The Issue Whether Respondent violated Sections 400.102, 400.121, and 400.23, Florida Statutes, and Rule 59A-4.133(16)(d), Florida Administrative Code; and, if so, what penalty should be imposed.
Findings Of Fact Petitioner, the Agency for Health Care Administration (Agency), is the state agency responsible for licensure and regulation of nursing homes operating in the State of Florida. Respondent, Golfview Nursing Home (Respondent/Golfview), operates a licensed nursing home at 3636 10th Avenue North in St. Petersburg, Florida. At all times relevant to this proceeding, the facility had fifty-seven (57) beds, but the usual occupancy was between thirty-two (32) and thirty-five (35). The Agency conducted an annual licensure survey of Golfview on April 3-5, 2001, during which the Agency surveyors evaluated the facility's compliance with state and federal regulations governing the operation of a nursing home. At the outset of the survey, on the morning of April 3, 2001, the surveyors expressed to Golfview staff concerns over the adequacy of the hot water temperature of the facility's dishwasher. One of the surveyors was concerned that the dishwasher was required to run four cycles before reaching 125 degrees, the specified temperature for operation of the type of dishwasher used at the facility. Based on the previous year's survey, Golfview staff members were aware of that concern and had a procedure in place to address the issue related to the dishwasher water temperature. Golfview established a procedure for achieving the specified hot water temperature of the dishwasher. The procedure was to run the dishwasher three cycles before running a wash cycle to overcome the cooling effect of a nearby air conditioner on the metal dishwasher. Golfview's standard dishwasher procedures did not include raising boiler temperatures. Nonetheless, in response to the concern raised by the surveyors regarding the dishwasher temperature, Respondent's maintenance director increased the temperature of the boiler at Golfview in order to increase the temperature of the water going into the dishwasher. The water at Golfview is heated by one 100-gallon boiler which is thermostatically controlled. The boiler is heated with propane gas and has a pilot light. Golfview has a circulating pump which circulates heated water throughout the building. The circulating pump is also thermostatically controlled. On the morning of April 3, 2001, and after the facility's maintenance director had raised the boiler temperature, the surveyors observed that the water temperature in some of the resident sink faucets seemed hot to hand touch. Consequently, the survey team leader asked the Agency's life safety inspector surveyor to test the water temperatures in resident rooms. Upon measuring the water temperature, the surveyor reported that he found the water temperature in one resident room to be 122 degrees Fahrenheit (hereinafter all references to temperatures will be in Fahrenheit degrees). However, that room was unoccupied and no resident was assigned to that room. Rule 59A-4.133(16)(d), Florida Administrative Code, requires the water temperature in resident rooms be between 105 and 115 degrees Fahrenheit. Later on April 3, 2001, the surveyors advised Golfview management of their concern that the water temperatures exceeded the rule requirements. In response, the Golfview maintenance director explained to the surveyors that he had increased the boiler temperature to accommodate the surveyors' concerns about the temperature of the dishwasher water and that he would reduce the boiler temperature. Soon after the maintenance director reduced the boiler temperature, the water temperatures in the resident rooms returned to the limits required by the applicable rule. On April 3, 2001, after 12:15 p.m., there were no resident rooms in which the water temperatures exceeded 115 degrees. Moreover, when the surveyors left Golfview at the end of the day on April 3, 2001, the water temperatures in the resident rooms were within acceptable ranges. Due to the surveyors' expressed concern over water temperatures in discussions with facility management, Golfview called its plumber on April 3, 2001, the first day of the survey. The plumber came to Golfview within thirty (30) minutes of being called and immediately began to work on and/or evaluate the hot water system. Plumbers returned to the facility the next day and continued to evaluate, work on, and/or adjust the hot water system throughout the April 2001 survey, including April 5, 2001. In fact, during most of the time the surveyors were at the facility, the plumbers were also there working on the hot water system. Based on the survey team's April 3, 2001, discussion with Golfview staff, the following day the team decided to conduct another check of the water temperatures in the resident rooms. On April 4, 2001, the thermometers to be used for the temperature checks were calibrated, and the surveyors measured the water temperature in 15 resident rooms. This water temperature check revealed that 4 of the 15 resident rooms had water temperatures higher than 115 degrees. On April 4, 2001, the surveyors were measuring the water temperatures in the resident rooms during the time the plumbers were at Golfview evaluating, working on, and/or adjusting the water system at the facility. On April 4, 2001, based on their water temperature measurements, the surveyors notified Golfview management that a situation of "immediate jeopardy" existed. Golfview immediately developed and implemented a plan of correction designed to protect staff, residents, and visitors from exposure to water temperatures in excess of that permitted by rule. Golfview provided its written plan of correction to the surveyors that same day. By 5:30 p.m. on April 4, 2001, the surveyors determined that an acceptable plan of correction had been presented and that the water temperatures were and would remain within levels required by rule. Because of the immediate action taken by the staff of Golfview as well as the physical limitations of the residents, residents of the facility were not in jeopardy of being burned or scalded by the hot water temperatures on either April 3 or 4, 2001. All but one of the residents required assistance with bathing and that resident is an alert, strong 55-year-old, wheelchair-bound male. With regard to residents needing assistance, the certified nursing assistants who provide assistance with bathing are specifically trained in the use of hot water with the elderly, including training to test water on themselves prior to bathing the residents. In total, throughout the three-day survey, including the period while the plumbers were adjusting the system, the surveyors found water exceeding 115 degrees in 4 out of the 15 rooms that were checked. The surveyors believed and noted on the survey report form that where the water temperature exceeded 115 degrees, the residents assigned to the room and other residents who might go into the rooms, were at risk for burning or scalding if they used the bathroom facilities. The survey report noted that the hot water temperature presented a potential for accident hazards from burns or scalding to skin, particularly for frail and elderly residents. However, despite the Agency's findings as reported and summarized on the survey report, the surveyors did not explain on the report nor did the Agency present evidence at hearing as to why or how the residents were at risk or in any imminent danger of being burned or scalded from hot water. The survey report indicated that on April 3, 2001, the administrator took immediate action to alleviate the potential risk of harm to any resident. The report stated in relevant part the following: Based on the excessive and fluctuating temperatures posing a serious threat to resident safety the administrator was advised of the nature of the problem and immediate jeopardy was identified. The administrator took immediate action, calling a plumber (who arrived within 30 minutes), made an announcement regarding the elevated temperature of the water over the intercom and requested that the hot water not be used until approval was given. Nursing staff then went back to each room and told all residents of the problem. The director of nursing staff stated showers were not to be given until the issue had been resolved. A department head meeting was held by the administrator. The plumber called in his supervisor to assist in determining the problem, temperature adjustments were made and following the lowering of the boiler temperature, temperatures were measured again and determined to be from 103 to 108 degrees F. The plumbers were scheduled to return 4/04/01 to further evaluate the systems. The facility administrator developed an acceptable action plan to maintain water temperature levels and ensure resident safety until it could be determined that the hazard was corrected. Based on the immediate action of the supervisor and the acceptable action plan to maintain safe temperature levels the jeopardy was removed at approximately 5:30 p.m. on 04/04/01. At the time of the April 2001 survey, Golfview had a written policy for monitoring and maintaining hot water temperatures at the facility. Included in the policy were requirements for regular monitoring and recording of water temperatures at the facility and for taking immediate corrective action in the event that water temperatures were found to be out of the designated range. Pursuant to Golfview's policy regarding the testing and regulation of hot water, the maintenance director is responsible for checking the water temperatures at the facility, including resident rooms, showers, and the kitchen dishwasher, and keeping a weekly written record of those temperatures on a log sheet. A copy of the log sheet, titled, "Weekly Hot Water Temperature Log Sheet," was attached to Golfview's policy regarding the testing and regulation of hot water. On the log sheet, spaces were provided to record the date of the testing, the name and title of the tester, the room where the hot water was tested and the temperature of that water. Finally, the log sheet included a section which directed the tester to document any concerns and plans of correction. On April 3, 2001, after reviewing Golfview's policy on hot water testing and regulation, the survey team requested copies of the weekly log sheets required to be maintained by the policy. Initially, the maintenance director told the survey team that there were no logs for them to review. However, the next day, the maintenance director provided the survey team with 13 sheets of paper on which he had recorded room numbers and the hot water temperatures in those rooms. Only 1 of the 13 sheets with room numbers and hot water temperatures included the dates the temperatures were measured. One of the sheets on which the maintenance director had recorded temperatures reflected the hot water temperatures as measured in selected rooms at Golfview on February 11, 2001, and March 29, 2001. On both days, the recorded hot water temperature for several rooms exceeded the temperature required by rule. The sheet noted that on February 11, 2001, four of the five resident rooms where water temperatures were measured had hot water temperatures of 116 degrees, one degree above what is required by rule. On March 29, 2001, at least seven of the resident rooms had water temperatures higher than 115 degrees. The maintenance director regularly measured and recorded the hot water temperatures at the facility. Typically, if he determined that the hot water temperature was not within the prescribed range, he made the necessary adjustments to the hot water system to resolve the problem. He did not nor did the policy require him to report the hot water temperatures to the facility administrator. The maintenance director did not record the concern or problem that existed on February 11, 2001, or March 29, 2001, that might have caused the elevated hot water temperatures in the facility. However, he recalled the problem that resulted in the elevated hot water temperatures on March 29, 2001. The credible testimony of the maintenance supervisor was that because the pilot light of the boiler had gone out, he came in about 5:30 a.m. on March 29, 2001. Upon arriving at the facility, the maintenance director relit the boiler and turned up the boiler temperature so that the water would reheat more quickly. He then continued to adjust the thermostatically controlled boiler while water temperatures stabilized and monitor water temperatures until they stabilized within proper range. When this process had to be implemented, it usually took about an hour to an hour and a half to adjust the hot water temperatures and get them back down to the required temperature range. Upon completion of the survey, the Agency documented its findings on a standard survey report form, titled "Statement of Deficiencies and Plan of Correction." On the form, each deficiency is noted and referred to as a "tag." The tags cited on the survey form for the April 3-5, 2001, survey of Respondent's facility relevant to this proceeding were Tags F323 and F490. Tag F323, which references 42 C.F.R., Subsection 483.25(h)(1)(2001), requires that the facility ensure that the resident environment remains as free of accident hazards as is possible. On the survey form, the Agency has stated that Respondent did not ensure the control of the temperature of hot water used by residents in that 4 of 15 rooms surveyed had hot water temperatures in excess of the 115 degree allowable under Rule 59A-4.133(16)(d), Florida Administrative Code. Tag F490, which references 42 C.F.R., Section 483.75 (2001), requires that Respondent’s facility be administered in a manner that enables it to use its resources effectively and efficiently to maintain the highest practicable physical, mental, and psychosocial well-being of each resident. On the survey form, the Agency noted that Respondent was deficient in this area because it failed to administer the facility to ensure the highest practicable physical well-being of each resident. Specifically, the report noted that the excessive hot water temperatures placed the residents at risk for burns and scalding. The Agency assigned both the Tags F323 and F490 deficiencies noted on the survey form as Class I violations. The Complaint also classified both allegations as Class I deficiencies and imposed civil penalties of $15,000 for the former allegation and $10,000.00 for the latter allegation. Golfview has no prior deficiencies related to water temperatures. Furthermore, Golfview's maintenance director has been employed by Golfview for five years and has never experienced a deficiency for water temperatures during that time or during his prior employment at another nursing home. There is no indication that prior to the events of April 3-5, 2001, and through that time, that Golfview had experienced any incidents or resident injuries due to excessive hot water temperatures or had any complaints because of excessive hot water temperatures. The Agency's surveyor team member who was designated as the Life Safety Inspector and who took most of the resident room temperatures during the April 2001 survey did not testify at the hearing in this case.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Agency for Health Care Administration enter a Final Order finding that Respondent did not violate Rule 59A-4.133, Florida Administrative Code, as alleged in the Administrative Complaint and, thus should not be assessed a civil penalty. DONE AND ENTERED this 6th day of November, 2001, in Tallahassee, Leon County, Florida. CAROLYN S. HOLIFIELD 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 6th day of November, 2001. COPIES FURNISHED: Diane Grubbs, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building, Suite 3431 Tallahassee, Florida 32308 William Roberts, Acting General Counsel Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building, Suite 3431 Tallahassee, Florida 32308 Alfred W. Clark, Esquire 117 South Gadsden Street, Suite 201 Post Office Box 623 Tallahassee, Florida 32301-0623 Michael P. Sasso, Esquire Agency for Health Care Administration 525 Mirror Lake Drive, North Suite 310-G St. Petersburg, Florida 33701
The Issue The issue to be determined in this case is whether the Governor and Cabinet, sitting as the Siting Board, should grant certification to New Hope for the expansion of the Okeelanta cogeneration facility to a total net steam electrical generating capacity of 140 megawatts (”MW”).
Findings Of Fact The Applicant The Applicant, New Hope Power Partnership, is a Florida partnership that owns the existing Okeelanta cogeneration Facility. Ex. 1 at 1-1, 3-1. New Hope will also own the Project. See id. The Site The Facility is located in an unincorporated area in western Palm Beach County, Florida. Ex. 1 at 2-1; Ex. 4 at 6; T It is approximately six miles south of South Bay and two miles west of U.S. Highway 27. Id. The Facility is located on a site (the ”Site”) that is approximately 82.1 acres in size. Ex. 1 at 2-1; Ex. 4 at 8; T 19. The Site is adjacent to Okeelanta Corporation’s existing sugar mill, sugar refinery, and sugarcane fields. Ex. 1 at 2-1; Ex. 4 at 6; T 17, 20. The Surrounding Area There are large buffer areas around the Site. See Ex. 1 at 2-1, 2-2, 2-4; Ex. 4 at 6; T 17-18. Almost all of the land within five miles of the Site is used for agricultural purposes (sugarcane farming). Id. The community nearest the Site is South Bay. Ex. 1 at 2-2; Ex. 4 at 6; T 17. The nearest home is more than 3.5 miles northeast of the Site. Ex. 1 at 2-4; Ex. 5 at 9; T 17-18. The Facility is adjacent to an existing electrical substation (Florida Power & Light Company’s Okeelanta Substation). See Ex. 1 at 1-2. An existing electrical transmission line connects the Facility to the substation. Ex. 1 at 3-1. The Existing Facility The Facility uses biomass fuels (e.g., bagasse from the sugar mill; clean wood waste) to generate steam and up to 74.9 MW of electricity (net). Ex. 1 at 1-1, 3-1; Ex. 4 at 6-7; T 18. The Facility supplies steam to the sugar mill during the sugarcane harvest (October through March) and it supplies steam to the refinery throughout the year. Ex. 1 at 1-2, 3-1; Ex. 4 at 7; see T 18. Excess steam from the Facility is used to generate electricity, which is sold to utility companies, including Florida Power & Light Company. Ex. 1-3; Ex. 4 at 7; See T 50-51. The existing Facility includes three steam boilers, one steam turbine/electrical generator, a cooling tower, an electrical switchyard, materials handling and storage facilities for biomass fuels, and ancillary equipment. Ex. 1 at 2-1, 3-1; Ex. 4 at 7; T 20-21. The Expansion Project The Expansion Project will increase the Facility’s electrical generating capacity by 65 MW (net), creating a total generating capacity of 140 MW (net). Ex. 1 at 1-1, 1-3, 2-1; Ex. 4 at 7; T 18. The Expansion Project will involve the installation of a new turbine/electrical generator, a cooling tower, and related equipment at the Site. Ex. 1 at 1-3, 2-1; Ex. 4 at 8; T 19. Construction of the Expansion Project Approximately 0.5 acres of the Site will be occupied by the new equipment that will be installed for the Expansion Project. Ex. 1 at 2-1; Ex. 4 at 8; T 19. The construction of the Project will occur in disturbed upland areas that already are used for industrial operations. Ex. 1 at 3-2, 4-1; Ex. 4 at 9; T 20. No construction will take place in any wetland, wildlife habitat, environmentally sensitive area, or 100-year flood plain. Ex. 1 at 2-2, 2-18, 4-1; Ex. 4 at 9; T 20. No new electrical transmission lines will need to be built to accommodate the additional electrical power generated by the Expansion Project. See Ex. 1 at 3-1, 6-1. During construction, there will be a temporary increase in sound levels due to the heavy equipment associated with the construction process. Ex. 1 at 4-9 through 4-10; Ex. 5 at 9; T 42-43. Given the remote location of the Site, the sounds generated by the construction of the Expansion Project will not interfere with human activities or otherwise cause a nuisance at any residential locations. Id. The construction of the Expansion Project will result in a temporary increase in traffic on some roads near the Site, but these roads will continue to operate at acceptable traffic levels. Ex. 1 at 4-8 through 4-9; Ex. 5 at 9; T 42. Operation of the Expansion Project The Facility currently operates at its full capacity during the sugarcane harvest. See Ex. 30, Technical Evaluation at 2. The Expansion Project will enable the Facility to operate at its full capacity year-round. See Ex. 1 at 3-1 through 3-2; Ex. 30, Technical Evaluation at 2. Although the Facility will generate more electricity after the Expansion Project is completed, the basic operation of the Facility will not change. Ex. 4 at 10; Ex. 5 at 6; T 22. The Facility has a water use permit issued by the South Florida Water Management District, which authorizes the Facility to use water from the Miami/North New River Canal System, the surficial aquifer, and the Floridan aquifer. Ex. 1 at 3-11; Ex. 5 at 7; T 40-41. The Okeelanta Corporation also may provide water to the Facility, in accordance with the SFWMD water use permit for the Okeelanta Corporation’s sugar mill. Ex. 5 at 7; T 41. After the Expansion Project is completed, the amount of water used by the Facility will increase, commensurate with the increased use of the Facility. Ex. 5 at 7; DEP Ex. 2, Staff Analysis Report at 3; T 41. The additional water will be obtained from the cooling pond/rock pit located at the adjacent sugar mill. Id. In March 2005, the SFWMD issued a water use permit that allows the Okeelanta Corporation to increase the amount of water provided to the Facility from 0.4 mgd to 2.0 mgd. Ex. 37; see T 41. The Facility’s stormwater and process water are routed to a 600-acre area that is divided into four percolation basins. Ex. 1 at 3-16; Ex. 5 at 8; T 41. Each basin is used on a rotating basis--i.e., the basin is used for percolation for one year and then it is used for growing sugarcane for three years. Ex. 5 at 8; T 41. Each percolation basin is designed to hold all of the Facility’s process water, plus all of the contact and non-contact stormwater runoff from a 100-year, three-day storm event. Id. The Facility does not discharge any stormwater or process water to any surface water. Ex. 1 at 5-9; Ex. 5 at 8; T 41-42. The Facility’s use of the percolation ponds has not caused and is not expected to cause any violations of any ground water quality standards. Ex. 5 at 8. The Facility generates fly ash and bottom ash from the combustion of biomass fuels. Ex. 1 at 3-16, 5-10; Ex. 5 at 9; T 42. These materials are taken to a landfill for disposal. Id. The operation of the Expansion Project will not have any significant impacts on traffic. Ex. 1 at 5-17; Ex. 5 at 9; T 42. The local roads will continue to operate at an acceptable level of service. Id. Air Quality Regulations The Facility must comply with New Source Performance Standards (”NSPS”) and Best Available Control Technology (”BACT”) requirements, both of which impose strict limits on the Facility’s airborne emissions. See Ex. 1 at 3-5; Ex. 30, Technical Evaluation at 3. The Facility 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. Id. The Facility previously was reviewed and approved under the PSD program. Ex. 1 at 3-5; Ex. 5 at 6; Ex. 30, Technical Evaluation at 2; T 39-40. The DEP has determined that the Expansion Project is not subject to PSD pre-construction review. Ex. 5 at 6; Ex. 30, Technical Evaluation at 5; T 38. The cooling towers will be the only new source of air pollution associated with the Expansion Project. Ex. 1 at 3-5; Ex. 5 at 6; T 38. The water droplets leaving the cooling tower will evaporate, causing small amounts of particulate matter to enter the atmosphere near the Site. Ex. 5 at 6; T 38. However, the emissions from the cooling tower are so small that the cooling tower is exempt from the permitting requirements established by the DEP. Id. Best Available Control Technology A BACT determination is required for each pollutant for which PSD review is required. Ex. 1 at 3-5; Ex. 5 at 7; DEP Ex. 2, Staff Analysis Report at 15. 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. Ex. 1 at 3-5; Fla. Admin. Code R. 62-210.200(38). As part of its BACT analyses for the Facility, DEP determined that mechanical cyclone dust collectors and an electrostatic precipitator (”ESP”) will control the Facility’s emissions of particulate matter, a selective non-catalytic reduction system (”SNCR”) will control oxides of nitrogen (”NOx”), use of low-sulfur fuels will control sulfur dioxide emissions, and proper facility design and operating methods will control other pollutants. Ex. 1 at 3-6 through 3-8; Ex. 30, Draft Permit at D-1; T 40. Accordingly, these air pollution control systems and techniques are utilized at the Facility. Id. The Facility also uses an array of continuous emissions monitors to ensure that the Facility is continuously in compliance with the BACT emission limits. Ex. 1 at 5-14; Ex. 30, Draft Permit at E-1 through E-2. Protection of Ambient Air Quality The EPA has adopted ”primary” and ”secondary” National Ambient Air Quality Standards (”NAAQS”). See Ex. 1 at 2-21. The primary NAAQS were promulgated to protect the health of the general public with an adequate margin of safety. See Ex. 1 at 2-21; see also 42 U.S.C.A. § 7409(b) (1997). 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. Id. Florida has adopted EPA’s primary and secondary NAAQS, and has adopted some Florida AAQS (”FAAQS”) that are more stringent than EPA’s NAAQS. See id. The Facility’s potential impacts on ambient air quality were evaluated by DEP, based on the continuous operation of the Facility at full load, following completion of the Project. Ex. 30, Technical Evaluation at 4. DEP concluded that the maximum impacts from the Facility will not cause or contribute to any violations of AAQS. Ex. 1 at 5-10 through 5- 14; Ex. 5 at 6-7; Ex. 30, Technical Evaluation at 4; Ex. 5 at 6; T 39. Other PSD Analyses The PSD program provides protection for those areas that have good air quality. See Ex. 1 at 2-22; Ex. 30, Technical Evaluation at 3-4. Different areas of Florida have been designated as PSD ”Class I” or ”Class II” areas, depending upon the level of protection that is to be provided under the PSD program. Id. In this case, the Project is located in a PSD Class II area. Id. The nearest PSD Class I area is the Everglades National Park (”Everglades”), which is approximately 92 kilometers (”km”) south of the Site. Ex. 1 at 2-22. The DEP’s analyses demonstrate that the Facility’s impacts on ambient air quality will not violate any applicable PSD requirement for the Class I and Class II areas. Ex. 1 at 5- 14; Ex. 5 at 6; Ex. 30, Technical Evaluation at 4; DEP Ex. 2, Staff Analysis Report at 16-17; T 39. Compliance With Air Standards New Hope has provided reasonable assurance that the Expansion Project and the Facility will comply with all of the applicable air quality standards and requirements. Ex. 5 at 7; Ex. 30; DEP Ex. 2, Staff Analysis Report at 17; T 38-40. Environmental Benefits of the Project The Expansion Project will provide environmental benefits. Ex. 1 at 7-3 through 7-4; Ex. 5 at 10; T 43-44. For example, the Project will be capable of producing approximately 65 MW (net) of electricity in Southeast Florida, which needs new electrical generating capacity. Ex. 1 at 7-3 through 7-4; Ex. 5 at 10; T 43-44. The Expansion Project will also enhance fuel diversity by using renewable biomass fuels to generate electricity. Id. Over 20 years, the Project may displace the use of approximately 5,600,000 barrels of oil worth nearly $170,000,000 (assuming oil prices of $30 per barrel). Id. In addition, the Expansion Project will beneficially reuse clean wood waste, which otherwise would likely be placed in a landfill for disposal. Ex. 1 at 7-4; Ex. 5 at 10; T 44. The Facility receives wood waste and biomass materials from Miami-Dade County, the Palm Beach County Solid Waste Authority, and approximately 25 private recycling companies, thus assisting them with their solid waste management programs. Ex. 5 at 10; T 44. The Facility also burns melaleuca trees that have been removed pursuant to land clearing programs for the eradication of this nuisance species. Ex. 5 at 10. Socioeconomic Benefits of the Project The Expansion Project will provide jobs for an average of 70 construction workers during the 12-month construction phase of the Project. Ex. 1 at 7-1 through 7-2; Ex. 5 at 10; T 43. Approximately $3.5 million will be paid in wages for construction employees working on the Expansion Project. Id. Consistency with Land Use Plans and Zoning Ordinances The proposed use of the Site is consistent and in compliance with Palm Beach County’s comprehensive land use plan and zoning ordinances. Ex. 1 at 2-2 through 2-4; Ex. 4 at 16; Ex. 23; Ex. 24; Ex. 38; Ex. 39; T 28-29. The Facility and Project have both been reviewed and approved by the Palm Beach County Board of County Commissioners. Ex. 4 at 11-12; Ex. 23; Ex. 24; T 23-25. Compliance with Environmental Standards New Hope has provided reasonable assurance that the Facility and 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. Prehearing Stipulation at 24, paragraph 5.B.3.; Ex. 5 at 11; DEP Ex. 2, Staff Analysis Report at 22; T 44-45, 60. The location, construction and operation of the Facility and 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. Ex. 5 at 12; DEP Ex. 2, Staff Analysis Report at 20; T 45-46, 61-62. The Facility and Project will not unduly conflict with any of the goals or other provisions of any applicable local, regional or state comprehensive plan. Ex. 4 at 16; Ex. 23; Ex. 24; Ex. 38; Ex. 39; T 28-29. The Conditions of Certification establish operational safeguards for the Facility and Project that are technically sufficient for the protection of the public health and welfare. Ex. 5 at 13; T 46-47, 61. Agency Positions and Conditions of Certification On November 18, 2004, the PSC issued an Order (No. PSC-04-1105A-FOF-EI) granting New Hope’s petition for determination of need for the Expansion Project. Ex. 22; DEP Ex. 2, Staff Analysis Report at 4-6, 12-13. The PSC determined, consistent with the criteria of Section 403.519, Florida Statutes, that the Expansion Project is needed. Id. The DEP, DOT, DCA, and SFWMD all recommend certification of the Expansion Project, subject to the Conditions of Certification. Prehearing Stipulation at 10-11, 13-16. New Hope has accepted, and has provided reasonable assurance that it will comply with, the Conditions of Certification. Prehearing Stipulation at 24-25, paragraph V.B.4; Ex. 5 at 11-12; T 45, 61-62. Public Notice of the Certification Use Hearing On September 29, 2004, New Hope published a ”Notice of Filing of Application for Electrical Power Plant Site Certification” in the Palm Beach Post, which is a newspaper of general circulation published in Palm Beach County, Florida. Ex. 31; see also Ex. 5 at 16; T 49. On October 1, 2004, the Department published ”Notice of Receipt of Application for Power Plant Certification” in the Florida Administrative Weekly. Ex. 35; see also Ex. 5 at 16; T 49. On February 2, 2005, New Hope published notice of the Certification Hearing in the Palm Beach Post. Ex. 33; see also Ex. 5 at 16; T 49. On February 4 and 11, 2005, the Department published notice of the Certification Hearing in the Florida Administrative Weekly. Ex. 36; see also Ex. 5 at 16; T 49. 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). Prehearing Stipulation at 24, paragraph V.B.2,3; Ex. 5 at 17; T 49, 63-64.
Conclusions For Petitioner New Hope Power Partnership (”New Hope”): David S. Dee, Esquire Landers & Parsons 310 West College Avenue Tallahassee, Florida 32301 For the Florida Department of Environmental Protection: Scott A. Goorland, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399
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 certification for the expansion of the Okeelanta Cogeneration Facility to a total capacity of 140 MW (net), in accordance with the Conditions of Certification, DEP Exhibit 3. DONE AND ENTERED this 31st day of March, 2005, in Tallahassee, Leon County, Florida. S CHARLES A. STAMPELOS 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 31st day of March, 2005. COPIES FURNISHED: David S. Dee, Esquire Landers & Parsons 310 West College Avenue Tallahassee, Florida 32301 Scott Goorland, Esquire Office of General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 James V. Antista, General Counsel Florida Fish and Wildlife Conservation Commission 620 South Meridian Street Tallahassee, Florida 32399-1600 Roger Saberson, General Counsel Treasure Coast Regional Planning Council 70 Southeast 4th Avenue Delray Beach, Florida 33483 Jennifer Brubaker, Esquire Public Service Commission Division of Legal Services 2540 Shumard Oak Boulevard Tallahassee, Florida 32399-0863 Leslie Bryson, Esquire Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399 Sheauching Yu, Esquire Department of Transportation 605 Suwannee Street Mail Station 58 Tallahassee, Florida 32399-0458 Sarah Nall, Esquire 9341 Southeast Mystic Cove Terrace Hobe Sound, Florida 33455 Denise M. Nieman, Esquire Palm Beach County Attorney's Office 302 North Olive Avenue, Suite 601 West Palm Beach, Florida 33401-4705 Raquel A. Rodriguez, General Counsel Office of the Governor The Capitol, Suite 209 Tallahassee, Florida 32399-1001 Kathy C. Carter, Agency Clerk Department of Environmental Protection Office of General Counsel Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000
Findings Of Fact Upon consideration of the evidence presented, including the demeanor and credibility of the witnesses, the following facts are determined: [NATURE OF OCEANSPRAY'S CITRUS PROCESSING PLANT OPERATIONS] OCEANSPRAY owns and operates a citrus concentrate processing plant in Vero Beach, Florida. The plant processes grapefruit received from local growers into grapefruit concentrate which is stored and later transported elsewhere for further processing, distribution, and sale to the public. During 1978, the plant also produced livestock feed as a by-product of the citrus concentrate process. (Testimony of Childs, Henly.) The business operates on a seasonal basis. Ordinarily, the plant begins processing operations in October or November, when the first grapefruit begin to arrive. As the grapefruit season progresses and fruit becomes more plentiful, additional shifts are added and more employees hired. Finally, as the growing season ends and grapefruit becomes less available, the cycle reverses itself: the number of shifts are reduced, and employees are laid off. The fruit processing season normally ends in June or July. Since fruit processing machinery will not be operated again until the next October or November, machine operators are ordinarily laid-off. The only employees that ordinarily remain employed, on a year-round basis, are mechanics, security guards, janitors, And certain key personnel of the company. (Testimony of Childs, Henly, Calfee.) I. [UNEQUAL PAY AND RECLASSIFICATION OF FEMALES AS GENERAL PAINTERS] Instead of laying-off all machine operators at the close of the fruit processing season in July, 1978, OCEANSPRAY retained several seasonal employees during the summer off-season. These employees, with their seasonal and summer job classifications, and salaries are indicated below: E Males: Job Classification Hourly Salary Job Classification Hourly Salary Willie Billie Alford Production Leadman Norsworthy Assistant 4.35 3.85 Extractor Operator Assistant 4.35 3.05 Extractor Operator Extractor Operator Floyd Brennan Ramp Driver Johnny Norsworthy Extractor 4.45 4.10 Ramp Driver Extractor 4.45 4.10 Operator Don Thompson Limer 3.65 Operator Limer 3.65 Richard Oliver Dryer Operator 4.10 Dryer Operator 4.10 Ann Pyle Taste Evapo- 4.10 rotor Operator General Painter 3.65 2/ Jennie Gilyard Waste Heat 4.10 General Painter 3.65 2/ EMPLOYEE SEASONAL SUMMER Women: Evaporator Operator 4.10 General Painter 3.65 2/ 4.10 General Painter 3.65 2/ 3.25 General Painter 3.65 2/ 4.10 General Pointer 3.65 2/ Elaine Rinker Waste Heat Evaporator Operator Katherine Hughes Waste Heat Evaporator Operator Veronica McCarty Outside Grader Ruby Simpson Waste Heat Evaporator Operator (Testimony of Childs, Hill; P.E. 2, 5, 6, 9.) At OCEANSPRAY, hourly employees are paid salaries in accordance with job classifications established by the company. During the summer of 1978, the six (6) seasonal male employees retained their seasonal job classifications and salaries; the females did not. The six (6) females were placed in a new classification established by the company--General Painter--and paid a salary of $3.65 an hour. 2 For five (5) of the six (6) females, this represented a cut in pay from their seasonal salaries. (Testimony of Childs, Hill; P.E. 2, 5, 6, 9.) Although the six (6) male employees retained their seasonal job classifications and salaries, their work duties during the summer of 1978 did not conform to their job classification. Alford, classified as Production Leadman, worked as a painter; B. Norsworthy, classified as Assistant Extractor Operator, worked as a painter; Brennan, classified as Ramp Driver, worked as a mechanic; J. Norsworthy, classified as an Extractor Operator, worked as a painter; Thompson, classified as a Limer, worked as a Spray Field Attendant; Oliver, classified as Dryer Operator, worked as a mechanic. In contrast, the six (6) female employees were reclassified as General Painters, and painted walls, buildings, and plant equipment. (Testimony of Childs, Hill; P.E. 2, 5, 6, 9.) The three (3) male employees who worked primarily as painters during the summer--Alford, D. Norsworthy, and J. Norsworthy (for only part of the summer) --painted loading bins and elevators outside the buildings using a scaffold 25-30 feet high. The scaffold, consisting of one-inch pipe, required assembly, had no hand-rails, and was not very steady. The six (6) females painted bins, machinery, and walls inside the plant and at ground level. Vern Dost, the Cold Room Operator, frequently performed similar inside painting after completing his primary work as Cold Room Operator. When he performed such painting, he was paid his regular Cold Room Operator salary-- $4.00 an hour. Alford and the Norsworthys also performed inside painting, similar to that performed by the females, when rain interfered with their outside scaffold painting. (Testimony of Childs, Hill, Gilyard, Pyle.) When several female painters, including Ms. Gilyard, complained that their salaries were less than those paid the male painters, the plant manager told them that if they wanted to paint on the scaffold, they would get the same rate as the men, i.e. their seasonal salaries. This offer was refused by Ms. Gilyard; it was not extended to Ms. Pyle. The only difference between the painting performed by the females, and the scaffold painters was the increased danger associated with painting at 25- 30 foot elevations. However, no separate job classification was established for scaffold painting. (Testimony of Childs, Hill, Gilyard, Pyle.) Alford and 13. Norsworthy, the primary scaffold painters, were initially retained for summer employment "to do whatever . . . we (management) wanted them to do" (Tr. 150) The job that was later assigned them, and which ultimately took most of their time, was the painting of the bin posts. (Testimony of Childs.) When Ms. Gilyard and Ms. Pyle initially sought summer employment, OCEANSPRAY did not inform them that they could retain their seasonal salaries if they were willing to paint from scaffolds. (Testimony of Pyle, Gilyard.) OCEANSPRAY's actions in cutting the salaries of five (5) of six (6) female summer workers, and continuing the male employees at their seasonal salaries prompted the company's accountant/bookkeeper to send to the plant manager a memorandum containing the following excerpt: [it] doesn't seem fair that women went to painter and Billy Norsworthy, Richard Oliver and Don Thompson stayed at their season rate. What do they get ad- justed to?" (Tr. 425.) (Testimony of Calfee.) Between July 30, 1978, and September 3, 1978, Ms. Gilyard worked 247 hours for OCEANSPRAY as a General Painter at $3.65 an hour. After receiving a rate adjustment on September 10, 1978, she was paid $3.85 an hour from September 4, 1978, for 287.5 hours, extending through October 21, 1978. If her seasonal salary of $4.10 had been paid during this period, she would have received an additional $183.03. In like fashion, Ms. Pyle worked 135.5 hours at $3.65 an hour as a General Painter at OCEANSPRAY from July 30, 1978, through September 3, 1978. From September 4 through October 21, 1978, she was paid $3.85 an hour for 335.5 hours. If she had been paid during this time at her seasonal salary of $4.10 an hour, she would have received an additional $144.86. (P.E. 4.) II. [UNEQUAL LAYOFF POLICY AND HOURS] From May through July, 1978, as grapefruit became less available, OCEANSPRAY reduced its-three fruit processing shifts to one, and laid off certain seasonal employees. On some days, no fruit would arrive, and fruit processing employees would perform other work, such as maintenance and cleanup. On other days, grapefruit concentrate would be reprocessed for subsequent shipment. Such reprocessing consisted of dumping juice from barrels, then blending and rebarreling it. A forklift is used to pick up the barrels and place them on rollers, where they are conveyed into a tilt mechanism. The barrels are then strapped or chained and, by hydraulic mechanism, are tilted and dumped. One person would normally operate the forklift, while others would perform the other related tasks. This reprocessing of grapefruit concentrate is of medium physical difficulty, and not beyond the physical capabilities of female employees. (Testimony of Childs, Gilyard.) During this three-month slump period, George Dest, the plant manager, decided which employees would be laid off and which would remain. His selections were ordinarily based on seniority. However, he departed from this policy by retaining "key people" to work during reprocessing days. "Key people" were those employees holding two principle jobs in fruit processing-- evaporator operators, extractor operators, lab technicians, and dryer operators for the feedmill. Such "key people" were retained on full employment during fruit reprocessing days. Although Ms. Pyle and Ms. Gilyard were Evaporator Operators and considered "key people", they were not retained for employment on reprocessing days. OCEANSPRAY asserts that the reason for their exclusion is that neither was qualified to operate a forklift. It is true that no female employees during this period of 1978 were qualified to operate a forklift. (Testimony of Childs, Gilyard, Pyle, Hill, Rinker, Hughes, Williams.) Ms. Pyle and Ms. Gilyard were not called in for reprocessing work because of OCEANSPRAY's plant manager's decision to "keep the guys because . . . they would be dumping barrels." (Tr. 137.) While the manager did not mention Ms. Pyle and Ms. Gilyard by name, he told his subordinate: "Let the girls be off and bring guys in." (Tr. 138.)(Testimony of Childs.) 14.. OCEANSPRAY's weekly pay records for the weeks of April 9 through July 16, 1978, indicate that the average weekly number of hours worked by male employees consistently exceeded the average weekly hours worked by females. (Testimony of Calfee; P.E. 5, 12.) Ms. WILLIAMS admits that she was selected not to work on certain days during the shipping period based on her seniority. (Testimony of Williams.] After July 1, 1978, due to their exclusion from fruit reprocessing Ms. Pyle and Ms. Gilyard worked less weekly hours than the average number worked by male employees. If they had worked hours equivalent to the average number worked by male employees, Ms. Pyle would have received an additional $27.68, and Ms. Gilyard, an additional $22.55. (Testimony of Calfee; P.E. 4.) III. [UNEQUAL WAGES] During 1978, out of a workforce of 150 employees (100 males, 50 females), OCEANSPRAY paid three male employees at a rate in excess of the rate corresponding with their official job classifications: Employee Official Job Classification Rate for Job Classification Pay Rate Received Floyd Brennan Ramp Driver $3.75 $4.45 Bill Ware lead Mechanic 4.85 5.40 Willie Alford Extractor Operator 4.10 4.30 No female employees at OCEANSPRAY were paid, in like fashion, amounts in excess of the rates warranted by their job classifications. (Testimony of Calfee, Hill; P.E. 2, 3, 4.) However, in two of the three cases listed above, the employees received pay which was justified by new or additional assigned duties. Brennan discharged the duties of a Fruit Leadman, in addition to those of a Ramp Driver. Indeed, "Rec. leadman" is noted on Brennan's payroll record. In the case of Alford, he was promoted to Production Leadman in June of 1978. His new and different responsibilities were assumed due to the vacancy in the Production department caused by the promotion of Hill to Production Supervisor. (Testimony of Hill; P.E. 2, 4, 9.) In the remaining case, Ware was promoted to Lead Mechanic in July of 1978--with a job classification pay rate of $4.85 an hour. However, he was paid the proposed higher future rate for that classification--$5.40 two months before its effective date. This admitted overpayment was caused by OCEANSPRAY's inadvertent error. (Testimony of Hill.) Numerically equivalent treatment of OCEANSPRAY's male and female employees--with a work force of two males to one female--would allow two males and one female to receive pay in excess of their official job classifications. In this case, OCEANSPRAY's slight disparity in treatment of males and females is not statistically significant and is insufficient to establish a prima facie claim of discrimination, or disparate treatment. Numerically equivalent treatment, for all practical purposes, would be achieved if only one additional female, or one less male employee, had received pay in excess of their official job classifications; such equivalency would preclude a bona fide disparate treatment claim. (Testimony of Hill, Calfee.) IV. [AS TO MOTION FOR CLASS CERTIFICATION] No evidence was presented which establishes that OCEANSPRAY's alleged unlawful employment practices continued beyond the summer of 1978. The Human Rights Act does not apply to employment practices which occurred prior to its effective date-- July 1, 1978. Thus, the time period within which the membership of potential classes must vest is limited. There are two potential classes of female employees which are indicated by the evidence: (1) seasonal female employees who were classified as General Painters for the summer of 1978, and whose pay was reduced, accordingly; (2) "key" seasonal female employees who were laid-off and not employed for fruit Concentrate reprocessing work during July, 1978. The Potential membership of these two classes is not so numerous that joinder of all members would have been impractical. (Testimony of Childs; P.E. 11, I.E. 1, 2, 3.)
Conclusions Respondent is guilty of violating Section 23.167, Florida Statutes (1979), by engaging in discriminatory employment practices (1) and (2) above; and not guilty of (3) Affirmative relief, in the nature of compensatory damages, should be granted Petitioners. Background On August 3, September 25, and October 10, 1978, Petitioners Jennie Cilyard ("Ms. CILYARD") , Anne Pyle ("Ms. Pyle") and Diane Williams ("NS. WILLIAMS"), respectively, filed separate complaints with Intervenor, Norman A. Jackson, Executive Director, Florida Commission on Human Relations " COMMISSION") These complaints accused Respondent Oceanspray Cranberries, Inc., ("OCEANSPRAY") of engaging in several unlawful employment practices which discriminated against them on the basis of sex. In September, 1979, after investigation, the COMMISSION found "reasonable cause" to believe that the complained of unlawful employment practices had occurred. After the parties conciliation efforts were unsuccessful, the COMMISSION issued its Notice of Failure of Conciliation in November, 1979. In December, 1979, the three female Petitioners filed separate petitions for relief with the COMMISSION, alleging sexual discrimination b OCEANSPRAY and relying upon the COMMISSION' s "reasonable cause" determination. These three petitions were consolidated for hearing, and the COMMISSION's motion to intervene as a party was granted. Two weeks before final hearing, Petitioners filed a notion to certify this cause as a class action, consisting of all past, present, and future female employees of OCEANSPRAY. Ruling was reserved pending final hearing, and the parties were required to limit evidence relating to the class action allegations to those matters encompassed by COMMISSION Rule 9D-9. 08(6)(a) through (d), Florida Administrative Code. At final hearing, Petitioners testified in their own behalf, and called Lealan Herbert Childs, farmer OCEANSPRAY plant superintendent, and Marcy Calfee, COMMISSION investigator, as their witnesses. They also offered Petitioners' Exhibits 1/ 1 through 13, each of which was received into evidence. The COMMISSION offered Intervenor's Exhibits 1/ 1 through 3, each of which was also received into evidence. At the conclusion of the Petitioners' case-in-chief, OCEANSPRAY moved to dismiss that part of the petitions incorporating charges contained in paragraphs D, E, and G of the COMMISSION's reasonable cause" determination, on the ground that no evidence had been offered to support such charges. The motion was granted, as to paragraphs D and E, and denied as to paragraph G. Respondent OCEANSPRAY called as its witnesses George Russell Hill, OCEANSPRAY production superintendent, Elaine Rinker, former OCEANSPRAY scale and evaporator operator, and Katherine L. Hughes, OCEANSPRAY evaporator operator. At their request, the parties were granted forty-five (45) days from filing of the transcript to submit past-hearing proposed findings of fact and conclusions of law. Petitioners and Respondent timely filed their post-hearing filings on August 18, 1980. The parties agreed that the time period for submittal of the Recommended Order would commence at that time.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Florida Commission on Human Relations find that OCEANSPRAY engaged in unlawful employment practices and grant Petitioners affirmative relief, as described above. DONE AND ORDERED this 7th day of October, 1980, in Tallahassee, Florida. R. L. CALEEN, JR. Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675
The Issue The issue presented herein is whether or not Respondent violated the Construction Industry Licensing Law as alleged in the Administrative Complaint filed herein on June 27, 1987, to wit: proceeding to work without obtaining a timely permit, violating local law either deliberately or through improper supervision, gross negligence and/or incompetence in connection with said job or through his failure to supervise, inspect, improper electrical wiring, poor duct design, damage to a customer's ceiling, failure to supply warranty papers and inadequate cooling.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received and the entire record compiled herein, I make the following relevant factual findings: Respondent, Frank W. Hudgens, at all times relevant hereto was licensed as a certified air conditioning contractor having been issued license number CA C032442. During times material, Respondent was the sole qualifier for Tampa Bay Cooling, Inc. On June 15, 1987, Respondent, through Tampa Bay Cooling, entered into a contract with Mr. and Mrs. Jack Davis to install a two and one-half ton York heat pump with a horizontal air handler and five kilowatt auxiliary heat strip with the required thermostatic controls and fiberglass and flex ducts, including registers, grills, refrigerant lines and PVC drain lines to the Davis residence for the sum of $3,214.00. (Petitioner's Exhibit 2.). Respondent installed the equipment as contracted. Respondent subcontracted with a licensed electrician for the installation of the required electrical work on the project. Respondent commenced performance of the installation prior to the time that he obtained a permit as required by local ordinance. However, Respondent applied for a permit at about the same time that the work started, in St. Petersburg, Florida, whereas the Davis' reside in the City of Pinellas Park, and it was therefore necessary for him to obtain a permit from Pinellas Park. Respondent in fact obtained a permit from the City of Pinellas Park later in the day that he commenced work at the Davis residence. When the Davis' contracted with Respondent for the installation of the central air conditioning system in their home, a major concern was that they be able to keep their "computer room" sufficiently cooled to avoid damage to the computers. Following the installation of the system by Respondent, Mrs. Davis complained to Respondent on several occasions concerning the fact that the "computer room" was not sufficiently cool. During Respondent's installation of the system at the Davis', a stop- work order was placed on the job based on Respondent's failure to have the required electrical permit and an employee was observed unwinding electrical wire that would be used to make the electrical connections for the system. Respondent was paid $1,607.00 by the Davis' on June 15, 1987, at the commencement of the installation of the system with the balance due upon completion. The Davis' had refused to pay Respondent the remaining balance for the system. Based on the Davis' refusal to tender Respondent the remaining one half, i.e., $1,607.00 for payment of the system, Respondent has refused to provide them the extended warranty papers for the system. Following Respondent's completion of the installation of the system, the Davis' contacted Donald W. Branch, a factory trained technician employed by Gorman Air Conditioning, the supplier of the system at the Davis' residence and complained about the fact that the system was not keeping the computer room as cool as the Davis' desired. Branch, who was tendered and received as an expert in air conditioning, made a survey of the Davis residence and issued a field report regarding the system. Branch found the system installed by Respondent to be producing within the factory specifications and found that the system was operating satisfactorily and in conformance with factory specifications. Branch found that there was a need for a return air grill to be added to the "computer room" area, such that, when the door was closed in that area, there would still be correct air flow. For appearance sake, Branch determined that the outdoor unit needed leveling and that the drainline from the indoor unit to the outdoors needed to be insulated, possibly, if attic temperatures are too extreme which would prevent condensate from the drainline from dripping and wetting the ceiling. While Branch questioned the appearance of Respondent's insulation of the system, he found it to be operating efficiently and in conformance to specifications. Respondent dispatched a plasterer to the Davis' residence to repair a damaged ceiling inadvertently caused by one of its employees. York Air Conditioning, the supplier of the system, replaced the compressor in the heat pump with a new one in an attempt to appease Mrs. Davis, although this was not done based on any finding by either Branch or Respondent that the compressor which was not the original compressor, was not performing according to factory specifications. Respondent, based upon the suggestion of Don Branch, installed an additional return in the computer room in an attempt to alleviate Mrs. Davis' discomfort in the computer room and was sufficient to satisfactorily cool the computer room. A two and one-half ton air conditioning unit is sufficient to cool a home the size of the Davis residence, which is approximately 1,100 square feet in size, provided the system was correctly designed. Respondent, with the exception of having to reroute a return line from one of the other rooms, properly designed the system in the Davis residence, and additional tonnage was not required to adequately cool their home.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: Petitioner enter a final order imposing an administrative fine against Respondent in the amount of five hundred ($500) payable to Petitioner within thirty (30) days of the entry of its final order. Petitioner enter a final order issuing a written reprimand to Respondent based on his failure to timely obtain a permit prior to commencement of a work project where a permit is required. DONE and ENTERED this 31st day of March, 1989, in Tallahassee, Leon County, Florida. JAMES E. BRADWELL 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 3rd day of April, 1989. COPIES FURNISHED: David Bryant, Esquire 1107 E. Jackson Suite 104 Tampa, Florida 33602 Larry L. Dillahunty, Esquire 780-94th Avenue North Suite 108 St. Petersburg, Florida 33702 Fred Seely, Executive Director Construction Industry Licensing Board 111 East Coastline Drive Jacksonville, Florida 32202 Kenneth E. Easley, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
Findings Of Fact Arnold J. Pergament, an employee of Petitioner for almost 20 years, has been inspecting rooming houses licensed by Petitioner in Belle Glade for almost all of that time. For many years, he has inspected Rader's Rooming House at 657 Southwest Avenue E in Belle Glade, which consists of two buildings owned by Respondent, to whom Petitioner has issued license No. 60-00737H, covering the premises. A two-storied stucco-on-wood building contains six to eight separately rented rooms and a frame building with a single story is divided into about a dozen units. Their exterior walls are weather-beaten and deteriorated; there is evidence of wood rot. On August 13, 1980, Mr. Pergament, in conducting a routine inspection, found only two fire extinguishers, not the three he testified were required for Respondent's premises. There was no fire extinguisher on the ground floor of the stucco-on-wood building. There were no light bulbs in at least some of the public bathrooms; in all, there were four bathrooms, one per building for each sex. The bathrooms needed cleaning and some had torn or missing screens. Trash and garbage had accumulated under the buildings and on the grounds. A stair railing consisted of a pipe supported by dangerously infrequent uprights. All these items and more Mr. Pergament noted on a public lodging inspection record. Petitioner's Exhibit No. 1. After marking it to indicate that it was a warning, he personally delivered a carbon copy of the inspection record to Respondent at his office. On the form, Respondent was advised that minor violations in the operation of his establishment were to be corrected by October 13, 1980. Petitioner's Exhibit No. 1. Mr. Pergament returned to Rader's Rooming House on October 15, 1980 to find trash and garbage, including broken glass, on the grounds and under the buildings, an unaltered stair railing, and no fire extinguisher on the ground floor of the stucco building. In the bathroom, light bulbs were missing, windows were broken, screens were torn and missing; and no hot water was available in the sinks or showers. He noted these matters in a contemporaneous reinspection report, Petitioner's Exhibit No. 2, a copy of which was mailed to Respondent. On November 25, 1980, Mr. Pergament returned and reinspected. A hall was being painted but the matters specified in Petitioner's Exhibit No. 2 were substantially unchanged. On the morning of the final hearing, Mr. Pergament and James R. Gallagher inspected Rader's Rooming House and found a new stair railing that Mr. Pergament testified was satisfactory. A third fire extinguisher had been installed. Although it lacked an "approved" tag, it had a tag with a date on it. There was hot water. Fluorescent light bulbs in the bathroom were missing and bathroom windows were broken. The ground were littered with trash of apparently recent origin. Johnny Marchane Lewis is one of four men who regularly work for respondent, who owns other rental property in addition to Rader's Rooming House. Mr. Lewis replaced some windows and screens last summer at Rader's Rooming House, again two months later, and again in March of 1981. The week before the final hearing, he discovered a missing screen, which he replaced, but no other problems with screens or broken windows. On the Saturday before the final hearing, Tommy Lee Williams, another of Respondent's employees, cleared the grounds at Rader's Rooming House, but he testified that garbage might still remain under the buildings. Five months previously, Respondent's men had cleared under the buildings. Somebody rakes "the yard" every other day. Mr. Williams fixed the hot water heater twice, once by replacing the heating element and once by replacing a switch. Although he does not live there, Mr. Williams visits Rader's Rooming House more than once a week. Mr. Pergament testified that he had never had a problem with Respondent's trying to make repairs to any of his properties, and Respondent testified that he tried to make all repairs promptly and would have been more prompt about seeing to the stair railing, except that he misunderstood which railing was meant in Petitioner's Exhibit No. 1. As Respondent conceded, there was no reasonable basis for his misunderstanding, but he did take steps to remedy the situation when he understood the problem.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That Petitioner impose a fine against Respondent in the amount of $100.00. DONE and ENTERED this 12th day of May, 1981, in Tallahassee, Florida. COPIES FURNISHED: Mary Jo M. Gallay, Esquire 725 South Bronough Street Tallahassee, FL 32301 Milton Rader Rader's Rooming House 657 Southwest Avenue E Belle Glade, FL 33430 Norman J. Hayes 538 State Office Building 1350 Northwest 12th Avenue Miami, FL 33136 Lewis Reif Robert Hayes Gore Building Room 104 201 West Broward Boulevard Fort Lauderdale, FL 33301 ROBERT T. BENTON, II, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of May, 1981.
Findings Of Fact Respondent, George A. Wallace, was, at all times material hereto, licensed as a Class "A" air conditioning contractor by the State of Florida, having been issued license number CA CO13239. Respondent was, at all times material hereto, the qualifier for EMC Corp. On May 14, 1981, EMC Corp. entered into a written agreement with Sophie Griffin to replace the heating and air conditioning unit at Ms. Griffin's home in Fort Lauderdale, Florida. The unit was installed in May, 1981, and Ms. Griffin promptly paid the full contract price of $2,200.00. Section 301(a), South Florida Building Code, provides: It shall be unlawful . . . to install or alter any equipment for which provision is made or the installation of which is regulated by this Code without first having filed application and obtained a permit therefore from the Building Official. A permit shall be deemed issued when signed by the Building Official and impressed with the seal of the governmental agency issuing said permit. Section 301.1(1), South Florida Building Code, provides: Permits, to be issued by the Building Official, shall be required for the following operations: * * * The installation, alteration, or repair of any air conditioning or refrigeration apparatus. . . . The South Florida Building Code has been adopted by Broward County. EMC Corp. installed the new heating and air conditioning unit at Ms. Griffin's home without first having obtained a building permit from the City of Fort Lauderdale, Florida. On March 20, 1984, EMC Corp. obtained the required permit, and paid a penalty of $25.00 for having failed to secure the permit before undertaking the work. On March 26, 1984 an inspector with the City of Fort Lauderdale inspected the installation of the unit and found, contrary to the provisions of Sections 2306 and 4801.10, South Florida Building Code, that the unit had not been anchored. EMC Corp. promptly anchored the unit. Section 4505.1. South Florida Building Code, provides: PERMITS REQUIRED: It shall be unlawful to do or commence to do any electrical work on a new installation of permanent or temporary wiring, any electrical apparatus or equipment or make extensions and/or changes to existing wiring systems . . . without having first filed application and obtained an electrical permit therefore from the Electrical Inspector. APPLICATIONS: Applications for permit will be accepted from only qualified persons or firms. . . . Neither Respondent nor EMC Corp. was a qualified electrician, nor were they licensed by the state of Florida as electrical contractors. EMC, without an electrical permit, connected the wiring of the new unit with the existing electrical service. Respondent contends, and the City of Fort Lauderdale agrees, that it is an accepted practice for an air conditioning contractor to disconnect the leads from an existing air conditioning unit and reconnect them to the new unit, without the necessity of an electrical permit, if there is no difference between the units. In this case the evidence establishes that, although the replacement and existing units were 3-ton units, the amperage demands of the replacement unit were greater than the existing unit, and that the existing wiring was inadequate. However, no hazardous condition was created by EMC Corp. reconnecting the leads from the existing unit to the replacement unit. Apart from the foregoing discrepancies, EMC Corp.'s installation of Ms. Griffin's new unit met all standards established by the South Florida Building Code. Further, EMC Corp. has faithfully fulfilled all warranty and service work it contracted to perform.
Findings Of Fact Based upon the oral and documentary evidence adduced at the hearing, the following relevant facts are found: Respondent William C. Widner has been with the City of Clearwater Fire Department for 21 years. For the past ten years, he has been assigned to Engine 48 as a fire lieutenant. His record is free from any type of disciplinary action. When a call is received concerning a medical emergency, it is proper to dispatch both a rescue unit and a fire engine to the scene. The standard operating procedure for emergency calls for fire vehicles is that the time to clear the station should not exceed 45 seconds. If there are questions concerning the dispatch, the officer in charge is to contact the dispatcher while in route to the scene of the emergency and make inquiry at that time. Also, a lieutenant, by himself, cannot change, modify or refuse to respond to a dispatch. Only a captain or the dispatcher can change the required response, or, another unit can announce that they are closer to the scene and will respond. The average response time between dispatch and arrival at the scene is four minutes. When a dispatch is given, a grid number for the destination is announced. All fire engines are equipped with map books demonstrating the location of the scene in relationship to the grid number given. On August 5, 1985, at approximately 2050 hours, the Clearwater Police Department Communications Center received an emergency call reporting a subject having a heart attack at 2720 Morningside Drive. Safety Harbor Rescue 52 and an ambulance were dispatched by telephone. At approximately 2055 hours, Engine 48 was radio dispatched to 2720 Morningside Drive. Respondent advised by radio that Engine 48 was responding to the call. Approximately 22 seconds after receiving the dispatch and 14 seconds after initially responding to the dispatch, respondent Widner telephoned the dispatcher and advised him that 2720 Morningside Drive was Engine 49's territory. Respondent did offer to go, however. The dispatcher stated that "this was a screwed up mess," but advised respondent that the computer recommended Engine 48. Respondent replied that he should go if Engine 49 was out. After further conversation, the dispatcher stated, "it made sense to me that 49 would go but it said 48." When respondent inquired as to who was to go, the dispatcher said "Oh hell, I might as well page somebody else." This conversation between the respondent and the dispatcher lasted 43 seconds and concluded 1 minute, 9 seconds from the end of the original dispatch. The dispatcher then radio-dispatched Engine 49 to 2720 Morningside Drive. Engine 49 advised that it was responding at approximately 2057 hours, 38 seconds, or two minutes, 22 seconds after the original dispatch was given to Engine 48. After speaking with the dispatcher, respondent and his superior officer, Captain Evans, checked the map for the 2720 Morningside Drive address. Upon learning that that address was, indeed, within Engine 48's territory, respondent and his crew immediately got in the truck and left the station. Captain Evans notified the dispatcher at 2059 hours that Engine 48 was responding to the call. When respondent arrived at the scene, Engine 49 and the rescue unit were already there. He attempted to radio in his arrival as soon as he got there, but the air waves were busy. He announced his arrival on his portable unit as he was walking up to the house. The evidence does not conclusively establish the exact time that respondent's arrival on the scene was reported to the dispatcher. Engine 49 did report its arrival before Engine 48's arrival was reported. Based upon the totality of the evidence, it is found that between 7 1/2 and 8 1/4 minutes elapsed between the time of the original dispatch to Engine 48 and the time of Engine 48's arrival at the scene. There are two Morningside Drives in the City of Clearwater. The residence located at 2720 Morningside Drive is within Engine 48's response zone, and is located 2.1 miles from Engine 48 and 3.0 miles from Engine 49. The other Morningside Drive is located in Morningside Estates and is within the response zone of Engine 49. When respondent first received the dispatch, he thought the address was located within the Morningside Estates subdivision. Upon leaving the station, an immediate right or left turn is required, dependent upon which Morningside Drive is being sought. Respondent's Captain Evans immediately conducted a fact finding session upon respondent's return to the station, and determined that respondent had failed to follow a direct order. A follow-up interview was conducted. It was determined that, upon receiving the initial dispatch, respondent should have proceeded directly to the engine and looked at the grid map, should have cleared the station within 45 seconds in accordance with standard operating procedures, should have reached the scene within 4 to 4.5 minutes and that, due to respondent's phone conversation with the dispatcher, two fire engines were sent on a call that required only one engine. Based upon those findings, the Fire Department concluded that respondent's productivity, workmanship, and efficiency with regard to the emergency response were not up to required standards for performance, and a two-day suspension was requested. The request for a two-day suspension was referred to the Affirmative Action Office, which conducts a fairness review of proposed disciplinary action and makes a recommendation to the City Manager, who takes final disciplinary action. After interviewing respondent concerning the August 5th incident, the Affirmative Action Office initially concluded that a two-day suspension was very harsh under the circumstances and recommended a letter of reprimand instead. Thereafter, Assistant Fire Chief Meyer contacted the Affirmative Action Office and provided the investigator with further information. The investigator was informed by Assistant Chief Meyer that respondent had been at that station for 10 years and should have been familiar with the addresses within his territory. He further advised her that the computer system utilized to determine which station should receive a particular call had been in effect for two years and discrepancies had been corrected. Meyer informed the investigator that lieutenants had been instructed not to argue with the dispatcher, to immediately respond to a call and that the proper response time in this instance should have been 4 minutes. This information from Meyer caused the Affirmative Action Office to amend its recommendation for disciplinary action to a suspension for 11.2 hours. The City Manager followed that recommendation and gave Notice of Suspension in accordance therewith. The Notice listed the three charges referenced in the Introduction as grounds for the disciplinary action taken, and established the date and time for the suspension to occur. In a separately related incident occurring in 1983, Lieutenant Handura with the City of Clearwater Fire Department received a letter of reprimand for not responding to a dispatch. In that incident, Handura was dispatched but, because he had a tour group of school children at his station and knew that a rescue unit had also been dispatched, he called the rescue unit and determined that he was not needed. He thereupon called the dispatcher and advised him that the rescue unit was responding to the call and that he would not respond.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that respondent's appeal be dismissed and that a Final Order be entered confirming the disciplinary action of an 11.2 hour suspension, without pay. Respectfully submitted and entered this 30th of July 1986, in Tallahassee, Florida. DIANE D. TREMOR 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 30th day of July 1986. APPENDIX (CASE NO. 86-0236) The proposed findings of fact submitted by the parties have been carefully considered and are accepted and/or incorporated in this Recommended Order, except as noted below: Petitioner 11. Partially rejected as being argumentative as opposed to a factual finding. Respondent 3-5. While these findings are partially correct, they are an incomplete recitation of the events which transpired. 6. Rejected; See Paragraph 5 in Findings of Fact. 7 and 8. Rejected as a legal conclusion as opposed to a factual finding. COPIES FURNISHED: Miles A. Lance Assistant City Attorney City of Clearwater Post Office Box 4748 Clearwater, Florida 33518-4748 Stuart M. Rosenblum, P.A. 220 South Garden Avenue Clearwater, Florida 33516 City Manager City of Clearwater Post Office Box 4748 Clearwater, Florida 33518-4748 Civil Service Board City of Clearwater Post Office Box 4748 Clearwater, Florida 33518-4748
