paragraph 3, above. Under Section 633.70(1), the State Fire Marshall has nonexclusive jurisdiction over certain violations by alarm system contractors (as used in this recommended order, "alarm system contractors" shall include electrical contractors authorized to perform alarm system services). Although not addressed by the ITB, except possibly the first sentence of Section 3.7.3, alarm system contractors are under the licensing and disciplinary jurisdiction of the Electrical Contractors' Licensing Board, Department of Business and Professional Regulation, pursuant to, respectively, Sections 489.511 and 489.533(2), Florida Statutes. Licensing and disciplinary jurisdiction for the cleaning of kitchen exhaust hood systems in correctional institutions is unclear, but Respondent's Rule 33-20.4003(4)(a), Florida Administrative Code, adopts Rule 64E-11.008(4), Florida Administrative Code, which requires that kitchen ventilation systems comply with applicable fire prevention systems. In contrast to ITB Section 3, which describes the scope of services, ITB Section 4 sets forth the provisions governing the procurement process. ITB Section 4.3.6 states: "The Department will reject any and all bids not meeting mandatory responsiveness requirements. In addition, the Department will reject any and all bids containing material deviations." ITB Section 4.3.6.1 defines "mandatory responsiveness requirements" as "[t]erms, conditions or requirements that must be met by the bidder/contractor to be responsive to this ITB. These responsiveness requirements are mandatory. Failure to meet these responsiveness requirements will cause rejection of a bid." ITB Section 4.3.6.2 defines "material deviations" as: The Department has established certain requirements with respect to bids to be submitted by bidder/contractor. The use of shall, must or will (except to indicate simple futurity) in this ITB indicates a requirement or condition which may not be waived by the Department. A deviation is material if, in the Department's sole discretion, the deficient response is not in substantial accord with this ITB's requirements, provides an advantage to one bidder over other bidders, has a potentially significant effect on the quantity or quality of items or services bid, or on the cost to the Department. Material deviations cannot be waived and shall be the basis for rejection of a bid. ITB Section 4.3.6.3 defines "minor irregularities" as: A variation from the ITB terms and conditions which does not affect the price of the bid or give the bidder an advantage or benefit not enjoyed by the other bidders or does not adversely impact the interests of the Department. ITB Section 4.3.9 states: All bidders planning to submit a bid must submit a letter stateing this intent by the date and time specified in the "Calendar of Events" (Section 4.2). This letter may be e-mailed, mailed, faxed or hand delivered; however, the bidder should confirm receipt of the notice of intent in order to ensure continued receipt of procurement materials. Section 4.3.10 adds that Respondent will mail addenda to the ITB "only to those bidders submitting a Letter of Intent to Bid." ITB Section 5.1 identifies four "mandatory responsiveness requirements." Section 5.1.1 requires the bidder to supply an original and one copy of the bid. Section 5.1.2 requires a duly authorized person to sign the supplemental bid sheets. Section 5.1.3 requires the bidder to sign and deliver an acknowledgement of contractual services. Section 5.1.4 requires the bidder to sign an acknowledged certification of six conditions: "business/corporate experience," "authority to legally bind the bidder," "acceptance of terms and conditions," "statement of no involvement," "nondiscrimination statement," and "unauthorized employment of alien workers statement." ITB Section 5.1.4.1 details the requirements of the "business/corporate experience" certification: A statement certifying that the bidder/contractor has business/corporate experience of at least three (3) years relevant to the provision of life safety equipment services as defined herein, within the last five (5) years. The reference in Section 5.1.4.1 to "life safety equipment services as defined herein" is not to an explicit definition of such services in the ITB. A restatement of Section 5.1.4.1 in the attachments omits "as defined herein." ITB Section 1.6 defines "Life Safety Equipment Inspection, Maintenance and Repair Services" as: "The inspection, maintenance and repair of fire alarm systems, fire extinguishers, kitchen fire suppression systems, sprinkler systems and the cleaning of kitchen exhaust hoods." Petitioner and Intervenors timely submitted bids. Petitioner and Intervenor Piper Fire Protection, Inc. (Piper), submitted bids for all four geographical regions into which Respondent divided Florida. Intervenor Interstate Fire Systems, Inc. (Interstate), submitted a bid only for one geographical region. Petitioner and Piper timely submitted letters of intent to bid, but Interstate never submitted such a letter. Determining that Petitioner and Intervenors' bids were all responsive, Respondent selected Piper's bids for all four geographical regions as the lowest bids. Petitioner submitted the second-lowest bid for three regions and, for the fourth region, Petitioner submitted the third-lowest bid; Interstate submitted the second-lowest bid for this region. Petitioner timely submitted its notice of intent to protest and written protest. Petitioner and Intervenors have standing to participate in this case. Petitioner contends that Piper's bid, which includes an executed certificate of business/corporate experience, was not responsive because Piper lacked the requisite business/corporate experience. Petitioner contends that Interstate's bid was not responsive because Interstate failed to submit a letter of intent to bid. For three of the last five years, Piper presents the requisite experience only in sprinkler systems, not in fire alarm systems, fire extinguishers, or kitchen fire suppression systems. By contrast, Petitioner, which has been in the fire- safety business for over a century, has the requisite experience in all of these items. As used in ITB Section 5.1.4.1, the "provision of life safety services as defined herein" requires consideration of the definition, at ITB Section 1.6, of "life safety equipment inspection, maintenance and repair services" as the "inspection, maintenance and repair of fire alarm systems, fire extinguishers, kitchen fire suppression systems, sprinkler systems and the cleaning of kitchen exhaust hoods." Obviously, Section 1.6 applies the activities of inspecting, maintaining, and repairing only to fire alarm systems, fire extinguishers, kitchen fire suppression systems, and sprinkler systems. Not only does it not make sense to inspect, maintain, and repair the "cleaning of kitchen exhaust hoods," but ITB Section 3.1.6 limits the scope of work for kitchen exhaust systems to cleaning. The scope of services for kitchen exhaust hoods is thus considerably narrower than the scope of services for the other items. Kitchen exhaust hoods differ from the other items in another important respect. Although, among these items, only the kitchen exhaust hood is a significant source of fire, the licensing regime imposed on the inspecting, maintaining, and repairing of the other items is considerably more elaborate than the licensing scheme imposed upon the cleaning of kitchen exhaust hoods--likely due to the relative degrees of difficulty involved in the two sets of tasks. As confirmed by the testimony of its witness responsible for preparing the ITB, Respondent did not intend to allow a bidder with three-of-the-last-five years' experience in cleaning kitchen exhaust hoods to satisfy this responsiveness criterion solely on the basis of this experience. A close reading of the ITB supports this intention. As noted above, the language of the ITB and common sense justify different treatment for the cleaning of kitchen exhaust hoods than for the inspecting, maintaining, and repairing of the fire alarm systems, fire extinguishers, kitchen fire suppression systems, and sprinkler systems. Perhaps most importantly, the responsiveness criterion addresses only life safety equipment. Fire alarm systems, fire extinguishers, kitchen fire suppression systems, and sprinkler systems are examples of equipment whose sole purpose is life safety. The purpose of a kitchen exhaust hood is not life safety, but kitchen ventilation. A clean kitchen exhaust hood eliminates a source of fire, but is not, in itself, a form a life safety equipment. The heading of Section 1.6 describes the inspecting, maintaining, and repairing of fire alarm systems, fire extinguishers, kitchen fire suppression systems, and sprinkler systems; the cleaning of kitchen exhaust hoods appears to have been an addition--perhaps a late one--by someone who gave little thought to the effect of this apparently innocuous clause on the grammar or title of Section 1.6 and, thus, the meaning of Section 5.1.4.1. Even though the ITB precludes a bidder's reliance on cleaning kitchen exhaust hoods to meet the criterion of business/corporate experience, the more difficult question remains whether a bidder must present experience across the entire range of remaining items, or whether a bidder may present experience limited to one or fewer than all of the remaining items. As noted above, by regulatory regimes, a line of possible demarcation exists between fire alarm systems, on the one hand, and fire extinguishers, kitchen fire suppression systems, and sprinkler systems, on the other hand. Additionally, the fire-alarm system is a detection system, and the remaining items are fire-fighting devices or systems. However, Piper's sole qualifying experience is in one of the fire-fighting systems, so this case does not directly raise the question of the sufficiency of otherwise-qualifying experience in only a fire-detection system. Section 5.1.4.1 speaks in a general tone. First, the actual requirement is in services--the services here are inspecting, maintaining, and repairing. Second, the extent of the qualifying experience is left open. During the qualifying three years, the bidder needs only "experience." The ITB does not require exclusive experience, nor does it require even substantial experience. Arguably, part-time experience would suffice. Third, the ITB does not qualify the kind of "life safety equipment" for which service experience is required. Given the tone of the relatively relaxed responsiveness requirement, the Administrative Law Judge chooses "any" rather than "all" as a fairer word to precede "life safety equipment." (The close linkage among inspecting, maintaining, and repairing, as compared to the loose linkage among fire alarm systems, fire extinguishers, kitchen fire suppression systems, and sprinkler systems, strongly suggests that the meaningful distinction is not among the types of services, but rather among the types of equipment receiving services.) The fairest reading of the ITB thus allows a bidder to satisfy the responsiveness criterion with qualifying experience in only sprinkler systems, as Piper has done. Although it is unnecessary to address the contention regarding Interstate, the requirement of filing a letter of intent to bid was clearly to assure that the prospective bidder would receive copies of bid materials, such as addenda. The testimony of Petitioner's witness that Petitioner's "knowledge" that Interstate, a strong competitor, was not going to submit a bid allowed Petitioner more latitude in setting a price is outweighed by the evidence of the purpose of this requirement, as set forth in the ITB and the deposition testimony of one of Respondent's witness, as well as the lower bid of Piper.
Recommendation It is RECOMMENDED that the Department of Corrections enter a final order dismissing the bid protest of Petitioner and awarding the contract to Piper. DONE AND ENTERED this 7th day of August, 2002, in Tallahassee, Leon County, Florida. 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 7th day of August, 2002. COPIES FURNISHED: Michael W. Moore, Secretary Department of Corrections 2601 Blair Stone Road Tallahassee, Florida 32399-2500 Louis A. Vargas, General Counsel Department of Corrections 2601 Blair Stone Road Tallahassee, Florida 32399-6563 Don O'Lone, Business Manager Piper Fire Protection, Inc. Post office Box 9005 Largo, Florida 33771 Susan P. Stephens, Esquire Department of Corrections 2601 Blair Stone Road Tallahassee, Florida 32399-2500 Karen D. Walker, Esquire Holland & Knight, LLP Post Office Box 810 Tallahassee, Florida 32302 Michael A. Wester Interstate Fire System, Inc. 1451 South Monroe Street Tallahassee, Florida 32301
Findings Of Fact Respondent, Real Estate Rentals, Inc., operates a licensed public lodging establishment known as Ippolito Apartments. These apartments are located at 112 S. Brevard, Tampa, Florida. On July 30, 1982, a routine inspection of the apartment building was made by a representative of the Division of Hotels and Restaurants. On that date, the following deficiencies or violations existed: There were no ABC type fire extinguishers within 75 feet travel distance of each apartment or inside each apartment. There were no fire extinguishers in the building. Several jalousie window panes were either broken or missing. Interior walls of the common areas needed scraping and painting. There were torn screens which needed repair. The building had roaches and needed to be sprayed for these and other pests. The current license was not displayed on the premises. These deficiencies were listed on a public lodging inspection record (see Petitioner's Exhibit 1) and a copy of this inspection record was provided to the Respondent. The Respondent was instructed by this document to correct the violations or deficiencies prior to the next routine inspection. The next routine inspection of the premises took place on March 21, 1983. At that time, the deficiencies cited in the July 30, 1982, inspection record had not been corrected. In addition to those deficiencies found on July 30, 1982, the following deficiencies existed on March 21, 1983: There was not a properly installed hall light outside Unit No. 2. Unit No. 5 did not have a properly installed and operating refrigerator. Broken plaster board walls needed repair. The front exit door did not have properly installed self-closing hardware. The ceiling, floors and stairs of the interior needed to be swept. Respondent was provided with a copy of the March 21, 1983, public lodging inspection record (see Petitioner's Exhibit 2) and was given until April 11, 1983, to make the necessary corrections. The premises were again inspected on April 22, 1983, and the corrections of the deficiencies noted in the two previous inspections had not been made. On June 9, 1983, all corrections except for the required fire extinguishers had been made at the licensed premises.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the Division of Hotels and Restaurants enter a final order imposing a fine of $150 for the violations cited above. DONE and ENTERED this 29th day of November, 1983, in Tallahassee, Florida. MARVIN E. CHAVIS, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of November, 1983. COPIES FURNISHED: William A. Hatch, Esquire 725 South Bronough Street Tallahassee, Fl 32301 E. L. Ippolito 901 S. Rome Tampa, Florida 33606 Gary R. Rutledge, Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Sherman S. Winn Division of Hotels and Restaurants 725 South Bronough Street Tallahassee, Florida 32301
Findings Of Fact Respondent/applicant, Kensington Park Utilities, Inc. (applicant), is a public utility located in Sarasota, Florida. On October 12, 1984, applicant filed an application with respondent Department of Environmental Regulation (DER); seeking approval to construct a domestic wastewater treatment and disposal system in an unincorporated area of Sarasota County Florida. 1/ More specifically, the project will be located on a thirty-five acre tract of land lying west of Tuttle Avenue and north of 27th Avenues just northeast of the City of Sarasota. It is directly east of a housing development known as Newtown Estates. A drainage ditch separates the two properties. Petitioners, Eddie Lee Rosier, Sr. and Ernest Dubose, either live in or near the Newtown subdivision. Petitioners, Alfred W. Jones and Mary James did not testify at final hearing and their interest in this matter is not of record. Petitioner, Newtown Homeowners Association, Inc., is a nonprofit corporation made up of homeowners or residents in the Newtown housing development. In this proceeding petitioners oppose the manner in which the project will be constructed as well as its location. Applicant proposes to construct a 175,000 gallons per day capacity expandable extended aeration wastewater treatment system with effluent disposal to two percolation holding ponds of 125,000 square feet each and spray irrigation of a 3.2 acre site. The 3.2 acre spray area will serve as a backup to the percolation ponds. There will be total retention of effluent onsite, and none will be discharged to the ditch which separates Newtown and Kensington's property. The estimated cost of the project is $500;000. The project is designed to serve the present population of 1,750 until regional sewage treatment becomes available, at which time this plant will be shut down or tied into the regional system. If constructed, this plant will serve the western portion of its franchise area including Newtown Estates, Windmill Villages and Rolling Green. The entire plant site will be fenced with a locked gate in accordance with a Sarasota County ordinance. Applicant is subject to the regulatory control of both DER and Sarasota County (County). The County has established a local pollution control program pursuant to Section 403.182, Florida Statutes. As such, applicant is required to obtain permitting approval from both the County and DER. In this regard, applicant's plans and specifications were reviewed by both DER and County personnel and both made on-site inspections of the property in question. All DER and County rules, regulations and standards were found to be met. Specifically, applicant has given reasonable assurances that the proposed project will not discharged emit or cause pollution in contravention of DER standards or rules. Further, the proposed groundwater discharge will not cause significant adverse effects to the designated uses of the adjacent groundwaters. This was not controverted by petitioners. Petitioners' objections fall into four broad categories. First, they challenge the location of the project, and particularly its placement on the most westerly portion of a tract of undeveloped land which lies immediately adjacent to Newtown and a recreational area. Because of this, they fear that spray from the spray irrigation site will drift onto their homes and picnic area when easterly winds prevail. However, a 150 foot setback has been established in accordance with agency rules, and "downsprays" will be used to prevent such an occurrence. Second, they are concerned that in the event of an "emergency , raw sewage containing virus and bacteria may be dumped into the drainage ditch adjacent to their property. However this concern is unfounded. If an unanticipated emergency arose, only overflow water from the percolation ponds would be discharged into the ditch, and by that time the water would be 90 percent free of contaminants. Moreover, in the event of an emergency, applicant's facility is capable, with only minor modifications, of discharging effluent to another plant approximately two miles away. Third, petitioners are concerned that the plant will emanate a noxious odor which because of petitioners' proximity, will make living conditions in the Newtown area most undesirable. They point out that a city-owned sewage plant on 12th street which is a mile away emits noxious odors that can be detected in the Newtown area. However, petitioners' own expert concedes the plant's design is the "best design" possible for eliminating odors, and only through an unplanned malfunction could an odor occur. Moreover, applicant's plant is far superior to the city's; and is designed to eliminate the type of odor that is emitted from that facility. Finally, petitioners suggest that if raw sewage is dumped into the drainage ditch, it may eventually seep into "the underground water system" and endanger the well water of persons living immediately south of the project. But since no raw sewage will be discharged, this concern is without merit. This finding is corroborated by expert testimony of witness Suttcliffe who concluded that the treatment process posed no threat to surrounding groundwater. Other contentions relating to the utility's hookup policy its potential for accidents involving neighborhood children, and the alleged diminishment of property values in the immediate area, while well intended are not within the purview of DER's regulatory scheme.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the agency issue a permit to applicant as reflected in the agency's notice of intent to issue dated March 17, 1985. DONE and ORDERED this 23rd day of July, 1985, in Tallahassee, Florida. Hearings Hearings DONALD R. ALEXANDER Hearing Officer Division of Administrative The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative this 23rd day of July, 1985.
