The Issue Whether a proposed amendment to Rule 12A-1.053(7), Florida Administrative Code, constitutes an invalid exercise of delegated legislative authority and/or is unconstitutional?
Findings Of Fact The Parties. Petitioner, Florida Cable Television Association (hereinafter referred to individually as the "Association"), is a voluntary association of franchised cable television operators in the State of Florida. The Association's membership is reflected on Joint Exhibit 7. Petitioner, Cablevision Industries of Central Florida, Inc. (hereinafter individually referred to as "Central"), and Petitioner, Cablevision Industries of Middle Florida, Inc. (hereinafter individually referred to as "Middle"), are franchised cable system operators in Orange County, Florida. Central and Middle are members of the Association. Central provides cable television services in the cities of Clermont, Edgewater, Groveland, Helen, Holly Hill of Lake County, Mascotte and Oak Hill, and the Town of Minneola. Central also provides services in the Winter Garden, Orange County, Florida, franchise area. Middle provides cable television services in the cities of Belle Glade, Live Oak, Pahokee, Palatka, South Bay and the Town of Interlachan. Middle also provides cable television services in the unincorporated areas of Bradford, Palm Beach and Putnam Counties. Middle also provides services in the MAGNA franchise area, an area of Orange County. The Respondent is the Florida Department of Revenue, an agency of the State of Florida. The Department is charged with responsibility for administering the State's revenue laws. See Section 213.05, Florida Statutes. The following facts concerning the Intervenor, BellSouth, were stipulated by the parties to be true: BellSouth is a corporation authorized to do business in Florida . . . . . . . . 5. . . . a) BellSouth is a utility service provider which owns utility or transmission poles and receives fees from others for the privilege of attaching wires and other equipment to those poles; and, b) BellSouth pays fees to others who own utility or transmission poles for the privilege of attaching wires and other equipment to those poles. . . . . Adoption of the Challenged Rule. On December 31, 1992, the Department caused to be published notice of its intent to amend Rule 12A-1.053, Florida Administrative Code. The notice was published in the Florida Administrative Weekly, Volume 18, No. 53, December 31, 1992 (hereinafter referred to as the "Notice"). See Joint Exhibit 1. On January 21, 1993, the Petitioners initiated a challenge to the proposed amendment of Rule 12A-1.053(7), Florida Administrative Code, by instituting a Section 120.54, Florida Statutes, proceeding. The Challenged Rule provides the following: The charge by the owner of a utility or transmission poles to anyone other than a utility service provider as the term "utility service" is defined in s. 203.012(9), Florida Statutes, for the privilege of attaching wires and other equipment thereto is taxable as provided in s. 212.031, Florida Statutes, as a license to use real property. Joint exhibit 1. The "specific authority" for the Challenged Rule cited by the Department in the Notice was Sections 212.17(6), 212.18(2), and 213.06(1), Florida Statutes. The "law implemented" by the Challenged Rule cited by the Department in the Notice was Sections 212.02(20), 212.05(1)(b)(e), 212.06(1)(a)(b) and (2)(a), 212.08(4) and (7)(j), and 212.18(2), Florida Statutes, and Sections 13 and 14 of Chapter 92-319, Laws of Florida. The Taxable Event; Effect on the Petitioners. Typically, members of the Association, including Central and Middle, deliver cable television services in the State of Florida through wires and equipment attached to utility poles. Typically the wires are utilized by cable television providers to transmit audio and video signals to subscribers of the providers' services. Although cable television providers may own some poles and, in some instances, may install their own poles, most cable television providers, including Central and Middle, enter into agreements with owners of utility poles, such as electric and telephone providers, for the use of existing poles (hereinafter referred to as "Attachment Agreements"). See Joint Exhibits 2(a)- 1, 2(a)-2, 2(b)-1, 2(b)-2, 2(c)-1 and 2(c)-2, which are examples of Attachment Agreements. Pursuant to the Attachment Agreements, cable television providers agree to pay a fee to the owner of utility poles for the right to attach cable television wires and equipment to the poles. The fee is typically calculated based on the number of poles used each year. Pursuant to the Challenged Rule, members of the Association, and Central and Middle, will be required to pay sales and use tax on the charges they pay pursuant to Attachment Agreements they enter into. Utility Pole Characteristics. Utility poles to which cable television provider wires and equipment is attached are usually owned by utility service providers and are installed on public and private streets or rights-of-way. The underlying land and right-of- way may or may not be owned by the utility provider. Utility poles remain the property of the utility provider and do not become the property of the owner of the land or the right-of-way upon which the pole is located. Electric service provider utility poles are generally considered to be components of the "overhead electric distribution system," which consists primarily of the poles wires and transformers. The components are suppose to be designed and installed in accordance with the National Electric Safety Code. Poles installed pursuant to the National Electric Safety Code are to be installed in the ground and are anchored to the ground to insure that the pole remains in a vertical position. Anchoring may be secured by cement anchors and bolts embedded in concrete which is placed in the ground. Poles are installed and anchored to withstand the forces of nature. Generally, poles are installed to withstand winds of up to 150 miles per hour. In general, poles are intended to be installed permanently and, on average, have a useful life of twenty-five to thirty years. In practice, utility poles are sometimes replaced or moved. Poles become rotten and have to be replaced. Poles are also replaced when damaged. Poles are also removed and relocated for various reasons. Central and Middle were aware of approximately 200 utility pole changes during one year. In order to replace or move a utility pole, heavy equipment is required. Exemption for Utilities. Most poles to which cable television wires are attached are already being used by utilities for utility services. Pursuant to the Challenged Rule fees paid by "utility service providers" for the use of utility poles to attach wires and other equipment to utility poles are exempt from sales and use tax. The Department's exemption of utility service providers is based upon the provisions of Section 212.031(1)(a), Florida Statutes: (1)(a) It is declared to be the legislative intent that every person is exercising a taxable privilege who engages in the business of renting, leasing, letting, or granting a license for the use of any real property unless such property is: . . . . 5. A public or private street or right-of-way occupied or used by a utility for utility purposes. Currently only utilities and cable television providers enter into Attachment Agreements. Local Government Franchise Agreements. Central and Middle operate in their respective areas of the State of Florida pursuant to agreements with local governments (hereinafter referred to as "Franchise Agreements"), authorizing them to provide cable television services within the jurisdiction of the city or county with which the agreement has been entered into. See Joint exhibit 3. Franchise Agreements entered into by Central and Middle generally give them a nonexclusive right to provide cable television services in the areas they serve. Central and Middle both operate within areas located in Orange County, Florida. Orange County has enacted Chapter 12 of the Orange County Code, Community Antenna Television Systems; Cable Television, Etc. Joint exhibit 5a. Section 12-48 of the Orange County Code, provides, in part, the following: Payment to the grantor of franchise consideration. A cable operator shall pay to the county a franchise fee of five (5) percent of its gross annual revenues for each year of the term of the franchise. The franchise fee shall be in addition to all other taxes, fees and assessments which are required to be paid to the county, and which do not constitute a franchise fee under the Act. . . . . . . . Time of Payment. . . . . (3) Nothing in this subsection (b) shall limit the cable operator's liability to pay other applicable local, state or federal taxes, fees, charges or assessments. A fee (hereinafter referred to as a "Franchise Fee"), similar to that charged pursuant to Section 12-48 of the Orange County Code is imposed by Palm Beach and Hillsborough Counties. See Joint exhibits 5(b) and 5(c). Franchise Fees are paid by cable television providers for the right to serve a given community. Not all cable television service providers are required to pay Franchise Fees of 5 percent. Central and Middle report their gross income on a quarterly basis to Orange County for purposes of paying the Orange County Franchise Fee imposed by Section 12-48 of the Orange County Code. Central and Middle calculate and pay to Orange County a Franchise Fee of 5 percent of their annual gross income. The Orange County Franchise Fee is paid quarterly. See Joint exhibits 4(a) and 4(b). The Orange County Franchise Fee is imposed on all gross revenues of Central and Middle, i.e., installation charges, leases of remote and converter boxes, sale of program guides and advertising. Central and Middle have entered into Attachment Agreements to utilize utility poles located in Orange County. A fee is paid for the use of those poles pursuant to the Attachment Agreements. The State of Florida does not impose a Franchise Fee on cable television service providers in Florida. In addition to paying Franchise Fees, some cable television service providers, including Central and Middle, also pay sales taxes in the State of Florida. 47 U.S.C. Sections 521-559 (hereinafter referred to as the "Cable Act"), provides Federal regulations governing cable television systems operated in the United States. Rule 12A-1.046(4)(b), Florida Administrative Code. Rule 12A-1.046(4)(b), Florida Administrative Code, provides: (b) The charge by the owner of utility or transmission poles to others for the privilege of attaching wires or other equipment thereto is exempt as a service transaction. The provisions of Rule 12A-1.046(4)(b), Florida Administrative Code, are in conflict with the Challenged Rule. Rule 12A-1.046(4)(b), Florida Administrative Code, has not been amended or repealed by the Department. It is, therefore, a valid rule of the Department. The Department, after proposing to amend Rule 12A-1.046(4)(b), Florida Administrative Code, to eliminate the inconsistency with the Challenged Rule, decided to await the outcome of this case. Although a final decision has not been made, it is reasonable to conclude that the discrepancy between the Challenged Rule and Rule 12A-1.046(4)(b), Florida Administrative Code, will be eliminated if the validity of the Challenged Rule is ultimately upheld.
The Issue The issue for determination is whether and the extent to which the proposed corridor by Tampa Electric Company (TECO) contained in its Application for Corridor Certification (Application) should be approved in whole, with modifications or conditions, or denied.
Findings Of Fact Based upon all of the evidence the following findings of fact are determined: Parties The TLSA establishes TECO and the Department as parties to this proceeding, and the following became parties upon their timely filing of a notice of intent to be a party, which each has done: Florida Department of Transportation (DOT), Department of Community Affairs (DCA), Southwest Florida Water Management District (SWRWMD), and Hillsborough County. See § 403.527(2), Fla. Stat. Although the Florida Fish and Wildlife Conservation Commission (FFWCC) did not become a party, the Department accepted its comments and recommended conditions in the agency report. On February 21, 2008, the City of Temple Terrace was accepted as a party without objection after the deadline for filing the notice of intent. § 403.527(2)(b), Fla. Stat. On February 25, 2008, Tom and Susan Watson filed a Petition to Intervene. Although this was after the deadline established in the prehearing schedule for becoming a party, TECO did not object based upon an agreement to conditions relating to the presentation of witnesses by the Watsons. Intervenors agreed to those conditions. Finally, Polk County did not file a notice of intent to be a party, but appeared without objection at the certification hearing. The Application Project Description Generally, an electrical transmission line's purpose is to transport large amounts of electricity from a generating facility to one or more substations. At the substation, the electricity can be either increased or reduced in voltage through transformers and other electrical equipment for further safe and practical transportation, or distribution directly to customers. TECO is seeking certification of a corridor between the planned Willow Oak substation located at the intersection of State Road 60 and Turner Road just northwest of Mulberry in Polk County, the existing Wheeler substation in Valrico, and the planned Davis substation in Temple Terrace, a span of approximately thirty miles, within which it will ultimately construct the line on a narrow right-of-way (ROW).2 Once all property interests in the ROW are acquired, the boundaries of the corridor will shrink to the typical width of the 25 to 100- foot ROW. In some cases, the ROW will be 300 feet wide. The objectives of the Project are to address: (a) the need, as confirmed by the PSC, to provide additional transmission reinforcement to the existing 230 kV transmission network north of State Road 60, west of the planned Willow Oak substation, and east of the existing River substation in a reliable manner consistent with the North America Electric Reliability Council (NAERC) and the Florida Reliability Coordinating Council (FRCC) and other applicable standards; (b) the need to serve the increasing load and customer base in the Project service area; and (c) the need to provide for another electrical feed via a separate ROW path, thereby reducing the impact of a loss of existing transmission facilities on a common ROW. Need for the Line In earlier proceedings before the PSC, it determined a new 230 kV transmission line between the planned Willow Oak, the existing Wheeler, and the planned Davis substations is needed, taking into account the need for electric system reliability and integrity and the need to provide abundant, low cost electrical energy to assure the economic well-being of the citizens of the State. The PSC found that the planned Willow Oak substation and the planned Davis substation constitute the appropriate starting and ending points for the proposed line. The PSC noted that the additional transmission capacity will be needed by 2012 and recognized that the Siting Board will make the final determination concerning the route selection upon consideration of the factors and criteria specified in Section 403.529, Florida Statutes. Transmission Line Design The typical design for the transmission line will be a single-circuit unguyed concrete pole structure using concrete or crushed stone back fill. The poles are proposed to range in height from 80 feet above grade to 125 feet above grade, with the conductors framed in a vertical configuration. Three conductors will be used, and each of the three conductors is anticipated to be a 1,590 aluminum conductor steel supported wire, with 45 strands of annealed aluminum that lay over seven steel strands. The conductor is 1.504 inches in diameter with a weight of approximately 1.7 pounds per foot. There will also be a smaller overhead ground wire to provide shielding and lightening protection for the conductors. The maximum current rating is 2,560 amperes. In some locations there could be a 69 kV and a distribution underbuild. Additionally, the vertical configuration will be adjusted to a horizontal configuration in the vicinity of the South Lakeland Airport to enable the height to be lowered to approximately 46 feet above grade to account for the air traffic. The open span length between structures will typically vary between 300 and 800 feet, depending on site-specific conditions. Both pole height and span length may vary to accommodate various conditions that may be encountered. Access roads and structure pads will be constructed only where necessary to provide access for construction, maintenance, and emergency restoration. Where constructed, the typical road top width will be 14 feet, with a 2-to-1 side slope, and a minimum elevation of between six inches and two feet. Structure pads will have variable sizes but are typically 75 feet by 75 feet. These are designed to support the equipment needed to install and maintain the transmission line. Culverts will be installed beneath access roads and structure pads with the specific design reviewed by the appropriate regulatory agencies. The design will be similar to previously approved designs. The design of the transmission line complies with good engineering practices. The transmission line will be designed in compliance with all applicable design codes, including the National Electrical Safety Code, the Department's regulations on electric and magnetic fields, the DOT Utility Accommodation Manual, the requirements of applicable regulatory agencies including the Department, SWFWMD, and PSC, as well as TECO's own design standards. The Project assures the citizens of Florida that operation safeguards are technically sufficient for their welfare and protection. Transmission Line Construction The initial phase of construction is to clear the ROW. Since much of the length of the corridor is collocated, that is, grouped or placed side by side, with existing roads and utility facilities, the need for clearing has been minimized. Clearing will consist mainly of tree trimming and the selective removal of trees. In areas owned by TECO clearing will range from a width of 25 to 100 feet. In forested areas in which a new line will be located, clearing will also be limited to 25 to 100 feet in width. In wetlands, trees capable of exceeding 14 feet in height that could come in conflict with the line will be removed by hand clearing or use of very low ground pressure equipment. Low growing herbaceous vegetation will not be cleared from wetlands. After the ROW is cleared, any necessary access roads and structure pads will be constructed. Typically, access roads and pads are not required in all areas. The next phases of construction involve the physical transmission line construction. Initially, the materials are assembled on the jobsite. Next, holes are augered at each pole location. The structures are framed with insulators and hardware that may be installed prior to the setting of the structure. After all appropriate operations relative to the assembly and framing have been performed on the ground, the top section of the structure is lifted with a crane and set on the previously installed base section. The two sections are then jacked together. Typically, the pole is embedded into the ground approximately 25 to 35 feet deep. After the poles have been installed and the hardware and equipment on the pole, including the insulators, have been installed, a wire pulling operation is conducted. In this phase, reels of wire, wire tensioning, and retarding equipment all will be mobilized. The locations generally include the dead end structures, but the length of the wire that can be placed on a reel may dictate the location of some of the equipment. Each structure must be equipped with hanging blocks or pulleys so the conductors may be pulled through smoothly for the entire length of the reel. Once the conductors are pulled in and secured at the dead end structures, the wires are sagged and tensioned appropriately to maintain vertical clearances. Finally, the pulleys are removed from each structure and the conductor is secured to the insulator attachment. The final stage of construction is the cleanup stage. This involves inspection of the entire project to ensure that all material has been cleaned up, removal of all silt fences, hay bales, excess spoils, or dirt from the foundation excavation, and ensuring that the gates and fences have been properly restored or installed. Throughout construction, sedimentation management techniques, such as the use of silt screens and hay bales, or other best management practices, will be employed as necessary to minimize potential impacts from erosion and sedimentation. While each phase of construction will typically take up to two weeks in a particular location, the construction crew will normally be active for two to four days at a typical structure location after the necessary pads have been installed. Construction for the entire project is expected to last from twelve to eighteen months. Methodology for Choosing TECO Corridor TECO established a multi-disciplinary team to identify and evaluate routing alternatives within the Project Study Area. This multi-disciplinary team was comprised of experts in land use, engineering, and environmental disciplines. The team, which included both TECO representatives and outside consultants from ECT, engaged in a number of activities including data collection, preparation of a regional screening map, the identification of alternative route segments, the development of criteria to evaluate the route segments, the actual evaluation both quantitatively and qualitatively of these routes, and the ultimate selection of the preferred route which was accepted by TECO. Members of the public assisted in this effort throughout the development of the proposed corridor. The objective of the corridor selection study was to select a corridor that could be certified balancing land use, socioeconomic, environmental, engineering, and cost considerations. Corridor selection methodologies were designed to be integrative of multidisciplinary siting criteria, regional and objective in decision-making, sensitive to social and environmental conditions, responsive to regulatory requirements, reflective of community concerns and issues, and capable of accurate documentation and verification. The selection process consisted of three tasks including (a) project and study area definition; (b) resource mapping and alternative route delineation; and (c) evaluation of alternative routes and selection of the proposed corridor. Due to the dense and urban nature of the TECO service area, it was difficult to find areas with no population or development for a corridor. The multidisciplinary team developed a regional screening map, received in evidence as TECO Exhibit 14, which was prepared by the team using generally publicly available information including Geographic Information System (GIS) mapping. The map data were collected from various state agencies and local governments. Information was gathered from the Florida Geographic Data Library (which distributes GIS data), the Florida Natural Areas Inventory, and most of the agencies involved in this proceeding. Various environmental and land use data were mapped as were existing infrastructure, and information gathered on roads, railroads, rivers, waterbodies, and the like. These represented primarily siting constraints or siting issues within a particular study area. The regional screening map was then used to identify route segments. The licensing team used the regional screening map as the first step in identifying the various route segments that connected the three substation locations at Davis, Wheeler, and Willow Oak. TECO's multi-disciplinary team gathered data on siting opportunities and constraints within the study area and identified forty-one line segments which could be assembled into a total of four hundred twenty-three potential route combinations. Using a predefined set of ten environmental, land use, and engineering criteria, each route segment was measured for those resources. Using a software program developed by ECT, the data was entered and totaled for each route combination. Using the weights developed by the licensing team for each criterion, the weights were applied and tabulated for all routes. The routes were then ranked in order from best to worst based on the weighted scores. Once the rankings were performed, the top ranked routes were subjected to further evaluation. These routes were high in scoring but somewhat different in the path that they took between the three substation locations. They were then evaluated using predetermined qualitative criteria, which included such things as homes in proximity to the route. The analysis included an examination of where the homes were located along the route, whether they are scattered and easily avoided with the placement of a corridor, or whether they are clustered together in a fashion making it difficult to avoid them in placement of the corridor. Numerous driving surveys of the various routes were performed during this phase where the routes were publicly accessible, and a helicopter flyover was also completed. At the completion of the evaluation, a recommendation was made for a proposed route, which was accepted by TECO. Once the proposed corridor location was selected, the team examined various siting issues within and along the route and developed corridor boundaries of varying widths. In some areas a much wider width was needed to provide flexibility for siting, while a more narrow width was needed in areas where siting issues were less and where there was a reasonable certainty concerning where the ROW could be located. TECO also engaged in an extensive public outreach program. The public participation program included open houses, mass mailings, surveys, a toll-free telephone number, newsprint advertisements, a website, and meetings with regulatory agencies and local elected officials. There were three direct mailings as a part of the public outreach program. The first mailing was a notification of four open houses that were to be held. One open house was conducted in Polk County, while three (Seffner, Plant City, and Temple Terrace) were conducted in Hillsborough County. Following the completion of the open house process, a second mailing was sent providing a summary of the survey results. The third mailing notified recipients that the Application was filed on October 12, 2007. Approximately 4,500 recipients were identified for these mailings. The names of the recipients were obtained by identifying the properties located within 500 feet in both directions from the centerline of the routes. The Hillsborough and Polk County Property Appraisers' offices were a source for this information as well as the TECO customer database. The Hillsborough County Office of Neighborhood Relations was consulted for a list of registered homeowners' associations. For the homeowners' associations, which numbered around two hundred, those that were within one mile in both directions from the centerline of the route were notified. The recipients of the notifications included property owners and tenants or lessees. The Hillsborough County Large Facilities Ordinance was used as a guide to identify the area of the notifications, although that Ordinance mandates a 250-foot notification distance from the centerline of the routes, and TECO actually used 500 feet on both sides of the centerline. The same distances were not used for recipients of each of the mailings. The distances described in Finding of Fact 27 were used for the first two mailings. For the third mailing, the proposed corridor had been selected. As a result, the distance was measured not from the centerline of the route, but from the edge of the corridor. This was done because in some areas the corridor was extended beyond the 500-foot limit and potential recipients would have been missed had the area of inclusion not been extended. Additional mailings are planned if the corridor is certified. Additional informational open houses will also be held, and the transmission structures and potential locations will be identified at that time so the public can be informed. As part of the public outreach, TECO also ran a series of four advertisements in local newspapers. The first newspaper advertisement was run on February 20, 2007, in The Tampa Tribune, Lakeland Ledger, Mulberry Press, Temple Terrace News, and Brandon News. Two more advertisements were run on February 28 and March 1, 2007, in The Tampa Tribune and Lakeland Ledger. These advertisements were in addition to the required public notices of the application being filed, the certification hearing being scheduled, and the public hearing being scheduled that were run on October 30 and December 27, 2007, and February 18, 2008. The required advertisements were run in The Tampa Tribune, Lakeland Ledger, and The Winter Haven News Chief. The February 18 notice of public hearing was also run in The Polk County Press. Copies of the Application were maintained for public inspection during the certification process at the TECO offices in Tampa and Winter Haven. In addition, a copy of the Application was provided to the John Germany Public Library in downtown Tampa, the Polk County Library in Bartow, and the Temple Terrace Library in Temple Terrace. All of the applications available for public inspection were updated as additional information was submitted to the Department. The public participation program provided substantive input to the route evaluation study in terms of study area boundary, siting opportunities, and constraints in the area, identification of route segments to be evaluated, and weights to be assigned to the route evaluation criteria. The cumulative responses of the public's ranking of the weights to apply to TECO's siting criteria were very comparable to the team's weighting indicating little significant difference in route ranking. Once the proposed alignment was identified, the multi- disciplinary team delineated the boundaries or width of the corridor to provide flexibility for locating the eventual ROW within that corridor. State, regional, and local agencies with regulatory authority of the Project reviewed the Application and submitted to the Department a report concerning the impact of the Project on matters within their respective jurisdictions, as required by Section 403.526(2), Florida Statutes. The Department compiled the reports and made a recommendation that the Project be granted approval subject to appropriate conditions. See Department Exhibit 2. The Department, SWFWMD, and DOT stipulated as to the certification of the Project subject to conditions of certification proposed by the Department. On April 16, 2008, the City of Temple Terrace and TECO entered into a separate stipulation for certification. None of the agencies involved in the review process recommended that the proposed corridor be denied or modified. No alternate corridors were filed for consideration by any of the parties. Further, no additional conditions of certification were proposed by any party at the certification hearing. Detailed Description of the TECO Corridor The proposed corridor provides significant opportunities for collocation with other linear facilities such as roads and transmission lines which provide the opportunity to reduce the amount of new access road construction, impacts to wildlife habitat, and other impacts. The width of the proposed corridor varies along the route to provide flexibility within the corridor to avoid impacts to such areas as existing developments, large wetland areas, and a bald eagle's nest. From the Planned Davis Substation to the Existing Wheeler Substation The western end of the corridor begins at the planned Davis substation site in Temple Terrace which is a large parcel owned by TECO. There is an existing substation there called the River substation and the planned Davis substation will be located in proximity to that existing substation. Land use is generally open land. This portion of the corridor is bordered on the west by the Hillsborough River and has a large area of pasture land on the east side with mixed hardwood swamp and cypress swamp on the western portion. Leaving the TECO substation property, the corridor travels east across Interstate 75 (I-75) and the width of the corridor in this area narrows to approximately 300 feet. This is also TECO property. As the corridor passes I-75 it approaches the Tampa Bypass Canal, which is owned by the SWFWMD. The corridor is expanded in this area to minimize the impacts on the SWFWMD operations along the Bypass Canal and on the recreational facilities located in the southwestern portion of the parcel used by Temple Terrace. Land is low density residential with a cemetery and a recreational facility. The property has pine/oak woods along the northwestern corner and a mixed hardwood swamp on the northeastern corner. The property is bisected north and south by the Tampa Bypass Canal. Once the SWFWMD property is exited the corridor turns due east for approximately 5.4 miles until south of Lake Thonotosassa, where it turns south. This portion is owned by TECO. The corridor is 300 feet wide. The western portion is primarily developing and developed lands surrounding the corridor and, as it proceeds east, it crosses more rural lands, pasture, strawberry fields, row crops, various agricultural operations, cattle grazing, and some citrus groves. A portion of the corridor contains a natural gas pipeline within TECO's property. In addition to the agricultural vegetation, there is a pine/oak area, some marsh, and some emergent aquatic vegetation, along with some ponds. The corridor crosses Baker Creek, a tributary to Lake Thonotosassa, which is north of the corridor. A mixed hardwood swamp and a cypress swamp are found here. The proposed corridor then turns south and approaches areas of developing or developed lands. TECO's fee ownership extends to the south. The corridor crosses Interstate 4 and, at the beginning of its intersection with U.S. Highway 92, the corridor has been expanded from approximately 3,100 feet up to 5,100 feet in width to avoid a bald eagle's nest and the scattered residences in the area. The widened corridor proceeds south to State Road 574 or Martin Luther King Boulevard. Land use is agricultural, low density residential, and undeveloped property. This area of the corridor contains some pine/oak woods, large areas of marsh, some crop land, some mixed hardwood swamp, and scattered residential development. Once the corridor crosses State Road 574 it narrows again to approximately 300 feet in width and is located on TECO property. The corridor then proceeds south to the existing Wheeler substation located off of Wheeler Road in Valrico. There is a large amount of development to the west of the corridor and developing lands to the east of the corridor. From the Existing Wheeler Substation to the Planned Willow Oak Substation From the existing Wheeler substation near Wheeler Road the corridor proceeds south slightly more than one mile and then turns east for approximately one mile before turning south to State Road 60. In this portion of the corridor the width is approximately 300 feet and it is located on TECO property. There are residential properties in the vicinity of the corridor, including the Diamond Hills and Sommerset subdivisions. The land use is generally medium density residential surrounding the corridor and also some agricultural lands. Land uses in this area include pasture land, pine/oak woods, crop land, marsh, open land, ponds, mixed hardwood conifer swamp, and pine flat woods. The corridor proceeds east along State Road 60, which is a major transportation corridor. The corridor is expanded to approximately 2,000 to 3,000 feet in this area to allow opportunities to follow other linear facilities that are located south of State Road 60, such as other transmission lines or roads. There are scattered residential properties with agricultural uses, strawberry fields, pastures, and some citrus in the area. Phosphate lands are located to the south of this segment of the corridor. The corridor proceeds along to the east. The majority of this area is reclaimed phosphate mining lands. The final segment of the proposed corridor has again been expanded to approximately 4,000 feet wide as it continues along both sides of State Road 60 and both sides of Old Hopewell Road. As the roads converge, the corridor is narrowed to approximately 500 feet. From there it proceeds to the planned Willow Oak substation in western Polk County. In this area there is existing development surrounding the substation site and proposed development along State Road 60. The South Lakeland Airport is in this area. Along State Road 60 there is a mix of commercial, residential, and some industrial properties. The Willow Oak substation site is located within open land. Compliance With Section 403.529(4) Criteria Ensure Electric Power System Reliability and Integrity The PSC found that there are regional transmission system limitations in northeast Hillsborough County. By 2012, the existing 230 kV transmission network will not have sufficient capability to provide reliable electric service to the existing and proposed substations. The PSC also found that some of the projected load to be served by the planned future distribution substations will be located further east and north of the existing 230 kV transmission network. The PSC determined that the proposed transmission line is needed by March 2012 to (a) provide additional transmission reinforcement to the existing 230 kV transmission network north of State Road 60, west of Willow Oak substation, and to the east of the existing River substation in a reliable manner consistent with the NERC, FRCC, and other applicable standards; (b) serve the increasing load and customer base in the projected service areas; and (c) provide for another electrical feed via a separate ROW path, thereby reducing the impact of a loss of the existing transmission facilities on a common ROW. The PSC concluded that the Project is needed to preserve electric system reliability and integrity. Meet the Electrical Energy Needs of the State in an Orderly and Timely Fashion The PSC recognized that TECO's planning studies indicate that the proposed line is needed by March 2012 to provide sufficient capability to provide reliable service to existing and proposed substations. The location of the proposed transmission line on the proposed corridor would meet the electrical energy needs of the state in a timely fashion. Comply with the Nonprocedural Requirements of Agencies Construction, operation, and maintenance of the proposed corridor will comply with applicable nonprocedural requirements of agencies. The Department has concluded that the Project as proposed will comply with all applicable Department statutes, rules, policies, and procedures. Be Consistent with Applicable Local Government Comprehensive Plans The Polk County Comprehensive Plan identified electric transmission and distribution facilities as a permitted use in all land use categories. In the Future Land Use Element of the Hillsborough County Comprehensive Plan, there are an objective and several policies that address bulk transmission lines. The policies address the locational criteria and public input. The policies will be met by the proposed transmission line. The City of Temple Terrace's Comprehensive Plan does not address bulk transmission lines. After certification of this project, TECO will acquire the necessary property interests in a ROW within the certified corridor for placement of the line. Construction of transmission lines on such established ROWs is excepted from the definition of "development" in Section 163.3164(5), Florida Statutes. Accordingly, the provisions of the local comprehensive plans related to "development" that have been adopted by the local governments crossed by the line are not applicable to this project. No variances or exemptions from applicable state or local standards or ordinances are needed for the project. Implementation of Legislative Intent in Section 403.521 The Need for the Line as a Means of Providing Abundant Low-Cost Electrical Energy The PSC determined that the proposed line is needed taking into account the factors set forth in Section 403.537, Florida Statutes. The PSC found that TECO evaluated three alternatives to the Project. All three were transmission modifications to the proposed ROW that used a portion of, or the entire existing, common ROW. The PSC accepted TECO's rejection of the alternatives primarily because of economics and reliability concerns. The PSC found that the proposed line will assure the economic well-being of the citizens of the state by serving projected new electric load in the region and improving the region's electric reliability by minimizing the region's exposure to single contingency events. Impact Upon the Public The proposed line is appropriate from a land use perspective. The Project takes advantage of the opportunity to be collocated with other transmission lines, roadways, and ROWs. By following these existing linear features, the corridor conforms to existing and future development patterns and minimizes intrusion into residential areas. As a result, the proposed line is in proximity to relatively few residences. The line as proposed will comply with all applicable nonprocedural agency standards, including the Department standards in Florida Administrative Code Rule Chapter 62-814 limiting the electric and magnetic fields associated with new transmission lines. TECO proposes to use five different configurations for the transmission line, depending upon the location. The options include a 230 kV single circuit roadside, a 230 kV single circuit roadside with a 69 kV underbuild, a 230 kV single circuit roadside with 69 kV and 13 kV distribution underbuild, a 230 kV single circuit for the South Lakeland Airport, and a 230 kV single circuit for use in the 300-foot existing TECO ROW. For each of these configurations the Department's rule requires that the electric and magnetic fields (or energy forces) be calculated to ensure compliance. The electric field is what is created underneath and outside of a transmission line as a result of placing voltage on the conductor. It is a byproduct of placing voltage on the conductor. The magnetic field is created as a result of the current traveling along the conductor. It is generally a magnetic flux field that surrounds the conductors and the transmission lines. Those portions of Florida Administrative Code Rule Chapter 62-814 that are applicable to this Project establish maximum values for electric and magnetic fields. The electric field is expressed as a kilovolt meter (kV/m) and compliance is required both within the ROW and at the edge of the right-of-way for the transmission line. The magnetic field is expressed as milliGauss (mG) and compliance is determined at the edge of the ROW. Compliance with the electric and magnetic field requirements was calculated for each of the configurations that may be utilized for the Project. The results were then compared to the requirements of Florida Administrative Code Rule 62- 814.450(3). See TECO Exhibit 21. The maximum expected values from all configurations for the electric fields within the ROW and at the edge of the ROW and for the magnetic fields at the edge of the ROW are all below the values set forth in the rule. The maximum voltage and current that is ever anticipated for the line during its life are used in making the calculations. However, it is highly unlikely that this condition would occur. It is anticipated that the maximum condition would occur less than five percent of the time while the transmission line is operating. In order to operate at the maximum level the conductor must be operating at its maximum temperature and the conductor would be at its lowest point in the span to create that condition. There would also need to be some type of system disturbance that would cause a maximum condition to occur. This would be a worst case scenario. Levels for electric fields will be less at the normal operating levels and magnetic fields about fifty percent less. Intervenors own property and live within the area of the expanded corridor between U.S. Highway 92 and State Road 574 in Dover. In this area TECO owns a 300-foot ROW originally considered for the corridor, which contains an eagle's nest. While this area is near the Intervenors' property, the proposed corridor is the entire area up to 5,100 feet in width, and the actual ROW location for the line has not yet been determined. Intervenors are primarily concerned about the potential health effects to their son caused by exposure to electric and magnetic fields from the transmission line in the vicinity of their property. In support of these concerns, they presented the prefiled, written testimony of Dr. Hanoch Talmor, a medical doctor in Gainesville, Florida, who has treated their son for over fifteen years. Doctor Talmor is a board-certified pediatrician who now specializes in the area of general holistic medicine. In his written statement Dr. Talmor states that Intervenors' son is at present nonambulatory and nonverbal. He also testified that he displays severe chemical sensitivities and is listed on the state chemically sensitive lists. Although he is not a neurologist, Dr. Talmor opined that because of the son's neurological involvement and his extensive medical history, he would be adversely affected by high voltage power lines near his home. He further testified that the son has seizures which can be affected by smells, sounds, visual stimuli, sleep patterns, and allergic reactions. During cross-examination, Dr. Talmor acknowledged that he is not familiar with the levels of electric and magnetic fields expected to result from this transmission line in the vicinity of Intervenors' property. Even so, he opined that the only safe levels of electric and magnetic fields with regard to human exposure would be at levels of zero. He admitted, however, that electric devices typically found in the household such as clocks, ovens, refrigerators, televisions, electric blankets, and the like, as well as electric wiring in the house, would be expected to produce electric and magnetic fields to which a person living in the house would be exposed. At the certification hearing, Dr. Talmor also discussed various research articles concerning this subject. In formulating his opinions, however, Dr. Talmor had reviewed only summaries and excerpts of the studies, rather than the complete studies. TECO presented the testimony of Dr. Laura S. Erdreich, an epidemiologist, who is familiar with the configuration for the transmission ROW that is proposed to be used in the vicinity of Intervenors' residence. Doctor Erdreich testified that she is familiar with the levels expected to be produced from the transmission line at the edge of the ROW. With regard to electric fields, Dr. Erdreich testified that the lowest level that has ever been proposed as being necessary for the protection of human health is 4.2 kV/m. This was by an organization called the International Commission for Non- Ionizing Radiation Protection (ICNIRP). The organization is based in Europe and is sponsored by the World Health Organization. The level that organization recommended is more than twice the maximum level of 2.0 kV/m found in Florida Administrative Code Rule 62-814.450(3)(a). The maximum expected electric fields at the edge of the ROW for the Project in the vicinity of Intervenors' residence is 0.1 kV/m. For magnetic fields, Dr. Erdreich testified that the ICNIRP proposed a level of 833 mG as being protective of human health based on exposure. This is the lowest level that has been proposed by any regulatory authority or similar body based on potential health effects. In contrast, Florida Administrative Code Rule 62-814.450(3)(d) provides in relevant part that the "maximum magnetic field at the edge of a 230 kV or smaller transmission ROW . . . shall not exceed 150 mG." This value is much greater than the 13.6 mG maximum level expected at the edge of the TECO ROW and in the vicinity of Intervenors' home. Under typical operational conditions, the expected magnetic field would be approximately 7 mG, which is less than one percent of the health-based exposure limit recommended by the ICNIRP. Doctor Erdreich also testified that she is familiar with the research that has been conducted concerning health effects from environmental exposure to electric and magnetic fields. The research includes epidemiological studies of humans in the natural environment, laboratory studies which typically expose all animals to high levels often for nearly their entire lifetime, and studies of cells and tissues in laboratories to try to isolate the mechanism that may affect humans. The amount of research being performed has been reduced over the last few years because, despite considerable research, an adverse effect from exposure to humans at environmental levels has not been substantiated. Additionally, causal associations between exposure and health effects have not been found when the data and research have been reviewed by committees of scientists of various disciplines. Doctor Erdreich testified that she is aware of the studies that were referred to by Dr. Talmor as well as other studies on the subject. Although the subject of exposure to low levels, even on a long-term basis, such as levels less than 10 mG, has been studied extensively, she noted that the findings have been that magnetic fields have no known effect on the human body until exposure to levels well above 1,000 mG. The United States Government does not regulate electric and magnetic exposure except in occupational settings. There are no requirements for regulation of transmission lines in these areas. The State of Florida is one of only a few states that have such requirements. There is no existing body of research demonstrating that adverse health consequences result from exposure to electric and magnetic fields at the levels expected to result from the 300-foot ROW single pole configuration that is proposed for the vicinity of Intervenors' property. Doctor Erdreich opined that these levels do not pose a threat of adverse health effects to the population near the edge of the ROW. She further opined that in the unlikely circumstance that the edge of the ROW for the transmission line would be placed at the edge of the residence of the property, the levels of electric and magnetic fields from the transmission line would still not create a health concern. She also stated that her opinion would be the same if one of the residents were shown to have an illness that resulted in a chemical sensitivity. She based her opinions on the fact that there is no evidence demonstrating any correlation between this exposure and adverse health effects. Finally, Dr. Erdreich testified that no group has ever suggested that there is a need for lower levels near hospitals or convalescent facilities or other places where physical therapy occurs. The levels of electric and magnetic fields from the transmission line will decrease as one moves further from the edge of the ROW. The levels expected from the transmission line, which are already well below the State requirements and a small fraction of the lowest levels that have ever been suggested as being required for the protection of human health, are similar to the levels that would be expected to result from common household appliances. Mrs. Watson testified that her residence has electricity and electric household appliances such as air- conditioning, television, refrigerator, and a vacuum cleaner. All of these devices produce electric and magnetic fields at levels in the range of what would be expected from the TECO transmission line. Additionally, there is natural exposure to magnetic fields and electric and magnetic fields from electrical devices that are encountered in everyday life. Transmission lines can generate audible noise as a result of irregularities that collect on the conductor. During periods of fair weather dust can collect on the conductor and that may cause low levels of audible noise. When rain is experienced, the dust is washed off but replaced with water droplets on the conductor that create a condition that results in slightly higher levels of audible noise. The noise levels experienced during rainfall events are temporary, and the noise is reduced as soon as the water droplets evaporate from the conductor. The expected levels of noise are generally calculated using a program called the Bonneville Power Administration Field Effects Program. The information utilized to make the calculations includes the conductor size, the configuration of the transmission line, and the voltage expected. The calculations performed for the transmission line show that the audible noise levels at the edge of the ROW during fair weather would range from 16.1 dBA, which is decibels of noise in a range that can be heard, to a high of 22.5 dBA. During periods of rainfall the expected audible noise at the edge of the ROW ranges from a low of 41.1 dBA to a high of 47.5 dBA. For the ROW configuration that is proposed for the area including the Watson property, the expected levels during fair weather are a maximum of 16.1 dBA and during foul weather a maximum of 41.1 dBA at the edge of the ROW. The noise levels will decrease as one moves away from the edge of the ROW. Also, during rainfall events, when the maximum noise levels are expected, the rain will tend to mask the sound from the transmission line. Studies that have been prepared on this issue indicate that complaints concerning noise are primarily related to interference with sleep. The studies indicate that to minimize the potential of interference with sleep, the noise level outside of the home should not exceed 50 dBA. The maximum expected noise level from the Project will not exceed 50 dBA. Mr. Brooks, TECO's expert who testified on this issue, stated that he had never had an occasion to deal with a noise level complaint during his thirty-seven years of experience with transmission lines. TECO Exhibit 22 contains a summary of the audible noise expected from the transmission line for the various configurations. It also contains a chart with the noise levels expected from common activities for comparative purposes. The maximum fair weather audible noise from any of the five configurations would be comparable to the levels that one would encounter in a bedroom at night. The maximum levels for the same configurations during foul weather would be comparable to what one might experience in a quiet office or a living room. The levels for the configuration to be utilized in the area of the Watson property are below the maximums for the Project and significantly less than levels expected at a quiet office or bedroom at night. At the public portion of the certification hearing, thirty-five members of the public uniformly testified in opposition to the Project, as proposed. A number of those testifying expressed concern about the impact of the Project on property values, the possible effects of the electric and magnetic fields expected from the transmission line once the ROW has been selected and the line constructed, and the desire to have TECO seek another route. Although these concerns are genuine, impacts on property values is not a subject for consideration at this hearing. As discussed above in greater detail, the evidence demonstrates that adverse impacts from the low levels of electric and magnetic fields projected from the Project are not expected. No alternate corridors have been proposed for consideration by any party to this proceeding. Finally, some members of the public complained that they were unaware that a new transmission line corridor was being proposed until just before the hearing. However, the evidence shows that long before the certification hearing, information concerning this process was widely disseminated through advertisements, open houses, mass mailings, surveys, and meeting with regulatory agencies and local elected officials. Impact Upon the Environment The Project as proposed will have minimal environmental impact. Construction of the line within the proposed corridor will not adversely affect the conservation of fish and wildlife, including endangered or threatened species, or their habitats. The proposed corridor avoids or minimizes intrusion into the undisturbed wildlife habitats due to its collocation with existing linear facilities for almost its entire length. The current condition and relative value of function of the habitat in the proposed corridor is generally minimal from a wildlife ecology and protected species perspective. There are some areas with higher quality habitat. One is in the area south of Lake Thonotosassa. In that location, there is a natural gas pipeline corridor that already disturbs the area in the proposed corridor. In the area of the bald eagle's nest, clearing in the ROW would be limited to 25 to 100 feet in width. Also, the Conditions of Certification require extensive surveys and plans for wildlife protection. The area has experienced clearing and tree removal to accommodate development. Care was taken in routing the proposed corridor to avoid or minimize proximity of the corridor to known listed species locations, including routing inputs from wildlife agencies such as the FFWCC and the U.S. Fish and Wildlife Service (USFWS). Clearing of additional natural habitats and potential wetland impacts will be minimized. During the regional screening route selection process the known locations of bald eagle nests were identified and mapped. Members of the public pointed out at the open houses that there existed a previously unreported bald eagle nest in the area north of Jess Baldwin Road. This was subsequently verified and identified as a correct location of an eagle nest that had been previously unknown to the FFWCC and USFWS. When the nest was identified and located, the corridor was expanded up to 5,100 feet in this area to give TECO maximum flexibility in avoiding potential impacts to the nest as well as to existing homes in the area. TECO has begun a long-term monitoring program for this particular nest and this will be continued until such time as the applicant and the agencies deem it sufficient. The program is designed to monitor the activity of the eagles in the area with respect to successful breeding, successful rearing of the young, and the habitat usage and flight patterns from that nest. This information will be utilized in the selection of the ultimate ROW in this area to avoid any impacts to the nesting area. The USFWS and FFWCC establish buffers for limiting activity in proximity to an eagle's nest. The buffers are either 330 feet or 660 feet in diameter, depending on the level of construction activity that is to be carried out. In cases in which a more minimal level of construction is to be performed, a 660-foot buffer must be maintained if there is not visual buffer between the nest and the construction activity. A 330-foot buffer must be maintained at all times. If a visual buffer can be maintained in the area of this eagle's nest, the buffer size could be reduced below 660 feet, providing additional flexibility for the location of the ROW. This determination will be made by the USFWS and FFWCC. Construction of the line within the proposed corridor will not cause a significant adverse impact to the current condition and relative value of functions of the vegetative communities within the corridor. Much of the length of the corridor allows placement of the transmission line within or adjacent to existing linear features to take advantage of previous disturbances to vegetation. TECO will also minimize impacts to forested wetland vegetation through the use of restrictive clearing practices during both construction and maintenance. In the forested wetland portions of the ROW, trees and shrubs that have an expected mature height greater than fourteen feet and "danger trees," which are trees that could fall into the conductors and cause an outage, will be removed. Other vegetation will generally not be disturbed. In these areas, vegetation will be removed by hand, usually with chain saws or with low-ground-pressure equipment to reduce soil compaction and damage to ground cover. The removal of vegetation in forested wetlands will not significantly affect the vegetative root mat or soil surface conditions. The non- forested wetlands should not require any clearing. There will be some filling in wetlands associated with the placement of pole pads and access roads. However, TECO will minimize these impacts through a careful alignment of the ROW and the varying of span distances between poles. TECO will also install an appropriate number and size of culverts to properly maintain existing wetland hydroperiods along areas of fill in wetlands. Also, any unavoidable wetland impacts associated with the project will be mitigated in accordance with the Conditions of Certification. TECO has utilized information from the Hillsborough and Polk County Comprehensive Plans and the Department of State, Division of Historical Resources (DHR), to identify potential archeological and historical resources within the proposed corridor. A number of locations were identified as a result of the information and the Conditions of Certification require that a survey be performed when the actual ROW is located. If any artifacts are found the information will be submitted to the DHR for analysis and decisions will be made as to how to proceed. The proposed corridor contains the least potential impacts to known sites and the corridor allows ample opportunity for siting the ROW to avoid potential historic and archeological sites. In addition to comments from the public described in Finding of Fact 74, a number of members of the public expressed concern over the environmental impacts from the construction and maintenance of the transmission line. Some of those expressing concerns have residences or property in the area of the expanded corridor surrounding the eagle's nest. Although some of these individuals are within the corridor, it is not clear at this point that they will be near or adjacent to the ROW which is ultimately selected. The ROW is proposed to be within the expanded corridor in this area. The eagle's nest presents a constraint with a 330 or 660-foot buffer. Evaluations will be performed considering impacts to the community and homes, impacts to the environment, and costs. If the buffer is reduced to 330 feet this will assist in the routing of the ROW. As detailed above, TECO engaged in extensive public outreach, made efforts to avoid populated areas with the corridor location, and the Conditions of Certification require extensive measures to eliminate or minimize the potential impacts on wildlife and habitat. TECO will minimize any necessary cutting of trees in areas that do not already have an established ROW. The area of clearing will be limited to from 25 to 100 feet in width. The Project will comply with all applicable state, regional, and local nonprocedural regulations, including the wetland regulatory standards applicable to such projects. Balance of Need versus Impacts The Project effects a reasonable balance between the need for a transmission line as a means for providing abundant low cost energy and the impact upon the public and the environment resulting from the location of the transmission line corridor and the construction and maintenance of the transmission line. Conditions of Certification The design, construction, and operation of the line in the proposed corridor will comply with the Conditions of Certification set forth in Department Exhibit 4. The Conditions of Certification establish a post- certification review process through which the final ROW, access road, and structure locations will be reviewed by agencies with regulatory authority over the project for the purpose of monitoring for compliance with the Conditions of Certification. While the proposed corridor has few homes in close proximity to it and very limited wetland crossings, TECO has agreed to conditions of certification that further minimize land use and environmental impacts. For example, TECO has agreed that to the extent practicable it will locate its ROW to avoid the taking of homes, to collocate the ROW within or adjacent to existing ROWs, and to vary the length of the span between poles as appropriate to eliminate or reduce wetland impacts.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Siting Board enter a Final Order approving Tampa Electric Company's Willow Oak-Wheeler-Davis 230 kV Transmission Line Application for Certification subject to the Conditions of Certification set forth in Department Exhibit 4. DONE AND ENTERED this 13th day of May, 2008, in Tallahassee, Leon County, Florida. S DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of May, 2008.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: Procedural Matters After holding noticed public hearings on March 19 and June 12, 1984, the Florida Public Service Commission, by Order Number 13676 issued on September 13, 1984, determined that there was a need for the Florida Power Corporation Lake Tarpon-Kathleen 500 kV transmission line which is the subject of this certification proceeding. Specifically, the Public Service Commission concluded that the construction and operation of the line would enhance electric system reliability and integrity and would improve the availability of low-cost electric energy within the State. It was further concluded that the Lake Tarpon substation in Pinellas County and the Kathleen substation in Polk County were appropriate starting and ending points for the proposed 500 kV transmission line. The Commission found that the proposed line would complete a 500 kV loop or grid out of the Crystal River plant, maintain system continuity to all 500 kV Substations and avoid customer blackouts. Thereafter, on April 29, 1985, Florida Power Corporation filed with the Department of Environmental Regulation its application for site certification of either of two proposed corridors for the 500 kV transmission line to be located between the Lake Tarpon and Kathleen substations. The Department of Environmental Regulation properly provided notice of the application to the statutory parties including the appropriate State agencies, the local water management district, the regional planning councils and each local government within the proposed corridors. Newspaper notice of the Florida Power Corporation application was also published Notices and reminder notices of the certification hearing were published in newspapers of general circulation within counties to be crossed by the proposed transmission line corridors. While one notice of the certification hearing was published 76 days, rather than the Statutorily required 80 days prior to the hearing, no statutory party or other Substantially interested party was prejudiced thereby. With the exception of Anne L. Thomas and Florida Satellite Network, Inc., the statutory agencies, listed parties and substantially interested persons included within the Appearances portion herein timely filed their notices of intent to be a party or their petitions to intervene. Ms. Thomas and Florida Satellite Network, Inc. were granted leave to intervene on a limited basis during the course of the certification hearing. No party proposed an alternate transmission line corridor route for consideration on or before the 50th day prior to the certification hearing. Efforts to present evidence during the certification hearing relating to an alternate corridor and/or to continue the hearing for that purpose were denied. Proposed Corridors In its application for certification, Florida Power Corporation proposes a primary corridor and an alternative secondary corridor. Both corridors originate at the Lake Tarpon substation located in Pinellas County just west of the Hillsborough-Pinellas County line and terminate at the Kathleen substation, located north of U.S. Highway 98 in Polk County. The primary corridor is approximately 44 miles in length and the secondary corridor is approximately 47 miles in length. The most westerly 5.5. miles and the most easterly 25 miles of both corridors are identical. The divergent primary segment is 13.5 miles in length while the divergent secondary segment is 16.5 miles in length. The westerly combined segments of both the primary and secondary corridors run east for a distance of 5.5 miles from the Lake Tarpon Substation to a point just east of the intersection of Gunn Highway and Mobley Road in Hillsborough County. This 5.5. mile stretch encompasses an existing Florida Power Corporation double-circuit 115 kV transmission line corridor, known as the Higgins-Fort Meade Line, and its associated 100 foot existing right-of-way. From the point where the proposed primary and secondary corridors diverge, the primary corridor continues to run east, northeast for a 13.5 mile long stretch in northern Hillsborough County until it meets up again with the easterly combined segments of both corridors. The initial 9.7 miles of this divergent primary segment is 190 feet wide and follows the continuation of the existing cleared and improved Higgins-Fort Meade line and its associated 100 foot right-of-way until it reaches Interstate 275. At I-275, the primary corridor angles northerly, widens to about 1500 feet and parallels the I-275 right-of-way for a distance of approximately 3.8 miles through Cypress Creek until it reaches the I-275/75 interchange at the Pasco Hillsborough County line. There the 13.5 mile divergent primary corridor merges with the 16.5 mile divergent secondary corridor and continues east to form the easterly combined segment. The divergent secondary corridor, leaving the primary after the first 5.5 miles, turns north and makes some thirteen subsequent turns, heading generally north and then east. Its many turns are the result of an attempt to avoid existing developments and homesites. The divergent segment of the proposed 16.5 mile long secondary corridor is located in both northern Hillsborough and Southern Pasco Counties. It varies in width, going up to 5,000 feet, and the exact location of the right-of-way has not yet been determined. The easterly combined Segment of both proposed corridors is generally 1,500 feet wide. This segment, 25 miles long, begins at the I-275/75 intersection and runs east along the Pasco Hillsborough County line to just east of the Hillsborough River where it jogs to the south to avoid homes in Crystal Springs, and it then proceeds northeasterly to the Pasco-Polk County line. The corridor then angles northeasterly through Polk County, crosses a cypress Swamp known as Fox Branch, and ultimately terminates at the Kathleen Substation. Proposed Design, Construction and Maintenance Florida Power Corporation proposes to utilize a 190-foot wide right-of-way in all areas except for that portion of the divergent primary corridor which will be located within the existing 100-foot wide right-of-way associated with the Higgins- Fort Meade transmission line. Florida Power Corporation intends to replace the Higgins-Fort Meade line with the new Lake Tarpon- Kathleen line in this area, and use of only the 100-foot wide right-of-way is necessitated by residential development which has occurred on both sides of the right-of-way if a wider right-of-way were utilized in this area of the proposed primary corridor, numerous homes would have to be displaced. The 100-foot wide existing Higgins-Fort Meade rights-of- way will remain cleared in its entirety. Except for danger trees and trees exceeding 25 feet in height which could fall on the lines, the 190-foot wide right-of-way will be cleared to a width of 150 feet, with 20 feet being left in a natural state on each side of the right-of-way to act as a buffer. At creek and river crossings, the 190-foot wide right-of-way will only be cleared for 100 feet. In this area, only vegetation that exceeds 25 feet in height will be removed. Tree stumps and root mats will be left intact to retain the integrity of wetland areas. Access roads and tower pads will be constructed within the right-of-way in wetland areas. The typical access road will be about 20 feet wide, with side slopes of two feet horizontal for every one foot vertical. Tower pads within wetland areas will be constructed to the same elevation as the access road leading to it and, depending upon the tower structure utilized, will be 130 feet wide by 113 to 155 feet long. Tower pads within the 100-foot wide rights-of-way will not exceed 100 feet so as not to extend beyond the right-of-way. The proposed tower designs for the transmission line in the 100-foot wide right-of-way will be one of two types. The first type is a single tubular steel pole with a delta-shaped conductor configuration extending from it and will be 120 to 135 feet high and about 60 feet wide. The second type consists of twin tubular steel poles with a vertical conductor configuration between them and will be 155 to 175 feet high and 32 feet wide. The maximum span between two single-pole structures is 900 feet and the maximum span between two twin-pole structures is 1,200 feet. The towers in the 190-foot wide right-of-way will be one of three types. The first type consists of a guyed vee lattice steel tangent structure, 100 to 125 feet high and approximately 64 feet wide at its widest point. It has very little depth, but is supported by guy wires that extend 60 to 75 feet to each side. The second type consists of a self-supported lattice steel tangent structure 100 to 125 feet high and approximately 64 feet wide at its widest point. It has a depth of 23 to 31 feet and requires no guy wires. The-third type is an H-frame tubular steel tangent structure 100 to 125 feet high and about 64 feet wide at its widest point. It has very little depth and requires no guy wires. The normal maximum span between all these types of towers is 1,200 feet, although it may be up to 1,500 feet in Special situations, such as river or road crossings. Once a tower type is Selected for each width of right-of-way, it will be used throughout the right-of-way of that width. The types of foundations utilized for the transmission line towers is dependent upon the type of tower design to be installed. For tubular steel structures, either a drilled pier foundation or a vibratory steel casing foundation will be used. For the self-Supporting lattice tower, a drilled pier concrete foundation will be used. For the guyed lattice tower, either a precast foundation or a drilled pier foundation will be used for the tower, and a drilled pier foundation called an auger cast pile will be used for the guys. The foundations will typically penetrate to a depth of up to 50 feet depending on the type of foundation used and the soil conditions at the tower locations. The conductors for the transmission line consist of three wires, Separated by spacers and attached to the towers by insulators. The conductor wires for the delta towers will be 34 to 100 feet high, depending upon the point in the span, and will be 1.89 inches in diameter. The conductor wires for the vertical towers will be 34 to 130 feet high, again depending on the point in the span, and will be 1.5 inches in diameter. The conductor wires for the guyed vee lattice, lattice, and H-Frame towers will be 34 to 80 feet high, again depending on the point in the span, and will be 1.3 to 1.4 inches in diameter. The minimum conductor- to-ground clearance at mid-span for all of the proposed towers will be 34 feet at maximum conductor temperature Ground wires will be used to intercept and ground lightning and will run along the tops of the towers and, for all tower types, will be .28 inches in diameter. The proposed transmission line will be designed to comply with good engineering practices, and the design codes, standards and industry guidelines contained in the National Electrical Safety Code; the American Welding Society Structural Welding Code for Steel; the American Institute of Steel Construction Code of Standard Practice; the American Concrete Institute Building Code Requirements for Reinforced Concrete; the Southern Building Code; the American Institute of Steel Construction Specifications for the Design, Fabrication and Erection of Structural Steel or Buildings; the American Society of Civil Engineering Guides entitled, "Guide for Design of Steel Transmission Towers," "Design of Steel Transmission Pole Structures," "Guidelines for Transmission Line Structural Loading"; and the American National Standards Institute Standard A58.1 entitled, "Loads for Buildings and Other Structures." The Lake Tarpon-Kathleen transmission line will be designed for five loading conditions: an extreme wind loading condition, maintenance loads, loads during construction, contingency loads, and code loads. The line is designed to withstand a reference wind speed of 100 miles per hour in flat, open country with no obstructions, and a reference wind speed of 130 miles per hour in forested and residential areas where obstructions on the ground baffle, or diminish, the wind speed. The highest reference wind speed recorded by an accepted weather station in Tampa during the past 30 years is 67 miles per hour, and the highest ever recorded is 84 miles per hour. A reference wind speed is a one-minute sustained wind speed that corresponds to the fastest mile of wind passing an anemometer ten meters above ground. Structures designed to withstand a given reference wind speed can withstand gusts of greater wind speed. While hurricane force winds along the Gulf Coast may exceed 130 miles per hour, the proposed corridors are located from 9 to 56 miles inland from the coast. The construction loading condition allows for the possible malfunction of equipment during the process of pulling the conductors through the blocks on the transmission line towers. In the unlikely event the conductors become hung up in the blocks, the construction loading condition allows the towers to withstand the induced longitudinal load. The maintenance load criterion ensures that the transmission line towers can withstand the weight of men with equipment climbing out on the structural components during maintenance operations The contingency load criterion allows for the shifting of vertical load in the unlikely event of breakage of a piece of conductor supporting hardware for an insulator. The code load criterion ensures that the transmission line will withstand the wind load set forth in the National Electrical Safety Code. Since the code load is less severe than the extreme wind loading condition for which this line has been designed, the code load was not controlling. In addition, standing water will not cause hydrostatic loads on the transmission line towers because they are free- draining. The towers will also withstand a very severe hydrodynamic force, in excess of 25-foot deep water moving two to three times the speed of the Mississippi River, and the towers will also withstand the uplift effects of buoyancy. Florida Power Corporation proposes to construct the transmission line in Seven stages, with the total construction process taking between 12 to 18 months. At any given location along the right-of-way, construction crews will be present at intermittent intervals for a total of two to three weeks. During the first surveying stage, survey crews of three to five individuals will establish tower locations and take soil borings at depths of 50 to 60 feet for foundation design purposes, survey and stake the right-of-way and survey and stake the requirement for clearing and access roads. This surveying stage will take approximately three months. In the second stage of construction, the right-of-way will be cleared and the necessary access roads will be constructed. In those portions of the corridor where the Higgins-Fort Meade line will be replaced with the new 500 kV line, this stage will include the removal of existing towers, conductors and foundations to approximately 1 to 2 feet below grade. Vegetation in the upland areas, where not already cleared, will be removed with heavy tracked machinery and the right-of-way will be dressed for future mowing. In wetland areas, vegetation will be removed either by hand or by the use of light tracked shearing machines, leaving the stumps and root mats except where they would interfere with tower locations. Wetland areas will not be demucked and cuttings will be either buried or burned in non- residential upland areas. Access roads in wetland areas will be constructed by hauling in fill and spreading it with heavy tracked machinery. Culverts under the roads will be installed to avoid interrupting surface water flow. The fill will be compacted as soon as it is hauled in to encourage revegetation and any other measures that may be necessary to prevent erosion will be undertaken. Fill will be obtained from adjacent upland areas, other upland areas or commercial fill suppliers, but not from wetlands or areas connected to wetlands. The actual locations and sizes of culverts to be used will be determined during post- certification design of the facility and will be reviewed by the agencies having jurisdiction over the access roads. Foundations for the transmission line towers will be installed during the third stage of construction and then, during the fourth stage, the materials needed to assemble the towers will be hauled to the appropriate site, and the towers will be assembled on the ground. The tower components will be bolted together and a locking device will be used on each bolt to prevent the nut from backing off. Each tower assembly takes approximately one day or less. In the fifth stage of construction, a large crane is brought to the tower site and the assembled towers are hoisted into position and installed upon their foundations. Florida Power Corporation can erect about one tower per hour or seven to eight towers per day. In the sixth stage of construction, the conductors and overhead ground wires are installed on the transmission line towers. Temporary wooden pole structures, called guard Structures, are installed at road and utility crossings to insure that conductors do not come in contact with those facilities during installation. Three to four miles of conductor and overhead ground wire are installed at a time. Machines are located at both ends of the Section where the conductors are being pulled, one set to pull the conductors and the other set to maintain tension on the conductors. The contractor will pull the conductors to a predetermined stage which is calculated by the design engineers. Also during this stage, spacers are installed between the three wires which make up each conductor to keep them from coming in contact with one another during high wind conditions. After a section of the conductors is installed, the pulling machines advance in a leapfrog fashion to pull in the next section of conductors. The Seventh and final stage of construction, cleanup of the right-of-way, actually occurs after each contractor completes a portion of the construction process. Cleanup of the right-of way includes removal of any orating materials used to haul materials to the site, grading of the right-of-way to remove any ruts resulting from construction, and reseeding or replanting disturbed areas of the These construction techniques are commonly used in the electric power industry. The construction process will be conducted entirely within the right-of-way unless special and prior arrangements are made with the adjoining property owners. After construction is completed, the right-of-way will be maintained by mowing with bushhog equipment in the upland areas and with light tracked shearing machines or by hand in wetland areas. This owing and/or clearing will occur about once every three to four years. Of course, owners of property along the right-of-way may mow and maintain the right-of-way if they desire to do so. Herbicides will not be used on the proposed transmission line right-of-way in wetlands, on public well fields or near residential areas. A study on the use of the herbicide Rodeo (trademark) on the Central Florida-Kathleen 500 kV transmission line right-of-way is currently being conducted. After the satisfactory completion of this study, Florida Power Corporation may seek a modification of the certification for the proposed transmission line to gain approval to use Rodeo (trademark) herbicide in wetlands. Twice a year, once by ground patrol and once by air, the transmission lines and towers, including hardware, will be inspected by maintenance crews. They will look for damaged insulators (particularly after the hunting season and the lightning storm season) frayed conductors, corroded metal and non- functioning culverts under access roads. Also, a climbing inspection is performed every eight years. Maintenance procedures can and will be conducted entirely within the right- of-way. Surrounding Areas-Primary Corridor The westerly segment of the primary corridor, identical to that of the secondary corridor, encompasses the existing Higgins-Fort Meade transmission line, a business park, areas of pine flatwoods, pasture lands, palmetto prairie, cypress swamp and citrus groves, a plant nursery, a lake and several ponds. The entire western combined segment crosses 7 lakes and 2 watercourses. The initial 9.7 miles of the divergent portion of the primary corridor follows the existing Higgins-Fort Meade line and abuts a number of suburban residential subdivisions, as well as occasional cypress swamps, ponds and citrus groves. The residential subdivisions include the densely populated Northdale, Country Place, Northlakes, Crenshaw Lakes, St. Charles, Crenshaw Acres, Live Oak, Hounds Run and Maple Hill developments. There are approximately 146 homes within 100 feet of the existing 100- foot right-of-way and 381 homes within 300 feet of that right-of- way. These homes and subdivisions were built subsequent to the early 1950's construction of the Higgins-Fort Meade transmission line. The portion of the divergent primary corridor which leaves the Higgins-Fort Meade line (for a distance of approximately 3.8 miles) and parallels I-275 encompasses an extensive area of Cypress Creek. The divergent section of the primary corridor crosses 14 lakes and 5 watercourses. The eastern segment of the primary corridor, identical to the eastern segment of the secondary corridor, traverses primarily rural areas, characterized by open pasture land, pine flatwoods and fresh water marsh, cypress and swamp. As the corridor moves into Polk County, it traverses an extensive wetland system known as Fox Branch. The Fox Branch system is the first tributary to the Hillsborough River, which provides drinking water to the Tampa Bay area. The eastern combined segment of both corridors contains 9 water courses, including the Hillsborough River, and 12 lakes. Surrounding Areas-Secondary Corridor The western and eastern portions of the secondary corridor are identical to that of the primary corridor and the Surrounding areas have previously been described in paragraphs 22 and 24. The 16.5 mile long segment of the secondary corridor which diverges from the primary corridor initially passes through areas of pasture land, citrus groves, cypress swamps and several single family residences, and is adjacent to scattered lakes. After the secondary corridor crosses Van Dyke Road, it is Surrounded by four major planned Single-family and multifamily residential developments, a single family residential compound and farm and a 1.5 million gallon per day waste water treatment plant, which are all currently at various stages of development and will be described in more detail below. The divergent secondary corridor continues to cross areas of cypress swamp, open pasture land and several single family residences and abuts numerous lakes, ponds and single family subdivisions, including Whisper Run, Lake Como Club, Country Close, Foxwood, Turtle Lakes and others, as well as a cemetery and a commercial nursery. Approximately 500 feet north of the secondary corridor along Dale Mabry highway is the Florida Satellite Network, Inc. cable system head end installation consisting of a 90 foot television antenna for local channel reception and two satellite dish antennas. This facility processes and retransmits signals via cable to some 1,500 cable customers in Land O' Lakes. The divergent segment of the secondary corridor contains some 33 lakes and two water courses. Due to the opening of the I-275 corridor, the extension of County Line Road and State Road 54, and the reduction in the amount of land devoted to citrus groves, the area encompassing the divergent secondary corridor is experiencing a boom of activity and rapidly increasing property values. The divergent secondary corridor traverses at least a portion of the newly planned subdivisions of Cypress Bend, Lake Carlton Arms, Villages of Ramblewood and Cheval, as well as the Van Dyke Road Wastewater Treatment Plant planned and designed to serve these new subdivisions. At the time Florida Power Corporation selected the proposed secondary corridor, it was unaware that these developments would occur or, at least, that they would progress so rapidly. This portion of the secondary corridor also encompasses the Maloney/Zambito family residential compound and farm, and traverses a 16-acre dedicated school site. The corridor includes the northern 750 feet of property owned by Live Oak Realty, which property is presently utilized as an operating cattle ranch. A siteplan has been developed for this property which includes dwelling units and a regional shopping center within the proposed corridor. The Cypress Bend development has recently commenced construction and includes 173 single family home sites, a club house, tennis courts, racquet ball courts, a pool, 77- acres of man-made lakes, and 424 acres of cypress wetlands, for a total of 965 acres. Most of the residential lots will have either a woodland view or a view of a lake. The main entrance is currently under construction and will connect to Van Dyke Road and Lutz Lake Fern Road. About 26 lots, the main entrance and portions of the cypress wetlands are located within the divergent secondary corridor. These cannot be relocated because of developmental, economic and environmental constraints. Expenditures to date by the developers of Cypress Bend include not only the cost of land, but $300,000 for road construction, $52,000 for a 12 inch water main, $118,000 for underground electric facilities and $250,000 for engineering and planning. The Lake Carlton Arms development is a residential rental apartment complex located on 477 acres and is currently under construction. It will have 1,912 units in 155 buildings, 4 clubhouses, and includes a 16 acre school site, a fire station, a 9 acre commercial site, open spaces, a number of man-made lakes, and 203 acres of wetlands and conservation areas. Construction of the lakes and site work is complete and construction of Phase I, consisting of 956 units on the south side of the development, is nearing completion. Construction of future phases will take place along the man-made lakes in the northern portion of the development. Expenditures to date total more than $24,000,000, over and above the cost of the land. The school, which will serve all of the Surrounding developments, 84 units in 7 buildings, and open spaces, as well as access for another 24 units in 2 buildings, will be located within the proposed secondary corridor. They cannot be relocated because of developmental constraints. If the right-of-way is ultimately located so as to avoid the Lake Carlton Arms development, it will then traverse the Villages of Ramblewood development. The Villages of Ramblewood is a single family residential subdivision located on 658 acres immediately to the north of the Lake Carlton Arms development and the Van Dyke Road Wastewater Treatment Plant. It is proposed for 908 single family lots with 230 acres of cypress wetlands and conservation areas. Construction of the roads and utilities is currently underway, and expenditures to date total more than $2,000,000 over and above the cost of the land. Two of the villages consisting of a number of lots are located within the divergent secondary corridor. They cannot be relocated due to environmental and developmental constraints. If the right-of-way is located so as to avoid them, it will necessarily be required to traverse the Lake Carlton Arms development and the Van Dyke Road Wastewater Treatment Plant. The Cheval development is located on 855 acres just northeast of the Lake Carlton Arms Development and to the east of the Villages of Ramblewood. It is a multi-use development, currently under construction, and will have 193 large single family home sites, 537 multi-family units, including patio and town homes, 88-acres of man-made lakes, tennis and equestrian villages, an 18-hole golf course, and a club house with tennis courts and a pool. It will also have a 57 acre equestrian center which will include stables, a grand prix jumping area, 2 polo fields, grandstands and parking facilities, and will be the focal point of the development. Phase 1 of the development is near completion, and expenditures to date total more than $16,000,000. Three large single family lots, the stables and about half of one polo field are located within the divergent secondary corridor. They cannot be relocated in a manner that will maintain the integrity of the overall development plan. The Van Dyke Road Wastewater Treatment Plant, located on 22 acres adjacent to the northwest corner of the Lake Carlton Arms development, is now nearing completion after a 3- year permitting and construction process. It is a 1.5 million gallon per day oxidation ditch-type wastewater treatment plant that can be expanded to a 2 million gallon per day capacity. It includes an operations building, 2 large oxidation ditches with 18 feet high concrete walls, other utility buildings, paving, roadways and storage ponds. Expenditures to date total bore than $3,000,000 and its total cost will be $4.5 million. Its operation is a condition precedent to the viability of surrounding developments. The entire plant is located within the divergent secondary corridor and it cannot be relocated. The right-of-way cannot traverse the plant site for safety reasons since the use of large cranes will be required to maintain and expand the plant. While the right-of-way could perhaps be located so as to avoid the plant site, it could not be done without traversing a portion of the Villages of Ramblewood development. The Maloney-Zambito family complex, located on 194 acres between the Cypress Bend and Lake Carlton Arms developments, is a family complex that includes a dairy, a thoroughbred horse farm, and several residences. A portion of the property has been divided into 3-acre lots which will be used as homesites for several family members. In addition to the residences that now exist on the property, the Maloney family is currently constructing a new home on one of the 3-acre lots. All of the property is located within the proposed secondary corridor. If the right-of-way is located so as to avoid the Cypress Bend development, it will likely result in the displacement of one or more residences on the Maloney Zambito property and will disrupt the family complex. Impacts of Proposed Corridors upon the Public-Land Use, Land Value and Other Considerations. Land Area Preempted. The primary corridor is 44 miles long and the secondary corridor is 47 miles long. Because Florida Power Corporation intends to utilize its existing 100- foot right- of-way along the Higgins-Fort Meade line if the primary corridor is certified, it will only need to acquire 28.8 miles of additional right-of-way to complete the primary corridor. The secondary corridor will require the preemption of sufficient land to locate a 190-foot right-of-way across some 41.5 miles. Joint Use of Land. The primary corridor will follow the existing Higgins-Fort Meade facility for a distance of 15.2 miles. Other linear facilities, including a draining ditch and an electrical distribution line, currently share this existing right- of-way. The primary corridor will also follow the I-275 right-of- way for approximately 3.8 miles and the County- Line right-of-way for about 2.5 miles. Thus, existing linear facilities are followed for 21.5 miles of the primary corridor's total 44 mile length. Joint uses of existing linear facilities are encouraged by state, regional and local comprehensive plans. The secondary corridor will only align itself with approximately 6.5 miles of existing linear facilities. Displacement of Residences. A greater number of occupied residential homesites presently exist adjacent to the proposed divergent segment of the primary corridor. Because the 100-foot right-of-way for the Higgins-Fort Meade transmission line was in existence prior to the construction and development of nearby homes, and because future development has been and is now precluded within that right-of-way, no displacement of homes will be required in the primary corridor. However, if a right-of-way wider than 100 feet is utilized in the dense residential areas along the existing line, numerous homes would have to be displaced. Location of the corridor in the divergent secondary segment could well result in the displacement of both existing residences and those currently under construction or development, as well as a wastewater treatment plant and commercial businesses. When the secondary corridor was initially chosen by Florida Power Corporation, the area contained relatively low density development and the potential of locating most of the right-of-way outside the boundaries of existing and known planned developments. However, that scenario has now changed and is continuing to change on a rapid basis. Since there is no existing right-of-way within the divergent secondary segment, it is reasonably probable that new homes will be placed within the secondary right-of-way, and thus require displacement if the secondary corridor is certified. Population projections indicate that the numbers of residents within the two corridors will be nearly equal in the future. Impacts on Existing and Future Developments. The area along the existing Higgins-Fort Meade line, at least within the divergent primary segment, is basically already fully developed, and future development will not be disrupted any more by the location of the primary corridor there than it is by the existing right-of-way for the Higgins-Fort Meade line. Almost all of the developments along the divergent primary segment were placed there after and were planned with reference to the Higgins-Fort Meade line and its 100-foot right-of-way. The area along I-275 is primarily a wetland area unsuitable for future development. While there is now no existing development along the easterly combined segments of both corridors, it is conceivable that there could be future development in that area. Because of the rapidly developing nature of the divergent secondary segment, the fact that there is no existing protected right-of-way and the large numbers of lakes and wetlands located within that area, it will be very difficult to locate a right-of- way within that secondary segment so as to avoid dividing properties, displacing homes or leaving properties with limited developable uplands. Future development could be severely disrupted by the placement of the secondary corridor in the 16.5 mile area which diverges from the primary corridor. Land Values. Testimony was offered concerning several studies on the impact of transmission lines upon property values. None of the studies were Site-specific to the Lake Tarpon-Kathleen transmission line and the literature on the subject is inconclusive as to the effect of transmission lines on adjacent property values. A study conducted in Hernando County concluded that, depending upon the type of property involved, there is a 24 percent to 44 percent loss in value of property located adjacent to a transmission line. The study from which such conclusions were drawn contains deficiencies in that, in some instances, only one sale was recorded, sales were not verified to assure they were the result of arm's length transactions, median values were used when there was only one or a small number of sales and the study was Site-specific to Hernando County. Land use impacts, and their effect upon land use values, have already occurred in the divergent primary section as a result of the existing Higgins-Fort Meade transmission line and I-275. The values of residential properties along the existing transmission line already reflect the location of such a line. Florida Power Corporation has no intention of removing that line or abandoning that right-of-way even if the proposed primary corridor were not certified. The potential adverse impact upon land values if property cannot be developed for residential use within the divergent secondary segment could be great. Planned developments would need to be reduced in size or scope, thus making the property less desirable and less valuable for purchase or development. Visual impacts. Along the 15.5 miles where the Higgins- Fort Meade line presently exists, there should be no significant new visual intrusion. Though the towers for the proposed line will be higher than those within the existing corridor, they will also be sleeker and less intrusive. The visual intrusion of lattice towers and other transmission facilities already exists in the immediate area of the westerly and divergent segments of the primary corridor. The visual intrusion in other areas will be mitigated by alignment of the line with the I-275 right-of-way and by the sparsely populated rural nature of the lands in the combined easterly segment of both corridors. Placement of the transmission line in the proposed divergent segment of the secondary corridor will result in a new visual intrusion for residents of existing and nearly completed subdivisions located therein. Because of the meandering design of the secondary corridor, the transmission lies could form a virtual semi-circle around some lakes and developments, thus creating a greater visual intrusion than a single set of lines or towers located in only one direction from the adjacent property. Noise. The transmission line, no matter where it is located, will generate some noise as a result of a process called corona, and also, to a lesser extent, as a result of wind and insulator scintillations. Corona occurs when a foreign substance like water gets on the conductor wires and causes the level of the electrical field to exceed the electrical strength of air. This causes a burst of energy that heats and applies force to the air and moves air molecules around as sound waves. Under normal fair weather conditions, which occur in this area 90 percent of the time, the noise levels produced by corona will be less than ambient and unmeasurable. During rainy weather, which occurs about 10 percent of the time, the median noise level will be 40.7 to 42.3 dBa at the edge of the right-of-way, with diminishing levels thereafter. Under certain unique conditions, the noise level could rise an additional 3 or 4 dBa, but never as much as an additional 7.5 dBa. To put this in perspective, under normal conditions, the noise level will be more quiet than a rural nighttime ambience, but during rainy weather, the noise level will be roughly equal to a quiet urban nighttime level. Direct comparison is difficult because different noises have different annoyance levels. Some studies have indicated that noise produced by the corona process is more annoying than other types of noises because of its crackling and popping and conclude that a penalty of somewhere around 5 dB should be added to corona noise for comparison purposes. If the penalty were added, the noise level would be roughly 44 to 48 dBa on median, which is much like a quiet urban daytime noise level. The noise levels expected will be Substantially below the maximum level permitted under Hillsborough, Pasco and Pinellas Counties' noise ordinances, with or without the penalty. Studies of other transmission lines indicate that noise levels of less than 52.5 dB receive little or no complaints. Radio and Television Interference. The bursts of energy that occur during the corona process can, under certain circumstances, cause interference with radio and television reception. Because F.M. radio transmission uses a frequency modulation which is immune to amplitude noise, the proposed transmission line will have no effect on F.M. radio reception. A.M. radio does use an amplitude modulation which can be susceptible to transmission line noises. However, during fair weather conditions the proposed transmission line will not interfere with A.M. stations which meet FCC Type A signal service, which include those stations providing strong enough signals that they would be free of naturally occurring atmospheric interference 90 percent of the time. During foul weather, there may be some interference with some Type A stations at the edge of the right- of-way. However, such interference during stormy weather could occur even in the absence of the transmission line and the interfering effect of the line will not be substantially different than other atmospheric interferences. Television transmission uses frequency modulation for sound and amplitude modulation for the video or picture. Thus, the picture can receive interference from transmission lines in the form of a band of snow or ghosting on the screen. However, under fair weather conditions, the Lake Tarpon-Kathleen transmission line will cause no interference with television stations servicing the area. During foul weather, there could be some minimal interference with only Channel 3, and only in the worst case situation where the transmission line is operating at its maximum voltage and the receiving antenna is located immediately adjacent to the edge of the right-of-way or is oriented in a direction such that it receives the maximum amount of transmission line noise. Such worst case conditions are unlikely to occur and, if they do, Florida Power Corporation has agreed to correct interference problems arising therefrom. Microwave receivers, such as satellite dishes, experience no interference from corona. If a receiving station is located near a transmission line and utilizes a high gain antenna with large amplifiers to pick up weak stations, there is some potential for interference. Florida Satellite Network, Inc. does operate a standard television reception antenna atop a 90 foot high radio tower in order receive 9 local television signals. The tower is located approximately 500 feet north of the northern boundary of the secondary corridor. The evidence was insufficient to establish whether or not the proposed transmission line, if placed in the secondary corridor, would create interference during foul weather conditions. As noted above, Florida Power Corporation agrees to investigate and correct all valid complaints of radio and television interference caused by its transmission lines. Human Health and Safety Lightning Strikes. Lightning, an electrical discharge that begins in the clouds and progresses to the ground, is generally attracted and diverted to the tallest object. Transmission line towers are often the tallest structure in an area and they are often struck by lightning. Since the large surges in voltage in current caused by lightning can damage transmission line equipment, power companies attempt to protect their investments by placing static wires, or overhead ground wires, above the conductors to interrupt the lightning and route it through the tower structure to an extensive grounding system at the base of the structure. This process creates no significant risk to people or residents adjacent to the right-of-way and, in fact, may attract and ground lightning strikes that would otherwise strike elsewhere in the area. Electric Shock. Electric shock is the sensation a person feels when current passes through the body. It can range from a very low perception to a startled reaction and, at high levels, it can be fatal. Electric and magnetic fields associated with transmission lines can cause electric currents to be induced in objects. If one touches a conductive object within or adjacent to the transmission line right-of-way, a small amount of current could flow from the object through his body to the ground. Whether this produces an electric shock depends on the magnitude of the current. Common thresholds are one milliamp for steady state preception, two milliamps for startled reaction, and 4.5 Quo 9 milliamps for safe let-go levels, the threshold being dependent on body limb size and weight. Florida Power Corporation proposes to construct and operate this transmission line to comply with and exceed the National Electrical Safety Code, 1984 Edition (NESC). The NESC requires that induced currents be less than 5 milliamps. This line will produce maximum induced current in the largest objects found within pedestrian access areas of about 2.87 milliamps during normal load conditions; and of about 3.49 milliamps during emergency load conditions. Emergency load conditions occur very infrequently (once a year) and last no more than 3 to 4 hours. The line will produce maximum induced currents in the largest objects found in residential and secondary streets of about 4.10 during either normal or emergency load conditions and will produce maximum induced currents in the largest objects found on major highways of about 4.29 during either normal or emergency load conditions. It will produce progressively lower induced currents the further the distance from the line. There could conceivably be some higher induced currents in fences within the right-of-way or large metal buildings located adjacent to the right-of-way, but Florida Power Corporation routinely grounds such objects. Surveys of utilities operating 500 to 765 kV lines demonstrate that there have been no reports of injury from and very few complaints concerning electric shocks. While perceptible shocks could occur, they will be brief and result in no physiological harm. It is estimated that Florida Power Corporation will receive one complaint based on perceptible, but not harmful, electrical shock for every 35 years of operation of this line. Shock problems can arise for honey bee hives located in or near the right-of-way due to the electrical characteristics present in the bee hive and the bees when they are located within an electrical field. The problem can be eliminated by placing over the hive a grounded screening device, such as chicken wire or a metal plate. Florida Power Corporation has agreed to inform affected beekeepers of this problem and the solution thereto Spark Discharge. When induced current becomes trapped and builds up in objects that are well insulted from the ground, a grounded object coming in contact with it can create a spark, such as that which occurs when a person walks on carpet and then touches a door knob. While these sparks may create a nuisance, they do not cause physiological harm. There is some concern that a spark discharge could contain sufficient energy to ignite gasoline vapors when there exists an optimum mixture of vapor and air. Scientists have produced such a result under contrived conditions, but there is no evidence that this has occurred in practice. There is little likelihood of such an incident occurring because of the number of things which would have to occur simultaneously in order to create the necessary conditions. Falling Conductors. In the unlikely event that a subconductor breaks and falls to the ground, it will establish a spark, known as a fault. The increase in current will be detected by relays at both ends of the line and circuit breakers will immediately de-energize the line and disconnect that line from the rest of the substation. The total time between a conductor approaching the ground and establishing a fault condition to the time that the system is turned off will be about 60 thousandths of a second. Biological Effects of Electric and Magnetic Fields. When energized with electricity, transmission lines produce both electric and magnetic fields. On an electromagnetic spectrum, telephone and power lines would be at the bottom with respect to intensity, followed by television and radio waves, microwaves, infra red, ultra violent, x-rays and gamma rays. Whether or not low frequency electromagnetic fields (EMF) associated with transmission lines and other sources of electrical energy may interact with humans, animals and plants to cause harmful biological effects has been the subject of inquiry debate within the scientific community for a number of years. The record of this proceeding contains the testimony of experts and documentary evidence concerning the biological effects of EMF, as well as the statements from members of the public expressing apprehension and fear about the health hazards associated with transmission line EMFs. For the Lake Tarpon-Kathleen transmission line, the maximum (which occurs for only a few hours a day) electric fields within the right-of-way during normal load periods will be between 6.79 and 7.37 kilovolts per meter depending upon the tower configuration utilized and the width of the right-of-way. During emergency load conditions (which occur only once a year for three or four hours) the electric fields will range between 8.07 and 8.84 kilovolts per meter. At the edge of the rights-of- way, the maximum electric field strengths are 1.90 (190-foot right-of-way), 3.43 (100-foot right-of-way, delta configuration) and 1.56 (100- foot right-of-way, vertical configuration) for normal loads and 1.85, 3.52 and 1.41, respectively, for emergency loads. The maximum magnetic fields within the right-of-way during normal loads will range between 96.0 milligaus (190-foot right-of-way) and 67.0 milligaus (100-foot right-of-way). During emergency loads, these same figures range between 709 and 470 milligaus. At the edge of the rights-of-way, the range of maximum magnetic fields during normal loads are 24.0 (190-foot right-of-way) and 37.0 (100-foot right-of-way), and during emergency loads 154 and 242 milligaus. While electric fields can be shielded by physical objects, such as trees and houses, magnetic fields cannot be shielded unless the physical objects have strong magnetic properties. The field values listed above are maximum theoretical values and would be affected by variations in current flows and shielding by other objects. Also, the fields could be slightly higher along portions of the divergent secondary corridor because the numerous angles and turns could result in a convergence of fields from more than one direction. Dr. Andrew Marino, a bio-physicist, is of the opinion that electric fields are stressors of biological organism's which contribute to the incidence of all types of diseases. He concludes that the electric field at the edge of a right-of-way should be no greater than 50 volts per meter, thus necessitating a right of way width in this case of 400 feet on each side of the centerline or a total width of 800 feet. Dr. John Norgard, an electrical engineer, felt that the electric field at the edge of the right-of-way should be no greater than 434 volts per meter, thus necessitating a minimum right of way width for this line of 330 feet. Though not qualified as an expert in the health effects of EMF, Karen Anthony, DER's transmission line siting coordinator, had no real concerns regarding the health effects of electric fields associated with transmission lines. However, she perceives a need for caution with respect to magnetic fields and adverse health effects and would prefer a right-of-way width of 190 feet so as to reduce the edge of right-of-way magnetic field strength by 13 milligaus during normal load conditions and by from 75 to 88 milligaus during emergency loads. This preference for a 190-foot right-of-way is not contained in a DER existing or proposed rule and no standard for magnetic fields or other evidence of known adverse health effects from magnetic fields was offered during the course of this proceeding. Dr. Morton Miller, a research biologist, concludes from his own experiments and a review of the Scientific research that, in spite of numerous attempts to do so, no deleterious biological effects have been found from the interaction of EMFs and biological organisms. Dr. Jerry C. Griffin, a medical doctor, does not believe that there are any demonstrated or accessible adverse health effects from EMF exposure to the fields expected from this transmission line. While there is a potential risk to wearers of one type of cardiac pacemaker, this same risk exists from exposure to the EMF's associated with common household appliances. Dr. H. B. Graves, a research biologist, does not believe that exposure to the electric and magnetic fields associated with this transmission line will cause adverse health effects in plants, animals or persons. Dr. Graves was also chairman of the Florida Electric and Magnetic Fields Science Advisory Commission which authored a report published in March of 1985, entitled "Biological Effects of 60-Hz Power Transmission Lines." The study had the participation of DER and the United States Department of Energy and was funded by the Florida Power Coordinating Group. It was the conclusion of this report that it is unlikely that human exposure to 60Hz EMFs from high voltage transmission lines presents a public health problem. Other reputable scientific groups have reached the same conclusion. The Florida Commission did concede that ambiguities in currently available scientific knowledge do exist and thus it can not be concluded with absolute certainty that there is no chance that a public health problem exists. New scientific developments should continue to be monitored. An analysis of the totality of the evidence presented in this proceeding on the EMF issue results in the finding that this transmission line will not cause or lead to adverse biological effects. Impacts of Proposed Corridors upon the Environment Water Resources, Vegetation and Wildlife. Water Resources. The primary and secondary corridors traverse or contain a variety of surface water resources. These water resources are characteristic of the central Florida area and include natural and manmade ponds and lakes, flowing streams, rivers, cypress swamps, mixed hardwood swamps, freshwater marshes and other kinds of wetlands, including areas which are only seasonally inundated. The largest wetland areas crossed are those associated with Cypress Creek near I-275 and with Fox Branch, a tributary to the Hillsborough River. The major receiving waters for these lakes and watercourses are (from west to east) Double Branch, Rocky Creek, Hillsborough River, Cypress Creek and South Branch. All lakes and watercourses crossed by the proposed corridors are designated as Class III waters by Chapter 17-3, Florida Administrative Code. There are no Outstanding Florida Waters within the proposed corridors. There are three public drinking water supply well fields located near the divergent secondary corridor. There are no springs in either corridor. The proposed primary corridor contains a fewer number of waterbodies than the proposed secondary corridor, and many of the water bodies within the primary corridor are already within the existing Higgins-Fort Meade right-of-way. Florida Power Corporation has committed to utilize a number of construction, operation and maintenance techniques in wetlands to avoid any potential adverse hydrologic and water quality effects. For example, in wetlands clean fill will be used, no stump removal or demucking will occur, felled timbers will be placed beneath roads to bear traffic and minimize soil compaction, roads will be constructed to a height of only one foot above water level to allow for surface flow and culverts will be installed to maintain sheet flow. Roadways will be rapidly revegetated to provide stability. Because of the low flow velocities in affected wetland areas, the effects of increased turbidity during construction should be minimal and temporary. The construction and maintenance of the transmission line will have no measurable effect upon groundwater. Since all borings and drill holes will be grouted, there will be no disturbance of the separation between the surficial and the Floridan aquifers and groundwater flow will not be impeded by soil removal. Because it is impractical to delineate site-specific designs for activities within wetlands during the corridor certification process, Florida Power Corporation has agreed to a post-certification review process for approval of site-specific dredge and fill activities. Compliance with the stipulated conditions of certification as set forth in Appendix A will provide DER and SWFID with reasonable assurances that water quality standards will be complied with. The Fox Branch System. As noted, Fox Branch is a tributary of the Hillsborough River and is comprised of some 2,450 acres of forested wetland. It drains the northwest flow of the Lakeland Ridge, an urbanized area of relatively high elevation located north of the City of Lakeland. The proposed corridor crosses the Fox Branch system at its widest point and the right- of-way could not be located to avoid the wetlands. While the 1,500-foot wide corridor includes a total of about 135 acres of wetlands associated with Fox Branch, only about 15.86 acres would be included within the cleared 150-foot wide right-of-way. Only 0.65 percent of the total wetlands will be cleared and only about 2.2 acres or 0.09 percent of the total wetlands will be filled for access roads. The conditions of certification attached as Appendix A require post-certification review by the appropriate agencies of all jurisdictional dredge and fill activities. The proposed construction techniques, conditions of certification and post-certification review of construction across Fox Branch are adequate to protect the water resources of that area. Vegetation. In areas outside the existing Higgins-Fort Meade right-of-way, the proposed 500 kV transmission line will result in some loss and disturbance of plant life. The vegetation communities which occur in both corridors are typical to those found in similar areas throughout central Florida. No unique or endangered species of plant life have been observed in either corridor. While canopy and tall wood vegetation will be cleared along the proposed rights-of-way, plant communities will not be totally destroyed. Rather, the clearing and maintenance will force a shift from the existing successional stages of vegetation to an earlier successional stage. The divergent secondary segment of the corridor contains a greater number of unaltered and undisturbed wetlands, but the divergent primary segment includes the more extensive, mature and diverse vegetation community associated with Cypress Creek, though this waterbody has been previously disturbed by I-275. If proper construction and maintenance techniques are followed, as proposed and as set forth in the conditions of certification, any adverse impacts upon vegetation communities should be minimized. Wildlife. Since both proposed corridors contain many areas of swamp, marsh, lakes, ponds, streams and forested wetlands, there are numerous species of wildlife which inhabit these areas. Both corridors contain similar habitat types and the value of any particular area for supporting wildlife habitat is primarily determined by the size of the area and the degree to which the area is developed or otherwise disturbed. There are no particularly unique habitats located within the divergent segment of the primary corridor and there are no known endangered or threatened wildlife species residing therein. Because the divergent secondary corridor is longer and more undeveloped at this point in time, it contains a larger amount and greater diversity of undisturbed wildlife habitat than does the divergent primary segment. Also there are two endangered or threatened species which actually reside within or adjacent to the divergent secondary corridor. These are the Southern Bald Eagle and the Florida Sandhill Crane. There are two apparently active bald eagle nests located south of the southern edge of the secondary corridor. One is approximately 1,000 to 1,100 feet south and the other is approximately 1,500 to 1,600 feet south of the edge of the corridor. While the corridor in this area does not cross any open water, there are lakes and ponds to the north of the corridor in which the eagles may feed, and the corridor lies between the nests and these lakes and ponds. The potential for injury to the eagles from collision with the transmission line is slight due to the visual acuity of an eagle and the fact that only about 0.07 percent of the bird population in general dies as a result of collision with power lines. There are no federal or state laws prohibiting a transmission line within a certain distance of an eagle's nest, though the U.S. Fish and Wildlife Service does have a guideline indicating that activities within 1,500 feet of an eagle's nest should be reviewed to minimize effects. Florida Power Corporation has agreed to a condition of certification which calls for such a review and has agreed to consult with the Florida Game and Fresh Water Fish Commission regarding the type and timing of construction activities should the right-of-way be located within 1,500 feet of a bald eagle's nest. Active eagles' nests do presently exist near other transmission lines in Florida. Though difficult to distinguish from the migratory, unthreatened Greater Sandhill Crane, the non-migratory, threatened Florida Sandhill Crane has been sighted within or near the divergent segment of the secondary corridor. While there is a potential for a disturbance of this threatened species from the construction and existence of a transmission line, there was insufficient evidence to establish that the secondary corridor contains critical habitat features or that the Florida Sandhill Crane actually nests within or near the proposed corridor. As noted above, collisions with transmission lines have had no significant effect upon other bird populations. Nonprocedural Requirements of Agencies. If the conditions of certification attached hereto as Appendix A are imposed and met, the location, construction and maintenance of the transmission line will comply with the non- procedural requirements of state, regional and local governmental agencies. Variances or exceptions from local zoning ordinances may be required in some instances, and Florida Power Corporation provided notice in its application of those specific regulations from which variances, exceptions or exemptions may be required. However, insufficient evidence was adduced during the certification hearing to permit a factual finding as to the actual types of zoning variances or exceptions which may be required. The exact location of the rights-of-way and the placement of structures within-the rights-of-way will be determinative of the need for local zoning variances or exceptions. Comprehensive Plan Considerations. Transmission lines are generally compatible with the various types of land uses which will be traversed by both the primary and secondary corridors. However, the primary corridor is much more consistent with the various local comprehensive plans than is the proposed secondary corridor. This is primarily due to the fact that the primary corridor, both in its westerly segment and in its divergent segment, follows existing rights-of way, including the Higgins-Fort Meade transmission line and I-275, thereby coordinating linear facilities and minimizing conflicting land uses. Placement of the 500 kV line and towers within the right-of-way for the existing Higgins-Fort Meade line will present only incrementally greater land use impacts as opposed to completely new impacts, both aesthetic and environmental, were the line to be located within the divergent secondary segment. Both the Pasco County and the Hillsborough County comprehensive plans encourage harmonious surrounding land uses, the preservation of viable neighborhoods and the promotion of joint uses of land. Location of the line in the primary corridor, because of the prior existence of the Higgins-Fort Meade line, will be consistent with the objectives contained within the Hillsborough County comprehensive plan, known as the Horizon 2000 Plan. The Hillsborough County plan does contain a policy of protecting residential areas from encroachment by undesireable and incompatible uses and the permission of only those activities which directly serve the residential area affected. The proposed 500 kV line will not service the residents in the primary corridor. However, since the residential areas existing along the Higgins-Fort Meade right-of-way developed subsequent and in spite of the existence of that right-of-way, it is found that the location of the new line within the proposed divergent primary corridor does not constitute the encroachment of an undesirable or incompatible use. Likewise, it is found that the proposed 500 kV line and associated facilities will not constitute a "blighting influence" within the prohibition of Hillsborough County's Policy 2.3.1.1.3. Construction and maintenance of the proposed transmission line as planned and in accordance with the conditions of certification will not be inconsistent with either the Polk County Comprehensive Plan or the Tampa Bay Regional Planning Council's growth policy. As noted above, proper construction and maintenance will not adversely affect the flow regime, the recharge capabilities or the filtering capabilities of the Fox Branch wetland system. Cost Considerations. Florida Power Corporation estimated the costs of the location and construction of the Lake Tarpon-Kathleen transmission line in both the proposed primary and secondary corridors. The estimated costs include costs for right-of-way acquisition, right- of-way preparation, road construction, tower construction, angles and other structures and conductors. The estimated costs include a 19 percent markup for indirect costs. The estimated costs do not include the acquisition of improvements that may be within the rights-of-way, severance damages to adjoining lands or the costs of acquiring the land through eminent domain proceedings. These latter costs were not included because they vary from parcel to parcel and are difficult to estimate. They will, however, clearly be incurred and will be substantial. Florida Power Corporation estimates that the cost of locating and constructing the line in the primary corridor will range between $24,386,000 and $32,994,000 if the delta towers are used, and between $24,071,000 and $32,568,000 if the vertical towers are used. The estimated costs for the secondary corridor are between $26,459,000 and $35,800,000. The prime difference in costs between the two corridors are the costs associated with the acquisition of the rights-of-way. The evidence establishes that the estimated costs for right-of-way acquisition within the divergent segment of the secondary corridor are greatly understated. This is due to the noninclusion of costs associated with eminent domain proceedings and costs for severance damages. Since some 12.7 miles more right-of-way must be acquired in the secondary corridor, the amount of these costs will greatly increase the overall secondary corridor costs estimated. Also, the trend toward more development in the secondary corridor will increase land values with the passage of time. In addition, the estimated cost for the primary corridor did not include a credit for the salvage value of the components of the Higgins-Fort Meade line which will be dismantled. In any event, the cost of the project will be at least $2 million to $3 million less if the primary corridor rather than the secondary corridor is utilized, and the differential in costs in favor of the primary corridor is most likely much greater. The issue of whether Florida Power Corporation has either abandoned or overburdened its existing Fort Meade-Higgins right-of-way in the 9.7 mile long divergent segment of the primary corridor has been fully briefed and the easement documents were received into evidence. Obviously, if the 100-foot right-of-way cannot be utilized without acquiring new easements or enlarging and enhancing existing easements, the cost of the primary corridor will be greatly in excess of that estimated by Florida Power Corporation. Florida Power Corporation did include some costs in its estimate for the acquisition of additional easement rights within the divergent primary segment. The Higgins-Fort Meade transmission line right-of-way was established in 1951. Florida Power Corporation acquired a number of express easements by grant, almost all of which allow Florida Power Corporation to improve, repair and rebuild the lines and increase the number of lines and voltage. The rights to the right-of-way continue as long as Florida Power Corporation uses them or until use is abandoned. In those few instances where there is no express easement, Florida Power Corporation has acquired prescriptive rights to the easement. In October or November of 1984, Florida Power Corporation de-energized the Higgins-Fort Meade double-circuit 115 kV transmission line. No lines or structures have been removed. At all times, it has been Florida Power Corporation's intent to either use the existing right-of-way easements for an upgraded transmission line or to sell the easements to another power company. Florida Power Corporation has never intended to abandon its 100-foot right-of-way within the primary corridor and did not do so by de-energizing the line in late 1984. There was insufficient evidence adduced to conclude that the replacement of the existing line with a 500 kV line would overburden existing easements to the extent that additional compensation would be required. Preference of Florida Power Corporation. Primarily because of the rapidly developing nature of the area surrounding the proposed secondary corridor, the consequences of that factor upon land use and cost considerations, and the prior existence of the Higgins-Fort Meade rights-of-way, Florida Power Corporation prefers that all segments of the proposed primary corridor be certified for the location of the Lake Tarpon-Kathleen 500 kV transmission line.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that the Governor and Cabinet, sitting as the Siting Board, grant certification for the location of the primary corridor and the construction and maintenance of the transmission line within that corridor as proposed in the application and in accordance with the conditions of certification attached hereto as Appendix A. It is also RECOMMENDED that, as a further condition of certification, Florida Power Corporation be required to seek any necessary interest in state lands, the title to which is vested in the Board of Trustees of the Internal Improvement Trust Fund, from that Board prior to engaging in any activity on or affecting that land, pursuant to Section 403.531(3), Florida Statutes, (1983). Respectfully submitted and entered this 29th day of January, 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 29th day of January, 1986. COPIES FURNISHED: Honorable Bob Graham Governor State of Florida The Capitol Tallahassee, Florida 32301 Honorable Doyle Connor Commissioner of Agriculture The Capitol Tallahassee, Florida 32301 Honorable George Firestone Secretary of State The Capitol Tallahassee, Florida 32301 Honorable Gerald Lewis Comptroller The Capitol Tallahassee, Florida 32301 Honorable Jim Smith Attorney General The Capitol Tallahassee, Florida 32301 Honorable Ralph Turlington Commissioner of Education The Capitol Tallahassee, Florida 32301 Honorable Bill Gunter State Treasurer and Insurance Commissioner The Capitol Tallahassee, Florida 32301 Carlos Alvarez, Esquire Carolyn S. Raepple, Esquire Richard S. Brightman, Esquire Hopping Boyd Green & Sams Post Office Box 6526 Tallahassee, Florida 32314 H. A. Evertz, III, Esquire Florida Power Corporation Post Office Box 14042 St. Petersburg, Florida 33733 John Bottcher, Esquire Douglas MacLaughlin, Esquire Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 C. Laurence Keesey, Esquire Department of Community Affairs 2571 Executive Center Circle Tallahassee, Florida 32301 Ralph Artigliere, Esquire Central Florida Regional Planning Council Lane, Trohn, Clarke, Bertrand & Williams, P.A. Post Office Drawer J Lakeland, Florida 33802 J. Edward Curren, Esquire Ms. Patricia Dorris Southwest Florida Water Management District 2379 Broad Street Brooksville, Florida 33512 Frederick B. Karl, Esquire Karl, McConnaughhay, Roland & Maida Post Office Drawer 229 Tallahassee, Florida 32302 Elizabeth L. Eddy, Esquire Carolyn J. House, Esquire Hillsborough County Post Office Box 1110 Tampa, Florida 33601 David Smolker, Esquire Pasco County 4025 Moon Lake Road New Port Richey, Florida 33552 Dorothy Trogolo, Esquire Assistant County Attorney 7530 Little Road New Port Richey, Florida 33553 Mark F. Carpanini, Esquire Polk County Post Office Box 60 Bartow, Florida 33830 Ronald E. Cotterill, Esquire Cotterill, Gonzalez & Fisher 126 Flagship Drive Lutz, Florida 33549 Alton B. Parker, Esquire Steve Reynolds, Esquire MacFarlane, Ferguson, Allison & Kelly Post Office Box 1531 Tampa, Florida 33601 William M. Register, Jr., Esquire Register and Park 625 Twiggs Street Tampa, Florida 33602 Mr. Gerald Rabin 2708 East Stone Terrace Lakeland, Florida 33803 Ms. Debra A. Worley Big Lake Como Lake Association Post Office Box 488 Lutz, Florida 33549 Michelle Russell, Esquire Gerald A. Figurski, Esquire Martin & Figurski Post Office Box 786 New Port Richey, Florida 33552 Joseph A. McGlothlin, Esquire Enola R. Brown, Esquire Lawson, McWhirter, Grandoff & Reeves Post Office Box 3350 Tampa, Florida 33601 Mr. Donald W. Rairigh Paradise Lakes Condominium Homeowners Association Post Office Box 750 Land O' Lakes, Florida 33539 Timothy G. Hayes, Esquire Cotterill, Gonzalez & Fisher 126 Flagship Drive Lutz, Florida 33549 James V. Lau, Esquire Mary A. Lau, Esquire Lau, Lane, Piper & Asti, P.A. Post Office Box 838 Tampa, Florida 33601-0838 Margaret J. Bowles, Esquire Taub & Williams Post Office Box 3430 Tampa, Florida 33601 Robert S. Wise, Esquire 304 Northwood Drive Lutz, Florida 33549 John E. Lund, Esquire Cicero, Lund & Williams, P.A. 707 Franklin Street Mall Tampa, Florida 33602 John Radey, Esquire Aurell, Fons, Radey & Hinkle Post Office Drawer 11307 Tallahassee, Florida 32302 Lynn H. Townsend, Esquire Holland & Knight Post Office Box 1288 Tampa, Florida 33601 Ms. Anne Thomas 3416 Almeria Avenue Tampa, Florida 33629 Charles R. McCoy, Esquire Department of Natural Resources 3900 Commonwealth Blvd. Suite 1003 Tallahassee, Florida 32303 Dan R. Stengle, Esquire Game and Fresh Water Fish Commission 620 S. Meridian Tallahassee, Florida 32301 Philip S. Bennett, Esquire Department of Transportation Haydon Burns Bldg. MS 58, Room 562 Tallahassee, Florida 32301 J. Roger Howe, Esquire Public Service Commission Fletcher Building 101 East Gaines Street Tallahassee, Florida 32301 Van B. Cook, Esquire Pinellas County 315 Court Street Clearwater, Florida 33516 Bennett L. Rabin, Esquire Harold H. Goldman, P.A. 10020 South Federal Highway Port St. Lucie, Florida 33549 Mr. Will James Shephard 14037 N. Dale Mabry Highway Tampa, Florida 33618 Ms. Nancie Poole 17 Eagle Lane Lutz, Florida 33549 Mr. John E. Greenslade 2901 Barcelona Street Tampa, Florida 33629 Lucius M. Dyal, Jr., Esquire Shackelford, Farrior, Stallings & Evans Post Office Box 3324 Tampa, Florida 33601 S. Cary Gaylord, Esquire Brigham, Moore, Gaylord, Schuster & Sachs 501 E. Kennedy Blvd. Tampa, Florida 33602
Findings Of Fact Each of the Petitioners and the Intervenor in these consolidated cases are duly certificated telephone companies operating in the State of Florida subject to the jurisdiction of the Florida Public Service Commission under Chapter 364, Florida Statutes. These telephone companies, and others operating in the State of Florida, provide for the division of intrastate toll revenues through bilateral written agreements ("toll settlement agreements") between each of these companies and Southern Bell. There are apparently 16 of these separate bilateral toll settlement agreements between Southern Bell and other telephone companies operating in the State of Florida. Each of these agreements is on file with the Public Service Commission as required by law. Under these agreements each of the small telephone companies periodically report to Southern Bell their costs an revenues associated with intrastate long distance calls. Southern Bell then determines each company's share of the revenue pool generated pursuant to the intrastate toll settlement agreements, and effects the distribution of funds by sending a check to some companies and a bill to others. The amount credited or charged to individual telephone companies by Southern Bell is based at least in part on the "rate of return" language contained in each company's agreement with Southern Bell. Each toll settlement agreement contained in the record in this proceeding contains the following identical "rite of return" provision: Rate of Return--the rate of return to be applied to the intrastate average investment base will be the intrastate rate of return achieved by the Bell Company for the study period calculated in a manner consistent with the investment and cost items included in [the individual telephone company's] cost study. On May 21, 1982, the Public Service Commission issued its Order No. 10813 entitled "Notice of Proposed Agency Action" which, in part, recited the aforementioned faces and, further, under the heading "Policy Determination" set, forth the following: Upon review of these agreements, the Commission concludes that the Basis of Settlement renders these agreements to the public interest because it creates an inequitable system of cross-subsidization among local subscribers of the telephone companies. Rates are set prospectively for telephone companies based on expenses and revenues experienced during an approved test year. Sufficient revenues must be generated from services to allow the utility to achieve on its investment the rate of return authorized in the rate case. However, the settlement agreement distributes the tolls on the basis of a rate of return other than the company's authorized rate of return, i.e. on Southern Bell's achieved rate of return. As a result a company automatically will be either overearning or underearning with respect to toll revenues, depending on whether its authorized rate of return is lesser or greater than Southern Bell's achieved rate of return. If the company is overearning on the toll revenues, then revenues generated by local services will be reduced a corresponding amount. But if the company is underearning on the toll revenues, then revenues generated by local service will have to be increased to make up the difference. Because the toll revenues being distributed to the local companies are from a common pool, ratepayers of these 'underearning' companies are subsidizing the ratepayers of the 'overearning' companies. This is inequitable and contrary to the basic thrust of ratesetting as embodied in Chapter 364. Therefore we conclude that the current basis of distributing toll revenues renders the agreements detrimental to the public interest. Thus, the Commission hereby gives notice of its proposal to disapprove all settlement agreements as detrimental to the public interest that they provide for cross-subsidization among ratepayers. To not be detrimental to the public interest, toll settlement agreements must provide for settlements that do not create such cross-subsidization among the local ratepayers of the various companies. To avoid such cross-subsidization, the toll settlement agreements must compensate each company for its cost of providing intrastate toll service. This cost of service includes the cost of capital, as well as operating expenses, taxes, and investments. With respect to the equity component of the cost of capital, the return on equity must recognize the financial leverage of the company. If this proposed agency action is not protested as provided for in Chapter 25-22, F.A.C., and as explained below, the Commission will issue an order constituting final agency action disapproving all toll settlement agreements effective 30 days from the date of the order. This order will in addition direct the companies to modify the agreements and to submit the modified agreements to the Commission for review within that 30 days. The modification of the settlement agreement will result in the loss of revenues to some companies, and the gain of revenues to financial impact of this redistribution to ensure that companies do not overearn or underearn as a result of this action. This proposed agency action addresses only the detrimental effect of using the Bell Company's achieved rate of return, and no other aspects of the settlement agreements. (Emphasis added.) On May 28, 1982, the Public Service Commission caused to be published in the Florida Administrative Weekly the following notice: NOTICE is hereby given that pursuant to Section 364.07, Florida Statutes, the Public Service Commission has issued proposed agency action to disapprove all existing agreements for the division of intrastate toll revenues, on the ground that they are detrimental to the public interest because they provide for cross-subsidization among ratepayers. If by June 11, 1982, the Commission does not receive from an affected person a petition on proposed agency action, as provided in Chapter 25-22, FAC, then the proposed agency action will become final agency action. A copy of the proposed agency action may be obtained from the Commission Clerk, 101 East Gaines Street, Tallahassee, Florida 32301. It is undisputed that the Public Service Commission did not prepare an economic impact statement in conjunction with the issuance of its "Notice of Proposed Agency Action", the Commission otherwise follow the procedural requirements contained in Section 120.54, Florida Statutes, concerning the adoption of a "rule." By Final Order dated April 22, 1982, in Division of Administrative Hearings' Case Nos. 81-2201R and 81-2202R, Diane D. Tremor, Hearing Officer with the Division of Administrative Hearings, declared a rule proposed by the Public Service Commission pursuant to Section 364.07, Florida Statutes, invalid on the grounds that it failed to contain any finding that toll settlement agreements were detrimental to the public interest, and further, that the proposed rule invalidly attempted to prescribe the mechanics to be followed by telephone companies in dividing monies contained in the intrastate toll revenue pool.
Findings Of Fact Petitioner, Ora Green, is Black and a resident of the State of Florida. Respondent, General Cable Company, Tampa Plant, is a Division of Penn Central Corporation, a corporation licensed to do business in the State of Florida. It is incorrectly designated as General Cable Technologies, Incorporated, in the caption of this case. From 1982 to 1984 Respondent was engaged in the manufacture of telephone cords (also known as cord sets). Petitioner was employed by Respondent as an assembly line operator in the Cord Set Department from October 11, 1982 until November 18, 1982. During her employment Petitioner was employed as a probationary employee under the labor agreement in effect between Local 79, International Brotherhood of Teamsters and the Respondent. The probationary period was for an employee's initial 45 days of employment., During the probationary period, employees are held more accountable for their work performance and Company standards are applied more firmly to them. During part of the relevant time period, Petitioner worked on a press in the Cord Set Department which is a machine used for the purpose of pressing plastic plugs on either end of a cord set and testing the cord set for acceptability. Petitioner received adequate training on the press and during the time period from November 15 through November 18, 1982 was fully qualified to operate the press and test cord sets in accordance with Company procedures. During the relevant time period, quality control and efficiency in the Cord Set Department were the primary concerns of the Respondent. Efficiency involved the quantity of product thought to be good produced per shift. Quality control, which was considered even more important, involved the number of defective products counted among the product thought to be good. Respondent's customers had very high standards. One, Western Electric, would reject, and on one occasion has rejected, an entire 120,000 count lot shipment because of just six defects. During the relevant time period, Alice Moore was employed by Respondent as the Quality Control Assurance Inspector working on the same shift as Petitioner. Moore was a non-supervisory rank and file employee covered by the labor agreement between the Company and the Teamsters Union. On Monday, November 15, 1982, Moore observed Petitioner take a cord which had been tested by the press as a reject and put it in the receptacle for good cords. Petitioner knew or should have known that the cord had been tested as a reject. When the press testing mechanism detects a defective cord, a red light shines instead of a green light and a loud buzzer sounds. The testing mechanism was working properly at the time, and Moore heard the buzzer standing some 15 feet away. It was a Company policy to check the work of a cord set employee on a 100% basis (test each and every cord for acceptability) when there was a reason to believe that such a check was necessary for quality control purposes. Based on Moore's observation on November 15 that Petitioner placed a defective cord in the bin for good cords, Petitioner's work for November 15, 1982 was checked 100%, revealing ten defective cords in the bin for good cords. Petitioner's work for November 16 was also checked 100%, revealing three additional defective cords in the good cord receptacle. At the outset of her shift on Wednesday, November 17, Petitioner was informed by her supervisor, Hank Huhn, of the rejects found in her work for November 15 and 16 and, further that if any more bad cords were found in her good work she would be terminated. Petitioner's work for Wednesday, November 17, was checked 100% with three more defective cords found in the good cord receptacle. On Thursday, November 18, Petitioner was terminated by Huhn for poor quality of work. The reason Respondent terminated Petitioner was the presence of defective cords in the bin Petitioner represented to Respondent contained cord of good quality. It had nothing to do with Petitioner's "efficiency," i.e., quantity of product in the "good" bin, either on November 15, 16, 17 or any other day of Petitioner's employment with Respondent. There is insufficient evidence to support the allegation of Petitioner that co-employees Alice Moore and Barbara Bell, also a non-supervisory rank and file employee, deliberately placed bad cords in Petitioner's good cord receptacle in order to jeopardize Petitioner's employment. Even if such a scheme existed between Moore and Bell, there is insufficient evidence to support a finding that such scheme was racially motivated. Even if such a scheme existed between Moore and Bell, Petitioner herself does not claim, and there was no evidence, that any management personnel of Respondent knew of or participated in any such scheme or plot. As of January 27, 1983 Respondent had a total of 193 employees of whom 45 (23.4%) were minorities and of whom 23 (11.9%) were Black. In the Cord Set Department as of November 15, 1982, there were 51 employees of whom 12 (23.5%) were Black. Based on the 1980 Census population figures and the 1970 Census population ratios, the percentage of Blacks in the work force in Hillsborough County was 12.5% and in the population as a whole was 13.4%. During 1982, eight employees were terminated from the Cord Set Department during their probationary period of whom three (37.5%) were black and four (50%) were white.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief filed-by Petitioner, Ora Mae Green, in this case. DONE and ORDERED this 23rd day of December, 1985, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearing The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of December, 1985. APPENDIX Respondent's proposed findings of fact are accepted as essentially accurate except for paragraph 21 (See paragraph 21 of the Findings of Fact for the factual inaccuracies based on the record). All of Respondent's proposed findings of fact are incorporated in the Findings of Fact except that the first sentence of paragraph 3 is rejected as a conclusion of law. Petitioner did not propose findings of fact and is not entitled to explicit rulings on proposed findings of fact. See Island Harbor Beach Club, Ltd. v. Department of Natural Resources, 10 FLW 2338 (Fla. 1st DCA, Oct. 10, 1985). However, Petitioner can be assured that each and every point she has raised has been considered and addressed, directly or indirectly, by the Recommended Order. Many of the points Petitioner has raised are irrelevant. They assume Respondent purported to fire Petitioner for "inefficiency." As explained in the Recommended Order, "inefficiency" was not the reason Respondent fired Petitioner. To the contrary, Petitioner was fired for violating Respondent's quality control standards by ignoring the cord press testing mechanism and putting bad cord in the receptacle for good cord. Although the Recommended Order addresses the factual issues raised by the alleged plot or scheme between Respondent's employees, all those issues are themselves irrelevant. Petitioner did not even allege, much less prove, that any of Respondent's management participated in, knew of or should have known of the alleged plot or scheme. COPIES FURNISHED: Prince A. McIntosh, Esquire Bay Area Legal Services, Inc. 700 Twiggs Street, Suite 800 Tampa, Florida 33602 Rody P. Biggert, Esquire Seyfarth, Shaw, Fairweather & Geraldson 55 East Monroe Street Chicago, Illinois 60603 Betsy Howard Clerk of the Commission Florida Commission on Human Relations 325 John Knox Road Bldg. F, Suite 240 Tallahassee, Florida 32303 Dana Baird, General Counsel Florida Commission on Human Relations 325 John Knox Road Bldg. F, Suite 240 Tallahassee, Florida 32303 ================================================================ =
The Issue Whether proposed rules 25-4.300 ("Scope and Definition"); 25-4.301 ("Applicability of Fresh Look"); and 25-4.302, ("Termination of Local Exchange Contracts"), Florida Administrative Code, known as "The Fresh Look Provision," constitute an "invalid exercise of delegated legislative authority".
Findings Of Fact Telecommunications carriers/providers may "wear different hats," dependent upon what function they are performing at a given time. Local exchange carriers are abbreviated "LECs" in the proposed rules. For purposes of this case only, Time Warner is an Alternative Local Exchange Carrier ("ALEC") and GTE and BST are Incumbent Local Exchange Carriers ("ILECs"). Both types of companies provide local telephone service over the public switch network. On February 17, 1998, Time Warner filed a Petition to Initiate Rulemaking. Time Warner's Petition requested that the Commission adopt what it described as a "Fresh Look" rule, under which a customer a/k/a "patron" a/k/a "end user" of an ILEC who had agreed to a long-term, discounted contract would have an opportunity to abrogate that ILEC contract without incurring the liability to the ILEC which the customer had agreed to, so that the customer could then enter a new contract with an ALEC. On at least one prior occasion, the Commission had elected to reach a similar result by a Final Order, rather than by enacting a rule. This time, the Commission granted Time Warner's Petition, and the Commission began the rulemaking process. Other states have adopted "Fresh Look" rules or statutes with varying degrees of success. The legislative, administrative, or litigation histories of these extraterritorial matters are immaterial to the rule validity issues herein, which are governed by Chapter 120, Florida Statutes. Those histories are likewise non-binding on this forum. The Commission has no way of identifying, let alone notifying, ILEC contract customers as a separate class of the public or as a separate class of potentially interested parties. However, the public, including customers and carriers, received the required statutory notice(s) at each stage of the rulemaking process, and only the following dates and occurrences have significance within the rulemaking process for purposes of the issues herein. A Notice of Rulemaking Development was published in the Florida Administrative Weekly on April 3, 1998. Commission staff held a Rule Development Workshop on April 22, 1998. Based on information received from carriers in response to staff data requests, the rules as proposed April 3, 1998, were revised by staff. On March 4, 1999, staff recommended that the revised rules be adopted by the Commission. At its Agenda Conference on March 19, 1999, the Commission set the rulemaking for hearing. On March 24, 1999, the Commission issued a Notice of Rulemaking, which included further revisions to the proposed rules. The Commission received a letter from JAPC dated April 28, 1999 ("the JAPC letter") which stated, in pertinent part: Article 1, Section 10 of the Florida Constitution prohibits the passage of laws impairing the obligation of contracts. Inasmuch as the rules effectively amend the terms of existing contracts, please reconcile the rules with the Constitution. The JAPC letter was not placed into the rulemaking record, responded-to by the Commission, or specifically addressed on its merits by any interested parties. Interested parties did not find out about it until many months later. A rulemaking hearing on the proposed rules was held before the Commission on May 12, 1999. Interested persons submitted written and oral testimony and comments at the hearing. No customer with a contract that would be affected by these rules participated in the rulemaking proceedings, including the hearing, before the Commission. At no time did anyone formally submit a lower cost regulatory alternative, but it was clear throughout the rulemaking process that Petitioners herein opposed the adoption of the proposed rules. Two Statements of Estimated Regulatory Cost ("SERCs") were prepared by Commission staff. The proposed rules were further revised after the May 12, 1999, hearing. On November 4, 1999, Commission staff issued a recommendation that the Commission adopt the latest rules draft, in part on the basis that the proposed rules will implement the "regulatory mandates" of Section 364.01, Florida Statutes, that the Commission should "promote competition by encouraging new entrants" and "encourage competition through flexible regulatory treatment among providers of telecommunication services." Attached to this recommendation was a revised SERC, dated September 13, 1999. The September 13, 1999, SERC addressed the alternative of not adopting the proposed rules, and found such an alternative was not viable because it would not foster competition. In preparing both SERCs, Commission staff relied solely on market share data for analyzing competition and did not fully account for revenues to which ILECs were contractually entitled, but which potentially could be unilaterally cancelled by the ILEC customer as a result of the proposed rules. Staff did not ask for such data for estimating cost of the proposed rules to the ILECs. At its November 16, 1999, Agenda Conference, the participation of interested parties was limited to addressing the new SERC. During this Agenda Conference, the Commission revised the rules further, limiting the contracts affected by them to contracts entered into before July 1, 1999, and voted to approve the proposed rules as revised. The exact language of the proposed rules under challenge, as published in the December 3, 1999, Florida Administrative Weekly, pursuant to Section 120.54(3)(d), Florida Statutes, is as follows: PART XII - FRESH LOOK: 25-4.300 Scope and Definitions. Scope. For the purposes of this Part, all contracts that include local telecommunications services offered over the public switched network, between LECs and end users, which were entered into prior to June 30, 1999, that are in effect as of the effective date of this rule, and are scheduled to remain in effect for a least one year after the effective date of this rule will be contracts eligible for Fresh Look. Local telecommunications services offered over the public switched network are defined as those services which include provision of dial tone and flat-rated or message-rated usage. If an end user exercises an option to renew or a provision for automatic renewal, this constitutes a new contract for purposes of this Part, unless penalties apply if the end user elects not to exercise such option or provision. This Part does not apply to LECs which had fewer than 100,000 access lines as of July 1, 1995, and have not elected price-cap regulation. Eligible contracts include, but are not limited to, Contract Service Arrangements (CSAs) and tariffed term plans in which the rate varies according to the end user's term commitment. The end user may exercise this provision solely for the purpose of obtaining a new contract. For the purposes of this Part, the definitions to the following terms apply: "Fresh Look Window" - The period of time during which LEC end users may terminate eligible contracts under the limited liability provision specified in Rule 25- 4.302(3). "Notice of Intent to Terminate" - The written notice by an end user of the end user's intent to terminate an eligible contract pursuant to this rule. "Notice of Termination" - The written notice by an end user to terminate an eligible contract pursuant to this rule. "Statement of Termination Liability" - The written statement by a LEC detailing the liability pursuant to 25-4.302(3), if any, for an end user to terminate an eligible contract. 25-4.301 Applicability of Fresh Look. The Fresh Look Window shall apply to all eligible contracts. The Fresh Look Window shall begin 60 days after the effective date of this rule. The Fresh Look Window shall remain open for one year from the starting date of the Fresh Look Window. An end user may only issue one Notice of Intent to Terminate during the Fresh Look Window for each eligible contract. 25-4.302 Termination of LEC Contracts. Each LEC shall respond to all Fresh Look inquiries and shall designate a contact within its company to which all Fresh Look inquiries and requests should be directed. An end user may provide a written Notice of Intent to Terminate an eligible contract to the LEC during the Fresh Look Window. Within ten business days of receiving the Notice of Intent to Terminate, the LEC shall provide a written Statement of Termination Liability. The termination liability shall be limited to any unrecovered, contract specific nonrecurring costs, in an amount not to exceed the termination liability specified in the terms of the contract. The termination liability shall be calculated as follows: For tariffed term plans, the payments shall be recalculated based on the amount that would have been paid under a tariffed term plan that corresponds to the actual time the service has been subscribed to. For CSAs, the termination liability shall be limited to any unrecovered, contract specific nonrecurring costs, in an amount not to exceed the termination liability specified in the terms of the contract. The termination liability shall be calculated from the information contained in the contract or the workpapers supporting the contract. If a discrepancy arises between the contract and the workpapers, the contract shall be controlling. In the Statement of Termination Liability, the LEC shall specify if and how the termination liability will vary depending on the date services are disconnected pursuant to subsections (4) and (6). From the date the end user receives the Statement of Termination Liability from the LEC, the end user shall have 30 days to provide a Notice of Termination. If the end user does not provide a Notice of Termination within 30 days, the eligible contract shall remain in effect. If the end user provides the Notice of Termination, the end user will pay any termination liability in a one-time payment. The LEC shall have 30 days to terminate the subject services from the date the LEC receives the Notice of Termination. (Emphasis provided only to facilitate the following discussion of "timed" provisions) "Tariff term plans" or "tariffed term plans" are telecommunication service plans in which the rate the customer pays depends on the length of the service commitment. The longer the service commitment the customer makes with the company, the lower the monthly rate will be. Ninety-eight percent of the contracts affected by the proposed rules are tariff term plans filed with the Commission. Contract service arrangements (CSAs) have many functions. By tariff term plans and CSAs, carriers and their customers formalize a negotiation whereby the customer signs-on for service for an extended period, in exchange for lower rates than he would get if he committed to shorter periods or under the regular tariff. Both tariff term plans and CSAs are subject to the Commission's regulatory oversight. No reason was given for use of the "included but not limited to" language added in the rules' current draft. The Commission has published that the "specific authority" for the proposed rules is Sections 350.127(2) and 364.19, Florida Statutes. The Commission has published that the "law implemented" by the proposed rules is Sections 364.19 and 364.01, Florida Statutes. The proposed rules would allow customers of ILECs, including Petitioners GTE and BST, to terminate their contracts and tariffed term plans for local exchange services without paying the termination liability stated in those contracts and tariffs. Instead, customers would only be required to pay the ILEC "any unrecovered, contract specific nonrecurring costs" associated with the contracts. (Proposed rule 25-4.302(3)(b)). For tariffed term plans (but not contracts), termination liability would be recalculated as the difference, if any, between the amount the customer paid and the amount he would have paid under a plan corresponding to the period during which he actually subscribed to the service. (Proposed rule 25- 4.302(3)(a)). The "Fresh Look" rule applies to agreements entered into before June 30, 1999, and that remain in effect for at least one year after the date the rule takes effect. (Proposed rule 25-4.300(1)). The window for contract termination starts 60 days after the rules' effective date and lasts for one year thereafter. (Proposed rule 25-4.301). In the case of ILEC customers who may exercise the "opt-out early" (termination) provisions of the proposed rules, the proposed rules would provide the ILECs with the compensation they would have received if the contracts had been made for a shorter period than for the period of time for which the parties had actually negotiated. The proposed rules clearly modify existing contracts. Indeed, they retroactively impair existing contracts. It may reasonably be inferred that the retroactive elimination of the respective durations of the existing contracts would work to the detriment of any ILECs which have waived "start up costs" on individual contracts or which planned or invested in any technological upgrades or committed to any other business components (labor, training, material, development, expansion, etc.) in anticipation of fulfilling the contracts and profiting over the longer contract terms legally entered-into prior to the proposed rules. The purpose of the proposed rules, as reflected in the Commission's rulemaking notices, is to "enable ALECs to compete for existing ILEC customer contracts covering local exchange telecommunications services offered over the public switched network, which were entered into prior to switch-based substitutes for local exchange telecommunications services." However, the Commission now concedes that switch-based substitutes for the ILECs' local exchange services were widely available to consumers prior to June 30, 1999, the date provided in the proposed rule. At hearing, the Commission asserted that it is also the purpose of the proposed rules to actively encourage competition, and that by proposing these rules, the Commission deemed competition to be meaningful or sufficient enough to warrant a "fresh look" at the ILECs' contracts, but not so widespread that the rules would not be necessary. In effect, the Commission made a "judgment call" concerning the existence of "meaningful or sufficient" competition, but has not defined "sufficient" or "meaningful" competition for purposes of the proposed rules. The Commission's selection of June 30, 1999, as the cut-off date for contract eligibility was motivated primarily by a concept that using that date would render approximately 40 percent of existing ILEC contracts eligible for termination. The rulemaking process revealed that the terms of so- called "long-term" agreements range from six months to four years in duration. The Commission selected a one-year term for eligible contracts subject to the proposed rules as a compromise based on this spread of actual contract durations. The one-year window of opportunity in which a customer will be permitted to terminate a contract was selected by the Commission as a compromise among presenters' views expressed during the rulemaking process. The one-year window is to be implemented 60 days after the effective date of the rule to avoid the type of problems incurred when a "fresh look" was previously accomplished by a Commission Order and to allow the ILECs and ALECs time to prepare. Tariffed term plans were developed as a response to competition and have been used at least since 1973. As early as 1984, the Commission had, by Order, given ILECs authority to use CSAs for certain services, upon the condition that there was a competitive alternative available. The Commission has long been aware of the ILECs' use of termination liability provisions in CSAs and tariff term plans, including provisions for customer premises equipment (CPE), and has not affirmatively determined that their use is anticompetitive, discriminatory, or otherwise impermissible. Private branch exchanges (PBXs), which are switches, competed with the ILECs' Centrex systems for medium- to large- size business customers and key telephone systems for smaller businesses, from the early 1980's, as recognized by a Commission Order in 1994. Commission Order No. PSC-94-0285-FOF-TP, dated March 3, 1994, in Docket No. 921074-TP, permitted a "fresh look" for customers of LEC private line and special access services with terms equal to, or greater than, three years. Customers were permitted a limited time to terminate their existing contracts with LECs to take advantage of emerging competitive alternatives, such as alternative access vendors' (AAVs') ability to interconnect with LECs' facilities. Termination liability of the customer to the ILEC was limited to the amount the customer would have paid for the services actually used. Prior to 1996, only ILECs could offer dial tone service, which enables end users to communicate with anyone else who has a telephone. Chapter 364, Florida Statutes, Florida's telecommunication statute, was amended effective January 1, 1996, to allow ALECs to operate in Florida. ILECs had offered tariffed term plans and CSAs for certain services before the 1996 revision of Chapter 364, Florida Statutes, but effective 1996, substantial amendments allowed the entry of ALECs into ILECs' markets. The new amendments codified and expanded the ILECs' ability to use CSAs and term and volume discount contracts in exchange for ILECs losing their exclusive local franchises and deleted statutory language requiring the Commission to determine that there was effective competition for a particular service before an ILEC could be granted pricing flexibility for that service. Tariff filings before the amendments had required Commission approval. The federal Telecommunications Act of 1996 also opened the ILECs' local exchange markets to full competition and imposed upon the ILECs a number of obligations designed to encourage competitive entry by ALECs into the market, including allowing ALECs to interconnect their networks with those of ILECs; "unbundling" ILEC networks to sell the unbundled elements to competitors; and reselling ILEC telecommunications services to ALECs at a wholesale discount. See 47 U.S.C. Section 51 et seq. "Resale" means taking an existing service provided by a LEC and repackaging or remarketing it. The requirement that ILECs resell their services, including contracts and tariffed term plans, to competitors at a wholesale discount, has been very effective in stimulating resale competition, but to resell or not is purely an internal business decision of each ALEC. For instance, Time Warner has elected not to be involved in "resales," and is entirely "facility based." Since 1996, competing carriers could and do sell additional (other) services to customers already committed to long-term ILEC contracts. They may also purchase ILEC CSAs wholesale at discount and resell such agreements to customers. Market share data demonstrates that there has been greater ALEC competition in Florida since the 1996 amendments, but typically, ALECs target big cities with denser populations and denser business concentrations. There is no persuasive evidence that any of the affected ILEC contracts (those post-June 30, 1999) were entered into by customers who did not have competing alternatives from which to choose. In fact, testimony by Commission staff supports a finding that since LECs' CSAs are subject to Commission review and their service tariffs are filed with the Commission, the Commission has not authorized CSAs unless there was an "uneconomic bypass" or competition. "Uneconomic bypass" occurs where a competitor can offer service at a price below the LEC's tariffed rate but above the LEC's cost. The Commission presented an ILEC customer, Mr. Eric Larsen of Tallahassee, who testified that he had had the benefit of competition, not necessarily from an ALEC, when he had entertained a bid from a carrier different from his then-current ILEC in 1999. However, at that time, he renegotiated an expiring contract with his then-current ILEC instead of with the competitor. This renewal contract with an ILEC would not be affected by the proposed rules. Business customers, such as Mr. Larsen, may reasonably perceive business trends. They could reasonably be expected to have factored into their negotiations with competing carriers at the time the contracts were formed that a potential for greater choices would occur in the future, even within the life of their long-term contracts with an ILEC. As of 1999, 80 ALECs were serving Florida customers, 100 more had expressed their intention of serving Florida before the end of the year 2000, and ALECs had obtained some share of the business lines in many exchanges. While this does not mean that every area of Florida has every service, it is indicative of a spread of competition. Petitioner GTE is anchored in the Tampa Bay area. By June 30, 1999, the date expressed in the proposed rules, nine facilities-based competitors were in the same geographic area. One ALEC (MCI) was serving 10,000 lines. Competitors operated 20 switches and 83 percent of the buildings in GTE's franchise area were within 18,000 feet of a competitor's switch. However, in most cases, GTE's CSA or tariff term agreements had been successful against specific competing bids for the respective services. Market share data showed that by June 30, 1999, Petitioner GTE had executed 101 agreements allowing ALECs to provide service by inter-connecting their networks with GTE's networks, reselling GTE's services, and/or taking "unbundled" parts of GTE's network. While market share data is not conclusive, in the absence of any better economic analysis by the Commission or other evidence of existing ALEC presence or of a different prognosis for ALEC penetration, market share is at least one indicator of the state of competition when the contracts addressed by the proposed rules were entered into. The Commission has no data about how many customers currently opt-out of their ILEC contracts prior to natural expiration and pay the termination liability to which those ILEC agreements bind them in order to accept a competing offer from another carrier, but clearly, some do. This evidences current competition. Competing carriers can and do sell to ILEC customers at the natural expiration of their long-term agreements. This evidences current competition. The Commission has no data predicting how many more customers would opt-out if the proposed rules are validated. Therefore, the presumption that "if we publish a rule they will come" is speculative. Likewise the Commission's presumption that customers regard termination liability provisions in ILEC contracts as a barrier to their choices and a bar to competition was not proven. Some of the factors that went into that presumption were speculative because the Commission has not reviewed the termination liability provisions of Petitioners' contracts and has offered no evidence of formal complaints to the Commission by customers who want to opt-out of ILEC contracts. "Informal communication" with Commission staff by customers was undocumented and unquantified. The Commission did present the testimony of Mr. Larsen who explained that because he needs to keep the same business telephone number, he feels that it is not economically feasible for him to opt-out of his several overlapping ILEC contracts unless he can synchronize all his existing contract termination dates and that the proposed "fresh look" rules would permit him to do that. However, his testimony provided no valid predictor that even if the termination of all his existing ILEC contracts were enabled by the proposed rules he would, in fact, be able to find a competitor in his area whose contract(s) were more to his liking. The proposed rules, with their arbitrary date of June 30, 1999, would not allow Mr. Larsen to terminate, without liability, the one ILEC contract he entered into after that date. (See Finding of Fact No. 47). Based on his sincere but unfocused testimony, it remains speculation to presume that Mr. Larsen would be willing to incur contractual liability by early termination of his single non-qualifying ILEC contract just because the proposed rules would let him "opt-out" of the several qualifying ILEC contracts. It is indicative of the proposed rules' possible effect on future competition that Mr. Larsen speculated that if he could terminate all his qualifying ILEC contracts simultaneously under the proposed rules, he might be able to persuade a competitor, perhaps an ALEC, to pay his termination costs on his single non- qualifying ILEC contract if he renegotiated all his business away from his ILEC and to that competitor. The introduction of the proposed rules into the market place could create a "competitive edge" not anticipated by the Commission. Other carriers, including ALECs competing with ILECs, can and do enter into contracts with their customers which, like the contracts which would be affected by the proposed rules, are long-term contracts subject to termination liability, but the long-term contracts of carriers other than ILECs would not be affected by the proposed rules. The proposed rules pertain only to ILECs and their business customers. In effect, the proposed rules apply predominantly to ILECs' large business customers. Under the proposed rules, competitors which had originally bid against the ILECs for an affected contract at the time it was entered-into could get "a second bite at the apple" occasioned solely by the application of the proposed rules.
The Issue Whether or not the Respondents, Henry Adkins and Sharon Adkins, are guilty of committing an act which constitutes fraud or dishonest dealings, for events on or about February 2, 1976, by charging Joseph Scozzafava for a (1) 1,000 ohm resistor 2 watt, when in fact it was not replaced; in violation of Section 468.159(1)(d), Florida Statutes. Whether or not the Respondents, Henry Adkins and Sharon Adkins, are guilty of committing an act which constitutes fraud or dishonest dealings, for events on or about February 2, 1976, by charging Joseph Scozzafava for a "Rebuilt Tuner", when in fact the work was not performed; in violation of Section 468.159(1)(d), Florida Statutes. Whether or not the Respondents, Henry Adkins and Sharon Adkins, are guilty of committing an act which constitutes fraud or dishonest dealings, for events on or about February 2, 1976,by charging Joseph Scozzafava for replacement of two (2) 6GH8 tubes, when in fact they were not needed; in violation of Section 468.159(1)(d) , Florida Statutes. The charging document in this cause, to wit, the Notice to Show Cause, had originally charged Henry Adkins and Sharon Adkins with the failure to identify the State Registration on invoice #3078 dated January 3, 1976, as required by Rule 7B-2.12(b), Florida Administrative Code. This count of the Notice to Show Cause was voluntarily dismissed by the Petitioner at the commencement of the hearing.
Findings Of Fact This cause comes on for consideration based upon the Notice to Show Cause of the Petitioner, which is complaint No. 108000-51 before the Petitioner, State of Florida, Department of Business Regulation, Division of General Regulation. The complaint is addressed to the Respondents, Henry Adkins and Sharon Adkins, his wife, who trade as Lauderdale Lakes T.V. and is directed to the following business entities owned by Henry Adkins or Henry Adkins and Sharon Adkins. The corresponding numbers which are reported here pertain to the license numbers assigned by the Petitioner to Henry Adkins or Henry Adkins and Sharon Adkins. Those licenses are for All-State T. V., No. 5079; Tower T.V., No. 6108; Lauderdale Lakes T.V., No. 5069; Inter-City T.V., No. 2895; X-Ray T.V., No. 2914; and M & H Electronics., No. 4854. Henry Adkins appears as the owner on all licenses. Sharon Adkins appears as the co-owner on the license for M & H Electronics, No. 4854. Before presenting the case for consideration, the parties entered into these factual stipulations: The Division of Administrative Hearings has jurisdiction to consider this case. The Notice of Hearing in this cause is timely. Henry Adkins is listed in the six licenses referred to above and each of those licenses have a mailing address of 3504 NW 10th Avenue, Fort Lauderdale, Florida 33309. In addition, those licenses referred to above and the ownership stated are correct as to the existence of the entity, the ownership and the number assigned to the various entities by the Petitioner. The invoice of Lauderdale Lakes T.V., No. 3078, is authentic. The State of Florida, Department of Business Regulation, Division of General Regulation is the owner of a 1972 RCA color television which is the subject of this case. Three television tubes, to wit: two 6GH8 tubes, and one 6-CB6 tube are the property of the State of Florida, Department of Business Regulation, Division of General Regulation. Joseph Scozzafava is not the owner of the subject 1972 RCA color television, nor was the money paid for the repair of the said television money of Mr. Scozzafava. The invoice referred to above may be found as Petitioner's Exhibit No. admitted into evidence. The television set is Petitioner's Exhibit No. 2 admitted into evidence, and the three tubes are Petitioner's Composite Exhibit No. 3 admitted into evidence. In late January, 1976 employees of the Petitioner, operating on complaints, prepared a television set for purposes of ascertaining whether or not the Respondent, Henry Adkins, d/b/a Lauderdale Lakes T.V., was. operating in violation of Chapter 468, Florida Statutes. In furtherance of their investigation they took tile 1972 RCA television set which has been mentioned as being Exhibit No. 2, and played the set for a couple of days to determine whether or not it was in good working order. From an observation point of view, there were no malfunctions during the test period. In the color circuit to include all the major components such as the tuner, transformer, and resistors, all items checked out as operating properly. In addition, 15 tubes within the set were checked by tube fester and the tubes proved to be acceptable. (The tube tester had not been certified.) After checking the set out, Frank Butler, an investigator with the Petitioner and Certified Electronics Technician, overloaded a tube within the color circuit. The specific tube is a 6-CB6 burst amplifier. The effect of overloading this tube was to remove the color from the set, such that it would play only in black and white. The created malfunction in this tube did not have an adverse effect on the other components within the set. The employees of the Petitioner also marked a number of the tubes in the set by crimping the connectors on the tubes by way of identification. An operative 6-CB6 burst amplifier was then inserted in the set and the set was played again for two days, within which time it operated successfully. The Petitioner's employees then contacted one Joseph Scozzafava, an employee with the Department of Business Regulation, Division of Beverage. The purpose of the contact with Scozzafava was to allow him to take the television set owned by the State and to contact Lauderdale Lakes T.V. for purposes of having that organization make repairs on the subject television. The idea was that the defective 6-CB6 tube would he left in the set so that the television only played black and white. When they took the set to Scozzafava in late January, 1976, they showed him that the set operated on all local-stations and then removed the operative 6-CB6 tube and replaced it with the inoperative tube and left that tube in the set. The Petitioner's employees then instructed Scozzafava to call Lauderdale Lakes T.V. to have the repairs effected. To achieve this end, Scozzafava was paid $100.00 by the Petitioner and in turn would write a check from his own account for the amount of the total cost of repairs. The set was picked up from Scozzafava on January 27, 1976. The pickup was made by an employee of the Respondent, Henry Adkins, in a truck listed to the license, Inter-City T.V. The television set was repaired under an invoice of Lauderdale Lakes T.V., a license held by Henry Adkins. That invoice is the Petitioner's Exhibit No. 1 admitted into evidence. The facts repeal that two 6GH8 tubes were replaced by employees of the Respondent, Henry Adkins, and charged to Scozzafava, when it was in fact unnecessary to replace those tubes. Those tubes may be found as part of Petitioner's Exhibit No. 3 admitted into evidence, and when tested subsequent to the time the television set was returned to the employees of the Petitioner, were found to be operable over a period of one or more days arid when played during the course of the hearing, were found to be in good operating condition. The charges and the indication of replacement may be found in the invoice and the invoice was executed by an employee of Henry Adkins, the Respondent. That employee was working for Lauderdale Lakes T.V. The invoice also reflects the replacement of one 1,000 ohm 2 watt resister, when in fact no replacement of the resister occurred. Scozzafava was charged for this item which was not replaced. Finally, there is an indication that the tuner within the set was rebuilt and a charge made to Scozzafava for that service. The Petitioner's employees had placed wax and tape across the shield which covers the inner parts of the tuner and that wax and tape had not been disturbed during the pendency of the time which the set was with the employees of the Respondent. The tuner was not rebuilt, notwithstanding the claim by witnesses of the Respondents, to the effect that certain repairs could have been made to the surface of the tuner without the necessity to remove that shield. The evidence leads to the conclusion that the tuner was not rebuilt. In summary, Scozzafava paid $88.45, to Lauderdale Lakes T.V. from funds provided him by the Petitioner. Of that amount paid, $8.40 was paid for two 6GH8 tubes; $6.25 was paid for the one 1,000 ohm 2 watt resistor which was not installed and $21.00 was paid for rebuilding the tuner, when in fact the tuner was not rebuilt. Some portion of the labor charge of $32.50 went toward these items; however, it is unclear what portion of that charge pertains to those items. As briefly mentioned before, the television set was returned to Scozzafava, who in turn gave it to the Petitioner's employees, who kept the set until such time as the case was brought. Employees of the Respondent, Henry Adkins, driving an Inter-City T.V. truck, returned three tubes, one 6-CB6 and two 6GH8; they did not return a 1,000 ohm 2 watt resister. The balance of the $100.00 paid to Scozzafava for the purposes of assisting the Petitioner was returned to the Petitioner. There was no testimony to the effect that either Henry Adkins or Sharon Adkins were directly involved in the pick-up or repair of the television set. Sharon Adkins was involved in the billing process, based upon a cost estimate given to Scozzafava in the amount of $85.00. Both Respondents indicated that they make a background check of all employees hired, for purposes of determining the employees' integrity. The Respondents, through Sharon Adkins, also indicated that they had made attempts to locate all employees who were involved with the pick-up or repair of the television set and were unsuccessful in locating them due to the death of one employee and the inability through use of a private detective to locate the other individuals. Henry Adkins also indicated that he had fired employees in the last two years because those employees put in unnecessary parts or overcharged for parts. The Petitioner has charged the Respondents with committing acts of fraud and dishonest dealings by charging Joseph Scozzafava for the one 1,000 ohm watt resister; charging him for the rebuilt tuner and replacing the two 6GH8 tubes when in fact they were not needed. To the Petitioner, these acts were in violation of Section 468.159(1)(d), Florida Statutes. That provision reads: "In violation of registration; civil penalties.- The Division may refuse to validate or may invalidate temporarily or permanently the registration of a service dealer for any of the acts or omissions related to the conduct of his business done by himself or any employee, partner, officer, or member of the service dealer; (d) Committing any other act which constitutes fraud or dishonest dealing." By charging for the two 6GH8 tubes that were not needed; by failing to replace the one 1,000 ohms 2 watt resister, and charging for such replacement and for charging to rebuild a tuner which was not rebuilt, the employees of the Respondents are guilty of fraud and dishonest dealing. For those violations and under the exact language of the statute, the Respondents would appear to be guilty of a violation of Section 468.159(1)(d), Florida Statutes. However, the law does not contemplate that an employer is the absolute insurer of all the acts of his or her employees. Absent a showing of direct involvement on the part of the Respondents in the acts which constituted fraud and dishonest dealing, the Petitioner must show negligence or a lack of due diligence by the Respondents, In the Respondents' supervision of the employees who have committed the acts of fraud and dishonest dealing. (See Taylor v. State Beverage Department, 194 So.2d 321 (2nd DCA, 1967).) An isolated incident such as the one in the case under consideration does not satisfy the requirement that the Petitioner show negligence or a lack of due diligence on the part of the Respondents. Therefore, the Petitioner has failed to establish a violation on the parts of the Respondents as it pertains to the electronic service dealer registration Nos. 5069, 5079, 2895, 4854, 6108 and 2914, which are held by Henry Adkins and Sharon Adkins and Henry Adkins, solely. Full consideration has been given to the proposed findings of facts and conclusions of law submitted and when appropriate are incorporated in this Recommended Order.
Recommendation It is recommended that the Notice to Show Cause against Henry and Sharon Adkins, which is recorded as complaint No. 108000-51, pertaining to electronic service deal registration Nos. 5069, 5079, 2895, 4854, 6103 and 2914 be DISMISSED. DONE AND ENTERED this 30th day of June, 1978, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Richard E. Gentry, Esquire Staff Attorney State of Florida, Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32304 Robert D. Hurth, Esquire 2425 East Commercial Boulevard Marwayne Office Plaza, Suite 101 Fort Lauderdale, Florida 33308
The Issue Whether Respondent committed an unlawful employment practice.
Findings Of Fact Respondent, American Cable Systems of Florida, Ltd., d/b/a Continental Cablevision of Broward County (Continental), is a supplier of cable television services. Petitioner, Daniel J. Cellucci (Cellucci), filed an application for employment as a Service Technician I with Continental on or about January 13, 1993. Cellucci gave the receptionist at Continental his completed application form, his resume, and letters of reference. Bernard Dorsett (Dorsett) and Richard Jacobi (Jacobi), both Supervisors of Technical Operations at Continental, shared the responsibility for interviewing applicants for the position of Service Technician I. Dorsett called Cellucci and set up an interview. Cellucci was interviewed by Dorsett and Jacobi on January 15, 1993. During the interview, Cellucci wore a back brace underneath a loose fitting shirt. Dorsett and Jacobi explained the requirements and the benefits of the position to Cellucci. It was standard practice of Continental to show all applicants a copy of the position description during the interview. Dorsett showed Cellucci a copy of the position description for a Service Technician I during the interview. The position description listed the following as essential job functions of a Service Tech I: Monitors customer's reception and radio frequency with test meters to ensure cable is in proper working condition. Replaces any or all parts of drop as necessary to resolve customer problems or leaks, back to the line extender. Makes necessary adjustments and repairs to equipment to resolve customer problems or leaks. Handles difficult or confrontational customer situations tactfully. The position description required that the applicant possess the following skills: Ability to lift and climb 70 pound ladders, ability to climb a pole and work at heights up to 25 feet, basic mathematics skills, good verbal and written communications skills. Needs tack and ability to handle difficult customers. Ability to crawl, bend, stoop, crouch. The 70 pound ladder, which is used by a Service Technician I throughout his workday, is transported to the job site on top of a service van. In order to remove the ladder from the top of the service van, the Service Technician I must lift the ladder from the top of the service van. The Service Technician I then carries the ladder to the location where the work is to be performed and puts the ladder in position. In addition to being able to lift a 70 pound ladder, a Service Technician I must be able to lift spools of cable which weigh from 25 to 50 pounds. Service Technician I's work alone. Being able to lift up to 70 pounds is an essential function of the job of a Service Technician I. Based on his past experience in the cable industry, Cellucci knew that he would have to be able to lift ladders which could weigh up to 70 pounds in order to carry out the functions of a Service Technician I. Sometime during the interview, Cellucci voluntarily advised Dorsett and Jacobi that he had a back problem and provided them with a letter dated January 4, 1993, from his treating physician, Dr. George Bonis. The letter stated, "Lifting is limited to 25 pounds at the present time and he should be able to change positions between standing, walking and sitting at will." At the time of the interview, Cellucci could lift more than 25 pounds; however he did not advise either Jacobi or Dorsett that he could lift more than 25 pounds at that time. Cellucci did advise them that he was undergoing physical therapy, that he was improving and that he expected the lifting restriction to be a temporary one. At the time of the interview Cellucci, Jacobi, and Dorsett, viewed Cellucci's lifting restrictions to be temporary. Neither Dorsett nor Jacobi perceived Cellucci's back injury or his lifting restrictions to be a disability. On January 30, 1993, Dr. Bonis discharged Cellucci. Cellucci was able to lift more than 70 pounds at the time he was discharged. Additionally, he was no longer required to wear the back brace which he had worn during his interview. He did not advise anyone at Continental that he no longer had a lifting restriction after he was discharged by Dr. Bonis. Cellucci was not hired because he could not meet the 70 pound lifting requirement. Cellucci's back injury does not limit one or more major life activities. When asked at hearing whether his disability prohibited him from doing any major life activities, Cellucci replied, "None whatsoever. In fact I work out on a day-to-day basis. I run every evening, I swim." In June of 1993, Cellucci became employed as a sales manager for Inter-Continental at a rate of pay of $17.00 per hour plus commissions. In November of 1993, Petitioner became a full-time student and became employed by Production Arts at a rate of pay of $10.00 per hour. In that job, Cellucci currently lifts objects which weigh up to 200 pounds.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered denying Daniel Cellucci's claim of handicap discrimination against American Cable Systems of Florida, Ltd., d/b/a Continental Cablevision of Broward County. DONE AND ENTERED this 29th day of August, 1994, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of August, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-1614 To comply with the requirements of Section 120.59(2), Florida Statutes (1993), the following rulings are made on Respondent's proposed findings of fact: Respondent's Proposed Findings of Fact. Paragraph 1: The first part of the paragraph is accepted in substance. The second half of the paragraph is rejected as constituting a conclusion of law. Paragraphs 2-12: Accepted in substance. Paragraph 13: The first sentence is accepted in substance. The remainder of the paragraph is rejected as unnecessary. Paragraph 14: The first sentence is accepted in substance. The remainder of the paragraph is rejected as subordinate to the facts actually found. Paragraphs 15-17: Rejected as unnecessary. Paragraphs 18-31: Accepted in substance. COPIES FURNISHED: Sharon Moultry, Clerk Commission on Human Relations 325 John Knox Road, Building F, Suite 240 Tallahassee, Florida 32303-4149 Dana Baird General Counsel Commission on Human Relations 325 John Knox Road, Building F, Suite 240 Tallahassee, Florida 32303-4149 Ronald Renzy, Esquire Ronald Thomas Spann, Esquire 1600 Southeast 17th Causeway, Suite 414 Ft. Lauderdale, Florida 33316 William C. Thomas, III, Esquire 120 East Robinson Street Orlando, Florida 32801
